Letter of protest

 
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.

In the middle of the nineteenth century in Abbot on Shipping, 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… 
 
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. So, a letter of protest is not a legal document. It is a report or statement of facts which led to situation when something beyond the master’s control has gone wrong and the master is unable to make it right, but has to bring it to attention of all parties concerned either for some immediate action or for future reference. It actually may 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 issued and counter-issued by various parties participating in common activity. 

First thing to know and remember, is 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.

In simple words, when dispute goes either to the arbitrator or to the court, on preliminary stage of this process, the parties discuss what evidence they agree to be submitted before the judge from 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 when dispute arises the parties may (and usually do) agree to treat the letters of protest as admissible evidence subject to the right to submit that these letters should be given no or limited weight and indeed, in some cases, 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.

The trick is that each side of litigation tries to prove its own set of facts related to the common 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.’

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. 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. 

The second point is that some charter parties expressly provide for certain requirements related to documentation in general and letters of protest in particular.

For example, ‘the charterers will not consider any claim by Owners for additional time used in the absence of the provision by Owners of the certain documentation’.

This documentation may slightly vary from charter to charter but, for instance, for contracts concluded on Beepeevoy 3 and Beepeevoy 4 forms the following documents required: an hourly pumping log, signed by a responsible officer of the Vessel and a terminal or Charterers’ representative, showing the pressure maintained at the manifold throughout discharge and, in the absence of a signature from a terminal or Charterers’ representative, a Note of Protest; copies of all Notes of Protest issued or received by the Vessel in relation to the discharge in question; and copies of any other documentation generated by the Vessel or by the shore receiving terminal relevant to the discharge in question.

Thus, absence of letter of protest as required by charterparty may render demurrage claim against the charterers unenforceable.

Many standard forms of charterparties have additional clauses. As an example of such clause also illustrating modern trend to specifically regulate legal issues related to transportation of liquid cargoes with high hydro sulfide content one can consider BP H2S AND MERCAPTANS CLAUSE.

Among the other things it says:

(I) REQUESTS SHORE SIDE H2S READINGS IN LIQUID /VAPOUR AND A MSDS FROM THE TERMINAL BEFORE LOADING THE SAID CARGO AND PROMPTLY PROVIDES COPIES OF THE SAME TO CHARTERERS AND SHALL ISSUE A NOTE OF PROTEST IF THE H2S READINGS AND / OR MSDS ARE NOT PROVIDED BY THE TERMINAL; AND

Requirements listed above, if not fulfilled, may affect the owners’ ability to defend themselves in instances when discharging of high H2S cargo is banned or suspended in environmentally sensitive port. (Read more about Safety, practical and legal aspects of handling cargoes with high H2S content)

It is important to realise that if in cases when no particular requirements as to letters of protest stipulated in the charter, omittance to issue LOP will seldom, if ever, have any direct negative consequences to the owners, in cases of non-compliance with express instructions mentioned in charterparty such non-compliance is itself a breach of the said charterparty and will most probably result in payment of damages if the charterers sustain any loss as a consequence of this breach. 

Finally, 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 simplified form it can be summarised as follows: a bill of lading is a document of title, i.e. it represents the goods itself (read more about Bll of Lading here). Cargo receiver 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 the 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 (incorrect) 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 himself as presented. For more information and practical advices on this subject read North of England P&I Loss prevention briefing paper here. For more information and practical advice on Date and Cargo Quantity Statements in bills of lading go here. 
 
 
 

Write a Letter of Protest

When you feel something is wrong, you can make a change by letting your voice be heard about what needs to be corrected. A great way of doing that is to write a letter of protest. Follow these tips to see how that can be done with ease, effectiveness and grace. 

Related Searches:

Letter ArtApplication Letter

Difficulty: Moderate

Instructions 

1

Research the subject that has caused you to protest. Understand the whole truth behind the situation, and cross-check facts and sources. Being fully in the know helps you compose a letter with ease and authority, and it makes sure that you don't have any incorrect information that you are protesting. When you ask the company their opinion and take on the subject, don't be surprised if they spin you a story that puts them in a great light, no matter how ridiculously far from the obvious truth it is. They often pay publicists to do that sort of thing. 

2

Address the letter like a business letter. Put your name and information in the top, then follow it up with their information underneath. Use a specific person's name to address the letter to when possible. If you are writing to a company, find out the president's name. If you are writing to a judge or others, make sure you have their correct name and spell it correctly. Although a subtle touch, it makes your voice more commanding and sometimes more respected. 

3

Keep the body of your letter short and to the point. The tone should be as friendly as possible under the circumstances, but you don't want any unnecessary sentences. Keep the letter under 300 words when possible. 

4

Focus on one thing at a time that needs changing in your letter. You don't want to protest ten things at once in a letter. Your voice is likely to be muffled and ineffective, as it will seem like a mindless complaint letter. Work on one thing at a time. Once you've made progress or a bit of time has passed, start addressing the next issue with a company or organization. 

5

Proofread and re-write your letter. If you are not great at grammar, have a friend who is look it over. Make sure that the letter comes across as professional and important. 

6

Send the letter via the post office. A delivered letter is less likely to be ignored than a fax or email. 

7

Follow up on sending a similar letter with your concerns if you do not receive a response within three weeks. Make sure to include the fact that you have been waiting to hear from them within the first paragraph. This letter should also be short and to the point. Re-state the facts in a more simple and concise way.