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www.marinelink.com including a showing that their late- filed claims will not prejudice the timely filed claims. After all the claimants have answered, the matter will proceed in many respects like other litigated matters. That is, the parties will engage in evidentiary dis- closure and discovery practice, motion practice seeking to limit the issues or for other purposes, engage- ment and discovery of expert witness- es, and then on through the trial itself, and perhaps on to appeal(s) in whole or in part of the trial court’s decision. However, there are some differences. The limitation complaint will in fact be entitled a Complaint for Exoneration From or Limitation of Liability. That is because the initial trial burden will be on the claimants to prove there was either an unsea- worthy condition or negligence on the part of the shipowner’s vessel that caused the losses for which compen- sation is being sought. If that is not proved, then the shipowner will be exonerated from liability. If, on the other hand, the claimants meet that burden, the burden shifts to the shipowner to prove it lacked “privity or knowledge” in respect of the unseaworthy condition or the negli- gence of the vessel. In the case of a corporate owner, except for liability for personal injury or death, that privity or knowledge must exist at a high enough level in the organization to reach firm management. In the case of liability for personal injury or death on a seagoing vessel, the privity or knowledge of the Master of the vessel or the superintendent or man- aging agent at or prior to the com- mencement of the voyage will suffice.

If the vessel owner is found entitled to limit his liability, the limitation fund will be apportioned amongst the claimants proportionately to their claims, with the proportion due per- sonal injury and / or death claimants, if any, being increased as described above from other resources of the owner. If the vessel owner is found not entitled to limitation, it will be required to pay the proved damages as awarded by the court.

In the U.S. the only parties that may be entitled to limit their liability pursuant to the limitation statute are the owner or bareboat charterer (owner pro hac vice) of the vessel.

Also, not all claims are subject to lim- itation. The personal contract doc- trine excludes from limitation claims arising under contracts in which the vessel owner has undertaken a per- sonal commitment, e.g most charter parties. That is why one will often see in towing contracts a disclaimer that the contract is a charter of the towing vessel or a personal contract. Also, pollution claims under the Oil

Pollution Act of 1990 are not subject to the limitation statute, but rather to the separate limitation provisions set out in OPA 90 itself.

If the 1851 statute were to be repealed, many maritime law practi- tioners would be in favor of the U.S. ratifying the 1976 Limitation

Convention to which most modern seafaring nations subscribe. That would provide for broader limitation coverage, while at the same time establishing substantial limitation funds based on the vessel’s tonnage that is not dependent on its post- casualty value. That would put the

U.S. back on a par with other mod- ern maritime nations. MN

Jim Shirley is a Master Mariner, a for- mer salvage master and retired mar- itime lawyer who specializes in mar- itime casualty and salvage matters, and now serves as legal counsel to the

American Salvage Association and as

Principal Consultant in JTS Marine

LLC. Contact him at jtsma- [email protected] or (609) 883-3522.