on either side, and of such a character as to be visible at a distance of at least five miles. (b) On the starboard side a green light so constructed as to show an unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the starboard side, and of such a character as to be visible at a distance of at least two miles. (c) On the port side a red light so constructed as to show an unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the port side, and of such a character as to be visible at a distance of at least two miles.

Art. 9. As regards [British] steam vessels engaged in trawling [in the sea off the coast of Europe, lying north of Cape Finisterre], when under steam such vessels, if of 20 tons gross register tonnage or upwards, and having their trawls in the water, and not being stationary in consequence of their gear getting fast to a rock or other obstruction, shall between sunset and sunrise either carry and show the lights required by [art. 3 of the Regulations of 1884, now art. 2], or shall carry and show in lieu thereof and in substitution therefor, but not in addition thereto, other lights of the description set forth [below]: On or in front of the foremost head and in the same position as the white light which other steam ships are required to carry, a lanthorn, showing a white light ahead, a green light on the starboard side, and a red light on the port side; such lanthorn shall be so constructed, fitted, and arranged as to show an uniform and unbroken white light over an arc of the horizon of four points of the compass, an uniform and unbroken green light over an arc of the horizon of ten points of the compass, and an uniform and unbroken red light over an arc of the horizon of ten points of the compass, and it shall be so fixed as to show the white light from right ahead to two points on the bow on each side of the ship, the green light from two points on the starboard bow to four points abaft the beam on the starboard side, and the red light from two points on the port bow to four points abaft the beam on the port side; and (2) a white light in a globular lanthorn of not less than 8in. in diameter, and so constructed as to show a clear, uniform, and unbroken light all round the horizon; the lanthorn containing such white light shall be carried lower than the lanthorn showing the green, white, and red lights as aforesaid, so, however, that the vertical distance between them shall not be less than 6ft. nor more than 12ft.

Art. 9, which was art. 10 of the old rules, is in force until such time as an Order in Council shall change it.

It has been added to and amended by Orders in Council of the 30th Dec. 1884 and the 24th June 1885.

The words in the square brackets are not in the text of the order, but are inserted to avoid printing the orders in detail.

Art. 20. When a steam vessel and a sailing vessel are proceeding in such directions as to involve risk of collision, the steam vessel shall keep out of the way of the sailing vessel.

Art. 26. Sailing vessels under way shall keep out of the way of sailing vessels or boats fishing with nets, or lines, or trawls. This rule shall not give to any vessel or boat engaged in fishing the right of obstructing a fairway used by vessels other than fishing vessels or boats.

Balloch for the plaintiffs.-It is the duty of a steam vessel to keep out of the way of a sailing vessel. On the evidence it is clear that the Upton Castle had hauled her gear some time before the collision, and was going ahead; she

[ADM.

was, therefore, carrying wrong lights, and was infringing art. 2 of the Collision Regulations. There is no suggestion that the sailing vessel did not keep her course, and if she is to blame the defendants must make out that it is the duty of a sailing vessel, under these circumstances, to keep out of the way of a steam vessel. The Upton Castle is a "steam vessel within the meaning of the preliminary article of the Collision Regulations, and she was also "under way' within the meaning of that article. It was therefore her duty, under art. 20, to keep out of the way of the Rival, a sailing vessel. It is true that a sailing vessel was held to blame for running into a steam trawler exhibiting lights similar to the lights exhibited in this case:

The Tweedsdale, 61 L. T. Rep. 371; 6 Asp. Mar.
Law Cas. 430; 14 P. Div. 164.

But the facts in this case are not the same as in that. That case was also decided under the Collision Regulations of 1884. In the Collision Regulations of 1897 a new article appearsart. 26-which directs that sailing vessels under way shall keep out of the way of sailing vessels or boats fishing with nets, lines, or trawls. That article shows that sailing vessels have no duty cast on them to get out of the way of steam trawlers even when fishing.

Noad for the defendants.-The story told by the plaintiffs is false, as is shown by the fact that they are unable to give any details of what the Upton Castle was doing from the moment they first sighted her on the port bow until they see her again on their starboard quarter. The collision was caused by the bad look out on the part of those on the Rival. The lights exhibited by the Upton Castle were proper lights (The Tweedsdale, ubi sup.), and it was the duty of the Rival to keep clear of her.

