1862.

GRAINGER

v.

MARTIN.

of underwriters in view. In conference with the underwriters of ship, it has been thrown out as a hint worth your consideration, that if you find that the necessary repairs cannot be satisfactorily done at Mauritius, or at a cost which from your previous experience you know would be double the cost at home, the ship should be cobbled up sufficiently to come home in ballast. In that case you must be most particular that the surveyors recommend this course to be most for the interest of all concerned, as otherwise you would not be justified in abandoning your freight and forwarding your cargo by other vessels. You must then take the earliest opportunity of advising us by what vessel the cargo comes forward, to enable us to give sufficient publicity for owners of cargo to protect themselves.

On the 7th October, 1859, the greater part of the cargo having been discharged, a second survey was held on the ship; when the report of the surveyor stated that she still made one and a half inches of water an hour.

After the 7th October, 1859, the master obtained from The Mauritius Marine Yard and Dry Dock Company an estimate that the cost of executing the repairs mentioned in the surveyor's report of that date would not exceed 6000%, but the Company declined to undertake to complete them for that sum.

On the 11th October, 1859, the master wrote to Messrs. D. Grainger & Son a letter, which reached them on the 8th November, 1859; with which he forwarded a copy of the surveyor's report of 7th October, 1859, and of the festimate, and informed them that, with such high costs before him for repairing the ship, he did not con

XXV. VICTORIA.

sider himself justified in going into those repairs without orders from them to that effect.

Between the 11th October and the 10th November the master made arrangements under which The Acadia's cargo was eventually sent on to Liverpool by other vessels; and on the 10th of November he wrote to Messrs. D. Grainger & Son a letter, which they received on the 10th December, and in which he stated that, failing to get a telegraph from them by last mail, and finding that the repair of the ship would take 90007. exclusive of expenses to be paid by cargo, he considered that he had no alternative but to forward the cargo as quickly as possible and await their orders.

After the 10th November, and when all the cargo was out of the ship, further damages were discovered. Another survey was held, and on the surveyor's report of those damages being submitted by the master to The Mauritius Marine Yard and Dry Dock Company, that Company estimated that the additional expense would not exceed 35007., making, with their former estimate, a total of 95007. They declined however, as before, to undertake the additional repairs for the amount of their estimate.

On the 8th December, 1859, the master wrote to Messrs. D. Grainger & Son, the following letter which they received on the 9th January, 1860.

"Ship Acadia,

"Port Louis

"Messrs. D. Grainger & Son.

"Mauritius, 8th December, 1859.

"Since writing you last mail, I have had another survey on the ship after all the cargo was discharged, and on my getting survey report, submitted it to the Marine

1862.

GRAINGER

V.

MARTIN.

1862.

GRAINGER

V.

MARTIN.

Dry Dock Managers: they gave me an estimate to do the work therein stated, amounting to 3500l., but would not bind themselves to that sum, although they gave it as their estimate of the probable cost as near as they could calculate on the back of survey report, making a total of 95007. On my presenting the surveys and esti mates thereon to the surveyors, they at once gave as their opinion from the shattered state of the ship, and their long experience, that the actual cost to repair would amount to at least 30 per cent. on the estimates handed me by Dry Dock Managers, and from my own experience and knowledge of ships that have been repaired since I arrived here, I am of opinion the surveyors' added cost, as written by them on their survey report, would be within the mark. This would make 12,3501. for the shipwright's work alone, to which I may add for sails and rigging cut and blown away, unmooring, pilotage to and from dry dock, scraping, painting, and boring pumps, and new gear, surveys, and other incidental expenses connected with docking and repairs, say 15004, making a total of 13,850., an amount so far above the value of the ship if repaired at home, that I at once made up my mind to abandon and sell the hull, rigging, sails, stores, &c., as soon as I can get all ready for the auction, on account and for the benefit of all concerned. . .

"I hope by next mail to be able to send you all documents connected with the cargo and sale of ship, &c.

"I remain, Gentlemen, your obdt. Servant,

After the date of this letter, the master submitted the estimates he had obtained for the repairs to surveyors, who gave him the following certificate:

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"The undersigned being requested by Captain Kerr, of the ship Acadia, to examine the estimates of the repairs of the said ship, as recommended by the surveyors, and to state our opinions how he should act for the benefit of all concerned: We hereby declare that, having carefully examined all the estimates for the repairs as recommended by the surveyors, the estimates are generally far short of the actual dock charges. It is our opinion, that Captain Kerr would not be justified in entering upon repairs which would evidently exceed 10,000%, and we therefore recommend him to abandon The Acadia for the interest of all concerned (estimated value in Liverpool being 73507.) "Mauritius, December, 1859.

"John Fraser, &c."

On the 13th December, 1859, the master attended before a notary public at Port Louis, and formally declared that he abandoned The Acadia to the underwriters; and at his request a notarial act was formally drawn up recording such abandonment, and the intention of the master to sell the vessel and hold the proceeds for account of whom it might concern.

On the 7th January, 1860, The Acadia was sold at Mauritius, by auction, under the master's orders. The vessel realized 1350l., which was reduced by the charges and expenses attendant upon the sale to 10701. The Acadia was afterwards broken up.

On the 10th February, 1860, Messrs. D. Grainger & Sonr eceived from the master the surveyor's report on the further damages, and the estimate of The Mauritius Marine Yard and Dry Dock Company, for repairing the same, referred to in his letter of the 8th December, 1859, and also the notarial act of abandonment above mentioned.

1862.

GRAINGER

V.

MARTIN.

VOL. II.

2 H

B. & S.

1862.

GRAINGER

V.

MARTIN.

On the same day the assured gave the underwriters on the ship notice of abandonment. The underwriters, however, refused to accept the abandonment.

The cost of repairing the ship would have been 10,500. In 1855, the plaintiffs bought the ship for 20,000Z. The cost of building such a vessel as The Acadia at the time the policy was effected, and at the date of the sale at Mauritius, would have been 20,0001. For the purposes of this case, 20 per cent. would be a reasonable deduction from the cost price of the vessel in respect of wear and tear at the date when the policy attached, and at the date of the condemnation of the vessel at the Mauritius. The value of the ship to sell when the risk on the policy commenced was 75001. Her value to sell at the time when the repairs would have been completed, assuming such repairs to have been properly executed would have been the same sum.

The Acadia was a vessel of exceptional size and class, and her value at any time to sell would depend very materially upon whether the sale were at the instance of an owner anxious to sell or of a buyer anxious to purchase. The value above stated, assuming the repairs to have been completed, is what the ship would have realized if sold by an owner anxious to sell at the period in question, when the market for all kinds of shipping was in a very depressed state. An owner wanting such a ship for the particular purposes of his trade at the time when the Acadia was sold, and having to elect to sell, to repair, or to purchase, would have elected to repair, for such a ship could neither have been built nor purchased at that time for so small a sum as 10,5007.

The plaintiffs claim to recover the sum insured as for a constructive total loss of the ship.