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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

April 14, 1992

**IN RE OIL SPILL BY THE "AMOCO CADIZ" OFF THE COAST OF FRANCE ON MARCH 16, 1978**

ORDER

Before the court is the motion of Petroleum Insurance Limited ("P.I.L.") to modify this court's July 24, 1990 judgment. The motion is granted in part, as set forth below.

FACTS

On March 16, 1978, the supertanker Amoco Cadis went down in heavy Atlantic seas with a full load of crude, dumping its 220,000 tons of oil on the north coast of France. The aftermath spawned litigation that was consolidated before this court. A bifurcated trial was held that took more than eight years to complete, resulting in the court's final judgment on July 24, 1990. *fn1" As part of that final judgment, the court held that the parties should calculate interest on the basis of a 360 day "bank year."

An appeal was had. In a per curiam opinion, the Seventh Circuit said in part, "the computation of damages is affirmed with the following exceptions: . . . . 5. P.I.L. is entitled to simple prejudgment interest at the rate of 12.31% per annum from March 16, 1978." In re Oil Spill By the Amoco Cadiz Off the Coast of France On March 16, 1978, 954 F.2d 1279, 1337 (7th Cir. 1992) (hereinafter "Cadiz"). No modification of the court's holding that the 360 day year apply, was made.

On March 4, 1992, P.I.L. moved to modify the court's July 24, 1990 judgment to include a prejudgment interest as required by the Seventh Circuit. The parties agreed that the 360 day year applied and that the amount of principal at issue is $ 21,748,577. *fn2" P.I.L. calculated interest as follows: "the sum of $ 21,748,577.44 . . . with interest thereon at the rate of 12.31% . . . per annum simple interest from March 16, 1990 as provided by law in the amount of U.S. $ 33,569,738.13 . . . ." *fn3" Cadiz, 954 F.2d at 1337.

Amoco Transport ("Amoco"), the party responsible for payment of the prejudgment interest and the underlying judgment, objected to this calculation. It claims that the calculation of prejudgment interest is "not complex." Amoco figures the total prejudgment interest as $ 33,093,783. *fn4" It also states that it is at a loss at how P.I.L. got to their figure.

P.I.L. replied that Amoco failed to take into account the holding of this court that the 360 day year applied. P.I.L. calculated whole years in a manner similar to that of Amoco except that instead of assuming that a 360 day year equaled a calendar 365 or 366 day year, they calculated the interest based on the ratio of the actual number of days in a year over 360. This ratio (for each of the first twelve years) P.I.L. multiplied by 12.31% and multiplied that number by the twenty-one million dollar principal amount to arrive at its figure for the first twelve years. Then, P.I.L. explained, the ratio of 130/360 was multiplied by 12.31% and the principal to reach a figure for 1990. The sum total was $ 33,569,738.

DISCUSSION

Any review of this case reveals that nothing here is done with ease. Calculation of prejudgment interest, even after the rate has been judicially established, is no exception. Both sets of parties vigorously argue their points because every day taken from or added to their calculation means a loss or gain of more than $ 7,000. For the court to determine how the prejudgment interest is to be calculated, the court relies heavily on the holdings of the Seventh Circuit in Cadis and affirmed conclusions of this court for these must be followed as the law of the case. See Cadiz, 954 F.2d at 1291.

I. Definition of a Year

In common nomenclature, everyone understands what a year is. A girl celebrating her second birthday is commonly understood by her parents to have lived 730 (365 x 2) days. Even though this calculation may be off by as much as a day, for nearly all purposes, this calculation suffices. Two unique problems arise in this case. First, every day makes a difference here. Second, the English language uses more than one definition of a year, and more than one of those has been applied to this case.

What the Court of Appeals said is worth repeating, "P.I.L. is entitled to simple prejudgment interest at the rate of 12.31% per annum from March 16, 1978." Cadiz, 954 F.2d at 1337 (emphasis added). What is "per annum"? Henry Black defines the phrase as "By the year; annually; yearly." Black's Law Dictionary 1022 (5th ed. 1979). Webster uses a similar definition, "in or for each year." Webster's Ninth New Collegiate Dictionary 872 (1986). But this definition leaves the question of what is a year?

