Petition of City of New York

• Decision Date: 10 June 1964
• Docket Number: No. 305,Docket 28585.,305
• Citation: 332 F.2d 1006
• Parties: Petition of The CITY OF NEW YORK, Appellant, As Owner of the FERRYBOAT TOMPKINSVILLE for a limitation of or exoneration from liability, Rose Bernstein et al., Claimants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

332 F.2d 1006 (1964)

Petition of The CITY OF NEW YORK, Appellant As Owner of the FERRYBOAT TOMPKINSVILLE for a limitation of or exoneration from liability, Rose Bernstein et al., Claimants-Appellees.

No. 305, Docket 28585.

United States Court of Appeals Second Circuit.

Argued January 27, 1964.

Decided June 10, 1964.

Joel L. Cohen, New York City (Seymour B. Quel, Leo A. Larkin, New York City, on the brief), for appellant.

Solomon R. Agar, New York City (Kane, Grae & Agar, New York City, on the brief), for claimants-appellees Rose Bernstein, et al.

Joseph M. Brush, New York City (Brush & Brush, New York City, on the brief), for claimant-appellee Texaco, Inc.

Before LUMBARD, Chief Judge, and WATERMAN and MARSHALL, Circuit Judges.

LUMBARD, Chief Judge.

This appeal by the City of New York from a final decree and a supplemental decree of the United States District Court for the Southern District of New York in an admiralty proceeding raises two principal questions: (1) whether it was proper to award prejudgment interest to the personal injury claimants; and (2) whether the granting of a $10,000 fee to the Special Commissioner, appointed by the court to determine damages, was excessive.

These decrees are the most recent developments in a series of proceedings arising out of the collision on the night of January 5, 1959 in upper New York Bay between the oil barge, Texaco 396, and the ferryboat, Tompkinsville, owned and operated by the City of New York. The district court had ruled that it was solely the petitioner, the City of New York, who was responsible for the collision and therefore the City was entitled neither to exoneration nor to a limitation of its liability, that the claims of the injured passengers on the Tompkinsville and of Texaco, Inc. against the City should be sustained and that the claims of the passengers against Texaco, Inc. should be dismissed. 210 F. Supp. 390 (S.D.N.Y.1961), aff'd 309 F.2d 739 (2 Cir. 1962). Thereafter the various claimants submitted evidence showing the extent of their injuries to the Special Commissioner whose report fixing damages, after some modification, was confirmed by the district court. Judge Palmieri, in his final decree, dated September 21, 1963, allowed 6% interest on the damages awarded from the date of the collision, January 5, 1959, and ordered that the Special Commissioner be paid the sum of $10,000 by the petitioner for his services. In a supplemental decree on October 8, 1963, the court ordered that the personal injury claimants recover from the petitioner, in addition to the amounts of their recoveries recited in the final decree, costs awarded against such claimants upon the dismissal of their claims against Texaco, Inc. in the companion suit.

The City of New York contends that the interest rate of 6% was an abuse of the district court's discretion, that the award of $10,000 to the Commissioner was excessive, that an admiralty court has not the power to award to the personal injury claimants the costs awarded against them in the companion limitations suit of Texaco, and, that an admiralty court lacks the power to allow prejudgment interest in a personal injury claim. We find merit only in the contention that the award to the Commissioner was excessive.

Of the 18 claimants only Texaco's claim was based on a property loss rather than personal injury. The City of New York asserts that an admiralty court has no power to allow prejudgment interest in a personal injury claim. We disagree. It has long been held proper for admiralty courts fully to restore the injured party to his condition at the time of injury by allowing and fixing prejudgment interest from the date of the loss in proceedings involving property damage.¹ The Manhattan, 85 F.2d 427 (3 Cir. 1936), cert. denied, sub nom. United States v. The Bessemer, 300 U.S. 654, 57 S.Ct. 432, 81 L.Ed. 864 (1936); The President Madison, 91 F.2d 835 (9 Cir. 1937); The Wright, 109 F.2d 699 (2 Cir. 1940); Geotechnical Corp. of Delaware v. Pure Oil Co., 214 F.2d 476 (5 Cir. 1954). Traditionally, at common law prejudgment interest on an unliquidated tort claim is not allowed. See Moore-McCormack Lines, Inc. v. Amirault, 202 F.2d 893 (1 Cir. 1953). More recently, it has been determined that those who obtain awards resulting from deaths of crew members who died in maritime accident are entitled to prejudgment interest. National Airlines, Inc. v. Stiles, 268 F.2d 400 (5 Cir. 1959); Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583 (2 Cir. 1961), cert. denied, 368 U.S. 989, 82 S.Ct. 606, 7 L. Ed.2d 526 (1962). We said in the Moore-McCormack case that "when a court fixes damages to compensate for a loss which occurred in the past, there should be some allowance for the period between the date of the loss and the date of judgment. Recompense may thus be given for the further loss in the postponement of the receipt of compensation. In all too many instances the delay in reaching cases for trial brings suffering and privation to those who were dependent on the deceased. Even the more fortunate of the bereaved may have been forced to borrow money at interest to meet their expenses. * * * The defendants who are ultimately directed to pay have had the use of the money declared to be due. * * *" Supra at 594. It is the combination of these two elements, the immediate loss to the plaintiff and the delay in the payment of compensation by the defendant that warrants the granting of prejudgment interest as a proper element of damages in fixing the loss to the dependents of decedents who bring suit in a court of admiralty.

In this case 17 claima...