AMOCO OVERSEAS OIL v. COMPAGNIE NAT. ALGERIENNE DE NAVIGATION
605 F.2d 648 (1979)
AMOCO OVERSEAS OIL CO., Plaintiff-Appellee, v. COMPAGNIE NATIONALE ALGERIENNE DE NAVIGATION (“C. N. A. N.”) and T/S IN AMENAS, her engines, boilers, tackle, etc., and the freights of T/S In Amenas, Defendant-Appellant. AMOCO TRANSPORT COMPANY and Amoco Overseas Oil Company, Plaintiffs-Appellees, v. COMPAGNIE NATIONALE ALGERIENNE DE NAVIGATION (“C. N. A. N.”), Defendant-Appellant.
No. 1020, Docket 79-7135.
United States Court of Appeals, Second Circuit.
Argued May 22, 1979.
Decided July 19, 1979.
Philip V. Moyles, New York City (Robert L. Mahar, John J. Walsh and Freehill, Hogan & Mahar, New York City, of counsel), for defendant-appellant.
Joseph T. Stearns, New York City (Richard A. Corwin and Walker & Corso, New York City, of counsel), for plaintiffs-appellees.
Before LUMBARD, MANSFIELD and GURFEIN, Circuit Judges.
|[ 605 F.2d 651 ]|
21, 1976, before the 90-day period had expired, however, the District Court entered a default judgment for inquest, finding that appellant was in default and assigning assessment of damages to a magistrate. On March 21, 1977, unaware that the levy upon the funds had lapsed, the District Court adopted the magistrate’s findings and two days later entered final judgment for $378,977.33 against appellant.
|[ 605 F.2d 652 ]|
due process limitations on quasi in rem jurisdiction. The District Judge also held that the motion to set aside under Rule 60(b)(1) was untimely and that extraordinary relief under Rule 60(b)(6) was unwarranted. From this decision, C.N.A.N. appeals.
|[ 605 F.2d 653 ]|
Nor is appellant in a position to complain that the extension of time here was unfair. Had appellees originally also attached under Admiralty Rule B, as they would have done absent a clerical oversight, jurisdictional attachment would not have required physical possession of the res within any specified period. In the context of this admiralty case, therefore, the lapse of the levy is not significant in terms of appellant’s substantial rights. There is no real prejudice to appellant in retroactive extension of the period in which the appellees’ levy may be perfected.3
|[ 605 F.2d 654 ]|
quasi in rem attachment proceedings which had already begun. To the extent that the judge in that case relied upon the preamble to the Act which states that “[c]laims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter,” § 1602, we would not follow the interpretation that “henceforth” means from the date of enactment of the Act, because Sections 1609 and 1610 which deal with attachment, use the phrase “after the effective date of [the] act.” Moreover, applying the Immunities Act to prevent retroactive perfection of the levy will prejudice very substantial antecedent rights of the appellees, since they had obtained a default judgment for inquest while the levy was in force and well before the effective date of the Act. We do not believe that it was the “manifest intention of the legislature,” Greene v. United States,376 U.S. 149, 160, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964), quoting Union Pac. R. Co. v. Laramie Stock Yards Co.,231 U.S. 190, 199, 34 S.Ct. 101, 58 L.Ed. 179 (1913), to apply the Immunities Act in such a case.5
|[ 605 F.2d 655 ]|
and the litigation.” Id. The real “teaching of Shaffer is that courts must look at realities and not be led astray by fictions.” O’Connor v. Lee-Hy Paving Corp.,579 F.2d 194, 200 (2d Cir.), cert. denied, 439 U.S. 1034, 99 S.Ct. 638, 58 L.Ed.2d 696 (1978).
|[ 605 F.2d 656 ]|
Rule 60(b)(1) permits a district court to relieve a litigant from a judgment because of “mistake, inadvertence, surprise, or excusable neglect.” Motions under subsection (b)(1), however, must “be made within a reasonable time, and . . . not more than one year after the judgment . ..” Since the final judgment in the original proceeding against C.N.A.N. was entered on April 1, 1977 and the Rule 60 motion filed by appellant was not actually docketed until April 3, 1978, Judge Tenney held below that the motion was not timely filed because it was submitted more than one year after the judgment. 450 F.Supp. at 1249; App. 322.
|[ 605 F.2d 657 ]|
the retroactive resurrection of lost jurisdiction through a nunc pro tunc fiction would nullify the purpose and effect of § 6214(e)’s ninety-day provision.
(2) On August 26, 1976, notice of motion was served again by registered mail to C.N. A.N. in Algeria and by certified mail to the Algerian Embassy, the First National City Bank and the U.S. Marshal.
(3) On August 27, 1976, the ex parte order changing the return date on the motion was served by registered mail to C.N.A.N. in Algeria and by certified mail to the Algerian Embassy.
(4) On September 9, 1976, the summons and complaint were served by certified mail on the Algerian Embassy.
(5) On September 10, 1976, an affidavit in support of the motion was served by certified mail on the Algerian Embassy and by registered mail on C.N.A.N. in Algeria.
(6) On September 13, 1976, the Order of Attachment was served by certified mail on the Algerian Embassy and by registered mail on C.N.A.N. in Algeria.
(7) On September 14, 1976, the summons and complaint were served by registered mail on C.N.A.N. in Algeria.
(8) On October 15, 1976, an ex parte order amending the caption was served by registered mail on the Algerian Embassy and on C.N.A.N. in Algeria.
(9) On November 9, 1976, the default judgment for inquest was served by certified mail on the Algerian Embassy and by registered mail on C.N.A.N. in Algeria.
(10) On March 5, 1977, the magistrate’s report on damages was served by registered mail on C.N.A.N. in Algeria.
(11) On March 7, 1977, the magistrate’s report was served by certified mail on the Algerian Embassy.
In addition to the foregoing, C.N.A.N. doubtless had actual notice that remittance of the freight payments had been held up by court action.
Appellant’s reply brief (at 13-14) may be read as raising a due process objection to the ex parte nature of the extension order. We decline to address that claim if, indeed, it be raised, inasmuch as the due process issue was raised neither below nor in appellant’s opening brief. F.R.A.P. 28(a)(2); see Mississippi River Corp. v. FTC,454 F.2d 1083, 1093 (8th Cir. 1972) (issue cannot normally be raised by reply brief); compare Consumers Union v. FPC, 166 U.S.App.D.C. 276, 282, 510 F.2d 656, 662 & nn.9 & 10 (1975) (per curiam on denial of rehearing).