There are a wide variety of definitions of year. One definition is most precise, "a division in time equal to about 365 days, 5 hours, 48 minutes, and 46 seconds, representing the interval between one vernal equinox and the next." Webster's Encyclopedia Unabridged Dictionary of the English Language 1654 (1989). This is commonly known as a calendar year but more accurately termed a solar year. Id. This common definition appears to be what the Seventh Circuit intended although this definition is not exclusive. *fn5"

This court, on the other hand, adopted the 360 day bank year for interest calculation. The Seventh Circuit did not comment on the propriety of this conclusion or how it should be applied. An argument could be made that by specifying "per annum," the appellate court intended a calendar year to apply, as the foregoing discussion reveals. However, as neither party objected to this court's use of the 360 day bank year for interest calculations in this round of briefing based on the Seventh Circuit's opinion, any objections to its use are waived.

Stated mathematically, the formula is:

Interest = Principal x Rate x Time

The principal is $ 21,748,577. The rate set by the Seventh Circuit was 12.31% or .1231.

the time factor is the fraction of a year during which money earns interest. In the computation of daily interest, the time factor is expressed as a fraction in which the number of days between dates is the numerator and the basis year is the denominator. The time factor for 1 year may be any one of the following: 360/360, 365/360, 366/360, 365/365, 366/365, or 366/366.

Thorndike, at 11-1.1. Using a 360 day year as the court previously determined it must, the end result is prejudgment interest in the amount of $ 33,569,738. *fn6" This is what P.I.L. wants.

P.I.L.'s formulation of the equation is one of the alternatives specified by Thorndike. However, the math nets them a rate above 12.31%. P.I.L.'s annual factorial in a non-leap year would be 365/360. But the per annum rate of return of 12.31% in such a case would pay interest on five more days than the annum of 360 days as defined by the court. Therefore, the rate of return on their involuntary investment would be more than 12.31% because interest is paid on five more days. The real rate of return, then, is actually higher than 12.31%. *fn7" Any such result would not comport with the mandate of the Seventh Circuit which clearly said that the rate was to be 12.31%. Cadiz, 954 F.2d at 1335, 1337.

The court must strive to apply a real rate of return of 12.31%. The only way to achieve a real rate is to use the same definition for annum as used in formulating the percentage return itself. Thus the number of days in a year must be the same for both. In this case, a year has been judicially determined to be 360 days, not more or less. Therefore, a real rate of return of 12.31% can be accomplished only be using the 360 day year and assuming that no days exist after December 26. No other method works and complies with all orders of both courts. Thus, the amount of interest is calculated as follows: Year Principal Rate Time Interest 1 $ 21,748,577 .1231 (360/360) $ 2,677,249.83 2 $ 21,748,577 .1231 (360/360) $ 2,677,249.83 3 $ 21,748,577 .1231 (360/360) $ 2,677,249.83 4 $ 21,748,577 .1231 (360/360) $ 2,677,249.83 5 $ 21,748,577 .1231 (360/360) $ 2,677,249.83 6 $ 21,748,577 .1231 (360/360) $ 2,677,249.83 7 $ 21,748,577 .1231 (360/360) $ 2,677,249.83 8 $ 21,748,577 .1231 (360/360) $ 2,677,249.83 9 $ 21,748,577 .1231 (360/360) $ 2,677,249.83 10 $ 21,748,577 .1231 (360/360) $ 2,677,249.83 11 $ 21,748,577 .1231 (360/360) $ 2,677,249.83 12 $ 21,748,577 .1231 (360/360) $ 2,677,249.83 13 $ 21,748,577 .1231 (130/360) $ 966,784.66 TOTAL PREJUDGMENT INTEREST $ 33,093,782.62

If the court were to use the actual number of days as the numerator and denominator of the time fraction (365/365 or 366/366), the result would be the same for the first twelve annums. And, the last 130 days would earn $ 13,243.63 less interest than under the court's calculation (Principal x Rate x (130/365)). The method employed by this court best comports with the mandate of the Seventh Circuit. By applying the 360 day year to the judgment, the court applies a real rate of return of equal to that specified by the Seventh Circuit during the first twelve years. *fn8" The remaining 130 days in the term are calculated on that same basis, using 360 days as the denominator in the Time fraction. This nets a return of exactly 12.31% in the first twelve years. In the last 130 days P.I.L. gets a little extra. But when balancing the equities, the court must favor the involuntary creditor and the injured party, P.I.L.. Cadiz, 954 F.2d at 1332.

CONCLUSION

Prejudgment interest is awarded to P.I.L. in the amount of $ 33,093,782.62.

IT IS SO ORDERED.

ENTER:

CHARLES RONALD NORGLE, SR., Judge

United States District Court

DATED: 4/14/92

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