truck shipments. (N.T. 20-26). The bill of lading did not specify an arrival time and there was no other evidence of a definite arrival time.
31. However, Land failed to produce at trial the Ryan Recorder tape which would have been the only evidence of the trailer temperature which was maintained by Hams during shipment. Nor did Land introduce evidence that the goods were in good condition when delivered to Hams. Therefore, no competent evidence exists on which to conclude that Hams was negligent or that such negligence was the proximate cause of the spoilage. According to Land's own evidence, the Ryan Recorder could have been operating properly and yet there could have been spoilage for which the carrier would have no responsibility. (N.T. 103).
32. Accordingly, Land's counterclaim as to Load W-45 is denied. Hams is owed the sum of $ 2,756.36, less commission, or $ 2,576.00.
F. Summary of Amounts Due
LOAD FREIGHT LESS SET OFF DUE
W-38 $2,325.00 $ 0 $2,325.00
W-41 2,506.63 0 2,506.63
W-44 2,322.00 1,045.53 1,276.47
W-45 2,576.00 0 2,576.00
W-47 2,484.00 0 2,484.00
TOTALS $12,213.63 $1,045.53 $11,168.10
A. Load W-41
Land has failed to prove by competent evidence that consignee, Hunter Brothers, suffered any loss directly related to the subsequent sale of the produce. "While the fact of damage must be established with reasonable certainty, the precise amount need not be shown with mathematical precision so long as the court can arrive at an intelligent estimate without speculation or conjecture." First National Bank of Chicago v. Jefferson Mortgage Co., 576 F.2d 479, 494-495 (3d Cir. 1978), cert. denied, 439 U.S. 861, 99 S. Ct. 181, 58 L. Ed. 2d 170 (1978). Accord, Air Filter Co., Inc. v. McNichol, 527 F.2d 1297, 1301 (3d Cir. 1975).
However, here the court is not convinced by a preponderance of the evidence that Land has met its burden of proving with reasonable certainty that it suffered measurable damages. Even if the court were persuaded that Land suffered some loss, the court is without a sufficient evidentiary basis to ascertain the extent of Land's damage without resorting to conjecture and mere speculation. This the court may not do. First National Bank of Chicago, supra; McNichol, supra. As the McNichol court stated: "While we agree that "the quantum of proof required to establish the amount of damage is not as great as that required to establish the fact of damage,'...it is also elementary that purely speculative damages cannot be recovered." 527 F.2d at 1301 (citations omitted). Accord, Harrison Associates v. Gulf States Utilities Co., 491 F.2d 578, 587 (5th Cir. 1974). See also, Blackburn v. Aetna Freight Lines, Inc., 368 F.2d 345 (3d Cir. 1966); McNichol, supra; Vizzini v. Ford Motor Co., 569 F.2d 754, 763 (3d Cir. 1977). Since Land has failed to prove such facts, its counterclaim of $ 950.00 fails.
B. Load W-44
The court has found that a trade custom existed for determining loss by subtracting the market value of damaged goods from the contract price.
In cases involving carrier liability the courts attempt to compensate the injured party for his "actual loss." Hector Martinez & Co. v. Southern Pacific Transportation Co., 606 F.2d 106, 110-111 (5th Cir. 1979); McCarty v. Southern Pacific Co., 428 F.2d 690, 692 (9th Cir. 1979); Illinois Central R.R. Co. v. Zucchero, 221 F.2d 934, 937 (8th Cir. 1955). See also, Frosty Land Foods v. Refrigerated Transport, 613 F.2d 1344, 1348 (5th Cir. 1980). In the absence of a contrary industry practice, courts have determined actual loss by the market price measure of damages, that is, the difference between the market value of goods delivered according to the contract specifications, and the market value of nonconforming goods. Gulf, Colorado & Santa Fe R.R. Co. v. Texas Packing Co., et al., 244 U.S. 31, 37, 37 S. Ct. 487, 489, 61 L. Ed. 970 (1917); Frosty Land Foods, 613 F.2d at 1348 (dictum); Fraser-Smith Co. v. Chicago, Rock Island & Pacific R.R. Co., 435 F.2d 1396, 1402 (8th Cir. 1971). However, this court will not impose upon the parties a standard for ascertaining damages which is different than the one found in this case to have been uniformly adopted and routinely followed by brokers in the perishable produce trade. Moreover, there is no evidence that this practice was inequitable. Accordingly, Land is entitled to succeed on its counterclaim to the extent of $ 1,045.53.
On the issue of carrier liability for the wet and broken boxes, the United States Supreme Court's holding in Missouri Pac. R. Co. v. Elmore & Stahl, 377 U.S. 134, 138, 84 S. Ct. 1142, 1144, 12 L. Ed. 2d 194 (1964) is applicable and dispositive. The Court stated that under federal law, in an action to recover from a carrier for damage to a shipment, the shipper establishes his prima facie case when he shows delivery in good condition, arrival in damaged condition, and the amount of damages. Accord, Gordon H. Mooney, Ltd. v. Farrell Lines, Inc., 616 F.2d 619, 625 (2nd Cir. 1980); Kaiser Aluminum & Chemical v. Illinois Central Gulf Railroad Company, 615 F.2d 470, 474 (8th Cir. 1980). Here, Land has failed to establish a prima facie case of negligence. It has not shown by a fair preponderance of the evidence that the boxes and goods in them were loaded and otherwise delivered to Hams in good condition in California. The uncontroverted testimony is that the produce was loaded by the field producers and that Hams had no responsibility for loading. Land presented no evidence as to how the boxes were loaded or the boxes' condition when loaded.
Accordingly, Land is not entitled to prevail on its claim for damages flowing from the consignee's rejection of the broken and wet boxes. The amount which Land owes Hams on Load W-44 is $ 2,322.00 less $ 1,045.53 (the amount allowed on the improper maintenance of temperature counterclaim) or $ 1,276.47.
C. Load W-45
Land has failed to make out a prima facie claim of damages regarding Load W-45. Land failed to show that the goods were delivered to Hams in good condition and thus failed to meet the first part of the tripartite test enunciated by the Supreme Court in Missouri Pacific Railroad, supra. No proof exists by a fair preponderance of the evidence that Hams received the goods in good condition.
The court rejects the counterclaim of Land and finds in favor of Hams Express in the amount of $ 2,484.00.
1. There exists diversity jurisdiction in that the parties are corporate citizens of different states and the amount in controversy exceeds $ 10,000.00.
2. Regarding Load W-41, Land has failed to prove that it is reasonably certain that Land suffered damage. Even assuming Land suffered damage, the facts do not constitute a reasonably fair basis upon which the court, acting as finder of fact, can calculate loss.
3. Where the facts disclose a trade custom which compensates a consignee or shipper for his actual loss due to carrier negligence, the court may adopt that trade custom in ascertaining damages. To calculate loss, the court need not invariably subtract the market value of damaged goods from that of undamaged goods.
4. Land failed to establish a prima facie case of carrier negligence in part as to Load W-44 (broken and wet boxes), and entirely as to Load W-45.
5. Land owes Hams the sum of $ 11,168.10 plus legal interest.
6. An appropriate Order shall be entered.
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