Contributed by Fenech & Fenech Advocates
ILO – July 10 2013
Introduction
The Maltese flag has established itself as a flag of confidence and a popular choice for many well-reputed shipowners. This is clearly evidenced by the fact that the Maltese registry boasts tonnage of more than 45.6 million gross tons, making it the eighth largest flag in the world and the second largest in Europe. The Maltese flag is flown aboard vessels worldwide. In light of these figures, and bearing in mind that ships at sea will always remain vulnerable to a number of risks, it is probable that Maltese-flagged vessels may become a casualty of some sort from time to time.
Where such an incident results in damage being sustained – whether to the vessel itself, its cargo, another vessel or any other property – the ship, its master, owner or charterer may potentially become exposed to a number of claims. In such cases, it is essential to establish the events that gave rise to the incident in question. Most jurisdictions therefore either oblige or enable the master of a ship to make a so-called ‘sea protest’ shortly after the incident in question, in which he or she can declare the facts of the incident as known to him or her. In this regard, Malta is no exception.
Under Article 104 of the Merchant Shipping Act, a master is obliged to make a sea protest
wherever a vessel flying the Maltese flag:
- sustains damage;
- is stranded, abandoned or lost; or
- owing to the stress of weather or any other cause, is forced to enter port.
Under Maltese law, a sea protest tends to hold significant probative weight in any subsequent settlement negotiations or litigation, since it is often taken as being a correct statement of facts (unless there is evidence to the contrary). However, there is a tendency to assume that the form and method by which such a sea protest is made are not important, so long as the statement produced is truthful and duly sworn before a notary public. This impression is wrong – Maltese law provides clear rules on how a sea protest should be made, together with a detailed procedure.
Applicable procedure
Making a sea protest
Article 104 of the act clearly indicates that when the vessel is at a Maltese port, any sea protest must be made before a judge of the civil courts of Malta. When the ship is at a port outside of Malta, it should be made before a Maltese consular officer. In the absence of such a consular officer in any particular jurisdiction, the law requires that the sea protest be made before a local authority in that particular country.
Timeframe
Article 104 also stipulates the timeframe within which a sea protest must be made. If the event giving rise to the need to make a sea protest occurs while the vessel is at a port, the sea protest must be made within 24 hours of the incident taking place. If the incident occurs while the vessel is at sea or outside any port, the master has 24 hours from the vessel’s next entry into port to make the sea protest.
Information to be included
Maltese law clearly indicates the information that should be included in a sea protest, in terms of both the content of the sworn statements and the documentary evidence required. The master making the sea protest is duty bound to produce his or her official logbook and the original ship’s log when making the sea protest, so that these documents can be physically endorsed by the authority before which the protest is made.
The Maltese courts have held that, in accordance with Article 104, where authenticated copies of the logbook are provided by the master when making the sea protest, these documents should subsequently be treated as being authentic evidence of their content, unless proof can be brought to the contrary.(1) Indeed, Article 104(7) allows interested parties to prove any facts that are contrary to those stated in the sea protest.
In relation to the sea protest, and more specifically the contents thereof, the master must state
on oath the facts known to him or her with regard to the incident in question. These should
include:
- the place and time of sailing;
- the nature of the cargo onboard the vessel;
- the course pursued;
- the incident encountered;
- the damage sustained; and
- all other relevant facts, particularly those relating to the casualty at hand.
Sworn statements
Furthermore, when making the sea protest, the master must be accompanied by at least another three crew members, who should also be examined on oath. The law also states that when a passenger vessel is involved, passengers should also ideally (where practicable) accompany the master to give a statement. However, for various reasons (eg, the language difficulties sometimes faced by seafarers), in practice the master and the crew members usually prepare their written statements beforehand. These are then produced at the sea protest and sworn on oath.
Risks of non-compliance
The effects of not complying with Article 104 can be substantial. For instance, a master who fails to comply with Article 104 will legally be answerable to any interested party for damages and interest that ensue as a result of such non-compliance. The law also provides that if cargo is on board the vessel, the master cannot discharge the cargo (except where there is imminent danger) before he or she has completed the sea protest in accordance with Article 104.
Case study
In a 2011 judgment,(2) the Maltese courts were asked to consider whether a duly notarised statement by the master that was drawn up after the vessel had entered port in Malta was sufficient to constitute a valid sea protest under the law.
The plaintiffs alleged that damage caused to a consignment of steel beams brought to Malta on board the MV Emzani had resulted from bad stowage on the part of the charterers. The defendants did not deny that the beams had sustained damage, but argued that this was due to bad weather encountered by the vessel en route to Malta, rather than any shortcoming in stowage. The defendants argued that the sea conditions and weather were so bad that the vessel had had to stop for shelter during its voyage towards Malta. When the vessel finally entered Maltese waters, the master proceeded to make a sea protest before a Maltese notary public. The defendants relied heavily on the content of this document as evidence to support their defence that the damages sustained to the cargo were the result of an act of God.
After reviewing Article 104 of the Merchant Shipping Act, the courts concluded that the statement made before the notary public was not and could not be considered a sea protest under Maltese law. Thus, the statement made by the master did not have the juridical effect of a sea protest as contemplated under Maltese law. Moreover, the court made reference to
Article 104(7) and commented that where a sea protest is not filed within the timeframe stipulated by law, the defendant may still prove its defence through any other means. In other words, the facts stipulated in the sea protest may still be relied on, but the defendant cannot rely on the invalid sea protest – the content thereof would need to be proven by other means.
In this particular case, the court disregarded the statement made by the master before the notary public and also felt that no alternative supporting evidence had been brought by the defendants to prove their position.
Comment
In light of the above, owners of Maltese flagged vessels and their masters should take careful note of Article 104 of the Merchant Shipping Act. Irrespective of having made any duly notarised statement, the effects and consequences of failing to making a sea protest in line with Article 104 could prove detrimental to shipowners.
For further information on this topic please contact Adrian Attard at Fenech & Fenech Advocates by telephone (+356 2124 1232), fax (+356 2599 0645) or email adrian.attard@fenlex.com.
Endnotes
(1) Advocate Doctor Griscti v Parnis England, Maltese Civil Courts, January 31 2003.
(2) Gasan Mamo Insurance Limited (C-3143) v MMS Limited (C-3984).