Servac International brought suit against Georgia Ports Authority to recover damages arising out of an ammonia leak that contaminated portions of its cargo (frozen beef livers and chicken legs), which was stored in a GPA warehouse awaiting shipment to a purchaser in Egypt. After the trial court entered summary judgment in favor of Servac on GPA’s liability for the damage, an issue not contested on appeal, a bench trial was had on the issue of the amount of damages. Both parties appeal from the trial court’s judgment.
1. In Case No. A91A1996, GPA argues that the report of a survey conducted after the loss constituted a binding agreement between the parties that the invoice price of the damaged goods, as determined by that survey, reflected the total amount of damages to which Servac was legally entitled. The survey report, which was jointly conducted with GPA and representatives of Servac’s interest in the goods, provided that it was issued “without prejudice” and was undertaken “for the purpose of ascertaining the extent of damage alleged to have been sustained due to an ammonia leak in the cold storage warehouse.” The report set forth, inter alia, the results of the surveyor’s investigation into the cause of the damage; how the surveyor selected representative cartons for examination; the outcome of the examination; the invoice prices of the percentage of cartons determined to be damaged; and the salvage bids received and accepted for the damaged goods.
“The cardinal rule of construction is to ascertain the intention of the parties.” OCGA § 13-2-3. “ ‘The language which the parties have used will be looked to for the purpose of finding that intention, which when it is once ascertained will prevail over all other considerations, in determining the nature of the agreement.’ [Cits.]”
Goff v. Cooper,
Therefore, because the intention of the parties, as determined from the language of the entire contract, did not reflect that the survey report constituted a binding determination of all of Servac’s damages and the admiralty cases cited by GPA do not support its contention that survey reports in the maritime world are construed differently from other contracts, this argument presents no basis for reversing the trial court’s judgment.
2. GPA next argues that as a matter of law Servac, as bailor of the goods, was not entitled to recover its lost profits from GPA as a result of GPA’s breach of its duty to Servac. See OCGA §§ 11-7-204 (1), 44-12-43. This argument is based on GPA’s contention that the trial court included lost profits as part of the fair market value of the goods by looking to the port of destination, i.e., Egypt, where the sale of the goods to the purchaser would have been completed, rather than the value of the goods in Savannah, where at the time in issue GPA’s position was that of bailee, not carrier of the goods. However, the trial court in its order clearly stated that damages for lost profits were included in its calculations because the trial court found those damages were within the contemplation of the parties and flowed naturally from the breach of GPA’s duty to Servac. The record establishes that in determining the fair market value of the goods the trial court applied the proper measure of damages, see generally
Harper Warehouse v. Henry Chanin Corp.,
The question is thus whether lost profits as consequential damages can be recovered by Servac. Article 7 of the Uniform Commercial Code, OCGA § 11-7-101 et seq., did not repeal or affect Georgia bail
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ment law. See
A.A.A. Parking v. Bigger,
No Georgia case has addressed the question whether lost profits as consequential damages can be recovered under OCGA § 11-7-204. We are persuaded by Uniform Commercial Code authorities James White and Robert Summers, as well as foreign authority following their position,
Indemnity Marine Assur. Co. v. Lipin Robinson Warehouse Corp.,
The theory behind Georgia bailment law is in accord with this position. In
Bennett v. Associated Food Stores,
3. We now address GPA’s argument that Servac’s evidence regarding its lost profits was too conjectural and speculative to be the basis for recovery. While “[a]n allowance for damages cannot be based on guesswork[, and l]oss of anticipated profits which is completely conjectural is not recoverable,” (citations and punctuation omitted)
Phoenix Airline Svcs. v. Metro Airlines,
In determining whether Servac met its burden of proof, we find that it proved the quantum of damages to a reasonable degree of certainty as provided in
Farmers Mut. Exchange,
supra. All of the facts were placed in evidence from which the trial court, as trier of fact, could make a reasonable calculation of Servac’s loss. See generally
B
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& D Carpet Finishing Co. v. Gunny Corp.,
4. The sole issue in Servac’s cross-appeal is whether the trial court erred by not including in its judgment an award of pre-judgment interest calculated from the date the goods sustained damage to the date judgment was entered. Servac contends its damages were liquidated and thus pre-judgment interest was required to be awarded. OCGA § 7-4-15.
“A liquidated demand is ‘an amount
certain
and
fixed,
either by the act and agreement of the parties or by operation of law; a sum which cannot be changed by the proof; it is so much or nothing; . . .’ [Cit.]”
Gorlin v. Halpern,
At the time of the ammonia leak at the warehouse where Servac’s goods were stored, it was not certain whether any of the goods had sustained damage, what was the extent of the damage, or what was the value of the goods damaged. There is no evidence that the bailment agreement between the parties addressed these matters or otherwise required the parties to submit determination of such matters to a surveyor whose decision would then bind the parties. Contrary to Servac’s argument, the “certainty” regarding the damage sustained by Servac was not because the damage was liquidated but rather was because the parties apparently agreed after the injury occurred to have the damage surveyed and to consider determinative the results of that survey. See Division 1, supra. Given that the underlying damage to the goods was not liquidated, we do not agree with Servac that its lost profits were liquidated merely because recovery of consequential damages was within the contemplation of the parties.
Accordingly, the trial court properly did not award Servac prejudgment interest.
Judgments affirmed.
Notes
No question exists that GPA is a warehouseman as defined in OCGA § 11-7-102 (1) (h).