A Sea Protest is a declaration under oath by the Ship’s Master describing the circumstances which led to damage or loss of his vessel and/or cargo. It is intended to show that such loss or damage occurred by the perils of the sea and not by the negligence, carelessness or fault of the Master or crew. By making a Protest the Master would be protected against any liability towards owner/s or freighter/s. Furthermore, any loss or damage suffered by either ship or cargo would be shared between all the interested parties. This is known as General Average. The juridical effect of a Sea Protest is that its contents are taken as uncontested evidence, unless evidence to the contrary is brought forward.
The Protest is to be made within twenty four hours of arrival at the first port after the incident at sea. How, and before whom, the Protest is made will depend on the laws of the country where the Port is situated. Under English law the Sea Protest must be made before a Notary or consul. English Notaries have the exclusive faculty or authority of noting and extending Sea Protests. At the time when a Protest is noted the full extent of the damage suffered by either ship or cargo, or both, would not have been known and therefore a further Protest would be recorded following the necessary surveys. Under the British system this second document should also be made before a Notary by the Master and two members of the crew.
It is usual for the Master to present the Log Book so that details of the accident would be copied from it into the Sea Protest. Such details would include the position of the vessel, the wind and weather conditions and, in the case of sailing ships, which sails were being used at the time. The latter was important so as to indicate that the Master was taking the correct sailing decisions. The Protest would indicate the ports of origin and of destination as well as the type of cargo being carried. Both the original protest as well as the further protest would be incorporated into one deed.
As we have seen, British traders in Malta preferred the simpler method of a declaration made before a Notary rather than the one existing at the time under Maltese law. They also preferred an English Notary to note the Sea Protest considering that most Maltese notaries at that time did not know the English language. We have seen that this system was not consonant with Maltese law and practice. Maltese law did not accept a Sea Protest made before a Notary as having the same juridical effect as a sea protest made according to Maltese law. The new Commercial Court, established in 1814, had taken over the same duties and powers of the Consolato del Mare, and therefore it was still a legal requirement that a Sea Protest be made before the Judge of the Commercial Court.
In a letter to the Chief Secretary to the (Maltese) Government in 1858, the then Maltese Crown Advocate Sir Adrian Dingli reiterated that there was no change in the law since 1723 which had prohibited Notaries from noting Sea Protests. In the new Code of Civil Procedure of 1855 (article 48) stated that the Judge of the Commercial Court was to attend personally, or through a surrogate, at the making of Sea Protests. In the same Code, article 63 provided that a Sea Protest made before the Commercial Court was one of the documents which proved their own contents, in the absence of evidence to the contrary. Moreover, he states that until 1856 Notaries were expressly prohibited under a fine from receiving a Sea Protest. However, that prohibition had been disregarded since 1810. Sir Adrian then continues that two or three English Notaries had for many years ignored the prohibition "and never to my knowledge have any of them been prosecuted for the infringement of the said Law".
The Crown Advocate stated that following complaints from British Masters that their deposition was taken in Italian and then translated back to English, he had written to the Judge of the Commercial Court recommending that English Masters could now make Sea Protests in the Commercial Court in the English language, which recommendation was taken up as from 31st October, 1858. From that time onwards fewer Sea Protests were noted by English Notaries until that practice died out.
Written by Adrian Borg Cardona
For more informatiion see Giada Pizzoni's essay on British Power in the Mediterranean: Sea Protests and Notarial Practice in Nineteenth-century Malta