Free Reply Brief - District Court of Delaware - Delaware

Case 1 :04-cv—0091 1—Gl\/IS Document 169 Filed 04/24/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JAN KOPACZ and JAN KOPACZ, ) C.A. No. O4-911 GMS
Administrator for the Estate 0 f Cathy )
Kopacz, )
Plaintiff] ) Jury Trial Demanded
)
L )
)
DELAWARE RIVER AND BAY )
AUTHORITY, and CRAIG SWETT, )
)
Defendants. )

)
JAN KOPACZ, ) C.A. No. 04-1281 GMS
)
Plaintiff, )
)
v. )
)
DELAWARE RIVER AND BAY )
AUTHORITY, )
)
Defendant. )

Reply to DRBAS’s Brief in Opposition to
Petition for Pre-Judgment Interest “
1. None of DRBA’s arguments is valid.
DRBA again tries to deny a claim because it is not recoverable under the Jones Act and
cites Miles v. Apex Marine Corp., 498 U.S. 19 (1990) as support. This argument does not gain
strength by repetition, and it simply wastes the Court’s time.
Pre-judgment interest is recoverable as part of the general maritime claim and is unrelated
to the Jones Act. General maritime claims are not limited to Jones Act recoveries. Cortes v.

Case 1 :04-cv-00911-GIVIS Document 169 Filed 04/24/2006 Page 2 of 4
Baltimore Insular Line, Inc., 287 U.S. 367 (1932). The ge; reasoning was applied to
consequential damages for failure to pay maintenance and cure in Deisler v. McCormack
Aggregates, Inc., 54 F. 3d 1074, 1084 (3d Cir. 1995), so the rule would apply with respect to pre-
judgment interest.
The contention that the pre-judgment interest issue should have been submitted to the
jury is also not valid. If prejudgment interest is discretionary, then it is to be submitted to the
jury according to the cases cited in Glmn v. Roy Al Boat Management Corp., 57 F. 3d 1495 (9th
Cir.1995). That issue has not yet been addressed in the Third Circuit.
The Third Circuit rule pertaining to prejudgment interest is that it is mandatory. It was so
stated in gg, saga at 1087 as follows: "Interest must be allowed if plaintiff is to be truly
made whole for defendant’s breach of its duty to provide maintenance and cure. g Vaughen,
@.P.i2··”
The only task remaining is the calculation, and this is ministerial and does not require a
fact finder.
Furthermore, counsel believes it would be unseemly to require testimony from someone
in the Clerk’s Office for the legal rate of interest for a particular period. The remainder is just
mathematics.
DRBA does concede that in any event the Court has discretion to award pre-judgment
interest. The existence of discretion is probably accurate but its exercise is mandated by .
The maintenance and cure claim is a non-jury claim within the Court’s admiralty and maritime
jurisdiction. Trial ofthe liability issues in all of the claims was by stipulation in accordance with
Fitzgerald v. U.S. Lines Co., 374 U.S. 16 (1963) which approved a single jury trial in order to

Case 1 :04-cv-00911-GIVIS Document 169 Filed 04/24/2006 Page 3 of 4
preserve judicial time and prevent duplication of recovery. All residual issues are thus reserved `
to the Court as an admiralty court.
The last issue deals with the amount subject to pre-judgment interest. The jury awarded
compensatory damages for the failure to pay maintenance and cure and the entitlement to these
arose at the same time as the failure to pay, so there is no reason to treat this recovery any
differently if the seaman is to be made whole.
In addition to making the seaman whole, these damages have a punitive element to them
in order to discourage shipowners from refusing to pay maintenance and cure concurrently with
the need. Accordingly, all doubts must be resolved in favor of the seaman.
Conclusion
For the foregoing reasons, plaintiff submits that the award of pre-judgment interest should
be $12,931.83 as requested.
Respectfully submitted,
S ,V Oi OP&GREEN,P.A.
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•<¤_ 5 uv
· S S. RE N, ESQ. (DE0481)
· en » sv · law.c0m
222 Delaware Avenue, Suite 1500
P. O. Box 68
Wilmington, DE 19899
(302)888-0600
Attorneys for Plaintiffs
OF COUNSEL:
E. Alfred Smith, Esquire
E. Alfred Smith & Associates
1333 Race Street, Second Floor `
Philadelphia, PA 19107
Date: April 24, 2006

Case 1 :04-cv-00911-GIVIS Document 169 Filed 04/24/2006 Page 4 of 4
CERTIFICATE or smnvrcn
I HEREBY CERTIFY that on April 24, 2006, I electronically filed with the Clerk of
Court Reply to DRBAS’s Brief in Opposition to Petition for Pre-Judgment Interest using
CM/ECF which will send notification of such filing to counsel ( · · cord.
—. /,’/ », { I
,1a4n,,—g,
. es S. een, Esq. (DE #481)
j [email protected]