Nelson R. Raby v. M/v Pine Forest, in Rem, Delica Shipping, S.A., and Inui Steamship Co., Ltd.

After a bench trial, the district court found in favor of the plaintiffs and fixed damages in the sum of $32,657,006. Since defendants sought to appeal and wished to stay execution, the district court then set the supersedeas bond at $59,000,000. Of that, $19,613,565 represented penalty wages which would accrue at the rate of $26,152 per day while the case was on appeal. 46 U.S.C. § 10313 (g). Interest on the accruing portion was also included. Defendants have asked that we reduce the amount of the bond.

We review the decision of the district court setting the amount of the bond for abuse of discretion. Rachel v. Banana Republic, Inc., 831 F.2d 1503 , 1505 n. 1 (9th Cir.1987).

Here we find an abuse of discretion because the district court erred when it failed to allow for the payment of the back wages into court, an event that would stop the running of penalties. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 , 574 n. 9, 102 S.Ct. 3245 , 3252 n. 9, 73 L.Ed.2d 973 (1982); Swain v. Isthmian Lines, Inc., 360 F.2d 81 , 87-88 n. 26 (3rd Cir.1966); Southern Cross Steamship Co. v. Firipis, 285 F.2d 651, 659-60 (4th Cir. 1960), cert. denied, 365 U.S. 869 , 81 S.Ct. 903 , 5 L.Ed.2d…