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6. Defendant's case however is that the pre-collision value of the ship could not exceed Rs. 5,000/- and the repair cost being as high as Rs. 16,390/-, the launch was a constructive total loss and the owner is entitled only to the pre-collision price. The learned Counsel for the defendant, appellant referred to Marsden's Law of Collision at Sea, 10th Edition, page 515 and read out the following passage.

"When a vessel is so much damaged by a collision that a prudent uninsured owner would not repair her, such vessel must be considered as a constructive total loss and her owner is entitled to claim from the wrongdoer the value of the ship as if she had been actually and totally lost .

This rule is based partly on the principle of restitutio in integrum and partly on the principle that the injured party must minimise his loss so far as is reasonably possible.

7. Before we consider the question further, let us see whether the precollision value of the launch has been proved to be Rs. 5,000/- upon which, accepting the principles laid down, the launch may be reckoned as a constructive total loss. Mr. Patterson of Norman Stewart and Company who inspected the launch, estimated the pre-collision value at Rs. 5000/- and the learned Judge who tried the case accepted it "in the absence of any other evidence". The correspondence between the parties prior to the institution of the suit discloses that the defendant made an offer of Rs. 5,000/- on the basis of pre-collision price as reported by Patterson but the plaintiff rejected the offer. In paragraph 5 of the plaint, plaintiff clearly stated that they did not accept the offer; indeed, from the correspondence and the pleadings it is clear that the plaintiff never accepted pre-collision price at Rs. 5,000/-. The defendant having admitted the damages for which he was guilty and the cost of repairs and having pleaded in mitigation of plaintiff's claim that the launch is a constructive total loss in view of the pre-collision price of Rs. 5,000/-, it is for the defendant to prove that the pre-collision price was Rs. 5,000. As I have already pointed out, the only evidence is that of Mr. Patterson who is an expert marine surveyor connected with Norman Stewart and Company and who examined the launches two days after the collision for the first time. The learned Counsel for appellant has argued that Mr. Patterson is an expert of some standing and due weight therefore should be given to the opinion given by him. He has referred to the case of the "Iron Master' reported in (1859) 166 ER 1206 where the learned Judge stated as follows on the question of assessment of the value of the ship at the time of the collision:

Ques. No. 51--Would it be correct to say that you were conversant with the market in Calcutta of the vessels of the type of Banalata?

Ans.--No. Ques. No. 52--So far you know, Mr. Patterson, are the vessels made of soft pine timber sold in the Calcutta Market? (objected to) Ans.--No. Mr. Patterson had to admit that he was not conversant with the market in Calcutta of the vessel of the type of Banalata and he also stated that vessels made of soft pine timber--as in the case of Banalata are not sold in Calcutta market. His evidence therefore comes to this that neither was there a market of such a vessel in Calcutta nor was he conversant with transactions of the vessels of this type. This being the position, how could he at once proceed, after a cursory glance of the launch for only 10 to 15 minutes, to assess its pre-collision value at Rs 5,000/ and should this Court in the circumstances accept the value given by him, the value which has been challenged throughout by the plaintiff by refusing to accept compensation for that amount? In the case of "Iron Master" (1859) 166 ER 1208 already referred to, the learned Judge referred to the second best evidence as the opinion of persons conversant with shipping and the transfers thereof. There being no market of the type in Calcutta, Mr. Patterson apparently was not conversant with the transfers of this kind of vessels and his competency to prove the precollision price can therefore be legitimately challenged. In answer to question about the job for which he was sent by Lionel Edwards Ltd., he replied that his job was "to verify, if any damage had actually been done to the various crafts involved in the collision and if so, how much". He did that job and accepted the report earlier made by Garden Reach Factory in its minutest details, including even the loss of cup and saucer. As an expert in the line, however, he knew the nature of defence that a client of his firm, Norman Stewart might take pre-collision value and therefore while accepting in toto the report of Garden Reach Workshop, he made an assessment of the pre-collision value although not strictly within his job. The assessment by Mr. Patterson, an expert though, should therefore be closely scrutinised. In His report to the Conservator of Forest, Ext 2(c) the Forest Officer concerned stated that there was an offer of Rs. 5,000/- as the value at the time of the collision and that he had refused to accept that. For ascertaining the pre-collision value certain other factors may be taker into consideration, namely, the price at which it was purchased, the nature of the maintenance and its cost, and whether it was in running condition prior to collision. Although the papers connected with the purchase have not been produced, it appears from the departmental report, Ext. 2(c) to the Conservator of Forest that the vessel was acquired from the disposals at a price of Rs. 25,000/- in 1948. It further appears from a similar letter to the Conservator of Forest, Ext. 2(1) that the vessel covered 10,523 miles since its purchase and that the period of active service of the launch was from 8-7-49 to 9-2-51, that is, the day prior to the day of collision. It further appears that after purchase the vessel was remodeued in 1948-49 at a cost of Rs. 10,980/- and thereafter cost of repairs in 1948-49 was Rs. 3,746/-, in 1949-50 Rs. 8,998/- in 1950-51 Rs. 2406/-. The learned Counsel for the appellant has argued that the annual cost o repair would show that the vessel was in an extremely dilapidated and worn out condition requiring so much as cost of repairs. The argument may be the other way as well. It was a departmental launch meant for Forest Officers and maintained at public cost and apparently the launch was properly maintained and it is common knowledge that the condition and value of a vessel is very much connected with its up-keep. So, a vessel purchased for Rs. 25,000 in 1948, remodelled at a cost of Rs. 11,000/- in the same year and thereafter properly kept up at considerable cost should not so much deteriorate that its value on the date of the collision comes down to Rs. 5,000/-. There is no doubt that importance should be given to the expert's opinion but his opinion is not backed by sufficient data and the factors that I have already referred to, would, in my view be good grounds for not accepting the opinion of the expert. I may also point out that two letters, Exts. 2(c) and 2(i) referred to were written prior to the institution of the suit and there is therefore no reason to suspect that the report to the departmental superior by a public officer was anything but true. We are not therefore satisfied that the pre-collision value of the launch was Rs. 5,000/- and the defendant appellant having failed to substantiate it, the vessel cannot be treated as constructive total loss, and resting on the principle of restitutio in integrum, plaintiff is entitled to receive the entire cost of repair. It is true that the plaintiffs did not give their estimate of the pre-collision price and did not even respond to defendant's letter Ext. 2(d) suggesting assessment by another firm of marine surveyors but their reply Ext. 2(e) shows that the officers dealing with the matter at that stage did not know the implications of the suggestion and were harping on the question of cost of repairs. In any case nowever, it was up to defendant to prove that the pre-collision price was so low that it was uneconomic to repair it, and if they have failed to do it, plaintiff is entitled to admitted cost of repair.

