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Agreement between the Government of Canada and the Government of the People's Republic of China on Maritime Transport [1997] CATSer 8 (4 April 1997)

E101585 - CTS 1997 No. 7

AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA ON MARITIME TRANSPORT

THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA, (hereinafter referred to as "the Contracting Parties");

DESIRING to further develop the friendly relations and promote bilateral trade between the two countries;

WISHING to strengthen the cooperation in the maritime field; and

DESIRING to ensure the efficient and smooth maritime transport and open access to harbours and ports;

ON THE BASIS of equality and mutual benefit;

HAVE CONCLUDED the present Agreement as follows:

ARTICLE 1

Definitions

For the purposes of this Agreement, unless otherwise stated:

1. "Agreement" means this Agreement, any Annex attached thereto, and any amendments to the Agreement or to any Annex.

2. "Company" means any maritime transport economic entity registered in the territory of either Contracting Party and / or having a commercial presence in that Contracting Party, and engaged in the operation of vessels in international maritime transport in accordance with the laws and regulations of that Contracting Party. The operation of vessels means that the company assumes responsibility for the vessel operationally, financially and legally. Company also means joint ventures and subsidiaries.

3. "Member of the crew" means any person performing, or who will perform, duties or services on board vessels of one Contracting Party during the voyage, who hold the identity documents referred to in Article 13 of this Agreement and whose names are included in the crew list of that vessel.

4. "Vessels" mean the merchant ships which are engaged in international maritime transport and registered in the territory of either Contracting Party or operated by companies of either Contracting Party. This term excludes warships, fishing vessels and other vessels engaged in non-commercial shipping.

ARTICLE 2

Scope of Application

1. The provisions of this Agreement shall apply only to international maritime transport serving either Contracting Party. When vessels of one Contracting Party sail between the ports of the other Contracting Party open for foreign vessels and serving international trade to unload cargo from foreign countries or load cargo for abroad, it shall also be within the scope of this Agreement. The same applies to passenger transport.

2. The vessels of each Contracting Party are entitled to sail between those harbours and ports of both Contracting Parties which serve international trade and are open for foreign vessels, and to transport passengers and cargo either between both Contracting Parties or between either Contracting Party and any Non-Contracting Party. Any further ports which become open for foreign vessels shall be automatically open to the vessels of the Contracting Parties engaged in the international maritime trade.

3. The provisions in this Article do not affect the right of vessels of any Non-Contracting Party to transport passengers and cargo between the Contracting Parties.

ARTICLE 3

Standards of Treatment

1. Each Contracting Party shall accord to vessels of the other Contracting party treatment no less favourable than that it accords to vessels of any other country in respect of:

(a) access to ports;

(b) use of berths, port facilities and services;

(c) loading/unloading cargoes and completing necessary port formalities;

(d) embarking/disembarking passengers;

(e) transshipment;

(f) payment of port dues and charges;

(g) use of navigation facilities and services.

2. The provisions of this Article do not apply to:

(a) treatment granted by either Contracting Party to any other country resulting from the membership of either country in a customs union or free trade area;

(b) treatment conferred or accorded to adjacent countries in order to facilitate exchanges in contiguous frontier zones.

ARTICLE 4

Measures to Facilitate Maritime Traffic

The Contracting Parties shall, within the limits of their respective national laws and port regulations, facilitate and expedite maritime traffic, prevent unnecessary delay to vessels, and expedite and simplify as much as possible customs and other formalities required in ports. The Contracting Parties recognize the rights and obligations arising from membership in memoranda of understanding on port state control.

ARTICLE 5

Mutual Recognition of Documents of Vessels

1. Each of the Contracting Parties shall recognize the nationality and documents of vessels as defined in paragraph 4 of Article 1.

2. Vessels of one Contracting Party having valid International Tonnage Certificates issued under the International Convention on Tonnage Measurement of Ships, 1969 and recognized by the other Contracting Party, shall not be remeasured in the port of the other Contracting Party. All port charges based on the tonnage of a vessel shall be calculated and collected on the basis of these documents.

ARTICLE 6

Subsidiaries, Representative and Branch Offices

Companies of each Contracting Party may establish their representative offices, subsidiaries and / or branch offices in the territory of the other Contracting Party in accordance with the applicable laws and regulations of the other Contracting Party and the subsidiary and branch office may engage in business activities under the laws and regulations of the other Contracting Party.

ARTICLE 7

Representatives

1. Companies of one Contracting Party shall be allowed, on the basis of reciprocity, to bring into and to maintain in the territory of the other Contracting Party their representatives and commercial, operational and technical staff as required in connection with the operation of international maritime transport services.

