1 . THE DEFENDANT ARGUES THAT IN THEIR APPLICATIONS THE APPLICANTS DID NOT PRODUCE THE FIGURES ON WHICH THEY BASED THEIR CALCULATIONS OF THE AMOUNT OF THE DAMAGE ALLEGEDLY SUFFERED AND THAT THEREFORE THEY DID NOT COMPLY WITH THE REQUIREMENTS OF ARTICLE 38 OF THE RULES OF PROCEDURE . THE APPLICANTS REPLY THAT IT WAS NOT POSSIBLE FOR THEM TO PRODUCE THEIR DOCUMENTARY EVIDENCE BEFORE THE LODGING OF THEIR REPLY, SINCE THE FIGURES VARIED CONSIDERABLY FROM ONE CLAIM TO ANOTHER AND ALSO BECAUSE OF THE ABUNDANCE OF THE VARIOUS DOCUMENTS WHICH HAD TO BE COLLECTED . THIS FIRST OBJECTION OF INADMISSIBILITY MUST BE REJECTED, AND THE EXPLANATION GIVEN BY THE APPLICANTS MUST BE CONSIDERED AS ACCEPTABLE . MOREOVER, THE ABSENCE OF THE FIGURES IN THE APPLICATIONS CANNOT HAVE PUT THE DEFENDANT AT ANY DISADVANTAGE, SINCE IT HAS BEEN ABLE TO DISCUSS THE FIGURES PRODUCED BY THE APPLICANTS IN THEIR REPLY, BOTH IN ITS REJOINDER AND DURING THE ORAL PROCEDURE . P.935
2 . THE DEFENDANT THEN ARGUES THAT THE APPLICANTS INFRINGED ARTICLES 38 AND 42 OF THE RULES OF PROCEDURE IN THAT THEIR REPLY REPLACES THE METHOD OF CALCULATING THE ALLEGED DAMAGE USED IN THEIR APPLICATIONS BY AN ENTIRELY DIFFERENT METHOD . ACCORDING TO THE DEFENDANT THE CALCULATIONS IN THE APPLICATION RESULTED IN A CLAIM FOR THE VERY AMOUNT REPRESENTED BY THE ' TRANSPORT PARITY ' IMPROPERLY RECEIVED, WHEREAS IN THE REPLY THE CLAIM FOR THE ' TRANSPORT PARITY ' REIMBURSEMENT HAS BEEN TRANSFORMED INTO ACTION FOR REPARATION BASED ON THE EXISTENCE OF DAMAGE EQUAL TO THE DIFFERENCE BETWEEN THE COST PRICE OF THE TONNAGE OF SHIPYARD SCRAP ACQUIRED AND THE COST PRICE OF THE SAME TONNAGE OF IMPORTED FERROUS SCRAP . THIS SECOND OBJECTION OF INADMISSIBILITY MUST ALSO BE REJECTED . IN FACT AN EXAMINATION OF THE WORDING OF THE APPLICATIONS REVEALS THAT THE APPLICANTS HAVE ATTEMPTED THEREIN TO SHOW THAT WITHOUT THE GRANT OF THE ' TRANSPORT PARITY ' THE TONNAGE OF SCRAP BOUGHT BY THEM HAD COST THEM MORE THAN THE SAME TONNAGE OF IMPORTED FERROUS SCRAP WOULD HAVE DONE IF BOUGHT OVER THE SAME PERIOD . FURTHERMORE THE REPLY NEITHER CHANGES THE SUBJECT MATTER OF THE DISPUTE, NOR DOES IT INTRODUCE FRESH ISSUES . ALL THE APPLICANTS HAVE DONE THEREIN IS TO RECTIFY THEIR CALCULATIONS SO AS TO TAKE INTO ACCOUNT OBJECTIONS PUT FORWARD BY THE DEFENDANT IN ITS STATEMENT OF DEFENCE .
