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Atwater v. Fall River Nav. Co.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


: March 26, 1940.

THE WILLIAM C. ATWATER; THE PERTH AMBOY NO. 2; MCLAIN LINE, INC.,
v.
FALL RIVER NAV. CO.

On Petition for Rehearing.

Per Curiam.

Upon further consideration we are not wholly satisfied that the evidence in the record, from which we inferred that only $10,100 was the consideration for the assignments, was sufficiently clear to justify us in drawing such an inference and from dispensing with proof before a commissioner of the value of the consideration furnished by the Tice Towing Line.

It is entirely clear: (1) that there were outright assignments and that no beneficial interest thereafter remained in the libellants; (2) that the item of $3,000 sought to be recovered for the legal expense of conducting suits on behalf of the Tice Towing Line is not recoverable as part of the consideration paid for the reason that legal expenses were incurred for the sole benefit of Tice Towing Line; (3) that any right to recover the other items sought, to wit: credit for towage service $3,000; settlement of salvage claim $90, and value of services for picking up boats, pumping and towing (if they in fact formed any part of the consideration agreed upon), must depend on further proof.

It is to be noted that all that a joint tort-feasor like Tice Towing Line, Inc., can recover is what it is actually out of pocket. In other words, if in return for the assignments, it extended credit in the amount of $3,000 to the libellants on towage service, and if that item included profit, it would only be entitled to recover such portion of the $3,000 as represented the cost of rendering the services, and not any portion which represented profit. What is said in respect to recovery of any part of this item of $3,000 is in accord with the rule laid down in The Gulf Stream, 2 Cir., 64 F. 809, and the other authorities already cited in the main opinion.

As Fred B. Dalzell was only made a party to the suit as claimant of the tug Perth Amboy No. 2, no personal decree shall be rendered against him.

An interlocutory decree is granted upon the libel by the owners of the barges, dividing damages between the Fall River Navigation Company on the one hand and the Perth Amboy No. 2 and Tice Towing Line on the other, and an interlocutory decree is also granted upon the libel of Fall River Navigation Company for half damages against the Perth Amboy No. 2 and the Tice Towing Line, the damages under each libel to be reported by a commissioner in accordance with the provisions of this opinion.

19400326

© 1998 VersusLaw Inc.



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