2. These staff requirements may, at the option of the companies of one Contracting Party, be satisfied by its own personnel or by using the services provided by any other organization or company operating in the territory of the other Contracting Party, and authorized in accordance with the laws and regulations of the other Contracting Party to perform such services in the territory of that Contracting Party.

3. The representatives and staff shall be subject to the laws and regulations in force in the other Contracting Party, and, consistent with such laws and regulations:

(a) each Contracting Party shall, on the basis of reciprocity and with the minimum of delay, grant the necessary employment authorizations, visitor visas or other similar documents to the representatives and staff referred to in paragraph 1 of this Article; and

(b) both Contracting Parties shall facilitate and expedite the requirement of employment authorizations for personnel performing certain temporary duties.

ARTICLE 8

Taxes

1. Provisions regarding the taxation of residents of either Canada or the People's Republic of China are made in the Agreement between the Government of Canada and the Government of The People's Republic of China for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income, signed at Beijing on 12 May 1986 (in this Article referred to as the "Taxation Agreement"). Nothing in this Agreement shall affect those provisions.

2. The Contracting Parties agree that the business taxation, computed on the basis of revenue, of companies or vessels engaged in international maritime transport of either Contracting Party, shall be determined as if the Taxation Agreement applied to such taxation.

ARTICLE 9

Settlement and Transfer of Funds

In accordance with the applicable laws and regulations of the other Contracting Party, income of companies of one Contracting Party derived from international maritime transportation in the territory of the other Contracting Party shall be settled in freely convertible currencies. Such income may be used for the payment of charges incurred in the territory of the other Contracting Party or freely converted and remitted on demand.

ARTICLE 10

Maritime Accidents and Incidents

1. If any vessel of either Contracting Party becomes a maritime casualty or suffers any accident, the Contracting Party in whose jurisdiction the accident or incident occurs shall inform the other Contracting Party as soon as possible. Contracting Parties shall give all possible assistance and attention to the vessel, crews, cargo and passengers in danger.

2. The vessel which has suffered an accident or incident, its cargo, equipment, fittings, stores and other articles from it, provided that they are not delivered for use or consumption in the territory of the other Contracting Party, shall be exempt from customs duties or other taxes of any kind imposed upon, or by reason of, their importation.

3. Each Contracting Party shall cooperate with the accident investigation authorities of the other Contracting Party, and each Contracting Party shall encourage vessel owners and operators to participate fully in accident or incident investigation.

4. Nothing in this Article shall prejudice any claim in respect of any assistance and attention given to a vessel, crews, cargo and passengers.

ARTICLE 11

Maritime Security

1. Consistent with their rights and obligations under international law, the Contracting Parties reaffirm that their obligations to each other to protect the security of international maritime transport against acts of unlawful interference form an integral part of this Agreement.

2. Without limiting the generality of their rights and obligations under international law, the Contracting Parties shall in particular act in conformity with the provisions of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, and the Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, both done at Rome March 10, 1988, and any other multilateral agreement governing maritime security and binding upon both Parties.

ARTICLE 12

Dangerous Goods

Vessels of either Contracting Party carrying dangerous, hazardous or noxious substances shall observe adequate precautionary measures to prevent, diminish or control pollution of the environment of both Contracting Parties as established for such vessels by relevant provisions in international conventions and the national laws and regulations of the Contracting Parties.

ARTICLE 13

Identity Documents of Members of the Crew

1. Each Contracting Party shall recognize the identity documents of the members of the crew which are issued by the competent authorities of the other Contracting Party. These identity documents include:

(a) in the case of Canada, the Seafarer's Identity Card or Passport;

(b) in the case of the People's Republic of China, the Seaman's Book of the People's Republic of China.

2. Identity documents issued by the competent authorities of any Non-Contracting Party in accordance with their regulations shall be valid as identity documents for members of the crew from those countries working on board vessels of either Contracting Party, including members of the crew from any Non-Contracting Party beginning or terminating their engagement on a vessel, provided that they satisfy the domestic provisions of the Contracting Party with regard to their recognition as passports or passport replacements.

3. In accordance with their respective relevant laws and regulations, the Contracting Parties shall grant a members of the crew with identity cards referred to in paragraph 2 of this Article the treatment laid down in Article 14 of this Agreement.

