The owner of a ship wrongfully injured by collision is entitled to complete restitution. If the loss is total, he recovers her value, with interest from the date of the loss. If the loss is partial, he will recover the cost of full and complete repairs and if such repairs make the vessel a better and stronger one than she was before, he is entitled to that benefit; he will also recover demurrage or compensation for the loss of use of his ship during the time occupied by the repairs.
It frequently happens that the ship is not an absolute total loss, in the sense of being completely destroyed or sunk beyond possibility of recovery, but so injured that the cost of repair will exceed the value at the time of collision; the owner may then treat her as a constructive total loss and claim from the wrongdoer the same amount as if the destruction had been complete. In other words, when the ship is so injured that a prudent business man would not repair, the owner abandons the wreck and claims a total loss. If he recovers, the title to the wreck passes to the wrongdoer.[21]
Expenses incident to the collision are also included in the ship's damage, such as the owner's disbursements in looking after his property; the cost of protest and survey; the wages and board of the crew while necessarily kept on board, the costs of superintending repairs and securing a new rating.
Loss of freight is also an item of damage.
6. Damage to Cargo.—
The cargo-owner is entitled to recover his damages from the offending ship and the ordinary measure is the value of the goods at the time and place of a total loss, with interest and incidental expenses. The purpose of the rule is to place him, as nearly as may be, in the same position as if the collision had not occurred. Where the loss is partial, as where the goods arrive in a damaged condition, the measure is the difference between their actual value and what they would have been worth in good condition; to this may be added, in appropriate cases, the expenses of transhipment, reconditioning, warehousing, survey and sale.
Where both vessels are in fault the owner of the cargo may sue either or both, or as was said by Justice Clifford in the Atlas, 3 Otto 302:
Parties without fault such as shippers and consignees, bear no part of the loss in collision suits, and are entitled to full compensation for the damage which they suffer from the wrongdoers, and they may pursue their remedy in personam, either at common law or in the admiralty, against the wrongdoers or any one or more of them, whether they elect to proceed at law or in the admiralty courts.
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Innocence entitled the loser to full compensation from the wrongdoer, and it is a good defense against all claims from those who have lost. Individual fault renders the party liable to the innocent loser, and is a complete answer to any claim made by the faulty party, except in case where there is mutual fault, in which case the rule is that the combined amount of the loss shall be equally apportioned between the offending vessels.