11. On May 18, 1944, the libellant examined the shipment of paprika on the dock and found numerous stained and discolored bags, some of which felt wet or damp. He sent a notice of claim to Rice, Unruh & Co. on the same day.
12. Delivery of the paprika was accepted by the libellant on May 24 or 25, 1944, and the shipment was moved, in bond, to a warehouse in New York City. Of the 500 bags, 235 were set aside as being stained and discolored, and such a notation was made on the warehouse receipt. On June 5, 1944, a joint survey was held at the warehouse, and reconditioning of the stained paprika was recommended.
13. The paprika was originally packed in clean, double burlap bags. The bags were new. The stains and discolorations were evident and plainly noticeable. Beneath the stains and discolorations the aparika was bleached and caked, and in some instances beneath the caking it was mushy and damp. The damage was external, and was caused by contact with fresh water.
14. The manner in which the paprika came into contact with fresh water was unexplained, and the evidence is insufficient to show that the damage did not occur aboard the 'Ciano.'
15. The damaged paprika was reconditioned at a cost of $ 552.20, and it was repacked in new single bags which cost $ 77.55. These costs were fair and reasonable.
16. Altogether 180 net pounds of paprika were lost by reason of the reconditioning process. This loss was normal.
17. The damaged portion of the paprika, after reconditioning, consisting of 25,670 net pounds, was sold for 29 cents per pound, or $ 7,444.30. This was the best obtainable price.
18. The 235 damaged bags contained 25,850 net pounds of paprika. Paprika of the same grade had a market value of 45 cents per pound at the time of the delivery. The total market value, if the paprika were in good condition, was $ 11,632.50.
19. The libellant's loss of profit by reason of the damage was $ 4,188.20 which, together with the cost of reconditioning and of the new bags, in the amount of $ 629.84, constitutes the total damage to the libellant, amounting to $ 4,818.04.
Accordingly, I state the following:
Conclusions of Law
1. This Court has jurisdiction over the subject matter and over the respondents, Sociedad Metalurgica Duro Felguera, and Jacob Mauch and Joseph Klemm, trading as Rice, Unruh & Co.
2. The respondent carrier failed to rebut the prima facie evidence that the paprika was received on board the 'Ciano' at Alicante in apparent good order and condition, and failed to show that the damage did not occur aboard the 'Ciano', or that the damage was not due to, or contributed to by, its fault or the fault of its agents and servants.
3. The libellant is entitled to recover from the respondent Sociedad Metalurgica Del Felguera in this action and is entitled to a judgment against that corporation in the amount of $ 4,818.04, plus interest and costs.
4. The respondents, Jacob Mauch and Joseph Klemm, trading as Rice, Unruh & Co., are not liable herein except as garnishees.
An Order may be entered in accordance herewith.
© 1992-2004 VersusLaw Inc.