ABSTRACT
In The Polurrian Case,101 the word ‘unlikely’ was compared to ‘uncertain’ which was the concept used before the passing of the Act. In substituting the test of ‘unlikelihood of recovery’ with ‘uncertainty of recovery’, the Act had modified the pre-existing law to the disadvantage of the assured. The criterion is ‘not merely quite uncertain whether they would recover her within a reasonable time, but that the balance of probability was that they could not do so’.102 As the recovery of the vessel in question was only uncertain and not unlikely, there was no constructive total loss. The court also acknowledged the fact that the test would be ‘very difficult to apply with any sense of satisfaction, because it necessarily involved conjecture and speculation as to what is likely to be the outcome of a number of possible contingencies’.
