Ordinarily,

value of ship

value.

Where a collier schooner was sunk in a collision, is her market Dr. Lushington, with reference to the question of damages, said, "Wherever damage is done by one vessel to another, the parties are to be restored into the same position as they were in before the accident; that is to say, they are to have the full value of the property lost; restitutio in integrum is the leading maxim. The value is, the market price at the time of the destruction of the property, and the difficulty is, to ascertain what would be its market price. In order to ascertain this, there are various species of evidence that may be resorted to, for instance, the value of the vessel when built. But that is only one species of evidence, because that value may furnish a very inferior criterion whereby to ascertain the value at the moment of destruction. The length of time during which the vessel has been used, and the degree of deterioration suffered, will affect the original price at which the vessel was built. But there is another matter infinitely more important than this-known even to the most unlearned-the constant change which takes place in the market. It is the market price which the Court looks to, and nothing else, as the value of the property. It is an old saying, 'The worth of a thing is the price it will bring'" (a).

Since this decision, it seems to have been the constant practice in the Court of Admiralty to look

(a) Clyde, Swab. 24.

cases.

to the market value, and that alone, as the test of a ship's value in case of total loss. This rule has the advantage of providing a measure as definite as perhaps the nature of the case admits. At the Exceptional same time it is not to be denied that there are cases, exceptional no doubt, in which the market value by no means answers the end proposed, of giving to the sufferer a restitutio in integrum. When a ship is built for a special trade, requiring unusual conditions, such as a very small draft of water, or the sacrifice of carrying power or economy of working for the sake of attaining unusual speed, or peculiar accommodations for passengers, or for special descriptions of cargo, as in the case of iron ships built with tanks in the frame for carrying petroleum, the market for such vessels is so restricted, that a vessel which is exceedingly profitable to her actual owner, may be unsaleable or only saleable at a price far below her real value. That the market price cannot be the true test in all cases, has been recognized in the common law courts and in the Court of Chancery. In the case of Wilson v. Dickson (a), where it was a question how to determine the value of a ship in a collision suit, Bayley, J., said, “The mode of ascertaining the value is a matter of evidence. The plaintiff may

launch a prima facie case by showing the value at the time of sailing, leaving it to the opposite party to show what deterioration has taken place. That,

(a) 2 B. & Ald. 2.

however, is a mere question of evidence, and no positive rule can be laid down upon the subject." In Dobree v. Schroeder (a), Lord Cottenham held that the market price was a better test of a ship's value than the prime cost with a deduction for wear and tear. "The latter method," said the learned Judge, “has this disadvantage, that it can never be applied with certainty to any two cases. In one case, a ship may have been purchased advantageously and employed disadvantageously; in another, the reverse may have taken place." The other side of the argument is presented in the judgment of Wood, V.C., in The African Steam Ship Company V. Swanzey (b). "In ordinary cases," said the learned Judge, "the value of a ship is what she would have fetched immediately before the loss. This, however, cannot be a true criterion in all cases. A particular class of ships might be adapted for one description of traffic, and for that alone, and that description of traffic might be entirely occupied by one Company, with which it might be hopeless to compete, so that there would be no market for a ship of that particular description. If such a case should ever arise, it would be necessary for the Court to adopt some other criterion. One, I venture to, suggest, might be to ascertain the price given for the ship, and her subsequent deterioration. Some such criterion would have to

(a) 2 Mylne & Craig, 488.

(b) 2 K. & J. 664.

be adopted, for otherwise the value of the ship would be, what the ship would sell for to be broken up." In the case of Grainger v. Martin (a), where the point in difference was, what was the true test of the value of a ship in order to determine whether a loss was total or partial under a policy of insurance, it was determined that the value in the market was not the test in that particular case. Crompton, J., said: "I do not think it is a fair argument, because the ship could only be sold for £7,500 when repaired, to say that it would not be worth while to repair the ship for £10,500; for it might be worth while to build a ship for £20,000, which would sell in the market for £7,500. It is clear the value of the ship in the market cannot in this case be the test." Blackburn, J., said that the test was not, either what a buyer would give, or what a seller would part with the ship for (two amounts which may differ very widely), but the real value of the ship. In the case before him, which was that of a ship of unusually large size, required for a particular trade, but otherwise unmarketable except at a serious loss, the learned Judge said, "The price for which a person could have got such a ship built for and brought to him, would come nearer to the value than the price for selling."

These decisions are here set down, to point out that in certain rare and exceptional cases the rule of looking only to the market value, which ordi

(a) 8 Jurist, N. S. 997.

L

Case of ship sunk and

narily prevails in the Admiralty Court, may possibly be not applicable (a).

Next to the case of actual total loss, come the raised again. cases, where a ship has been sunk, but is raised again, and where, though merely damaged, she has been damaged to such an extent as to make it doubtful whether she is worth repairing. Under this head, there are the following decisions :

The fishing smack Tryall had been sunk off Dungeness by a collision with the Columbus, for which the latter vessel was pronounced in fault; she had been raised again at the expense of the owner of the Columbus, and carried into Rye harbour; and notice of this had been given to the agents for the smack, with an intimation that the

(a) The following decisions have reference to the evidence required in the Admiralty Court. If a vessel is of extraordinary strength and peculiar build, so as to raise her value above ordinary ships of her class, the owner should produce evidence of this before the registrar and merchants (Eliza, 5 Mitch. 276).

In another case, Dr. Lushington laid down the several methods of arriving at the value of a ship in the following terms :-" The best evidence is the opinion of competent persons who knew the ship shortly before she was lost. The second best evidence is the opinions of persons conversant with shipping and the transfers thereof. In addition to testimony of this description, many other circumstances may be called in aid; as, the original price of the vessel, the amount of repairs done to her, the sum at which she was insured, and other circumstances of a similar nature. It is manifest that facts of this kind, though not to be wholly excluded, have a slighter bearing upon the case; for, after a lapse of years, the amount of price might, from a change of circumstances, have little bearing upon the question: so, to a certain extent, it would be with respect to repairs and insurances " (Iron-Master, Swab. 443).