‘’Note of Protest’’ is a declaration made by Master at rem, which means, it is a general declaration. ‘Rem’ in Latin means to the world at large. It is not made to a particular person or office. It is made in order to safeguard the owner’s interests. It should be made when there is a possibility of damage or an apprehension of such damage occurring to cargo or ship due circumstances beyond the control of Master e.g. in situations of say encountering heavy weather, touching bottom, etc.
In fact the situation may not be in any one’s control. The contents of NOP should be as brief and as clear as possible. Unnecessary opinions should not be expressed as they may lead to unnecessary complications. Protest should be extendable upon a later date if required. A copy must be forwarded to owners at first convenient time so that relevant parties may be notified. Letter of protest, strictly speaking, may not be a legal document, say for some countries, though, it definitely is a document to support apprehension of unforeseen events or acts which probably had occurred. The events had occurred and could not be prevented in spite of the best efforts by the Master and crew. The NOP definitely provides strength to circumstantial evidences and is a useful tool usable in the defence, provided it is stated truthfully and the facts can be verified. Thus, an arbitrator should not be asking a Master, ”But Captain, you never protested about the matter?”.The NOP is supported by the log entries, weather report etc and has name and signatures of witnesses in addition to the Master’s signature. NOP must be made within 24 hours of arrival prior opening of hatches and be notarized duly.
A ship Master should note a protest at least in the following situations:
1. If during the voyage the ship had encountered rough weather, which may have caused:
- collapse of ventilation channel for bagged cargo;
- breaking of lashing and therefore shift of cargo; or
- prevention in doing the appropriate ventilation due shipping seas and sprays.
2. There is an apprehension of damage say due:
- encounter of close pancake ice at port approaches; or
- probable contact with sea bed during heavy pitching.
3. When the content and intention of the charter party terms is different. Thus, in the charter party, it may be agreed that a ship is safely aground at a certain port. At the berth however, the vessel severely lists during grounding on low water. An NOP should be given in respect of possible damage to hull. Additionally, an LOP should be issued in respect of danger imposed, if the ship’s gear is worked.
4. In situations of general average where a sacrifice of a consignment must be done or essential expenditure must be made. Whether it is a situation of general average or NOP, the affected parties must be informed by the chartering department on behalf of Master.
The different Notary Publics around the world do not have a standardized pattern. However, most NOPs would include the following:
Letter of Protest
A letter of protest is a formal declaration made in personam, which in Latin means against a particular person. whereby a person, is expressing a particular objection or disapproval of an act. Thus, it is conveyed to point out the mistake committed or non compliance of responsibility by a party. Even the merchant may make a protest (i.e. Letter of Protest) against the Master, for misconduct, drunkenness, for not proceeding to sea with due despatch, for not signing bills of lading in the customary form, etc. As far as the Master is concerned, LOP should be issued in respect of:
- delays on account of charterers;
- incidents or accidents during berthing/un berthing;
- delays at loading/discharge terminal for say delayed arrival of cargo, port documentation, etc;
- waiting for pilot(s)/ tug(s);
- waiting for say orders regarding loading /discharging;
- discrepancy in loaded quantity; or
- inappropriate information in bill of Lading; etc.
Since, the letter is written in personam witnesses are not required to sign it. The LOP however, must be issued as soon as the relevant situation has arisen. This is unlike in case of NOP, where protest is noted in rem upon apprehension of loss.
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