The Texas Company v. R. O'Brien & Co., Inc., Libelant

WOODBURY, Circuit Judge

(dissenting).

I quite agree with Judge Aldrich’s excellent analysis. My only disagreement is with the disposition made of *530the case as a result of that analysis. It seems to me that on the state of the record we ought not to find the value of the Lynn ourselves but that instead we-ought to remand the case to the District Court for it, after re-reference to an assessor or not as it may see fit, to consider the evidence in the record anew in the light of our opinion, and, on such reappraisal to exercise its fact finding function again by making an amended finding of value. See reasoning of L. Hand, in Petterson Lighterage & Towing Corp. v. New York Central R. Co., 2 Cir., 1942, 126 F.2d 992, 996. Compare, however: Stuart v. Alcoa S.S. Co., 2 Cir., 1944, 143 F.2d 178, 179; Porello v. United States, 2 Cir., 1946, 153 F.2d (605, 608; The Friendship II, 5 Cir., 1943, 135 F.2d 520, 521. See particularly Menefee v. W. R. Chamberlin Co., 9 Cir., 1950, 183 F.2d 720. But note Bone, J., dissenting, Id., 183 F.2d at page 723.