shipowners the opportunity to limit e "public benefit", in that it was deof ships, to encourage persons enation, and to place the shipping inoting with that of England and the dingly, during the incipient stages of Act, the courts construed it liberally ɔwever, by reason of the almost unievice, insulating shipowners against l-scale insurance coverage, limitation much less economic importance than 1 this connection write: y 1930 the early enthusiasm, both or the limitation principle has cooled. acted the first substantial amendments e the 1880's: These amendments were g interests, the most important being the case of claims based on loss of life imum limitation fund of $60 per ton. reme Court limited the freedom with ling a petition for limitation, could forum of the admiralty proceedings e saving to suitors clause, had elected And in 1954, in a case which, without authority of one of the earliest landspeaking for four members of a Court become basis fo for ext availabl motor t The rat must b gether, any ev the aut under restrict 10-4, p. 666-7. 5. A 623, 19 limitation idea, that the early cases will be whittle they are not flatly overruled, that the statute, eve further limiting amendments, will be narrowly an pansively construed. Such an attitude reflects, it is not so much hostility to the shipping industry as a of the fact that the Limitation Act, passed in the era corporation had become the standard form of busine zation and before present forms of insurance protec as Protection and Indemnity insurance) were availa increasing signs of economic obsolescence." Accordingly, the heretofore liberal construction of the li ility statute has been tempered by judicial recogniti nomic realities involved. Since the corporate device and adequate insurance cov come commonplace in the maritime industry, there is no sis for continuing the special privilege to shipowners the extending it to any other industry. No such special p ailable in any other field of transportation such as aviation otor transport or, for that matter, in any other field of our he rationale for this special legislation has ceased, so that ust be said for eliminating the limitation of liability sta ther, and placing the shipping industry on a par with the y event, the tenor of judicial opinion, textbook writers e authorities on the subject is unanimous that the statut nder no circumstances, be expanded, but, on the contrary, estricted by the realities of the situation. 5. Maryland Casualty Co. v. Cushing, 347 U. S. 409, 437, 74 23, 1954 AMC 837, 859 (1954). American interests involved. 7 Brussels Convention on the ENTION AND PROPOSED LEGISLATION should be enacted, a shipowner could its position upon the desirability for need only refer to Judge Kennedy's s which he made as a member of this LIABILITY IN COLLISIONS BETWEEN VESSELS 193 very committee as a representative of the shipowners. In completely destroying the myth that the Brussels Convention will create uniformity, Judge Kennedy vigorously and effectively pointed out: "Uniformity was the watchword at Brussels for all the delegations, including our own. Does the end product justify the conclusion that uniformity was achieved or even approached? "By 'uniformity' persons who employ that word must be talking about a system which will not vary, no matter where the right to limit is invoked. They must mean that no matter what forum is used the shipowner and the claimants will have the same equal protection. "Of course on the procedural side, the Brussels Convention did not even attempt to achieve uniformity-such matters were left to the lex fori. Therefore, subject to a possibility which will be mentioned later, a shipowner who attempts to limit in the United States will have the burden of proof, whereas if he attempts to limit in any one of several other jurisdictions the burden will be upon the claimants to establish ‘actual fault or privity'. It can, of course, be said that it would be foolhardy to expect uniformity in 'procedural' matters. But it can also be pointed out that after long debate the courts of the United States have come to treat burden of proof as something more important than a minor matter of procedure. Since the location of the burden of proof may seriously affect the outcome of the litigation, our federal courts in diversity cases treat the burden of proof as substantive, and so it really is. "But if we turn to matters which are demonstrably substantive in any view, we find that in practice the Convention will surely produce not uniformity, but chaos." Despite his vigorous opposition and his cogent arguments against the Convention heretofore, Judge Kennedy and his colleagues representing the shipowners, now change their position, although the circumstances are the same and the factual picture has not changed. Only the pressures from the A.M.M.I. are new. The fact is that from the shipowners' own analysis, chaos, not uniformity, will result from the adoption of the Convention and the proposed legislation. 6. Report of the Committee to consider proposals relating to the limitation of liability of shipowners, Maritime Law Assn., Docu. No. 418, July, 1958, p. 4258-9. ntial justice; presumptions, such as the quitur and others, recognized under the y the board. Finally, the realistic fact e courts would grant awards commenliving, which are far below that in the t, no matter how substantial the claim, le for any personal injury or death of the foreign forums which the shippose. In this way, the Convention and y effectively deprive American litigants mitation Fund h the proponents of the legislation and l injury claimants is an alleged increase resent American law, to $207 per ton, 1. The fact is that this alleged increase : limitation fund except in remote ine fund will actually be less under the sting law. The majority failed to point erican system we use both the tonnage tituting the fund. The petitioning shipd either the value of the ship after the › at least $60 per gross ton. Thus, the 1 not a maximum. In most cases, the s value would by far exceed any fund 1. The Convention provides for a fund e allocated to personal injury and death |