The opinion of the court was delivered by: FOLLMER
1. Plaintiff National Distillers Products Corp. is a corporation organized under the laws of the Commonwealth of Virginia, with its principal office in New York City. Defendant Companhia Nacional de Navegacao is a corporation organized under the laws of Portugal, and defendant Reading Company is a corporation organized under the laws of the Commonwealth of Pennsylvania.
2. On or about January 9, 1944, a shipment consisting of 250 pipes of ruby port wine and 250 pipes of tawny port wine was delivered by Marques delMerito, Lda. to Steamship 'S. Thome' at Oporto, Portugal, for delivery to Philadelphia, Pennsylvania, to the order of The Chase National Bank of New York, with instructions to notify Marques delMerito, Inc., in care of the plaintiff which was at all material times the owner of the shipment.
3. The capacity of the 500 pipes ascertained by the estimates of the United States Customs authorities in Brooklyn amounted to 70,816.4 American gallons.
4. The estimated capacity of the 310 pipes in the seven cars in which Reading is involved, as ascertained by the estimates of the United States Customs authorities in Brooklyn, amounted to 43,889.3 gallons.
5. The Steamship 'S. Thome' arrived at Philadelphia on or about March 25, 1944, at which time, or shortly thereafter, the pipes were discharged from the vessel by stevedores engaged by the shipowner and placed on Pier D, Port Richmond, owned by defendant Reading.
6. Upon discharge of the cargo at Philadelphia, a large number of pipes were observed to be damaged and leaking. The cooper employed by the plaintiff to repair the damaged and leaking pipes repaired 192 out of the total cargo of 500.
7. The cooperage operation started about April 1, 1944, and continued for about one week.
8. The condition of the containers showing unmistakable evidence of cargo pressure and the extent of the loss of wine existing so shortly after they were removed from the vessel indicates clearly that they were damaged during the voyage.
9. There was no evidence of any loss on the pier that was not directly attributable to the damage caused during the voyage.
10. Because of the apparent damage noted when the shipment was landed a partial gauging was performed by the United States Customs at Philadelphia before the pipes were delivered to Reading. In conformity with the practice of the Customs authorities on an intransit inspection, only those containers which were observed by the Customs inspectors to show external signs of damage and/or loss of contents were opened and gauged. Accordingly, a total of 113 pipes were opened and gauged by the Customs inspectors who recorded an outage therefrom of 13,458.7 gallons; however, the Customs inspectors failed to gauge 79 additional pipes which had been recoopered and noted short of contents by the coopers.
11. Defendant Companhia conceded its liability for the amount of the loss as shown by the Customs gauging at Philadelphia, and accordingly offered no testimony to rebut the presumption that the damage caused while the cargo was under its control had occurred from causes for which it would be responsible under the provisions of the Carriage of Goods by Sea Act of 1936, 46 U.S.C.A. § 1300 et seq.
12. At the time of delivery to Reading the entire shipment was weighed and such weight, applied to the stipulated weight of 8.57 pounds per gallon of wine, established that the shipment then contained 16,307 gallons less than when weighed at the time of export and of this amount the seven cars involved in the claim ...