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Lord Porter did not say that an actual sale is necessary to make it an actual total loss nor did he say that condemnation without sale is not an actual total loss. Therefore, the Stringer's case nor the "Girl-Pat" has finally decided the question involved before me. The quoted passage from Halsbury's Laws of England also do not say that condemnation without sale is not an actual total loss.

66. The "Polurrian" reported in (1915) 1 KB 922 is the first direct authority on constructive total loss as defined by Section 60 of the Marine Insurance Act. 1906. She was captured on October 25, 1912 by a Greek destroyer and the notice of abandonment was given by the assured on October 26 to the underwriter and thereafter she was released by the Greek Government on realisation of the mistake committed by the Greek interpreter in undertaking the English of the master of the ship. This mistake occurred in this circumstance. The master did not know that Greece had entered the war between Italy and Turkey and he told this fact when asked by the Greek interpreter who however thought that the master had told him that he was aware of that fact and accordingly be said so to the Naval Officer who arrested the ship. There the assured failed in his action on constructive total loss by capture and Kennidy, L.J., after reviewing the previous state of law, said that the assured could have recovered under the Pre-Act law relating to constructive total loss because her release was uncertain when the notice of abandonment was given by him, but the Act having altered this law to the disadvantage of the assured by using the expression 'unlikely' she was not a constructive total loss because her release was more likely than unlikely on that day. She was captured but was not condemned and I am not concerned herewith a capture simpliciter but with a capture followed by condemnation on which the 'Polurrian' is wholly silent.

69. Bainbridge v. Neilson, (1808) 10 East 329 is a case of recapture of a ship and it was held that the assured was not entitled to convert his partial loss arising out of a capture into a constructive total loss by abandonment. The ship in question was however not condemned and therefore it is unnecessary to discuss this case. The principles laid down in the 'Polurrian' and in the 'Girl Pat' relating to constructive total loss was followed in C. Czarnikow Co. v. Java Sea & Fixe Insurance Co. Ltd.. (1941) 2 All ER 256 where the condition of the cargo deteriorated between the catpure and the recapture of the ship. There the assured succeeded in the action and Viscount Caldecote at P. 263 of the report, said "it was unlikely, -- i. e. more unlikely than likely -- that cargo-owner would recover his goods" and "there was a constructive total loss of goods proximately caused by the perils insured against."

85. Where the irretrievable deprivation has not yet taken place but the assured is deprived of the possession of his ship or goods by a peril insured against and it is unlikely that he could recover the ship or goods as the case may be and he has reasonably abandoned them to the insurers it is a case of constructive total loss under Section 60 of the Act. A constructive total loss is not a factual loss. It is a loss presumed by] the law. Abandonment is the foundation of every constructive total loss and without an abandonment there can be no constructive total loss. Abandonment must be duly notified within a reasonable time from receiving the intelligence of the accident which must also be made on the true facts though unknown, to the assured but it cannot be made on the facts supposed to be true when they are not really true.

87. It is not the Taw that merely because an assured is deprived of his possession of the ship he will be entitled to abandon her to the insurer so as to convert Ms partial loss into a constructive total loss. Her unlikelihood of recovery must prevail over her likelihood of recovery to entitle him to convert a partial loss into a total loss by abandoning her to the insurer is the underlying principle of the constructive total loss in the law of Marine Insurance. This likelihood or, unlikelihood of recovery brings the subjective test into play. It is to be determined on the true facts and the circumstances prevailing at the time of abandonment The rule is that where the Insured ship exists in her original form and her recovery is unlikely the assured is put to an election either to treat her loss as a partial loss or as a constructive total loss. If he chooses to treat her as a constructive total loss he must give a notice of abandonment to the under-writer within a reasonable time from receiving the Intelligence of her accident because he cannot by delayed election prejudice the rights of the under-writer to recover her possession for his own benefit. Where the assured exericises his right of abandonment hi due time by a proper notice and the circumstance justifies such a course ha will get her agreed value.