Letters of Protest. User’s Manual. Part I

[The] protest was merely … a paper containing the account of the loss given by the captain … it could not be read on behalf of the defendant to prove any fact in the case.
Per Grose J in Senat v Porter [1797] EngR 358; (1797) 7 TR 158 at p.159

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 later the following definition of a marine protest and protests in general, one could meet in old text books on English shipping law(hereafter this article examines position existing under English law):

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 suspicion (see as to log-books Rundle v Beaumont (1828) 4 Bing. 537).

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 (read more about Legal Document) but a paper containing 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. Therefore some companies adopt Statement of Facts title instead of Letter of Protest.

The following instances, when something beyond the master’s control has gone wrong and the master is unable to make it right, such as interruption of cargo operation from shore side, neglect cargo handling, violation of safe working practice, etc. may prompt captain to issue LOP. Obviously, the said 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.

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Readers’ comments:

Posted by: Ian MacLean, LLM, MBA, MNI, 2 August 2014

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(the protest) lacks of any legal effect being a document produced by one side to defence its own position.
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I think a little care should be exercised here. The legal effect of a protest is dependent upon the jurisdiction. There are jurisdictions, they are required by law and hold a great legal importance.
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