Bell v. Smith

2 Johns. 98

• Court: New York Supreme Court
• Decided: November 15, 1806
• Status: Published

Opinion

Per, Curiam.

Whether there was an acceptance of the abandonment or not, under all the circumstances, was a matter of fact for the jury to decide, and we are not disposed to disturb their verdict. The only point for our decision is as to the rule to be adopted for calculating the amount which ought to be paid bv the defendants,

The case of Leavenworth v. Delafield,

* only settled how the different interests were to contribute towards a general average in case of capture, where no disaster had happened to injure the vessel or cargo. It would be obviously unequal to apply the same rule, where a vessel, by perils of the sea, has been so much deteriorated as to render a sale abroad necessary, and where the proceeds fall so far short, as they do in this case, of her original value. Where her real value is thus ascertained, that •is, by an actual and bona Jide sale, the owner should be made chargeable only on the amount for which she sold, which mode .of adjustment must be pursued in this case.

Judgment for the plaintiff.

1 Caines, 578.