with the internal damage. Further, I have found that the damage occurred while the bales were within the care and custody of the vessel, a finding of fact I believe fully justified on the whole record.
Accordingly, the respondent has the burden 'to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.' Carriage of Goods by Sea Act, Sec. 4(2)(q), 46 U.S.C.A. § 1304(2)(q). The respondent has attempted to show that at all times it handled and cared for the cargo properly and without fault or neglect. Captain Robertson said that the kind of wetting the bales involved here suffered could not have occurred in the shelter deck because he had examined the hold and found no evidence of water or sweat. Of course, he missed the wet bales we are discussing, and on his own testimony the external damage was present at the time of discharge. He also testified that the outside skins showed dunnage marks, and that putrefaction was present where the pressure of the bales against the dunnage had squeezed the moisture into the areas of the outside skins overlaying the dunnage interstices; there must have been some evidence on the dunnage that damage existed in the hold. It is recognized that this is no reflection upon Captain Robertson, for it is not possible to find every indication of damage. Even so, the acceptance of Captain Robertson's conclusion would not decide the case. The cargo had first been stowed in the No. 2 'tween deck, and then was removed at Calcutta to the No. 1 shelter deck. The record does not show with any satisfaction the conditions of the No. 2 'tween deck. Mr. Rigg testified, by deposition, that the No. 2 'tween deck contained no oil or mud, and he said it was usual to clean the holds after discharge, but there is no evidence as to that hold comparable to Captain Robertson's testimony as to the No. 1 shelter deck. I am not persuaded, and I do not believe, that the respondent has borne its burden of proof in this case. Cf. The George E. Pickett, D.C.S.D.N.Y. 1948, 77 F.Supp. 988.
For these reasons, I conclude that the respondent must answer in damages. The libellant proved the invoice price of the skins involved, and in fact proved to my satisfaction that the goatskins were worth $ 1 more per dozen at the place of discharge, Philadelphia; nevertheless, it does not ask for the dollar. Since the evidence is uncontradicted that the depreciation was one-third the value of the three bales, the libellant is entitled to recover the sum of $ 1,238.61, the total invoice price for the three bales being $ 3,715.83. The respondent disputes this on the theory that the libellant is a processor of raw skins and makes its profit out of the finished product, but there was no evidence, indeed it was concededly unascertainable, what profit the libellant lost on its finished product. To sustain this argument legally, the respondent relies upon the phrase 'actual loss' used in Continental Distributing Co. v. Reading Co., 3 Cir., 1948, 168 F.2d 967, 971. I think the phrase was taken out of the context of the decision of the Court of Appeals, and that the holding of the case is not inconsistent herewith. I have no doubt that I have employed the proper measure of damages in the circumstances of this case. Illinois Cent. R. Co. v. Crail, 1930, 281 U.S. 57, 50 S. Ct. 180, 74 L. Ed. 699; Pioneer Import Corp. v. The Lafcomo, 2 Cir., 1947, 159 F.2d 654, 655, certiorari denied Black Diamond Lines v. Pioneer Import Corp., 321 U.S. 766, 64 S. Ct. 523, 88 L. Ed. 1063; Weirton Steel Co. v. Isbrandtsen-Moller Co., 2 Cir., 1942, 126 F.2d 593; Carver's Carriage by Sea, Section 721 (8th ed. 1938). The evidence was that the three bales in controversy had depreciated in value by one-third, and plainly the libellant as a processor is entitled to damages measured by the ordinary rule since it had to pay for its raw material the additional difference between the price of all good, and some putrified and damaged, skins.
For the reasons stated, the libellant may present to the Court a judgment order in its favor in the amount indicated above.