3 . THE DAMAGE ALLEGED BY THE APPLICANT UNDERTAKINGS IN ASSESSING THEIR LOSS THE APPLICANTS HAVE USED THE ONLY METHOD POSSIBLE . THIS CONSISTS IN IMAGINING THE POSITION WHICH WOULD HAVE ARISEN FOR EACH FACTORY CONCERNED AS REGARDS THE PURCHASE OF FERROUS SCRAP, IF THE PROMISES RELATING TO THE TRANSPORT PARITY HAD NOT BEEN MADE . ALTHOUGH IN USING THIS METHOD IT IS NOT POSSIBLE TO ARRIVE AT AN EXACT ASSESSMENT OF THE DAMAGE, NEVERTHELESS THE SAMPLING METHODS HABITUALLY USED IN ECONOMIC SURVEYS MAKE IT POSSIBLE TO REACH ACCEPTABLE APPROXIMATIONS PROVIDED THAT THE BASIC FACTS ARE SUFFICIENTLY RELIABLE . THE EXPERT APPOINTED BY THE COURT, IN PERFORMING THE TASK ENTRUSTED TO HIM, HAS ATTEMPTED TO DECIDE HOW MUCH WEIGHT SHOULD BE GIVEN BOTH IN QUALITATIVE AND QUANTITATIVE TERMS TO THE VARIOUS SUPPORTING DOCUMENTS PUT IN EVIDENCE . IN HIS OPINION THE DOCUMENTS PRODUCED ARE SUFFICIENTLY CONCLUSIVE, BOTH QUALITATIVELY AND QUANTITATIVELY . HE ALSO THINKS THAT THEY CONSTITUTE A RELIABLE BASIS FOR DETERMINING THE LEVEL OF TRANSPORT COSTS BY RAIL AND BY WATERWAY WHICH WERE IN FACT BORNE BY THE APPLICANT UNDERTAKINGS FOR THE CARRIAGE OF FERROUS SCRAP ORIGINATING IN THIRD COUNTRIES DURING THE YEARS WHEN THEY USED THE SHIPYARD SCRAP IN DISPUTE IN THESE CASES . IN RECONSTRUCTING THE POSITION AS IT WOULD HAVE BEEN IF THE APPLICANTS COULD HAVE FREELY CHOSEN TO USE IMPORTED FERROUS SCRAP, THE EXPERT HAS TAKEN INTO ACCOUNT THE PORTS WHICH WERE IN FACT USED, INCLUDING THE MINOR PORTS, AND THIS HAD LED HIM TO MAKE ALTERATIONS TO THE APPLICANTS' CALCULATIONS . THE DEFENDANT HAS MADE THE OBSERVATION, AS REGARDS THE TRANSPORT BY RAIL OF SHIPYARD SCRAP, THAT THE APPLICANTS HAD USED THE MOST EXPENSIVE FORM OF TRANSPORT, BUT THE EXPERT HAS RIGHTLY POINTED OUT THAT SINCE THE CPFI HAD APPROVED THE PROVISION FOR THIS MEANS OF TRANSPORT IN CONTRACT, THE APPLICANTS HAVE DONE NO MORE THAN KEEP WITHIN THE BOUNDS OF WHAT WAS AGREED . THE EXPORT HAS ALSO MADE JUDICIOUS USE OF CALCULATIONS INVOLVING WEIGHTED AVERAGES FOR WORKING OUT THE TRANSPORT COSTS . HE HAS EXAMINED THE TRANSHIPMENT CHARGES APPLIED IN THE PORTS, AND THIS HAD LED HIM TO APPROVE IN GENERAL TERMS THE FIGURES PUT FORWARD BY THE APPLICANTS . P.940 IN ITS WRITTEN OBSERVATIONS ON THE EXPERT'S REPORT, THE DEFENDANT HAS OBJECTED THAT, WHEN THE EXPERT WAS COMPARING THE COST PRICE OF SHIPYARD SCRAP WITH THAT OF IMPORTED SCRAP IN CALCULATING THE AMOUNT OF THE DAMAGE SUFFERED, HE SHOULD HAVE TAKEN INTO ACCOUNT NOT ONLY THE EQUALIZATION PRICE AND