Non-conformity of the data about cargos on board of the sea-going vessel and master’s responsibility

• Shipping

Which consequences may the citizen of Ukraine – foreign vessel master face in case of detecting undeclared fuels or lubricants by customs offices at the Ukrainian sea port in the process of customs formalities?

Our experts are engaged quite often in case proceedings on breach of customs regulations regarding non-conformity of the data about cargos and transport, withdrawal and seizure of goods (Articles 472, 483 of the Customs Code of Ukraine).

First, it should be noted that solely natural persons shall bear responsibility for breach of customs regulations in Ukraine; therefore, in similar cases the first task of customs office is to identify the person who will bear responsibility for such breach and to draft the protocol on breach of customs regulations. Such protocol shall be drafted against the person charged with such breach who will bear such responsibility (master or other crew members), with granting the right to give its own remarks. If you do not know what to write, you may state that you disagree and will provide your comments later.

Before signing the protocol, vessel master or another person should contact shipowner and to obtain legal assistance. Incident consequences may depend on prompt taking such action, both for the master itself or other crew members and for the crewing company, since any risk of vessel idle stay is extremely essential for such industry as shipping.

Current customs legislation excludes criminal responsibility for such category of breach; so fine and property seizure are treated as the only type of responsibility for breach set forth in the above articles of the Customs Code of Ukraine.

Having analyzed the protocol and certain reasons for its drafting, lawyers may provide a correct legal opinion stating how to act in a similar situation.

As for consequences, anyway, if the court decision confirms the fact of breach and the fault of offender, the appropriate articles prescribe seizure of the property the data whereof are incorrect and inaccurate, jointly with fine amounting to 100% of such property cost. Such decision shall be made by the court of general jurisdiction under customs office location and may be appealed against.

If the court decision entered into legal force but fine remained unpaid, following state enforcement officer’s proposal to pay fine on a voluntary basis, enforcement measures may be taken against the debtor. They include, inter alia, foreclosure against the debtor’s property, i.e. property arrest followed by withdrawal. It should be noted that today enforcement officers have access to all electronic databases about debtors’ property, such as technical inventory bureau registers, land cadasters, inter-district registration and examination departments, state technical authorities and others. Any debtor’s property detected in such databases may be subject to arrest followed by sales procedure.

Also in case of evading enforcement of the court decision, the court may, at the state enforcement officer’s request, consider the issue of restricting the debtor’s leaving abroad outside Ukraine, which is a hot button for seafarers.

In our opinion, the aforesaid consequences are enough for having serious attitude to the issues of potential breach of customs regulations. For our 18-year practice we won a lot of case proceedings against customs offices in such category.

Interlegal strictly recommends for vessel masters to contact immediately the employer for legal assistance, even in case of a small accusation of breach of the law at any sea port worldwide.

Save your money – save your nerves.

Arthur Nitsevych

nitsevych@interlegal.com.ua