Balloch in reply.-Art. 26 of the present regu. lations shows that steam trawlers cannot expect sailing vessels to keep out of their way.

BARGRAVE DEANE, J.-This is an action for damage brought by the owner of the ketch Rival, a vessel of 60 tons register, manned by a crew of four hands, against the owners of the Upton Castle, which is a steam trawler, and was manned by a crew of nine hands. The collision took place off Trevose Head, on the north coast of Devonshire, on the 25th Feb. 1905, about 9.30 p.m. It is almost impossible to harmonise the stories told by one side and the other. The master of the ketch was on deck, one hand was at the tiller; he was a Swede, and was unable to give us much information; the other two hands were below. The master's evidence was that somewhere about 9 p.m. he was on a course of N.E. by E. when he saw two white lights three points on his port bow. He did not know what they were, and after a little time as the lights got nearer he told his man at the tiller to starboard, and he starboarded sufficiently to bring those lights about a point on his starboard bow. He says he continued to watch them, and the lights got on to his starboard beam. He says that then he saw that one light was on the bridge of the other vessel. That is his story, and he says that he kept on his course, and that the other vessel, the steam trawler, steamed ahead right across his bows, and before he could do anything he was hit by being struck on the stem by the

port side aft of the Upton Castle. The story told by those on the trawler is that they were fishing that night round a buoy which they had out, and that at one time their head was N.W., but before the collision they had brought it to E.N.E., practically the same heading as the ketch. That would account for the ketch seeing two white lights. The trawler was hauling in her trawl, and therefore she was practically not moving, and was keeping, I suppose, practically the same heading. So far nothing had happened, but we have got to consider what was going on on board the trawler. All hands were employed hauling in the trawl except the master, who was on the bridge, and he no doubt was fully engaged, as the rest of the crew were, in seeing what the trawl was bringing up. Apparently just before the collision the net had been got in, and then, the net being on board, the master set his engines ahead, and he himself took the wheel. The engines of the trawler were going ahead for about a minute before the collision. We have the evidence of the master and chief engineer as to that, and the full speed of the trawler was seven to eight knots. The question that then arises is, Why did the trawler not see the ketch sooner? As far as we can judge nobody on board that trawler was keeping a look-out. The master was on the bridge, but he never saw this ketch, although it must have been in sight for about half an hour, and it is obvious that there was in fact nobody keeping a look-out on the trawler. The master, as soon as the trawl was on board, put the engines ahead and went to the wheel, and he then says he saw the green light of the ketch on his port side, heading straight into him. That proves, as a matter of fact, that this trawler had gone ahead crossing the bows of the ketch, and that when he ported his helm he ported it too late to avoid the collision. It is difficult to see why the master of the trawler did not see the ketch sooner than he did. Why did he put his engines full speed ahead if he saw the ketch at a time when he would probably have avoided the collision if he had not put his engines ahead? Our finding on the facts is, that there was no proper look-out kept on the trawler; that those on the ketch did keep a proper look-out, and they did nothing to bring about the collision. Something has been said about the look-out on the ketch, but we think the master of the ketch was in the best possible position for looking-out. From where he was he could see under the sail, and he could also see over the rail on his starboard side, and so could see all round. We think he was in the proper place, and we therefore find as a fact that the ketch is not to blame, and that, owing to want of a proper look-out on the trawler, she at the time performed a wrong manoeuvre in going ahead without first looking all round to see if anything was in the way.

Now comes the question of law. It has been suggested that the trawler was not to blame, in consequence of the view expressed by Sir Charles Butt in the case of The Tweedsdale (ubi sup.). I have very carefully considered the case of The Tweedsdale (ubi sup.), but I do not think that case is of assistance in this case. The substance of that case is this, there are in the light sections of the sailing rules alternative lights provided for trawling vessels. They may either carry the ordinary lights for a steamship-that is, a red light on the port side, a green light on the star

[ADM.

