to note a Sea Protest - заявить морской протест
to call in a surveyor (experts, witnesses) - вызвать инспектора (экспертов,
свидетелей)
to hold a survey on - производить осмотр, обследование чего-л. to hold someone responsible for - считать кого-л. ответственным за to repudiate the claim - не признавать иска, отвергать претензии
the ship was rolling and pitching - судно испытывало бортовую и килевую качку
the vessel was shipping water fore (aft) - судно принимало воду (зарывалось)
носом (кормой)
the fire was gaining rapidly - пожар быстро распространялся
That can't possibly be so! - Этого не может быть!
It was through no fault of ours. - Это произошло не по нашей вине.
TEXT
Claims usually arise between the contracting parties when one of them considers the other party to have violated some laws or regulations or infringed the conditions of some contract or agreement, which set forth their rights and protect their interests.
Claims are settled in different ways. In some cases, the parties agree on an amicable settlement of their dispute. Through exchange of letters or by personal contact the parties come to a mutual understanding and agreement. Sometimes, when the parties cannot agree on some question, they refer their dispute to the decision or "award" as it is mostly called of an arbitrator. Arbitration is a method of settling commercial disputes without having to resort to law. In other cases, when the parties do not see
any way to agreement, they decide to go to law and it is only the court decision that puts an end to their dispute.
In marine practice, claims may arise in connection with short delivery of goods or damage to cargo, in connection with non-payment of money or non-fulfilment of some clauses of contracts, in connection with a wrong calculation or an erroneous charging of some expenses, and in connection with many other matters.
To settle disputes between shippers or charterers of the first part and shipowners of the second part, a special Maritime Arbitration Commission has been established at the All-Union Chamber of Commerce & Industry. This Commission decides disputes with regard to charter parties, contracts of carriage and marine insurance, arbitration agreements for cases of collision and salvage contracts.
Whenever claims are made against the ship, the master should be careful to see if there are any clauses in the Charter Party or Bill of Lading exempting the vessel from such liabilities. If any legitimate claims arise, it is always advisable, if possible, to settle them before the ship leaves the port.
To avoid claims about loss or damage to goods, shipmasters should observe the terms and conditions of the contract of carriage. Of course,
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damage to goods may sometimes result from causes which are beyond the carrier's control: a ship may meet with casualty and both the ship and the cargo sustain damage or loss. Under all the circumstances the master of a ship must bear in mind the juridical side of the question and fulfill the necessary formalities which are required of him. In maritime insurance the term "average" means a loss. There are two kinds of average: "general average" and "particular average."
Under general average the loss is borne by all parties concerned in the adventure and in direct proportion to their several interests. In other words the loss is divided among the shippers, the receivers and the shipowners proportional to the values of goods, ship and freight. It is very important to understand what is meant by the term "loss" in this instance. This loss derives from a voluntary and deliberate sacrifice of one or more of the parties' goods with a view to saving the remainder of the property such as, for example:
slipping cables and anchors to avoid any approaching peril;
running the ship ashore for the preservation of either the ship or cargo;
jettisoning cargo in order to lighten the vessel, or to prevent fire from
spreading
and many other cases.
The loss sustained under particular average is borne by the actual owners of the property lost or damaged, if uninsured, but by the underwriters if the property is insured.
The general average is settled in accordance with the York-Antwerp Rules. In case of the general average a shipmaster or the shipowners are under duty to appoint an average adjuster who is to prepare an average statement and to draw up and settle all claims falling under general average. A shipmaster is also obliged, before delivering the cargo, to insist on the consignees signing average bonds.
In every case of an evident or suspected damage to goods during the voyage, the shipmaster is to note a Sea Protest. He is to note a Sea Protest within 24 hours of arrival and before breaking bulk. The protest is made before a notary public or the consul, or before a magistrate or other local authority. The sworn testimony of the master and other witnesses must be substantiated by the entries in the log book. For this purpose extracts from the log book should be taken and produced. As a rule, the harbour master makes an official announcement for the information of all concerned about the protest declared.
After the protest has been noted, the shipmaster must call in a surveyor to hold a survey on hatches. The shipmaster must also acquaint the receivers of the cargo with this fact so that they may also appoint a surveyor if they wish. The receivers must be notified by the master in writing. The hatches then should be opened in the presence of the surveyor to prove that they had been properly battened down and covered before the voyage. This is very important as the ship is cleared from
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responsibility for the damage if the surveyor's report states that the hatches were properly covered and secured and the cargo was properly dunnaged and stowed. A copy of the surveyor's report should be retained on the ship for further reference.
DIALOGUES
1
CAPTAIN. Can you tell me, Mr Watson, what is the matter with the Charterers? At 11 a.m. they loaded the last few lorries of cotton and then everybody has gone away. The work has stopped. Are they going to supply any more cargo at all?
AGENT. Well, I've just come to tell you about that business. They rang me up half an hour ago. The fact is that they have no more cotton here, in town, and cannot get supplies from the country because of the
flood.
CAPTAIN. I am glad you told me that, but I don't know what to do with these people. We are already two days late and I have to proceed on my voyage tomorrow at 5 p.m.
AGENT. They told me they were very sorry, but they couldn't help it. The communication with that region will be restored not earlier than in a fortnight.
CAPTAIN. We might have taken another 1200 tons to complete the charter amount. I'll have to make a claim against that firm for dead freight.
AGENT. It cannot be avoided, can it?
