Судоводы - 9 семестр / Видищева Т.В., Монастырская О.И. - English in Maritime Business and Law (2014)

UNIT 26

NOTING PROTEST

Vocabulary

•Extended protest- дополненный протест

•To note a protest - заявлять протест

•A ffid a v it- письменное показание, подтвержденное присягой или торжественным заявлением и заверенное нотариусом

• Before breaking bulk - до открытия трюмов, до начала выгрузки

•D eck log - черновой вахтенный журнал

•Log entries - записи в вахтенном журнале

•То sustain damage - понести ущерб

•То take depositions - удостоверить (засвидетельствовать) показания под присягой

•Rough seas - по шкале оценки состояния моря и зыби (шкала Бофорта) высота волны - 2.5 - 4 метра

•Heavy swell - по шкале оценки состояния моря и зыби (шкала Бофорта) высота зыби свыше 4 метров

•Pitching - килевая качка

•Rolling - бортовая качка

•То ship water - черпать воду

Exercise 1. Read the text and answer the questions

A “protest”, sometimes called a “sea protest”, is a solemn declaration, made on oath by a shipmaster before a person legally empowered to. hear such declarations, that circumstances beyond his control have, or may have, caused loss of and/or damage to his ship and its cargo, or have caused him to take action which may render the owner liable to another person.

A protest (without an extension) is a simple statem ent of fact, w ithout added

details.

An “extended protest” is a protest to which supplementary information has been added at a later date. “Noting protest” is the act of making the protest before the appropriate person.

The appropriate person before whom a protest should be noted is a notary public in those countries (such as the UK, USA, India, South Africa, etc.) where notaries public are appointed, or a consul in other countries. A “notary public” or “notary” is a public official who is primarily concerned with the preparation and authentication of documents to use abroad and is empowered under his country’s law to administer oaths (i.e. swearing to the truth o f statement), take acknowledgements, certify documents and take depositions for use in legal actions. The signature and seal or stamp of a notary public is necessary to attest to the oath of truth of a person making an affidavit and to attest that a person has acknowledged that he/she executed a deed, power of attorney or other document.

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Glasgow, Scotland, Notary Public duly admitted and sworn,

passage met very rough seas and heavy swell, pitched and

extend the same at a time and place convenient.

Signed before me ............................................

James S. Anderson, Notary Public at 11.00 GMT on 1st April 1996 Angus McMillan

Master, m.v. "Kintyre Venture"

(to reserve the right to extend the protest at a time and place convenient - оставлять за собой право продлить настоящий протест в любое удобное время и в любом удобном месте)

A L e t t e r o f P r o t e s t is a written communication recording dissatisfaction on the part o f one party concerning any operational matter over which the other party has control, and holding the other party responsible for any consequences of the matter being complained about, (see annex 20)

A Letter of Protest should not be confused with a protest (or sea protest) noted or lodged with a notary public or consul.

A Master himself might receive a Letter of Protest when:

a)the discharged cargo quantity doesn’t match the B/L quantity;

b)the specification, colours, temperature, etc. of discharged cargo is “ wrong”.

W h e n t o n o te p r o t e s t

Noting protest may help to resist cargo losses or damage claims against the shipowner, and may be required in the adjustment of a general average, but is not always

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necessary. The local P&l club representative should he able to advise (he master on the need for noting protest.

It may be prudent to note protest in (lie following situations:

1.A Her every case of general average;

2.After wind and/or sea conditions have been encountered which may have damaged

the cargo;

3.After wind and/or sea conditions have been encountered which caused failure to make a canceling date ;

4.After cargo is shipped in a condition likely to deteriorate during the forthcoming

voyage;

5.After the ship has sustained material damage;

6.After the ship has caused material damage;

7.Aftcr a serious breach of the Charter Party by the charterer or his agent (e.g. undue delay, refusal to load cargo not of a sort allowed by the C/P, refusal to pay demurrage, refusal to accept B/L after signing because of clausing by master, sending vessel to an

unsafe port, etc).

8.After the consignee fails to discharge or take delivery of the cargo or fails to pay

freight.

Protest should be noted ASAP after arrival and always within 24 hours o f arrival. If in connection with cargo, it should be noted before breaking bulk. If cargo for more than one discharge port is involved, the P&I club correspondent should be asked whether it will be necessary to note protest at each port in the notation.

P r o c e d u r e fo r n o tin g p r o te s t

The Master should request the agent to arrange an appointment with, and transport to, a notary public, consul or other appropriate person before whom a protest can be made. (In some countries the appropriate person may be a magistrate or other official).

The Master accompanied by one or more witnesses from the crew who have knowledge of the relevant facts, should take with him to the notary’s office the official log­ book, the deck log, and any other relevant information pertaining to the matter being protested about. (Where, for example, bad weather has led to cargo damage, a record o f the weather should be taken to the notary’s office. Where reefer machinery has failed during the voyage, cargo temperature records should be taken). Copies of log entries or other relevant records will be attached to the protest.