board side, and a masthead light—or they may carry what some of the witnesses have called a duplex light, one lamp hoisted up to the masthead and showing a white light forward, a red light on the port side, a green light on the starboard side, with a dark arc aft. The trawler may carry the duplex light when she is fishing, instead of the usual side lights; and undoubtedly the decision in The Tweedsdale (ubi sup.) amounts to this, that when a vessel is trawling, and therefore not under command, she ought to show those lights to indicate to other vessels that she is not under command but is trawling, and that therefore it would be the duty of the other vessels to keep out of her way. In this case the lights carried by the trawler, the Upton Castle, were the duplex lights-the lamp of three colours and no side lights; and at the time when this trawler was going ahead at full speed after she had got her trawl on deck, she had up her trawling lights as if she were a vessel not under command. If the judgment in The Tweedsdale (ubi sup.) is looked at, it will be found that Sir Charles Butt carefully pointed out that those alternative lights were only to be carried when the vessel was not under command, and that, as soon as she ceased to be trawling and was fully under command, and able to go full speed ahead, she should put up the usual side lights. I will only read, to emphasise this and to show that I accept the judgment in full, the last part of the judgment of Sir Charles Butt, at p. 171 of the report in 14 P. Div.; 6 Asp. Mar. Law Cas., at p. 432. It is as follows: "It must be observed that the regulation gives a trawler an option; she may either carry the lights which this trawler was carrying at the time, or she may carry in lieu thereof the regulation lights prescribed by art. 3 -that is, an ordinary steamer's lights. I think the option so given must be exercised with discretion, and I think the discretion given must be used in this sense. If a trawler has not only sufficient way on her to keep herself in command, but also sufficient way to act with effect in altering her course for an approaching ship, then what I may call the ordinary regulation side lightsthat is, the lights prescribed by art. 3-should be carried, and those in charge of her should act as the regulations require an unencumbered vessel to act. If the trawler has no more than steerage way, and has little power, therefore, of keeping out of the way of another vessel, she should carry what I call the extraordinary regulation lightsnamely, the lights prescribed in the schedule I have just read, and the lights which this trawler was, in fact, carrying at the time of the collision. She should carry those lights and she should act as this vessel did. She should refrain from making any alteration of her course and leave the other vessel to keep clear of her." In that case the trawler the City of Gloucester did nothing, she had her trawl down and she kept her course, and the sailing vessel, the Tweedsdale, was held to blame for not keeping out of her way. If this trawler, the Upton Castle, was carrying those alternative lights, then she had no right to go ahead at full speed and throw herself across the bows of this ketch. Returning again to the passage in the judgment of Sir Charles Butt, it continues: "The City of Gloucester, as I have said, was going at such a rate as to give her bare steerage way, she was

carrying the lights last mentioned, and I therefore hold her free from blame in this matter.

have been obliged to put the best construction I can upon rules which are not easy of interpretation, and I am perfectly well aware that it is almost impossible to put any construction that would not be open to some objection. The one I have adopted leaves a serious responsibility upon persons in charge of trawlers, and probably upon their owners, because they have to make up their minds as to what speed will barely give steerage way, and what will give something more; in other words, they must decide when their vessel ought to carry ordinary lights under art. 3, and when she ought to carry the exceptional lights." In this case, following that decision, the trawler ought, as soon as she was under command and in a position to go full speed ahead, and before she went full speed ahead to have changed her lights and put up the ordinary side lights, so as to give an indication to other vessels of what she was and under what conditions she was steering. For this reason I am of opinion that so far as the law is concerned at the time when this vessel, the Upton Castle, got across the bows of the ketch she was a vessel under command, which ought to have had the proper regulation lights up, and ought to have kept out of the way of the ketch, and ought to have had a proper look out, which would have enabled her to see the ketch, and brought home to the minds of those in charge of her that it was not advisable to go full speed ahead. Following this decision, I am of opinion that at the time when the trawler was on the starboard side of the ketch there was no risk of collision, the position was that of sailing vessel and steamer, and it was the duty of the steamer to keep out of the way of the sailing vessel, and it was the duty of the sailing vessel to do nothing. In this case the sailing vessel did nothing, and she was right in doing nothing. The trawler is alone to blame for going full speed ahead across the bows of the sailing vessel when she was on the starboard side of the ketch.

Solicitors for the plaintiffs, Williamson, Hill, and Co., agents for Ingledew and Sons, Cardiff. Solicitors for the defendants, Crump and Son.

Supreme Court of Judicature.

COURT OF APPEAL.

Monday, June 26, 1905. (Before COLLINS, M.R. and ROMER, L.J.). THE HAVERSHAM GRANGE. (a) Collision Vessel injured by two collisions Measure of damage caused by second injury— Cost of dry docking-Demurrage.

