6. Theories of Limitation.—
The general maritime law has always been that an owner was not personally liable for the obligations of his ship as distinguished from his own agreements or delinquencies. It regards the ship as a distinct individuality similar to a corporation. The common law, on the contrary, considers the ship like any other kind of personal property and holds the owner correspondingly liable because his agents were in charge and he is liable for whatsoever they do within the scope of their agency. The maritime law retains an earlier notion of the common law, that it is against all reason to put blame or fault upon a man for the negligence of others and declines to hold him personally for what he cannot personally control. It also recognizes the fact that men of means will not invest in ships unless they can be protected against the unlimited liability of the common law. It holds that such a liability is inherently unjust when applied to the shipowner and it also accepts the situation in which the capitalist declines to invest in shipping unless that injustice is averted. Hence came the rule that the owner is not liable on account of the ship beyond the value of his interest therein and her freight pending and the corollary that he might absolve himself from all liability by abandoning the ship to her creditors. The theory is (at least as applied to torts) that:
If you surrender the offending vessel you are free, just as it was said by a judge in the time of Edward III, "If my dog kills your sheep and I freshly after the fact tender you the dog you are without recourse to me."[18]
This rule is in abrupt conflict with the theories of the common law and, while it has been expressed in statutory form in most maritime countries, the courts have been so far influenced by common law doctrines in its application that it does not prevail in its original integrity either in this country or in England. Congress has endeavored to restore it in the United States but the courts, so far, have declined to follow the plain language of the statute.