Letters of Protest. User’s Manual. Part II admissible evidence

Among the papers which are requisite in the support and corroboration of the [accidents], the sea protest is the most important. The master, or the navigator, is bound in the first twenty-four hours after his arrival in a port, to note his protest before a notary, or his consul; that is, to record the circumstantial account of the accidents occurred, and to protest against them. After a time the record is extended by the master’s procuring a narrative to be extracted from the ship’s journal or log-book, and attested by a notary, and sworn to by some of the ship’s crew, particularly the officers; and a protest against the circumstances referred to, attached to it In many countries great regard is had to the necessity of noting a protest.
Laws of the Sea: With Reference to Maritime Commerce During Peace and War, by Friedrich Johann Jacobsen, 1818.

Legal value of letter of protest

It was (and in some countries still exist) a common practice in England to draw up letter or note of protest in the form of a notarial protest as a declaration of the accidents, so called Sea Protest (see quotation above). But in view that, contrary to the previous practice, the courts nowadays 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 now.

It is 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 the 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.

Therefore both sides may and usually do agree to treat the letters of protest as admissible evidence, subject to the right reserved to each party to submit in the court that these letters should be given no or limited weight and, in some cases, to consider that they are untrue. So, the letters are admitted but either party has a right to contend them untrue or no weight. Because all protests usually singed ‘for receipt only’ this task is of no great difficulty.

Pausing here for a moment one must apprehend that each side of litigation likes to prove its own set of facts related to the matter at issue. The vessel, for instance, was delayed, but why it was delayed and who will pay the cost of delay – depends on ability of either side to prove its own facts – i.e. the owner’s case, for example, may be that the charterers failed to discharge in time and the charterer may defend that the vessel’s equipment was defective. The judge, who shall decide either for one side or for another, when assessing facts as represented by both parties will certainly prefer the most consistent and accurate records, never mind if signed ‘for receipt only.’

Another very important thing to bear in mind is that, the task of commercial judge or arbitrator is not to establish what facts are true and what facts are not, but to reach positive findings (i.e. conclusions), if necessary on the balance of probabilities, using that evidential basis which he or she has. One of the most civilised and balanced judges of the 20th century - Lord Wilberforce once described this process in the following words:

…the task of the court is to do … justice between the parties … There is no higher or additional duty to ascertain some independent truth. It often happens, from the imperfection of evidence, or the withholding of it, sometimes by the party in whose favour it would tell if presented, that an adjudication has to be made which is not and is known not to be, the whole truth of the matter; yet if the decision has been in accordance with the available evidence, and with the law, justice will have been fairly done.

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