A vessel, the M., was run into and injured by another vessel, the C. The injury inflicted by the C. was of such a nature that the M. had to be dry docked for repairs in order that she might be made seaworthy. The M. was afterwards run

(a) Reported by L. F. C DARBY, Esq., Barrister-at-Law.

[CT. OF APP.

into by the H. G. and further damage was done, to repair which it was necessary that the M. should be dry docked. After the collision with the H. G., the owners of the M. engaged a dry dock for the purpose of doing the repairs rendered necessary by both collisions. The time occupied in repairing the damage caused by the C. alone was twenty-two days. The time occupied in repairing the damage done by the H. G. alone was six days. Both sets of repairs were done at the same time, and the M. was not detained for more than twenty-two days. On a reference to assess the amount of the damage sustained by the owners of the M., the owners of the M. claimed from the owners of the H. G. half the cost of dry docking and incidental expenses and three days' demurrage. The registrar disallowed the claim. The President (Sir Gorell Barnes) affirmed the decision of the registrar.

On appeal by the owners of the M. to the Court of Appeal:

Held, that the owners of the M. were not entitled to recover demurrage from the owners of the H. G.; but that, following the decision in Vancouver Marine Insurance Company v. China Transpacific Steamship Company (55 L. T. Rep. 491; 6 Asp. Mar. Law Cas. 68; 11 App. Cas. 573), they were entitled to recover half the cost of dry docking and incidental expenses incurred during the time both sets of damage were being repaired.

MOTION in objection to the report of the regis trar.

The following were the facts as found by the registrar:

On the 25th Dec. 1904, at 11 p.m., the Maureen was struck by the Caravellas, doing her damage forward. For that collision the owners of the Caravellas admitted their liability for 50 per cent. of the damage caused by that collision. In order to repair that damage it was necessary for the Maureen to go into dry dock.

On the 26th Dec. 1904, about twelve noon, the Maureen was struck by the Haversham Grange, damage being done to the Maureen on the starboard side and to her bilge keels. The owners of the Haversham Grange admitted liability for the damage done by their vessel. In order to repair that damage it was necessary for the Maureen to go into dry dock.

The two sets of repairs were subsequently carried out, the dry dock being engaged at the same time for both sets of repairs. The repairs rendered necessary by the damage done by the Haversham Grange were done at the same time as the repairs rendered necessary by the damage done by the Caravellas, and did not increase the amount paid as dock dues, or the length of time during which the repairs were in progress.

The reference came before the registrar on the 12th April 1905, and the parties agreed that to repair the damage caused by the Caravellas would have taken twenty-two days, and to repair that caused by the Haversham Grange would have taken six days.

The items of the plaintiffs' claim which were objected to by the owners of the Haversham Grange were the following: "(1) To cost of shifting steamship Maureen from her discharging berth to dry dock for repairs (part cost charged

only, as Maureen had been damaged by another collision, which also rendered it necessary for her to be repaired and go to dry dock), 11l. 78. 6d. ; (2) to cost of docking and shoring vessel (half cost charged only), 6l. 5s.; (6) to part dry dock dues, 241.; (8) to part of amount paid for adjusting compasses, 27.; (9) to loss of the use of the Maureen in and about repairs for three days. The time occupied was six days, 1221. 17s. 3d."

At the hearing of the reference it was contended on behalf of the plaintiffs that they were entitled to charge the owners of the Haversham Grange with the items set out above on the ground that it was necessary to dry dock the Maureen to repair each set of damage, and that each wrongdoer should bear half the cost of the operations common to both sets of repairs, and should contribute equally towards the loss sustained by the detention of the Maureen while both sets of repairs were being effected.

It was contended on behalf of the defendants that the owners of the Caravellas were solely liable for all these expenses, because at the time of the second collision those expenses were bound to be incurred, and that the injury caused by the Haversham Grange did not increase them.

The registrar in his report disallowed the items on the grounds that in an action of tort all that had to be considered was what were the consequences of the collision, and what were the losses caused to the owners of the Maureen by the collision. As the owners of the Maureen were not put, as regards dock dues and demurrage, to any more expense by reason of the collision with the Haversham Grange than would have been incurred without such collision, he held that the contention of the defendants was correct, and disallowed the claims made for dock dues and demurrage.

The owners of the Maureen on the 18th April 1905 filed a notice of objection to the report of the registrar, and on the 20th April the solicitors for the owners of the Caravellas and Haversham Grange consented and agreed to the objections to the registrar's report being heard on motion.

