The opinion of the court was delivered by: KALODNER
Three admiralty cases were tried together before me without a jury. Included among them was this case.
On November 29, 1939, I entered an interlocutory decree awarding the libelant (General Chemical Company) recovery of its damages against the respondent (Lavino Shipping Company) with interest and costs. The decree was affirmed on appeal. The S.C.L. No. 9, 3 Cir., 114 F.2d 964.
The libelant has presented an interlocutory decree on mandate affirming the interlocutory decree previously filed. The respondent objects to the entry of the interlocutory decree so far as the allowing of interest is concerned.
The grounds of the objection are these:
(1) The appeal to the Circuit Court required that the case be heard de novo by the Appellate Court. Consequently, the allowance of interest is now presented to me for the first time, and I must now exercise discretion in allowing or disallowing interest.
(2) The libelant joined in the respondent's appeal from the decree awarding damages to S.C. Loveland Co., Inc. (the carrier), for damages to the latter's lighter (the cases having been tried together). In joining in this appeal the libelant took the position that the lighter was unseaworthy. This was the same position taken by the respondent in its appeal.
Thus, respondent contends, its delay in paying libelant the damages awarded, so far as concerns the time consumed in the appeal is concerned, was, therefore, as much the libelant's fault as the respondent's; and that consequently no interest should be allowed for that period, whether it is allowed for any other period or not.
As to (1): It is unnecessary for me to pass upon the question whether my award of interest in the interlocutory decree was or was not premature; or upon the question whether, since the appeal brought the case de novo before the Circuit Court, I am now theoretically for the first time confronted with the question of allowing interest.
It is conceded that allowance of interest is discretionary with the trial court. The Bessemer (United States v. Atlantic Refining Co.), D.C., 10 F.Supp. 45.
At the time the interlocutory decree was filed I was of the opinion that interest on the damages (or what amounts, for all practical purposes, to the same thing -- compensation for delay in payment of damages) should be allowed. I am of the same opinion now. As a general proposition, therefore, interest will be allowed, regardless whether the allowance springs from the Circuit Court's affirmance of my interlocutory decree, or from a present de novo consideration of the question on my part.
As to (2): There is no merit in this contention. The libelant's position in joining in the appeal is quite clear.It was certainly within the realm of possibility that the Appellate Court would reverse my findings upon which rested the award of damages to the libelant against this respondent. The libelant was clearly not at fault. As I pointed out in my opinion ( The S.C.L. No. 9, 37 F.Supp. 386, filed September 19, 1939), it was entitled to damages from the stevedore company (the respondent herein), or from the lighter company (Loveland), or from both. However, in the even thte Circuit Court would have reversed the award of damages against the respondent herein, and the General Chemical Company, the libelant, had done nothing to protect its interests by appealing from my exoneration of the lighter company, it might conceivably have been left without an award against either. Since the libelant was an innocent party entitled to damages from one or both of two possible wrongdoers, it could hardly be expected to run the risk of such an eventuality. Indeed, the libelant's proctors might have been charged with grave neglect in failing to protect their client's position in the manner that they did. The position they took in the Appellate Court was, therefore, eminently proper, and the libelant should not be penalized therefor by withholding from it interest (or compensation for delay in payment) for the period consumed by the appeal.
The respondent herein argues further, however, that since in the Appellate Court the proctors for the libelant urged the unseaworthiness of the lighter -- as did the respondent -- consequently, the libelant, by implication, necessarily conceded the propriety of the position taken by the respondent in ...