Willie Magee, JR., Cross-Appellee v. United States Lines, Inc., Cross-Appellant, 976 F.2d 821, 2d Cir. (1992)
Willie Magee, JR., Cross-Appellee v. United States Lines, Inc., Cross-Appellant, 976 F.2d 821, 2d Cir. (1992)
2d 821
1993 A.M.C. 159
Edward M. Katz, New York City (Phillips Cappiello Kalban Hofmann &
Katz, of counsel), for plaintiff-appellant-cross-appellee.
Philip S. LaPenta, New York City (Kevin P. Walters, Healy & Baillie, of
counsel), for defendant-appellee-cross-appellant.
Before VAN GRAAFEILAND, NEWMAN and KEARSE, Circuit
Judges.
VAN GRAAFEILAND, Circuit Judge:
On February 6, 1992, Magee filed a notice of appeal from "so much of the
4 Do you find that with respect to the claimed incident of May 31, 1986 that the
6.
plaintiff has established by a fair preponderance of the evidence the elements of his
claim of negligence under the Jones Act?
5 Do you find that with respect to the claimed incident of May 31[,] 1986 that the
7.
plaintiff has established by a fair preponderance of the evidence his claim of an
unseaworthy condition of the ship, its equipment or crew?
6
The question on which Judge Restani sought enlightenment from counsel was
whether, in view of the form of the jury verdict, i.e., full recovery without
apportionment between the two theories of liability, prejudgment interest could
be awarded under the general maritime law. Relying principally on Fifth Circuit
authority, e.g., Colburn v. Bunge Towing, Inc., 883 F.2d 372, 378 (5th
Cir.1989), Judge Restani held that it could not. The Sixth Circuit appears to
follow the Fifth Circuit's lead on this issue. See Petersen v. Chesapeake & Ohio
Ry. Co., 784 F.2d 732, 741 (6th Cir.1986). However, with all due respect for
our learned colleagues in these two circuits, we reach a different conclusion in
the instant case.
Maritime injuries are not the only torts for which recovery may be had under
Maritime injuries are not the only torts for which recovery may be had under
separate theories of liability, only one of which provides for prejudgment
interest. In such cases, where only a single award of damages, not segregated
into separate components, is made, the preferable rule, we think, is that the
successful plaintiff be paid under the theory of liability that provides the most
complete recovery. See, e.g., Mallis v. Bankers Trust Co., 717 F.2d 683, 695
(2d Cir.1983) (federal securities law and common law fraud and
misrepresentation); Foley v. City of Lowell, Mass., 948 F.2d 10, 17 (1st
Cir.1991) (federal and state civil rights claims); Doty v. Sewall, 908 F.2d 1053,
1063 (1st Cir.1990) (fair representation claim under Labor-Management
Reporting and Disclosure Act and state civil rights law).
We consistently have held that "in admiralty cases prejudgment interest 'should
be granted in the absence of exceptional circumstances.' " Ingersoll Milling
Mach. Co. v. M/V Bodena, 829 F.2d 293, 310 (2d Cir.1987) (quoting Mitsui &
Co. v. American Export Lines, 636 F.2d 807, 823 (2d Cir.1981)), cert. denied,
484 U.S. 1042, 108 S.Ct. 774, 98 L.Ed.2d 860 (1988); Independent Bulk
Transp. v. Vessel "Morania Abaco", 676 F.2d 23, 25 (2d Cir.1982); see also
general discussion of prejudgment interest in Wickham Contracting Co. v.
Local Union No. 3, IBEW, 955 F.2d 831, 833-36 (2d Cir.1992). Where, as
here, there are no exceptional or extraordinary circumstances which militate
against an award of prejudgment interest on the maritime claim, plaintiff is
entitled to have interest included in his recovery. See, e.g., McCrann v. United
States Lines, Inc., 803 F.2d 771, 772, 774 (2d Cir.1986); Sauers v. Alaska
Barge and Transp., Inc., 600 F.2d 238, 242-43, 248 (9th Cir.1979). By now, it
appears to be well recognized that a Jones Act count and an unseaworthiness
count are "Siamese twins", Gilmore & Black, The Law of Admiralty 383 (2d
ed. 1975), and that "[s]ince the recovery is the same under either count, the
question whether [plaintiff] recovers for negligence or for unseaworthiness is
hardly worth asking." Id. at 389. There is little reason, therefore, for denying
plaintiff recovery of interest on his maritime claim.
The district court instructed the jury to discount its award for future losses back
only to the time of trial. Accordingly, prejudgment interest cannot be awarded
for that portion of the jury's award representing postjudgment losses. Woodling
v. Garrett Corp., 813 F.2d 543, 560 (2d Cir.1987). Upon remand, the district
court should award prejudgment interest for past losses as found by the jury up
to January 8, 1992, the date on which judgment was entered.
POSTJUDGMENT INTEREST
10
Judgments did not bear interest under the common law. Pierce v. United States,
255 U.S. 398, 406, 41 S.Ct. 365, 368, 65 L.Ed. 697 (1921). To determine
13
14
Apparently recognizing the anomaly that thus would result, appellant's counsel
adopted the practice of using the terms "pre-verdict interest" and "prejudgment
interest" interchangeably throughout his brief, a usage that is jarringly
inappropriate and without authority in any of the cases cited by counsel.
"Prejudgment interest" is an accurately descriptive phrase; it means interest
accrued up to the time that judgment is entered. See Shu-Tao Lin v. McDonnell
Douglas Corp., 742 F.2d 45, 51 (2d Cir.1984); Martin v. Walk, Haydel &
Assocs., Inc., 794 F.2d 209, 212 (5th Cir.1986).
15
Because we are modifying the district court's judgment and directing the entry
of a judgment for money, Fed.R.App.P. 37 authorizes us to instruct the district
court concerning the allowance of interest. Although we are not required to
follow the mandate of section 1961 which also is referred to in Rule 37, we see
no reason to depart from its obvious purpose. Accordingly, we vacate the
district court's order of February 27, 1992 directing nunc pro tunc judgment
entry as of December 3, 1991, and direct that postjudgment interest be
computed as of the actual date of judgment entry, January 8, 1992.
16
Judgment and order vacated and the matter remanded to the district court for
further proceedings in accordance with this opinion.