546 F2d 675 Spinks v. Chevron Oil Company E Spinks

546 F.2d 675

Donnie E. SPINKS, Plaintiff-Appellant-Cross Appellee,
CHEVRON OIL COMPANY and Barge Facilities, Inc., Defendants
Third-Party Plaintiffs-Appellees-Cross Appellants,
Labor Services, Inc., et al., Third-Party
Defendants-Appellees-Cross Appellants.
Donnie E. SPINKS, Plaintiff-Appellant,
LABOR SERVICES, INC., Defendant-Appellee.
Donnie E. SPINKS, Plaintiff-Appellant,
LABOR SERVICES, INC., Defendant-Appellee.

No. 73-3618.

United States Court of Appeals,
Fifth Circuit.

Feb. 3, 1977.

Philip E. Henderson, Houma, La., for plaintiff-appellant-cross appellee.

Lloyd C. Melancon, Joel L. Borrello, New Orleans, La., for Chevron Oil Co.

Tom F. Phillips, John R. Tharp, Baton Rouge, La., for Labor Services, and others.

James H. Drury, New Orleans, La., for Surplus Lines Ins.

T. C. W. Ellis, New Orleans, La., for Steamship Mut., etc.

Donald M. Pierce, Donald V. Organ, New Orleans, La., for Seguros American Banamex.

Lawrence D. Wiedemann, New Orleans, La., for Welch Sales & Serv.

Before RIVES, WISDOM and COLEMAN, Circuit Judges.


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IT IS ORDERED that the motion of Chevron Oil Company for clarification of the opinion is GRANTED.


In this Court's opinion in these cases issued January 27, 1975, 5 Cir., 507 F.2d 216, the Court reversed and remanded the cases


"for (1) reconsideration of liability, both under the Jones Act and maritime law, consistent with the principles stated in this opinion; (2) reconsideration of the indemnity provisions of the contract between Labor Services and Chevron; and (3) the determination of damages, should the district court find for the plaintiff."


At that time we used the term "reconsideration" because we were hopeful that the dispute might be resolved without the necessity of a new trial. Now, on reflection and in the interests of justice, we conclude that the trial judge may exercise his discretion (1) to reconsider the issues without a new trial or (2) to conduct a trial on the existing record with such additional evidence as he may regard as material and pertinent to the issues raised in or as a result of the appeal or (3) to retry the case totally, if none of the parties is prejudiced by the judicial delays inherent in the appellate process involving a difficult case or a result of this Court's failure to act more quickly on the motion for clarification. By prejudice we mean, for example, the death or unavailability of a key witness.