Letters of Protest. User’s Manual. Part III - Specific aspects

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.

i) when LOP is not countersigned

From all the above mentioned it can be inferred that in circumstances when shore side refuses to acknowledge by signature the letter of protest, value of such protest is close to zero. The ship’s side cannot persuade or force representative of shore facility to countersign their letters of protest, but in this case ship’s agent must sign it, to witness that mentioned in the letter events or facts actually took place. When submitted to the arbitrator or to the court, such document will, at the very least, point out on those facts or events described in it, although it will be open for the arbitrator or the court to ignore any inferences it may propose.

Since master’s conclusions or his vision of liability apportionment will not be considered by the court, it is very important to refrain from subjective assessment but state clearly and chronologically all facts, event and times as and when they happened. It will help to reconstruct the scene in the future and will indicate to a proper and systematic way of record keeping, which usually one of the factors that speak on quality of evidence. The arbitrator or the judges when assessing reliability of evidence, among other things, takes into account its clarity and consistency.

ii) lack of clarity

Letter of protest may actually be related or assigned to almost any activity on board, i.e. cargo, stores and bunker handling, equipment or machinery failure, navigation, safety, local regulations, etc. In practice, such letters are being abundantly issued and counter-issued by various parties participating in the common maritime adventure. This industrious productivity in combination with little understanding of anticipated effect and value of LOP, contribute to situation when content of such documents is usually blurred with general phrases vaguely alleging that someone is to be responsible for something. Such unintelligible documents produce no positive effect at all.

Common sense.

As a rule of the thumb, to hold someone, person A for example, responsible for something, it is necessary first of all to establish that person A had an obligation with regard to this ‘something’. In simple words a failure or wrongdoing of person A or company which he/she represents should be within obligations which they contracted to perform. For example, it is usually senseless to hold the charterers responsible for the damage caused by third party independent contractors, such as tug boats, pilots or bunker barge because, generally, charterers do not take such responsibility under voyage charter and therefore they are under no obligation to compensate ship owners.

Similarly, to hold the charterers responsible for non-availability of pilot or insufficiency of tugs is often useless because all these irregularities are seldom within charterers’ control, generally outside of their duties under charterparty and usually, together with all other matters related to safe navigation, such as delays for tides, weather, night time restrictions, etc., are risks which the shipowner undertakes to bear (read more about Distribution of Risks).

Unintelligible documents produce no or negative effect.

Decision of the High Court in Kassiopi Maritime Co Ltd v Fal Shipping Co.Ltd (The Adventure) [2015] EWHC 318 (Comm) (19 February 2015) is a vivid illustration of destructive effect caused to demurrage claim by incomprehensible wording of Letter Of Protest.

In that case owners claimed demurrage in the amount of US$ 364,847.78 as a result of delays at both the load port, Sitra, and the discharge port, Port Sudan totaling 21 days 13 hours and 48 minutes. To support their demurrage claim, owners submitted copies of Notice of Readiness, Statement of facts, pumping log for discharge port and Letters of Protest. The Arbitration Tribunal found that a number of the Letters of Protest at Sitra referred to delays or stoppages "recorded in port log/time sheets". Since there were no such documents within those supporting demurrage claim, the charterers argued that they are not liable for demurrage. They based their argument on assumption that as per charterparty the port logs and timesheets were required to be presented as important evidence supporting demurrage claim.

Vessel was chartered under amended BPVOY4 form, where clause 20 provided that:

20.1 Charterers shall be discharged and released from all liability in respect of any claim for demurrage, deviation or detention which Owners may have under this Charter unless a claim in writing has been presented to Charterers, together with all supporting documentation substantiating each and every constituent part of the claim, within ninety (90) days of the completion of discharge of the cargo carried hereunder.

The owners contended that port log/time sheets were not required in this case as all the information required for the purpose of the demurrage claim was set out in the signed Statement of Facts. Assumingly standard form of Letter of Protest used by the master mentioned port log and time sheet forms as generic titles of the document where all times and delays are recorded by the master. But in fact master used a document titled as Statement of Facts, not port log/time sheet, albeit containing similar information.

Nevertheless, both the Arbitration Tribunal and, on appeal by the owners, the High Court held that the port logs and timesheets were required to be presented. Thus, it was decided that all supporting documentation was not provided as required by the clause 20, with the consequence that the claim for demurrage was rejected.

iii) evidence against master

Whether the evidence be direct or circumstantial it must be confined to the facts in issue or to facts whose connection with the facts in issue is obvious and not too remote. So evidence of facts unconnected with the facts in issue, however similar, is not generally admissible.

Such situation may come up when there is a big shortage as between ship’s and bill of lading figures but the master nevertheless signs bill of lading under the protest. Analysis of this situation based on the legal principle of fraudulent representation. In simple language it can be summarised as follows: a bill of lading is a document of title, i.e. it represents the goods itself. Cargo receivers pays for the goods thought the letter of credit on presentation of bill of lading, he has no knowledge about discrepancies in the port of loading and he does not see letter of protest. He relies on statements made in bill of lading as true when signed by the master. Therefore the master commits fraud against the cargo receiver when he signs bill of lading knowing that description of the goods as presented in this bill of lading is not true. Letter of protest then, serves as an evidence against the master, because it clearly states that the master knew about false figures but signed bill of lading which he must not have signed.

A letter of protest, in some circumstances, may evidence against the master.

Such situation may come up when there is a big shortage as between ship’s and bill of lading figures but the master nevertheless signs bill of lading under the protest. Analysis of this situation based on the legal principle of fraudulent representation. In simple language it can be summarised as follows: a bill of lading is a document of title, i.e. it represents the goods itself. Cargo receivers pays for the goods thought the letter of credit on presentation of bill of lading, he has no knowledge about discrepancies in the port of loading and he does not see letter of protest. He relies on statements made in bill of lading as true when signed by the master. Therefore the master commits fraud against the cargo receiver when he signs bill of lading knowing that description of the goods as presented in this bill of lading is not true. Letter of protest then, serves as an evidence against the master, because it clearly states that the master knew about false figures but signed bill of lading which he must not have signed.

The only solution in situation described above is that the master shall never sign such bill of lading. For more information on this subject: Bill of Lading Date and Cargo Quantity Statements and North of England P&I Loss prevention briefing paper.

iv) timely submitted

Some protests, such for example, as one of short-loading must be accompanied by testimony or evidence on the owners side indicative that any demand for additional or full cargo was made prior to the completion of loading, i.e. cargo request must be submitted to the loading terminal stating amount of cargo vessel demands to be loaded.

Share this article on:


Readers’ comments:

Posted by:   

Be first to comment …
Leave your questions and comments here
:
:

Although author encourages visitors to leave their comments using this form, but if you unable or unwilling to use it for any reason you can forward your mail to info@lawandsea.net to contact with him.