The case came before the court on the 8th May on motion, and, after hearing the arguments of counsel, the President reserved judgment till the 17th May 1905.

May 17, 1905.-The PRESIDENT.-This is a case which gives rise to matters of some little interest, but to my mind it is not a very serious point. The question which has to be determined arises on a few short facts, and the question is whether the plaintiffs, the owners of a vessel called the Maureen, are entitled to recover against the owners of the Haversham Grange a proportion of dock dues and similar payments and demurrage. The facts are these: On the 25th Dec. 1904, at 11 p.m., the Maureen was struck by the Caravellas, doing her damage forward. For this collision the Caravellas admitted her liability for 50 per cent. of the damage. In order to repair this damage it was necessary for the Maureen to go into dry dock. On the 26th Dec., about twelve noon, the Maureen was struck by the Haversham Grange. Damage was done on the starboard side and to the bilge keels. The Haversham Grange admitted liability for this damage, to repair which it was necessary for the Maureen to go into dry dock. The two sets of repairs were subsequently carried out, the

[CT. OF APP.

dry dock being engaged for each set of repairs at one and the same time. The repairs of the Haversham Grange damage were done at the same time as the repairs of the Caravellas damage, and did not increase the amount of the dock dues, or the length of time during which the repairs were in progress. Thereupon the plaintiffs, the owners of the Maureen, I suppose because their claim against the Caravellas was limited to 50 per cent. of the damage, have contended that they were entitled to charge a proportion of the dock dues and the demurrage to the Haversham Grange collision; and the ground of the contention was that, as it was necessary for each damage that the Maureen should be dry docked and be repaired, the plaintiffs were entitled to make this claim, and that they have made it on the basis of each vessel which did damage being liable for half of the following items-namely, the cost of shifting the steamer Maureen from her discharging berth to the dry dock for repairs, the cost of docking and shoring the vessel, the dry dock dues, a small part of a small amount for adjusting compasses, and the loss of the use of the Maureen during the time of the repairs for three days (that is half of the six days during which the damage done by the Haversham Grange took place, because, if I remember rightly, the repairs done by the Caravellas took considerably longer-I think. if I am correct, some twenty-two days). The registrar has reported as follows: In my opinion in an action of tort such as this, all that has to be considered is, what are the consequences of the collision and what are the losses caused to the owners by such collision. In the present case the owners of the Maureen were not put, as regards dock dues and demurrage, to any more expense by the collision with the Haversham Grange than they would have incurred without such collision, and, therefore, I hold that the owners of the Haversham Grange are right in their contention" - that contention on the part of the Haversham Grange being that they are not responsible for any part of the items to which I have referred; and they say that they are not so responsible, because, the first collision having damaged the vessel to such an extent that she could no longer be used without repairs, which would take a longer time than the repairs of the damage done by the Haversham Grange afterwards, that in the first place no demurrage could possibly be claimed, as there was no delay caused by the Haversham Grange because the vessel would be longer delayed and useless because of the Caravellas damage. Secondly, that none of the items which I may characterise, generally, as dock dues, because they are all on the same footing as dock dues, are due to the second accident, because she must have been docked in consequence of the first accident, and was, therefore, damaged to an extent which is measured by the cost of such putting into dry dock, plus the repairs, and that no extra expense was caused by the second collision, and the repairs caused by the second collision could be done while she was in dock, and in a less time than the repairs of the first collision. The point which was made principally by the plaintiffs, who seek to put a part of that half liability on the defendants, was that the case is governed by the decision in what is known as the Vancouver case (reported in 11 App. Cas., under the name

of Marine Insurance Company v. China Transpacific Steamship Company Limited) (ubi sup.), and that the effect of the decision is to show that in circumstances such as these the expense should be divided. It is important first to point out that that case has no application whatever to the claim for demurrage, and the learned counsel who argued in support of putting forward the present claim against the Haversham Grange felt the difficulty of asking that half the demurrage should be paid by the second vessel doing damage, and half by the first vessel doing damage, because it is obvious that the rule which has to be applied is simply this: to ascertain what damage was done by the wrong committed by the second wrongdoer, and if the second wrongdoer runs into a vessel which is already incapacitated by something which has previously happened, so that the second damage did not delay her one minute, it is impossible, to my mind, to say that the second wrongdoer is to be responsible for part of the delay which he has not in fact caused. The Vancouver has no application to this point. and I think it is quite clear that the defendants are not liable for any part of the demurrage.

