failure to freeze, for whatever reason, fails to convince us otherwise.
We must disagree with defendants' calculations of damages as being commercially unreasonable. Given realistic time constraints, imposed by threatened spoilage, as well as standard business practices, we think that the plaintiff acted reasonably and in good faith in disposing of the fruit as it did.
CONCLUSIONS OF LAW
1. This court has jurisdiction over the subject matter of this case pursuant to 28 U.S.C.A. § 1333(1) (West 1966) and 28 U.S.C.A. § 1337 (West Supp. 1987).
2. This case arises under the Carriage of Goods by Sea Act (COGSA), 46 U.S.C.A. §§ 1300-1315 (West 1975 & Supp. 1987).
3. Under 46 U.S.C.A. § 1303(1)(c), the carrier is bound, before and at the beginning of the voyage, to exercise due diligence to make the holds, refrigerating and cooling chambers, and all other parts of the vessel in which the goods are to be carried, fit and safe for their reception, carriage and preservation.
4. The plaintiff must show that the damage to the Plums occurred while they were within the care and custody of the defendants. McNeely & Price Co. v. Ellerman & Bucknall S.S. Co., 100 F. Supp. 339 (E.D. Pa. 1954).
5. A shipper can establish a prima facie case by proving that the carrier received cargo in good condition, but unloaded it at destination in damaged condition. Van Muching [Sic] & Co., Inc. v. M/V Star Mindanao, 630 F. Supp. 433 (E.D. Pa. 1985).
6. No proof having been presented at trial as to Chilean law, the court cannot take judicial notice of the law of Chile, the country which issued the government inspection reports. Harris v. American International Fuel & Petroleum Co., 124 F. Supp. 878 (W.D. Pa. 1954).
7. A clean bill of lading is prima facie evidence that the carrier received the goods and creates a rebuttable presumption that goods were delivered to the carrier in good condition. Van Muching [Sic], 630 F. Supp. at 439.
8. A clean bill of lading relates, however, only to external or apparent order. The Ciano, 69 F. Supp. 35 (E.D. Pa. 1946).
9. When, however, goods are packaged, further evidence is needed. "The Court, in addition to the good order receipt, 'may consider the outturn itself as evidence,' The Glasgow Maru, supra, 102 F.2d at page 451. Of course, this means more than just the fact that the goods are damaged. There must be something about the condition of the goods themselves or their stowage or other circumstances from which the Court can infer that the only damage appearing at discharge did not exist at the time the goods came into the possession of the carrier. Of course, if the damage is of a kind which could not in the nature of things have occurred before shipment, that will be enough . . . ." McNeely & Price Co. v. The Exchequer, 100 F. Supp. 343, 344 (E.D. Pa. 1951). The plums were subjected to refrigeration on board the defendants' ship; the cause of the spoiling was freeze damage.
10. Said damage was due to failure to use due diligence to maintain proper temperature in a fit and safe manner as required by 46 U.S.C.A. § 1303(1)(c).
11. The Shipper is under a duty to mitigate damages. C. Itoh & Co. (America), Inc. v. Hellenic Lines, Ltd., 470 F. Supp. 594 (S.D. N.Y. 1979). The plaintiff acted reasonably and attempted to mitigate damages.
12. "The usual measure [of damages] is the difference between the fair market value of the goods at the port of destination in the condition they were in when shipped and their value as damaged." Id. at 598.
13. The defendants are liable to the plaintiff in the amount of $ 17,566.00 with interest of $ 2,276.55.
VERDICT AND JUDGMENT
AND NOW, this 4th day of May, 1988, defendant ITO Corporation having been dismissed by stipulation of counsel, the court enters a verdict and judgment in favor of plaintiff and against defendants Compania Sud-Americana de Vapores and Nordia Shipping AB in the amount of $ 19,842.55.
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