Justia Federal District Court Opinions

In seeking rehearing, Newpark Marine Services attacks only the measure of damages applied by the trial court and approved in our earlier opinion, 724 F.2d 1181 (5th Cir.1984), protesting the award of over two hundred thousand dollars damages to replace the value of a barge purchased on the open market--only two days before its destruction--for a mere thirty thousand. That the factual circumstances of this case are striking must be conceded; we adhere to our original opinion, however, convinced that the measure of damages that we have applied is the correct one.

As we noted in that writing, Newpark's pointing to the relatively low exchange value¹ set by the market on the lost barge is entirely appropriate, as far as it goes. The barge's value to King Fisher, however, is the proper measure of its loss in the circumstances presented here.

These circumstances are distinguished by an all but unique item of evidence that goes far to remove significant doubt that the barge owner meant to put it to the use that he claimed he had intended for it: as soon as he could do so, he procured the most similar and suitable replacement that he could find and carried on with the project. And so is removed, for this case, the most dubious feature of awarding replacement value or "value to the owner" as damages, the fear that speculative uses will be devised for lost items of equipment after the fact and proffered as a basis for a damage award.

We conclude by noting that the choice between awarding mere exchange value and, on rare and appropriate occasions, "value to the owner" is one of policy--not of ineluctable accounting. Logic compels neither. But where one who has arrived at a bargain of unique value to him is deprived of it by the fault of another, and where he can convince the trial court that its value to him was real and not speculative or later devised, he should recover it. Whether or not he can do so on any given occasion is for the trial court.

Petition for rehearing DENIED.