witness, who surveyed the cargo after its arrival in Brooklyn,
testified that "around three per cent" was the usual allowance
for natural shrinkage. MacDougall, sales manager of plaintiff's
import division, also plaintiff's witness, testified that the
expected yield from a pipe of wine varies from 56 to 60 cases of
2.4 gallons each or 134 to 144 gallons. It is obvious that even
the 2¾% figure is problematic. According to the experts, the
estimated normal shrinkage in the trade is "around three per
cent." Reading's computation, which as above indicated carries
conviction, indicates a 2¾% normal shrinkage. Having in mind that
that figure is not a mathematical certainty, it is believed that
in this situation a fair and equitable median would be 2%.
Accordingly, an allowance for normal shrinkage of 2% will be
Finally, as to the measure of damages, the plaintiff offered no
evidence of any necessity of immediate replacement of the lost
wine at a higher price, nor that the loss of the wine resulted in
any diminution of gross sales because of a shortage of stock to
sell. Applying the formula established in Continental
Distributing Co., Inc. v. Reading Co., 3 Cir., 168 F.2d 967, to
the facts of this case, plaintiff's damages will be assessed on
the wholesale price or cost to it of the goods lost rather than
the retail price or plaintiff's asking price to others before
Conclusions of Law
1. The Court has jurisdiction of the parties and subject matter
in this proceeding.
2. Any leakage on the pier between the time they were
discharged from the holds of the Steamship "S. Thome" and the
time they were recoopered was attributable to causes arising
during the voyage.
3. Under the evidence, the shipowner is liable for the shortage
of wine determined by deducting the shipping weight shown by the
railroad at Philadelphia from the quantity initially shipped at
4. Under the evidence, the railroad is liable for the balance
of the shortage as shown upon delivery to the consignee at
Brooklyn, excepting the loss in contents of the five cars
involving delayed notice.
5. An allowance of 2% for normal shrinkage is allowed.
6. Damages must be computed on the basis of wholesale cost to
An appropriate order for judgment may be submitted. If the
parties cannot agree upon damages, a further hearing will be held
to determine the amount.