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Kotsopoulos v. Asturia Shipping Co.

decided: September 21, 1972.

PANAGIOTIS KOTSOPOULOS, PLAINTIFF-APPELLANT,
v.
ASTURIA SHIPPING CO., S.A., HADJILIAS & CO., LTD., AND THE S/T MERCURY, HER ENGINES, ETC., DEFENDANTS-APPELLEES



Mansfield and Timbers, Circuit Judges, and Gurfein, District Judge.*fn*

Author: Gurfein

GURFEIN, District Judge:

This appeal raises the question whether the plaintiff in an admiralty action is entitled to interest as a matter of law on a judgment in his favor, from the date of entry of the judgment until it is paid, when the plaintiff has appealed from the judgment and the judgment has been affirmed.

The seaman's personal injury case here involved was tried before Hon. Charles H. Tenney, sitting without a jury in February and March 1968, jointly with the companion case of Stavros Repouskos against the same defendants. On June 5, 1968 the District Court filed its findings of fact and conclusions of law, finding for both plaintiffs against the defendants. After the filing of these findings and conclusions, Kotsopoulos moved to amend those pertaining to his damages and the defendants moved to amend those concerning negligence. On August 26, 1968 the Court did amend its findings and conclusions, increasing Kotsopoulos' damages to $52,500 and deleting mention of negligence on the part of the defendants. On September 12, 1968 judgment was entered in favor of both plaintiffs in accordance with the Court's order of August 26, 1968.

On September 30, 1968 plaintiff Kotsopoulos appealed from the judgment in his favor. On October 11, 1968 the defendants appealed from both judgments. On May 22, 1969 this Court affirmed both judgments without modification.

On June 6, 1969 plaintiff Kotsopoulos moved in the District Court to amend the judgments entered on September 12, 1968 so as to make the record show that they were entered on June 5, 1968. On July 31, 1969 Judge Tenney denied the plaintiff's motion. After noting that the date of judgment fell within the scope of the appellate court's mandate, thereby in the District Court's view probably removing its power to amend the judgment, the Court held that, in any event, the motion "is without substance, Lauro v. United States, 168 F.2d 714, 716 (2d Cir. 1948)."

On August 27, 1969, after the plaintiff had refused to accept the payment of the judgment unless it included interest for the period when the appeal was pending before this Court, an order was filed directing that the amount of the judgment entered ($52,500) be paid into the registry of the Court, and ordering that upon payment of the sum into the Court, the defendants would be released from any further liability in the matter and the Clerk of the Court would enter a satisfaction of judgment. In accordance with this order, the amount of the judgment, without interest, was paid into the registry of the Court on August 28, 1969.

On September 23, 1969 Kotsopoulos filed the instant appeal from the order of August 27, 1969, seeking to collect interest from the date of the judgment (September 12, 1968) until the date of payment (August 28, 1969).*fn1

The difficulty on this appeal arises from the history of postjudgment interest where it is the plaintiff who has been the unsuccessful appellant. The appellees look to Lauro v. United States, supra (Learned Hand, J.), which was cited by the District Court, to support their argument that postjudgment interest was not allowable for the period while the appeal was pending. In Lauro, Judge Hand explained the so-called admiralty rule:

However, by another peculiarity of admiralty practice, if a party takes an appeal from an award in his favor and is unsuccessful, he is not allowed interest pending the appeal upon what he got under the decree of the district court. The reason given has always been that by his appeal he has made it impossible for the appellee to discharge the debt; and this is a corollary of the doctrine already mentioned, that an appeal vacates the decree. The rule is well settled, and, so far as we have found, it is without exception . . . 168 F.2d at 716.

The appellant, on the other hand, contends that Rule 37 of the Federal Rules of Appellate Procedure, adopted in 1968, controls the case. Rule 37 reads in part:

Interest on Judgments. Unless otherwise provided by law, if a judgment for money in a civil case is affirmed, whatever interest is allowed by law shall be payable from the date the judgment was entered in the district court, If a judgment is modified or reversed with a direction that a judgment for money be entered in the district court, the mandate shall contain instructions with respect to allowance of interest.

While there is no specific reference to the Lauro doctrine, the omission from Rule 37 of any exception to its general language for the case of the affirmance on an unsuccessful appeal by a plaintiff strongly suggests that no exception was intended.*fn2 On its face, the Rule states that after any affirmance, interest "shall be payable from the date the judgment was entered in the district court." The significance of the failure to make any exception in Rule 37 is even stronger if the Lauro doctrine prior to Rule 37 was not limited to admiralty cases, as was suggested by Judge Hand (although it was certainly of universal acceptance in the admiralty), but was of even more general application. We believe it was of more general application, at least in equity cases. See e.g., Bates v. Dresser, 251 U.S. 524, 532, 40 S. Ct. 247, 64 L. Ed. 388 (1920); Clarke v. Hot Springs Electric Light & Power Co., 76 F.2d 918, 922-923 (10 Cir.), cert. denied, 296 U.S. 624, 56 S. Ct. 147, 80 L. Ed. 443 (1935); Annot., Interest Pending Appeal, 15 A.L.R.3d 411, 417 (1967). We think that Rule 37 was intended generally to avoid confusion and conflict of authority in all civil cases without distinction, except where a statute otherwise provides.

Rule 37 itself does not give any indication, moreover, that the old rule in admiralty cases, as such, excludes such cases from its coverage. Rule 37 refers to "civil" cases; and it must be remembered that the Rule was adopted in 1968, after the merger of the civil and admiralty rules in 1966. Rule 1 of the Federal Rules of Civil Procedure states that the Civil Rules "govern the procedure . . . in all suits of a civil nature whether cognizable as cases at law or in equity or in admiralty;" and Rule 2 declares that "there shall be one form of action to be known as 'civil action.'" The Supreme Court has had the power, of course, since 1966, to make Fed. R. App. P. 37 applicable to admiralty cases. 28 U.S.C. ยง 2072. In fact the Advisory Committee note to Fed. R. App. P. 1 ...


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