604 F2d 13 Ca 79-3478 Tennessee Valley Sand Gravel Co v. M/v Delta

604 F.2d 13

CA 79-3478 TENNESSEE VALLEY SAND & GRAVEL CO.,
Plaintiff-Appellant Cross-Appellee,
v.
M/V DELTA, her engines, tackle, apparel, etc., in rem and
Hobart-Worley Towing Company, Inc., in personam,
Defendants-Appellees Cross-Appellants.

No. 77-2202.

United States Court of Appeals,
Fifth Circuit.

Oct. 5, 1979.

E. Spivey Gault, Frank S. Thackston, Jr., Greenville, Miss., for plaintiff-appellant cross-appellee.

Joel J. Henderson, Greenville, Miss., for defendants-appellees cross-appellants.

Appeals from the United States District Court for the Northern District of Mississippi.

ON PETITION FOR REHEARING

(Opinion (5 Cir., 1979), 598 F.2d 930)

Before TUTTLE, GODBOLD and RUBIN, Circuit Judges.

PER CURIAM:

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1

IT IS ORDERED that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied insofar as it seeks reconsideration of the result reached.

2

However, in reversing the trial court's denial of damages for the expenses incurred in salvaging the barge, it was not the intention of the majority to allow the recovery of the gross amount of expenses; credit should be given for the net proceeds received from sale of the salvaged barge. In order to avoid any misapprehension, the last sentence of the opinion is revised to read as follows:

3

The trial court's denial of damages for the expenses incurred in salvaging the barge is reversed. The case is remanded for further proceedings consistent with this opinion. In computing the amount of damages due the appellant, the sum received for sale of the barge is to be deducted and the appellant is to be awarded only the net costs incurred.

4

While Judge Godbold is of the opinion that this clarification is proper, he adheres to his original dissenting opinion, and continues to hold the view that the district court should be affirmed.