The Long Weekend: Protesting a Foreign Bill and Extending a Sea Protest
The master of a bulk carrier arrives at Cork after a rough passage; part of the steel cargo is rust-stained and the charterers have signalled a claim. The ship's agent asks the notary to 'do a protest' that afternoon and to include the master's opinion that the cargo was already wet when loaded. Separately, the agent's clerk produces a bill of exchange drawn by a Spanish exporter on an Irish company, accepted by the company and payable in Dublin; it was dishonoured at 3 p.m. the previous day. The clerk asks the notary to 'protest the bill and the ship in one certificate' because the office closes for a long weekend tomorrow.
1. Characterise the bill of exchange and explain what the notary must do, and by when.
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Characterisation comes first, because it decides whether noting alone is sufficient.
Under the Bills of Exchange Act 1882 a bill is inland if it is both drawn and payable within Ireland, or drawn in Ireland on a person resident in Ireland. This bill is drawn in Spain and payable in Dublin, so it is a foreign bill. Consequences:
- Dishonour of a foreign bill by non-payment must be protested to preserve recourse against the drawer and indorsers; noting alone will not do. For an inland bill, noting suffices.
- Noting must take place on the day of dishonour or at the latest the next succeeding business day. Dishonour was at 3 p.m. yesterday, so today is the last day. The long weekend is irrelevant: a missed noting may defeat the holder's rights against the drawer.
- Noting is done by the notary marking the bill; the formal protest may be drawn up afterwards but should be completed promptly, reciting presentment, dishonour, demand and answer.
The notary should also remind the holder that notice of dishonour is the holder's own obligation, not the notary's, and must be given promptly to the drawer and each indorser. The notary records events; he does not cure a missed notice.
2. What should the sea protest contain, and what should the notary refuse to put in it?
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A sea protest is a record of facts and a reservation of rights, not a finding of liability.
What to do:
- take the master's declaration on oath or affirmation, recording vessel, voyage, dates, weather encountered, times of incidents, the apparent condition of the cargo at loading and discharge, and steps taken;
- record the master's statement about the cargo condition as his statement, clearly attributed, not as a fact found by the notary - his opinion that the cargo was already wet is evidence, not a notarial conclusion;
- express the protest as made without prejudice and reserve the right to extend it, so later facts and survey reports can be added;
- complete and seal it promptly. Irish practice is to extend the protest on or shortly after arrival; if it is later, record why, because delay is used to attack its weight.
What to refuse: drafting admissions on the owner's behalf, omitting unhelpful facts the master mentions, or shaping the master's account. The protest may be disclosable in later litigation, so the notary should assume the other side will read it and should exclude speculation and legal argument.
3. Why should the notary decline to combine the bill protest and the sea protest in a single certificate?
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One certificate covering both matters is wrong on three grounds.
- Different parties. The ship's agent acts for the owner; the holder of the bill may be the Spanish exporter or a bank. They are separate clients with separate interests and may be adverse to one another in the same litigation.
- Different acts. A sea protest records the master's declaration. Noting and protesting a bill is a statutory function under the Bills of Exchange Act 1882, with its own recitals, timing rules and formalities. A combined instrument would be unclear in each capacity and awkward to use in either forum.
- Independence and confidentiality. The notary must be, and be seen to be, neutral. Acting for both requires a conflict check, separate files, no passage of information between them, and separate fees. If the firm has previously advised one party, he should consider declining that instruction.
The practical answer to the deadline is not a combined certificate but two engagements, with the bill noted first if the next-business-day rule cannot otherwise be met, and the sea protest extended the same day.