HEAVY WEATHER AT SEA AND THE SHIP’S PROTEST
The devastating storm that hit KwaZulu-Natal on October 10 caused severe disruptions in the Durban port.
The pictures and videos of the 330m container ship, the mv MSC Ines, lodging between the two breakwater walls of the harbour mouth and forcing the closure of the port was only the proverbial tip of the iceberg. Another three vessels broke their moorings and, in turn, hit and damaged another six vessels.
Apart from the obvious damage to the vessels, the cargo on board was in all likelihood also damaged to some extent. The myriad claims that will arise from the storm will no doubt take a number of years to all be resolved.
The mv MSC Ines, for example, made contact with other vessels, including another container ship, the mv Maersk Vallvik. Her owners will thus face a number of claims. The mv Maersk Vallvik owners will possibly be one of the claimants.
When a vessel is beset by adverse weather and an incident occurs, such as a collision with another vessel which might give rise to a claim against the vessel, the vessel master has a duty to execute a document called a "ship's protest" or "note of protest" at the first available opportunity. The ship's protest is a contemporaneous public document declaring before an independent official (a notary in South Africa) the events that might give rise to the claim.
The purpose is therefore to verify a claim, as in the case of the mv Maersk Vallvik but can also be made to verify a defence, as in the case of the mv MSC Ines, that the respective owners might wish to invoke.
In light of the possibility that claims might be brought well after the incident, the note of protest serves as a proper recollection of the events when accurate memory might have faded when the claim is eventually instituted.
The fact that the ship's protest is a public record also helps avoid any suggestion that the evidence was invented after the event. Therefore, should the master of a vessel neglect to attest to a ship's protest, a negative inference might be drawn.
Apart from being a statement of the facts while fresh in the vessel master's memory, the note of protest also serves to found a claim upon the insurers for the damage done. Insurers will undoubtedly be flooded with claims for indemnification in respect of the incidents in the Durban port on October 10.
After making his initial ship's protest, the master is at liberty to extend his protest as and when more facts become available.
An extension of protest is rare, however, as masters tend to keep their statement short and concise rather than including too many details.
The wording of the ship's protest in the case of the mv MSC Ines might hypothetically read: "That on the loth day of October 2017 at lohoo local time and while securely moored alongside Pier X, conditions of extreme adverse weather caused the above vessel to break her moorings and subsequently struck the mv Maersk Vallvik that was docked in the adjacent berth.
"That as a direct result of the collision thus described, the vessel sustained damage to her starboard side, the full nature and extent of which damage was, at the time of noting this Ship's Protest, unknown to the said Master. And fearing extensive damage to hull and cargo in consequence of the occurrences described herein, the Master duly noted Ship's Protest, causing an entry to be made in my Notarial protocol, and reserving the right to extend such protest at appropriate time and place."
Conversely, the Master of the mv Maersk Vallvik ship's protest might hypothetically have the following pertinent wording: "That on the loth day of October 2017 at approximately lohoo local time, the mv Maersk Vallvik, while under his command and while securely moored alongside Pier X in Durban, South Africa, was struck by the mv MSC Ines, which had broken from her moorings on the adjacent berth. That the mv MSC Ines initially struck the starboard side of the mv Maersk Vallvik and thereafter made contact with her cargo cranes. That as a direct result of the collision, the mv Maersk Vallvik sustained extensive damage to her starboard quarter and cargo cranes.
"Wherefore the Master hereby gives his intention of protesting against any and all losses, including damages caused to the mv Maersk Vallvik and any consequential losses, which losses are solely attributable to the mv MSC Ines and for which he holds the mv MSC Ines and its associated interest solely liable and the Master duly noted Ship's Protest, causing an entry to be made in my Notarial protocol, and reserving the right to extend such protest at appropriate time and place."
The noting of a ship's protest is one of the first and most important steps to be taken in the handling of claim process when the claim has its genesis in the occurrence of an unusual event that was beyond the control of the master of the vessel, such as the October io storm.
Where disputes arise later on the facts surrounding the unusual event and how the damages were incurred, the courts shall attach much weight on the ship's protest, especially if supported by oral evidence, as it was recorded close to the time of the incident.
The ship's protest is and remains one of the most respected and honoured of shipping documents.
*This article first appeared in the Sunday Tribune.