But the case, it is said, is applicable to the claim so far as it relates to dock dues. That was a case of a totally different character to the present case. It was an action on a policy of marine insurance where a vessel had become so foul that she required to be put into a dry dock, and where, also, she had sustained certain damage to her stern frame, and which also necessitated her being put into dock. I do not wish to spend time in reading the whole of the headnote which sets out these facts, but it is sufficient to say that the contention in that case was that the underwriters were responsible for part of the dock dues because they ought to be treated as part of the cost of repairing the damage which they were responsible for, and that, if they were responsible for part of the dock dues, then the loss which would fall on them would exceed 3 per cent. and make them liable, whereas, if it was excluded, the fact was that the amount of repairs would come under 3 per cent., and therefore there would be no liability on the underwriters. That case was in the Queen's Bench Division, and judgment was entered for the defendants there. In the Court of Appeal the plaintiffs were successful, and the case then went to the House of Lords and the decision of the Court of Appeal was affirmed; and the point made by counsel in the present case is that that case is binding and governs the present case. To my mind it does not. Of course, it is a decision which is binding absolutely upon the point to which it relates; and this court is bound by it; but when the judgments in that case are examined they appear to me to put the case upon a principle which does not apply to the present matter. If, in the first place, the judgment of Lord Esher is considered, it will be seen that it places the two parties who were considered in this matter as so related, and in such a situation to each other, that, as a matter of business-that is his expression-the amount of the dock dues should be divided between them, and that that is the general view taken by the Court of Appeal, and I think also in substance by the House of Lords, is well illustrated by a passage which I quote from the judgment of Fry. L.J., at p. 583, where he says this: " Now, although it is quite true that the insured are

[CT. OF APP.

carrying on the two operations together, yet they may fairly be treated as if they were separate persons, because the insured are carrying on one operation at their own expense and risk, and they are carrying on the other operation with a right to be indemnified by the underwriters. Where the circumstances are such that there are two persons, each of whom has a distinct object in view which he can only accomplish at a certain expense, and if both these persons concur together they can each accomplish their separate object at the same expense as would have been incurred by each of them if they had done it separately, there it appears to me the simple ordinary rule-the rule of justice and equity-is that the total expense which has been incurred by their doing their acts together, and which would have been incurred by each if they had done it separately, shall be divided between them." It appears to me that that proposition, and that view of the matter, shows that that case has no real parallel to the present case, because the only question in the present case is: What amount of damage did the second wrongdoer do? There is no question of a person acting for himself and for underwriters in getting the repairs carried out; there is no question of concurrence; there is really only this question-namely, What further damage did the second wrongdoer do beyond what had already been done by the first? In the judgment of Lord Herschell there is very much the same view expressed, and at p. 589 I find this observation: "It was contended by the Attorney-General and Mr. Barnes, for the appellants, that the loss sustained by the shipowner by the disaster insured against was to be measured by the depre. ciation of the value of his vessel thereby occa sioned. And they ingeniously argued that in the present case, inasmuch as the vessel whose sternpost was injured had already so foul a bottom as to necessitate docking before another voyage was prosecuted, she was only depreciated to an extent that would be covered by the cost of the necessary repairs, plus the cost of the extra docking for that purpose beyond what was requisite for cleaning her. It is on this point that I have entertained doubts whether the view presented on behalf of the appellants was not the sound one." This is the way that point is answered: "But I have come to the conclusion that a particular average loss is not as an ordinary rule to be measured in the manner contended for. Although there was considerable difference of opinion expressed by the judges in the Court of Appeal in the case of Pitman v. Universal Marine Insurance Company (4 Asp. Mar. Law Cas. 444, 544) as to the mode in which the amount of the particular average loss in that case was to be arrived at, all the judges were, I think, agreed that where there is a partial loss in consequence of injury to a vessel by perils insured against, and the ship is actually repaired by the shipowner, he is entitled as a general rule to recover the sum properly expended in executing the necessary repairs less the usual allowances.' It would seem to me that but for that rule it was thought that the damage done was depreciation. Well, that is really the case in the case of a wrongdoer. What damage does he do? He depreciates the ship by the amount of the injury which he inflicts. How is that depreciation practically measured? By seeing