CAPTAIN. Certainly not, it's stipulated in the charter party. I want you to deliver an official letter to this firm. It's to the effect that unless they supply full cargo tomorrow by 5 p.m. I'll proceed on my voyage underloaded and I shall hold them responsible for the dead freight.
2
AGENT. I've got an official letter from Messrs Thomson & Co. They claim that according to the customs of the port overtime for loading at night must be paid by the shipowners.
CAPTAIN. That can't possibly be so. It contradicts the terms of the C/P and common sense, too. The work is done in the interests of the shippers, as otherwise they would have to pay a lot of money for demurrage. Besides, it is clearly stated in the remark under Clause 12 of the charter party.
AGENT. They allege that in their copy of the C/P the remark also reads: "overtime to be paid by shipowners".
CAPTAIN. There must be some misunderstanding then. Just have a look at my copy of the charter party. See, it is really said here that overtime is to be paid by shipowners, but on the next line is typed "for the shipper's account". I don't know, maybe that last line is missing in their copy, but still business is business. They have to pay.
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AGENT. I think I see now what they mean. They are not prepared now to pay the money for overtime, but they don't decline the payment of these expenses. The fault is mine. I had to pay the overtime on your behalf and debit this amount to their account.
CAPTAIN. That's it. Now, you'll have to repudiate their claim and explain to them how things stand.
AGENT. Certainly, I'll do that.
3
CAPTAIN. We encountered very heavy weather in the Bay of Biscay. I am afraid the cargo might have been damaged because of shifting.
AGENT. Are you going to note a protest? CAPTAIN. Well, I think I'll have to.
AGENT. What are the formal grounds for this protest?
CAPTAIN. Why, there was a very heavy storm in the Bay of Biscay. AGENT. What was the wind force?
CAPTAIN. The wind force was 10-11 on the Beaufort Scale. The ship was rolling and pitching most heavily.
AGENT. What was the ship's list?
CAPTAIN. The ship's list was as much as 30° at times. The vessel was shipping water fore and aft.
AGENT. Was the cargo securely lashed?
CAPTAIN. Of course, we took all precautions, but still I fear some damage might have been caused through the stress of weather.
AGENT. Have you made a draft of the sea protest?
CAPTAIN. Yes, certainly. I want you to go through this draft protest and state your opinion.
AGENT. Let me see it, please. Well, from the formal point of view the protest is good. By the way, you write here that the heavy weights in Hold No. 2 were properly lashed. How can you substantiate this fact?
CAPTAIN. You see, I enclose an extract from the ship's cargo book in which we usually enter all the details of stowing the goods. In the entry dated 17th last month, the fact of a proper lashing of the goods was clearly stated.
AGENT. I am not sure whether the public notary or court will regard this cargo book as an official document, but, to my mind, this extract will work.
CAPTAIN. So far as you approve my draft, could you have this protest typed?
AGENT. Yes, I'll have it typed immediately I return to my office. CAPTAIN. I should like to have it handed over to the Notary Public and
duly lodged today. Would you mind my calling at your office in a couple of hours? We could go then directly to the Notary Office and have it lodged.
AGENT. Oh, you're welcome. I'll send a motor car for you by 7 p.m.
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CAPTAIN. That's settled then. Now, what about a surveyor? I want him
to hold a survey on hatches. Of course, I want you also to take part in drawing up the statement.
AGENT. I think I can manage that. I'll ring up the surveyor to come tomorrow. But you write a notice to the receivers at once, asking them if they want to send their surveyor too.
CAPTAIN. Will that notice reach them in time?
AGENT. It doesn't matter after all. I'll ring them up too and tell them that the written notice will follow. You just begin your letter with the words: "To confirm our telephone call on you..."
CAPTAIN. That's good idea, indeed. Thank you. Will you be so kind as to have this letter worded and typed in your office so that I may sign it when I call on you today?
AGENT. All right, I'll see to that.
4
AGENT. We got your radiogram, sir, that you sustained a heavy loss. CAPTAIN. Yes, we had bad luck this time. We met with a casualty. The
ship was on fire.
AGENT. How did it happen?
CAPTAIN. We had cotton in Hold No. 2. Some of the bales in the upper tiers ignited of themselves. We did our best to extinguish the fire. When we opened the hatch, the fire was gaining rapidly all over the upper tiers. We were lucky that the weather was absolutely calm, no wind at all. We tried to extinguish the fire with steam jets and succeeded in putting out the open flames. But the bales were still smoking heavily.
AGENT. So, what did you decide to do then?
CAPTAIN. Well, I could not risk the ship and the rest of the cargo. So I ordered to jettison a couple of upper tiers of bales. Then we closed the hatch tightly and filled the hold with carbon dioxide.
AGENT. I think that was the only way out. So you declared the general average, didn't you?
CAPTAIN. Well, I sent a radiogram to my owners asking them to appoint an average adjuster. Then I prepared the Sea Protest which I would like you to look through.
AGENT. Very well, I'll go through your draft right away. What about a survey?
CAPTAIN. A survey must by held in due course. I would ask you kindly to arrange for a surveyor to come tomorrow morning.
AGENT. Suppose he would come by 11.30 a.m. Would that do? CAPTAIN. Yes, it suits me all right. Let him come at that time.
AGENT. It suits me too. I must say I am rather busy in the morning and I could not possibly come before that time.
CAPTAIN. So the time suits everybody, let's say no more about that. Now, I want to tell you about the average bonds. Will you be good
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