10. Lien.—
The party injured by collision acquires a maritime lien of high rank upon the guilty vessel which attaches at the moment the damage is done and inheres, as a property right, until it is satisfied, bonded, or extinguished by an admiralty sale, or abandoned by his own laches, or delay in enforcement. It attaches to the hull of the ship and also to her engines, boilers, boats, apparel and freight pending but not to her cargo and, equally, whether the offending ship was in actual contact with the other or whether she caused the collision between other ships by her own negligent navigation, as by suction or displacement waves. The lien will follow the ship into the hands of an innocent purchaser for value unless proceedings to enforce it have been unreasonably delayed or other circumstances render its enforcement inequitable. It has priority over almost all other maritime liens, only subsequent salvage and wages being ordinarily preferred.
Since the enactment of the act of March 30, 1920, a lien arises out of the loss of life in a collision, as in the case of personal injuries.
11. Limitation of Liability.—
Where the owner of the offending vessel is not personally at fault for the disaster, his liability is limited to the value of his ship and freight pending, as of immediately after the disaster. If the ship is lost, his liability disappears with her. He is not, under American law, obliged to account for the insurance because that is not a part of the ship but the result of an independent, collateral contract.
12. Remedies.—
The most usual remedy employed in cases of collision is that afforded by the Limited Liability Law.[22] This gives the shipowner the right to call all damage claimants into one court and dispose of everything in a single proceeding, thus eliminating a multiplicity of suits in different jurisdictions. The question of fault may be litigated in this proceeding and it may be commenced either before or after the commencement of other actions. Injured parties, if they choose, may sue at common law as in other cases of negligence. The more effective remedies, however, are in admiralty. They may there proceed directly against the ship, or the ship and master together, or against the master or the owner alone, personally. The master of the injured ship may bring the suit in his own name on behalf of all concerned, including the cargo. Underwriters who have paid for losses caused by collision become subrogated to the rights of their assured and may sue accordingly.
13. Evidence.—
The party alleging negligence must bear the burden of proof in establishing it. He must show fault on the part of the other vessel as well as due care on his own. By act of Congress, approved September 4, 1890 (26 St. at L. 425), the so-called "Stand-by" act, failure of a vessel to stay by another vessel with which she has been in collision until there is no further need of assistance, raises the presumption that she is in fault for the collision. This presumption, however, is not conclusive, but may be rebutted by testimony. Cases of this kind appear to be inconsistent with the doctrine laid down in some of the earlier decisions and represent a modern tendency to extend the maritime jurisdiction. Sometimes the conceded facts establish a presumption of fault, as where a collision occurs with a ship properly at anchor or between steam and sail. This will usually appear on the pleadings. The facts at issue are shown by the testimony of those who saw or participated in the disaster. These generally come from the officers and crews of the vessels involved and every man ought to be accounted for. Extreme contradictions are to be expected in the evidence as there is a natural tendency on the part of sailors and passengers to be so loyal to their own ship as to impute every fault to the one which runs into her. The courts seldom attempt to reconcile conflicting testimony but frequently decide on the conceded facts and probabilities. The evidence of disinterested parties is of much weight.