11. In the case reported in (1933) AC 449, Liesbosch Dredger v. Edison, also referred to by the learned Counsel for defendant appellant, it has been pointed out that when a vessel is lost by collision due to the sole negligence of the wrongdoing vessel, the owners of the former vessel are entitled to what is called resitutio in integrum, which means that they should recover such a sum as will replace them, so far as can be done by compensation in money, in the same position as if the loss had not been inflicted on them, subject to the rules of law as to remoteness of damage. It was pointed out in Liesbosch Dredger's case 1933 AC 449 that the true rule seems to be that the measure of damages in such a case is the value of the ship to her owner as a going concern at the time and place of the loss. The important point here is to "recover such a some as will replace them so far as can be done by compensation in money in the same position as if the loss had not been inflicted on them. If there is no market for the same or similar type of vessel and if there is no evidence that such vessel is available at below the repairing cost--in the present case there is no evidence on either point--and if it was not a case of total loss but repair was possible to put the vessel in her original condition, the owners of the damaged vessel should be entitled to get the cost of repairs, instead of the pre-collision price on the principle of restitutio in integrum. In this case the dictum laid down by Dr. Lushington in the Columbus 3 W. Rob. 158 (164) that "the true rule of law in such a case would be to calculate the value of the property destroyed at the time of the loss and to pay it to the owners as a full indemnity to them for all that may have happened without entering for a moment into any other consideration" was not accepted. It was pointed out that the dominant rule of law is the principle of restitutio in integrum and subsidiary rules can only be justified if they give effect to that rule. If the vessel is not replaceable at a lower cost by a comparable one and if It is capable of being put into its original condition by repair, even though at a higher cost, the owner of the damaged vessel is entitled to recover cost of repairs on the same principle of restitutio in integrum. In later cases it was pointed out that the damages form the value of the vessel lost at the end of her voyage plus the profit, loss in the charter party. Marsden pointed out in paragraph 513 of his well known book, Law of Collision, that "in deciding whether the ship is a constructive total loss, other factors such as the cost of and time needed for temporary repairi, If any, the engagement of the vessel during which the vessel would be detained etc. have to be taken into consideration", and this supports the view that pre-collision price is not the only factor for determination as to whether a vessel is it constructive total loss. The learned trial court has also referred to page 856 of Halsbury's Laws of England, Volume 30, Second Edition, which supports Marsden's view earlier referred to that the injured party may derive a greater benefit than mere indemnification where this arises from the impossibility of otherwise effecting such indemnification without exposing him to some loss or burden. It was further pointed out in paragraph 1131, at page 857 that in the absence of a market value for a vessel, the test is what the vessel was fairly worth to her owners as a going concern at the time and place of loss. The vessel was not a commercial one but was a Government vehicle under the Forest Department used for administrative purposes in the Sunderbans and to that extent, it has its special value to the owner, State of West Bengal. The principle appears to be that in case of damages to a ship which is not sunk, the injured party may recover damages on the principle of g artial loss, and the measure of damages shall e the estimated cost of repairs. Marsden further pointed out in paragraph 531 of the same volume that, "If the damage received in a collision is greater than would ordinarily be the case because the ship was in a weak condition, the other is not the less liable for the entire loss, if she is in fault for the collision. The principle is, that a part of the damage was clearly attributable to the wrong-doer, and it is impossible to draw the line with precision, and to say how much, the wrong-doer must make good the whole loss; but where the damage occasioned by the collision can be easily discriminated, defects disclosed in consequence of the collision though existing prior to it, cannot be charged against the defendant."