ARTICLE 14

Entry and Stopover of the Members of the Crew

1. Subject to the relevant laws of the two Contracting Parties, a member of the crew holding the identity document referred to in Article 13 of this Agreement:

(a) may go ashore for temporary shore leave without a visa during his vessel's stay at the port of the other Contracting Party provided the captain of that vessel submits a crew list to the port authority in accordance with the relevant regulations in force in that port. A sick member of the crew may go ashore for medical treatment without a visa, but the cost of all medical treatment shall be paid by the beneficiary.

(b) may enter, travel within or leave, as the case may be, the territories of either Contracting Party as passengers by any means of transport, in relation to the commencement or termination of engagement on a vessel as a member of the crew, in order to arrange for travel home, to join a vessel, or for any other reason acceptable to the competent authorities of the respective Contracting Party after the member of the crew has been issued with a visa. Those authorities shall grant the visa as soon as possible.

2. Both Contracting Parties reserve the right to refuse the entry of a member of the crew who does not meet its requirements.

3. Contracting Parties agree that the master or the representative of the company of one Contracting Party shall immediately report to the relevant authorities of the other Contracting Party, prior to the vessel departing a port of the other Contracting Party, any incident of the failure of a member of the crew to rejoin that vessel.

ARTICLE 15

Application of Laws

1. Vessels of one Contracting Party, their members of the crew, passengers and cargoes are subject to the relevant laws and regulations of the other Contracting Party during their stays in the territorial sea or ports of the other Contracting Party.

2. Subject to the provisions of Paragraph 1 of this Article, the authorities of one Contracting Party shall not interfere in the internal affairs on board vessels of the other Contracting Party. Internal affairs shall not include any conduct which constitutes a violation of the criminal law of the Contracting Party in whose territory the offence takes place. In the event of any interference, authorities involved will endeavour to expeditiously inform the relevant consular authority or company representative of the action taken.

3. In the application of its customs, immigration, quarantine and similar regulations, each Contracting Party shall accord vessels of the other Contracting Party treatment no less favourable than it accords to vessels of any other country engaged in similar international transport services, and shall provide, on the basis of reciprocity and to the extent allowed under their laws and policy, treatment no less favourable than that accorded to its own vessels.

ARTICLE 16

International Rights and Obligations

1. This Agreement does not affect the rights and obligations of either Contracting Party arising from international agreements or from the Contracting Party's membership in international organizations.

2. If a multilateral agreement concerning international maritime transport comes into force in respect of both Contracting Parties, and there are provisions which are in conflict with this Agreement, the Contracting Parties shall hold a consultation in accordance with Article 18 of this Agreement. However, the provisions of the aforesaid multilateral agreement shall prevail until a conclusion be reached between the Contracting Parties.

ARTICLE 17

Transparency

Each Contracting Party shall respond promptly to the other Contracting Party in respect to its requests for specific information on any measures affecting the operation of this Agreement.

ARTICLE 18

Consultations

1. With a view to assuring full implementation of this Agreement and facilitating international maritime transportation services between their two countries, the competent authorities of the Contracting Parties shall, where necessary and upon request by either Contracting Party, meet to settle matters arising from the implementation of this Agreement. Such consultations shall begin as soon as possible, and in any event, within 120 days of the request, unless otherwise mutually agreed.

2. For the purposes of this Article, the competent authorities are:

(a) the Department of Transport of Canada;

(b) the Ministry of Communications of the People's Republic of China.

3. In the case of any changes to the names of the competent authorities, the Contracting Parties shall make the necessary notification through diplomatic channels.

ARTICLE 19

Amendments to the Agreement

1. If either Contracting Party considers it is desirable to amend the terms of this Agreement, it may request, by written notice through diplomatic channels, consultations with the other Contracting Party for the purpose of amending this Agreement. Such consultations shall begin as soon as possible, and in any event, within 120 days of the request, unless otherwise mutually agreed.

2. Agreed amendments shall come into force as soon as they have been confirmed through an exchange of Diplomatic Notes between the Contracting Parties.

ARTICLE 20

Entry into Force and Termination/Abrogation

1. This Agreement shall enter into force on the date of signature.

2. This Agreement may be terminated or abrogated by either Contracting Party by giving written notice through diplomatic channels. Termination and abrogation shall take effect six months after the date of such notice.

ARTICLE 21

Titles

Titles used in this Agreement are for reference purposes only.

IN WITNESS WHEREOF, the undersigned, duly authorized thereto by their respective Governments, have signed the present Agreement.

DONE in duplicate at Vancouver, on this 4th day of April 1997, in the English, French and Chinese languages, each version being equally authentic.

David Anderson

FOR THE GOVERNMENT OF CANADA

Huang Zhendong

FOR THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA