Marine Protest and Maritime Law
Most Colonial notaries lived at seaports and harbors. They were often called on to take a sea protest or marine protest made by vessel-masters (captains) or by merchants who shipped goods or chartered vessels. The notarial act was to authenticate the marine protest, similar to attesting an affidavit or receiving an acknowledgment.
A marine protest is a declaration by the captain of the facts regarding a loss or damages during a voyage, due to perils of the sea, storms, bad weather, accidents, collisions, emergencies, and the actions taken by the captain and crew.
Protests might be used as evidence against the captain or the owners, so they must be made carefully, based on the facts from the captain’s log-book, and from the memory of the captain or his first mate, or of trustworthy mariners.
Protests were also made by the captain against the charterers of a ship, or the consignees of goods, for not loading or unloading the ship according to contract or within reasonable delays;
by the merchant against the captain for negligence, misconduct, drunkenness, etc.;
for not proceeding to sea with due dispatch;
for not signing bills of lading in the customary form, and for other irregularities.
It was a precaution in cases involving loss or damage to the cargo or the vessel, or to people on board, or any unusual event, which was likely to arouse suspicion or to become the subject of litigation, liability, or an insurance claim. Failure of the captain to make a protest immediately upon arrival at port where he could do so, was considered gravely delinquent.
Reference books contained a collection of protests that might be used in almost any serious emergency, such as the destruction of a ship by fire, damages due to heavy seas or capture by the ships of an enemy.
Aspinwall Notarial Records
Here is a historical example of a marine protest from the Aspinwall Notarial Records, from Boston, in 1648.
Uppon the twentie first day of December 1648 according to the Account of England Before me Wm Aspinwall Notary & Tabellion Public by Authoritie of the Generall Court of Massachusetts admitted & sworne personally appeared Wm Priam Master of the Peter & Paule of Dover & Thomas Pacie pilot, Henry Wilds mate & Wm Butland quartermaster, who did avouch that in theire late voyag from Madera they had extreame tempestuous wether, especially about the beginning of this present month whereby twoe pipes (the one of wine the other of strong water) though they were well & sufficiently stowed were through the extremitie of the labouring of the Shipp throwne out of theire places & the pipe of wine staved & all run out & what other damage hath thereby beene done they doe not knowe, unto which the said persons have also testifyed uppon oath before the Governor.
Wherefore the said master Pylot, mate, & quarter master did in presence of mee the said Notary protest against all damages which the merchants doe suffer or may pretend to suffer in theire wines by reason of the long & tedious voyage & many stormes they mett with in the said voyage, which being the immediate hand of God & not by any providence of theirs to be prevented or avoided, neither shipp nor companie are answerable for the same.
This protest was reade by the persons aforesaid before me the said Notary ere the bulke of the shipp was broken up.
Note: Madeira is a Portuguese island in the North Atlantic, known for its wine, and is a popular port of call. Large 112-gallon casks of wine are known as “pipes“. Strong water is alcohol. Aspinwall Notarial Records frequently refer to agreements made under the Rules of Oleron.
Marine protests are part of maritime law. The maritime law of England, was brought to New England, and comes from the Rules of Oleron, written in 1160. Oleron is an island off the Atlantic coast of France. The sea laws were brought to Oleron on a return trip from the Second Crusade (1145–1149) to the Holy Land.
The laws originated from ancient maritime laws of the Mediterranean Sea, used by the Egyptians, Phoenicians and Greeks, written in the Isle of Rhodes (southeast of Greece), also known as Rhodian Law of the Sea. Rhode Island is named after the Isle of Rhodes.
Few states now include taking marine protests as an authorized power of a notary. But notaries may take sworn statements and affidavits.