Ship master's business guide. Letters of protest

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					                              Letters of Protest. User’s Manual.
                                   Igor Sterzhantov@2010-12




                       Letters of protest. User’s Manual

Table of Contents
Letters of protest. User’s Manual.....................................                                  1
Introductory Note.....................................................                                  1
Legal value of letter of protest......................................                                  2
Specific aspects......................................................                                  3
  i)   when not countersigned ........................................                                  3
  ii)  lack of clarity ...............................................                                  4
  iii)   evidence against master .....................................                                  4
Express provisions in charterparty....................................                                  4

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Introductory Note
Any master knows what letter of protest is or, at the very least, supposed to know when such letter
shall be issued. Generally, there is no any restriction to issue a letter of protest, rather the contrary,
master usually encouraged and sometimes instructed to serve letter of protest whenever he thinks
necessary.

It can be noted in passing, that letters of protest is not a modern invention and was known long
since. Already in the eighteenth century master’s protest was treated only as a paper containing the
account of the loss given by the captain. Sixty years later1 the following definition of a marine protest
and protests in general, was given:

        A Marine Protest is a declaration or narrative, by the master, of the particulars of the voyage,
        of the storms or bad weather which the vessel may have encountered, the accidents which
        may have occurred, and the conduct which, in cases of emergency he had thought to pursue.

        With whatever formalities drawn up, it cannot be received in our Courts as evidence for the
        master or his owners; but it may be evidence against him and them, and he should take care
        to supply from the log-book, his own recollection, and that of the mate, or trustworthy
        mariners, true and faithful instructions for its preparation. Protests are often of great utility
        in matters connected with the adjustment of losses in marine insurance and in the calculation
        of averages; they are received as evidence in foreign Courts, and with us credit is often given
        to their contents by merchants and underwriters, when free from all circumstances of
        suspicion2.

        Protests are also made by the master against the charterers of the ship or the consignees of
        the goods, for loading or unloading the vessel pursuant to contract, or within reasonable or
        stipulated delays; and by the merchant against the master, for misconduct, drunkenness, etc.,
        for not proceeding to sea with due despatch, for not signing bills of lading in the customary
        form, and other irregularities.
This definition, at least in sense if not in form, remains valid today. Therefore the first thing to
remember is that a letter of protest, strictly speaking, is not a legal document but a paper containing
1
  A Treatise of the Law Relative to Merchant Ships and Seamen, Lord Tenterden, 10 ed.,
1856, p.285
2
  Rundle v Beaumont (1828) 4 Bing. 537



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                              Letters of Protest. User’s Manual.
                                   Igor Sterzhantov@2010-12


an account of the events or statement of facts, describing current situation or consequences of some
wrongful act or acts, which had happened usually contrary to master’s or crew efforts. For example,
when during cargo operation something beyond the master’s control has gone wrong and the master
is unable to make it right, like interruption from shore side of loading or discharging operation,
neglect cargo handling, violation of safe working practice, etc. Obviously, the said act or occurrence
should be of such importance that master feels himself obliged to bring it to attention of all parties
concerned, either for some immediate action or for future reference, but it still lacks of any legal
effect being a document produced by one side to defence its own position.

Legal value of letter of protest
It was (and in some countries still exist) a common practice in England to draw up letter or notes of
protest in the form of a notarial protest as a declaration of the accidents. But in view that the Courts
do not take judicial notice of a. notary's seal, or accept a notarial certificate as evidence of the facts
certified this practice became generally abandoned nowadays.

Very important to understand that although being not a legal document a letter of protest
still has a certain legal value because it is treated as admissible evidence in the courts of
justice.

It is necessary to explain here that, when dispute goes either to arbitration or to the court, the parties
discuss, on preliminary stage of this process, what evidence they mutually agree to be permitted for
submission before the judge from the each side. Letters of protest usually form a part of such
evidence. Generally, there is no sense to restrict radically evidential material provided by the
opponent party, because then for the judge it would be very difficult to form his opinion and define
its basis. Outcome of such judgment would be doubtful and result will be or at least might be
challenged in another court. Litigation, being a long and extremely costly business, no party is
interested in its extension and final uncertainness.

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DOCUMENT INFO
Description: Any master knows what letter of protest is or, at the very least, supposed to know when such letter shall be issued. Generally, there is no any restriction to issue a letter of protest, rather the contrary, master usually encouraged and sometimes instructed to serve letter of protest whenever he thinks necessary. There are several issues: Shipping practice, Letters of protest, Legal value of letter of protest, Specific aspects, when not countersigned, lack of clarity, evidence against master, Express provisions in charterparty