Contrary to the testimony of Kittelsen, who did not see the coils in Wilmington, Fowley testified that the fresh water that caused the rust on the subject coils came from the outside and seeped inside the coils, and not vice versa, as Kittelsen opined. Fowley points out that Kardex was able to use all but the first 1500 pounds of some of the damaged coils, and this is persuasive evidence in our view that the damage was on the outer circles of steel and not the inner ones, as Kittelsen's theory would require. We therefore agree with Fowley that the likely cause was some failure of the Lotila dehumidifying system between New Haven, Connecticut and Wilmington, Delaware.
As noted, however, COGSA does not require the shipper to prove what, precisely, the carrier's negligence was. If, as here, the shipper shows cargo in good condition loaded on, and in bad condition loaded off, the burden shifts to the carrier to assert COGSA-recognized defenses. Defendants did not begin to carry such a burden, since it called no witness from that ill-starred voyage of the Lotila.
Defendants made reference in their pretrial submissions and at trial to the three-day notice provision of § 3(6) of COGSA, 46 U.S.C. § 1303(6).
Where, however, as here the shipper comes forward with sufficient evidence to suggest damage to the cargo, "the presumption [of non-damage] disappears and the evidence of lack of notice 'is accorded no special weight beyond that given other evidence concerning where the damage occurred.'" Pacific Employers Ins. Co. v. M/V Gloria, 767 F.2d 229, 238 (5th Cir. 1985) (citation omitted).
Defense counsel did not disagree with our observation during her closing argument that Asoma and Fowley made a rational judgment at pierside in Wilmington not to notify the carrier of the possibility of damage. First, decanning all the coils in Wilmington subjected the coils to further damage. Second, had Asoma's customer been notified of the delay because of concerns about damage, the customer might well have rejected the entire shipment. Indeed, by allowing the ultimate customer to do the initial appraisal of damage, Asoma mitigated what might have been a claim for $ 175,997
to the actual base claim of only $ 27,003.22 set forth in Fowley's August 11, 1992 report. To elevate the three-day notice preference into a bar to recovery would be to allow form to overcome rational business judgment, a result unwarranted under COGSA'S practical maritime regime.
Asoma is therefore entitled to judgment for the full amount of $ 39,830.55. The parties agree that Pennsylvania's 6% prejudgment interest rate began running on September 3, 1992, and thus one year and 111 days' interest has accrued, or $ 3,116.60, for a total judgment of $ 42,947.15.
JUDGMENT AND ORDER
AND NOW, this 23rd day of December, 1993, after a non-jury trial in this matter and based upon the findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a) contained in the foregoing Memorandum, it is hereby ORDERED that:
1. JUDGMENT IS ENTERED in favor of plaintiff and against defendants M/V Lotila and FCRS Shipping Limited in the amount of Forty-Two Thousand Nine Hundred Forty-Seven Dollars and Fifteen Cents ($ 42,947.15);
2. Plaintiff's claim against John Doe Ship Chartering, Inc., shall be marked WITHDRAWN; and
3. The Clerk shall CLOSE this matter statistically.
BY THE COURT:
Stewart Dalzell, J.