The Master will normally have to show proof of his identity to the notary. The notary will hear the master’s declaration and will make a written record in a Register o f Protests.

At least 3 certified copies of the protest should be obtained from the notary: 2 for the owner and 1 for the ship’s file. A fee will be payable for noting the protest and for each requested copy.

E x t e n d in g p r o te s t

Since it’s often impossible to ascertain the full extent of a loss or damage at the time of noting protest, an extended protest should be made when the relevant facts have come to light, which may be, for example, when a surveyor’s report has been received. It’s therefore necessary at the time of making the original protest to “reserve the right to extend the protest at a time and place convenient”.

An extended protest document will usually be required by an average adjuster preparing a General Average Statement.

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P r o c e d u r e fo r e x t e n d in g p r o te s t

Extension need not be made in the same place as the original protest was made, but must be in strict conformity with local law regarding time limits and content.

The extension expands the bare facts of the original protest, and again, any relevant documents (e.g.. log books and reports) should be taken to the notary’s office. The extension is entered, witnessed, signed and sealed in the same manner as the initial protest.

MARINE EXTENDED PROTEST

By this public instrument of declaration and protest be it known and made manifest to all whom

members of said ship, all of whom, being by me duly sworn, do voluntarily asservate as follows:

That the said ship was then properly manned and equipped and in every respect seaworthy; that*..............................................

* Here insert narrative of the facts of the voyage as they occurred, with full and minute particulars, with date, latitude, longitude, etc. If additional space is required blank sheets may be used and securely attached to this document under the seal of the consular office.

And these appearers, upon their oaths aforesaid, do further declare and say: That during the said voyage they, together with the others of the said ship's company used their utmost endeavors to

all losses, damages, costs, charges and expenses as stated herein that have happened to the said.....................................or cargo, or to either, are and ought to be borne by those to whom the same by right may appertain by way of average or otherwise, the same having occurred as before mentioned, and not by or through the insufficiency of the said................................... , her tackle or apparel, or fault or neglect of this appearer, his officers, or any of his mariners, or fault or neglect in the proper loading, stowage, custody and care of the cargo.

Thus done and presented in the port of....................................this...........day of.................200........

IN TESTIMONY WHEREOF, these appearers have hereunto subscribed their names, and I, the

concern as need and occasion may require.

........................................... of the United States of America

............................................ Master

........................................... First Officer

........................................... (Position of crew)

........................................... (Position of crew)_______

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1.What is a protest and when is it used?

2.What are the duties o f a notary?

3.What accidents can be caused by improper weather conditions?

4.How can a charterer violate the contract?

5. What breach o f a contract can be made by a consignee?

6.Who participates in procedure fo r noting protest?

7.What documents should be presented in the notary office? Why?

itfrom a protest?

Exercise 2. Read the sea protest about a storm. Answer the questions1

STATEM ENT OF SEA PRO TEST

I , _______________________________ , the Master o f the m /v “______________ ” under the fla g o f___________ , Gross Tonnage 15893, N et Tonnage 8092, registered at the port o f__________________, International Call Letters UUSW, sailed fro m the port o f Mobile, Ala., USA on August 15, 2006, bound fo r St. Petersburg with 6750 metric tons o f general cargo, the vessel being then tight, staunch and strong, well m ann d, victualled and sound, and in all respectsfit fo r the said intended voyage.

A t 18.00 GM T o n __________________ 2006 in position Latitude 45-20 No th and Longitude 015-10 West the ship encountered a heavy storm with stern wind o f Force 9- 10 from W SW and a heavy swell up to 8 metres. A s a result o f this, the vessel suffered heavy pitching and rolling up to 28 to either side. A t 20.00 G M T the vessel had to reduce her speed to 10 knots to reduce the rolling. A t 23.00 G M T due tr shifting o f the cargo o f pipes in Holds 2 and 3 the vessel sustained a permanent list o f 10 degrees to starboard and had to deviate to the port o f refuge Breast. A t 09.00 on A ugust 26, 2006 the vessel was moored at Pier 18 in the port o f Breast.

Though the crew has taken all precautions to save the vessel and the cargo, fearing damage to the ship and the cargo from the above heavy weather, and also losses connected with calling in at the port o f refuge and delay o f the vessel, I declare this Sea protest, reserving the right to extend this protest at a time and place convenient.

1.What characteristics of the vessel should be mentioned in the sea protest?

2.What weather conditions did the ship encounter?

3.What damage did they cause?

4.What actions must be undertaken to save the vessel? Enumerate them,

e.g. A vessel must reduce her speed.

5. Why did the Master declare the sea protest?

Exercise 3. Translate into your native language

Ashipmaster should note a protest

1)after every case of G eneral Average;

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Please complete all areas in black ink and block capitals

Customer (Applicant)

Applicant's reference

Contact name

Telephone number

Fax number

CustomerTrade ID

Beneficiary's

Telephone number