TRANSPORT COSTS INSIDE THE COMMUNITY, BUT ALSO THE INCREASE IN CONTRIBUTIONS WHICH THE APPLICANTS WOULD HAVE HAD TO BEAR BECAUSE OF THE EXTRA IMPORTS, AND WHICH WOULD HAVE BEEN IN PROPORTION TO THEIR BASIS OF ASSESSMENT . IT IS NECESSARY TO TAKE THIS OBJECTION INTO ACCOUNT IN ASSESSING THE DAMAGE SUFFERED . IT IS INDEED UNDENIABLE THAT DURING THE PERIOD AT ISSUE THE UNDERTAKINGS CONTRIBUTING TO THE EQUALIZATION SCHEME WOULD HAVE HAD TO BEAR AN INCREASED CHARGE BECAUSE OF THE ADDITIONAL PURCHASE OF IMPORTED FERROUS SCRAP INSTEAD OF SHIPYARD SCRAP . DURING THE HEARING ON 28 SEPTEMBER 1965 THE APPLICANTS ARGUED, BUT TO NO PURPOSE, THAT THE FIGURES PUT FORWARD BY THE DEFENDANT WERE BASED ON THE TOTAL TONNAGE OF IMPORTED FERROUS SCRAP WHICH WOULD HAVE BEEN CONSUMED INSTEAD OF THE SHIPYARD SCRAP WHICH WAS IN FACT CONSUMED, AND THAT THEY SHOULD NOT BE PLACED AT A DISADVANTAGE BECAUSE OF THE JOINDER OF THEIR APPLICATIONS . IN THE COURT'S OPINION THE CALCULATION OF THE WHOLE OF THE QUANTITIES OF IMPORTED FERROUS SCRAP WHICH WOULD HAVE BEEN CONSUMED BY THE APPLICANTS IN PLACE OF THE SHIPYARD SCRAP IS TO BE EXPLAINED, NOT BY THE JOINDER OF THE APPLICATIONS, BUT BY THE STRUCTURE OF THE EQUALIZATION SCHEME, THE UNDERLYING PROPOSITION FOR WHICH WAS THE INTERDEPENDENCE OF ALL THE UNDERTAKINGS INVOLVED . FOR THE ASSESSMENT OF THE DAMAGE ALLEGEDLY SUFFERED BY THE APPLICANTS, IT IS NECESSARY TO TAKE ACCOUNT OF THE FACTORS CONSIDERED RELEVANT BY THE EXPERT, WITH THE CORRECTIONS RESULTING FROM THE PRESENT JUDGMENT . IN PARTICULAR THE UNDERTAKINGS WHOSE POSITION HAS BEEN ADVERSELY AFFECTED HAVE PRODUCED SUFFICIENTLY PERSUASIVE DOCUMENTARY EVIDENCE TO PROVE THE COSTS RELATING TO THE IMPORTED SCRAP . AS HAS BEEN SAID BEFORE, THE ASSESSMENT CANNOT BE BASED ON THE WHOLE OF THE FERROUS SCRAP TAKEN INTO CONSIDERATION BY THE EXPERT, BUT ONLY ON THE DELIVERIES OF FERROUS SCRAP MADE TO EACH OF THE APPLICANTS IN RESPECT OF ORDERS PLACED AFTER 31 DECEMBER 1956 . THEREFORE IN ORDER TO ASSESS ANY DAMAGE WHICH MAY HAVE BEEN SUSTAINED, IT IS NECESSARY TO MAKE NEW CALCULATIONS BASED SOLELY ON SHIPYARD SCRAP DELIVERED TO THE APPLICANTS PURSUANT TO ORDERS PLACED FROM 1 JANUARY 1957 ONWARDS, AND WHICH ORIGINALLY ATTRACTED THE TRANSPORT PARITY GRANT . IT IS THEREFORE PROPER TO GRANT THE PARTIES A STAY OF THREE MONTHS IN ORDER THAT THEY MAY INFORM THE COURT OF THE FIGURES WHICH THEY SHALL BY THEN HAVE AGREED BETWEEN THEM, OR, IF THEY FAIL TO AGREE, IN ORDER THAT THEY MAY SUBMIT THEIR SEPARATE FIGURES TO THE COURT .