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8 MARINE, REVIEW. '"'The Ship is the Source and Limit of Liability." Two proceedings recently brought in the United States district court at Cleveland, to limit the liability of the owners of vessels in negligence cases, have occasioned comment in the daily press, and in- quiries in reference to the proceedings seem to justify a brief statement of the law. The practice in limiting liability abounds in technical niceties, but is only of interest to the proctor; the scope of the law and its policy are of general interest, and seem not to be understood except by those who have invested their means in vessel property. In brief, the statutes provide as follows: Liability for loss or damage to "any merchandise whatsoever' by fire, "unless caused by the design or neglect of such owner," is exempted; for any embezzle- ment, loss or destruction by any person of any property, goods or mer- chandise " without the privity or knowledge" of the owner, the liabil- ity of each owner is limited to the value of his interest in the vessel and her freight then pending. By the act of 1884, it is provided "that the individual liability of a ship-owner shall be limited to the proportion of any and all debts and liabilities that his individual share of the ves- sel bears to the whole; and the aggregate liabilities of all the owners of a vessel on account of the same shall not exceed the value of such ves- sel and freight pending." By the original acts, canal boats, barges or lighters, and vessels of any description used in river or inland navi- gation, were excluded from the benefits of the law, but by the act of 1886 it is expressly provided that the law shall apply "to all sea-going © vessels, and to all vessels used on the lakes or rivers, or in inland nay- igation, including canal boats, barges and lighters."' In construing these acts, the courts have determined that the value of the interest to which the liability is limited is the value after the accident and not before; that they apply to personal injury and death claims; that the limitation is not general in time, but must be assigned reasonably, to the claims'arising during a single voyage, valu- ing the interest on the termination of the voyage, and if the vessel be wrecked before completion of the voyage, then from the value of the wreck must be deducted the cost of raising or salving the vessel. It has also been held that in valuing an interest in a wrecked or damaged vessel, the insurance indemnity of the owner need not be included, that arising by personal contract of the owner and being severable from the ship. Whether, in a case of collision, or any claim giving to the owner aright to proceed against another vessel or person, to recover any part of damages done to the vessel by the same accident which gave rise to claims against which the owner's liability is sought to be limited, such right to recover must be surrendered or appraised as part of the value of the vessel, has not been determined. lf an opinion were ventured, it would be in the negative. When an owner applies for limitation of his liability, it is of no consequence that actions are pending in other courts, state or federal. The proceedings to limit liability being instituted in the proper district court, (the only court competent to give the relief), the fifty-fourth rule of admiralty pro- vides for an injunction against "the further prosecution of all and any suit against said owner in respect of any such claim." Karly in the present century, Maine and Massachusetts enacted laws having, in general, the scope as above stated, and in 1851 the first general statute was passed by congress. By such enactment, and the amendatory and supplemental acts, congress did nothing more than give recognition to "the old maritime rule administered in courts of admiralty in all countries except England from time immemorial.' Concerning the acts, our supreme court in an early case said: "The great object of the law was to encourage ship building and to induce capitalists to invest money in this branch of industry. Un- less they can be induced to do so, the shipping interests of the country must flag and decline. Those who are willing to manage and work ships are generally unable to build and fit them. They have plenty of hardiness and personal daring and enterprise, but they have little capital. On the other hand, those who have capital, and invest it in ships, incur a very large risk in exposing their property to the hazards of the sea, and to the management of seafaring men, without making them liable for additional losses and damage to an indefinite amount, How many enterprises in mining, manufacturing and internal im- provements would be utterly impracticable if capitalists were not en- -- couraged to invest in them through corporate institutions by which they are exempt from personal liability, or from liability except to a limited extent? The public interests require the investment of capital in ship building, quite as much as in any of these enterprises.' This is substantially the ground assigned when the rule was adopted in part in England (7 George rT, 1734), that act reciting that it was of the greatest consequence .to the kingdom to promote the in. crease of the number of ships and to prevent any discouragement to merchants from becoming interested therein. Grotius' War and Peace, Book 2, C. C. II, Sec. 13, says that men would be deterred from investing in ships if they thereby incurred the apprehension of being rendereg liable to an indefinite amount by the acts of the master. The common Jaw of England and the civil law of Rome each imposed upon Carriers the responsibility of insurers. Nothing less was deemed sufficient to prevent coilusion with thieves. On land the owner could in a measure supervise; but once out of port, all the owner's supervision over ship and crew was at anend. On land the government could protect, but against the perils of the seas protection of government was of no ayail, If the same severe rule must be applied to carriers by sea, the ship owner must risk many times the value of his ship, and that when impos. sible to exercise supervision or have the ordinary protection offered land carriers. To lessen the risk of absolute ruin and encourage sea ventures, a limitation of the liabiltity was necessary. Another consideration was not without weight. The practical impossibility of ascertaining the ownership of vessels, and the reluctance of nations to send their people into foreign jurisdictions to seek the owners and compel re- dress from them, gave ready acceptance to the proceeding in rem of the civil law; to proceed against the ship herself, treating the ship as the offender and compelling redress from her wherever found, regard- less of her ownership or nationality The correlative of this right: must have been apparent at once. If the damnified one could haye redress from the offending ship wherever found, whether at the time of the commission of the wrong she were being navigated by agents of the owner or of a stranger, even justice would dictate some limit to the liability. The ship is the source, why not the limit? A source not in complete consonance with the foregoing has been assigned. The object of the Greek and early Roman process was ven- geance on the immediate cause of the offence, not indemnity from the master or owner. In early Greek customs the process was directed in terms against the object, whether animate or inanimate. The liability seemed to attach to the body doing the damage and end there. So it was that if a tree fall upon a man or a man fall from a tree and is killed, in either case, the tree must be delivered up to the relatives of the deceased or chopped to pieces. King Alfred ordained the surrender of a tree. Later a man's death ceased to be the private affair of his friends, and the king exacted the penalty. Ifaman fell from a ship and was drowned, the motion of the ship was taken as the cause, and the ship forfeited. When the owner of the offending thing was made defendant, the ground of liability was not changed, but the owner was permitted to make payment and protect his interest, as now he must surrender his ship or pay the value. Whether the proceeding in rem as known to inaritime law, and the limiting of liability to the ship, had their beginning in this primitive notion of vice in the offending thing and its owner being quit on its destruction or surrender, let others determine. It has the support of reputable authority. What people first adopted the policy, and when, is uncertain, but by the close of the middle ages, when the whole world seemed turning' to the sea, it was generally established. The celebrated Ordonnance de la Marine (Louis XIV.,1681), which, on ordination "at once became the universal law of maritime nations," and which was founded upon all the ancient and modern maritime codes, in the light of particular information of the actual maritime practice of all Europe at the time, evidencing the universality of the policy, provided (sec. II. title fourth) that owners should be discharged on abandoning ship and freight. -- The acts are not mere municipal regulations, but regulations of commerce, available alike to citizens and foreigners, and in their appli- cation are liberally construed in the interest of what should be the sub- ject of most solicitious care, the advancement of commerce. The doc- trine has been too long established, attested by too great an array of able jurisconsults, and is supported by too many cogent policies of - governmental economics to be seriously questioned now. These acts and the Harter law are the only practical "encouragements" to the merchant marine found in our laws, and they have not been sufficient to prevent the humiliating spectacle of a nation, whose opportunity to" hold unquestioned empire of the sea has never been surpassed, if equalled, standing among the maritime giants of the world a pigmy, shaved, shriveled and shorn, paying millions in annual tribute for the privilege of permitting her commerce to be carried in the ships of any people but her own. | | 2 | |