ABSTRACT
Unlike a loss under s 60(2)(i), a constructive total loss under this heading entails the assured having possession and control over his property. For the section to apply, the damage sustained by the ship has to be repairable. The issue here is primarily concerned with a comparison of figures between the cost of repairs and the value of the ship when repaired. Section 60(2)(ii) states:
The above principle was recognised as early as 1836 by Chief Justice Tindal in Roux v Salvador.122 In 1850, however, in Moss v Smith,123 Mr Justice Maule was able to describe with clarity the nature of this form of a constructive total loss, even though the concept was then still somewhat undeveloped. Though the expression ‘constructive total loss’ was not used, nonetheless, the concept he had then envisaged is the same as current law:
As will be seen shortly, this is by far the most complex of all statutory provisions on constructive total loss. It has generated a host of problems, some of which a solution has yet to be found.
