ÆTNA INS. CO. et al. v. DAVIDSON S. S. CO. (two cases); DAVIDSON S. S. CO. v. BACON, 257 F. 68

BAKER, Circuit Judge. Appellee’s schooner went to appellant Bacon’s elevator at South Chicago to be loaded with corn destined to Buffalo. While at the elevator dock she sprang a leak, and the cargo was somewhat damaged. Appellants, one the owner and the others the insurers, who had paid part of the loss on the cargo, alleged that the leak was due to the unseaworthiness of the schooner and to improper loading by appellee.

According to appellee’s libel against Bacon, owner of cargo, elevator, and dock, the loading, which was properly done, lowered the schooner so that her keel rested upon and was spilt 'by a submerged obstruction. On final hearing of the consolidated cases the District Court dismissed appellants’ libel, and entered a decree in appellee’s favor for. the damages to the schooner.

As the trial judge saw and heard the witnesses, his findings upon the issues of fact will not be set aside, unless the cold type in the record demonstrates that a material finding either was unsupported by eyidence or was made in the face of a clearly ascertainable preponderance to the contrary. Royal Exchange Assurance v. Graham & Morton Transp. Co., 166 Fed. 32, 92 C. C. A. 66; Monongahela River Consol. Coal Co. v. Schinnerer, 196 Fed. 375, 117 C. C. A. 193.

Our study of the reported testimony leaves us under the conviction that the schooner was staunch and seaworthy when loading commenced; that loading was properly conducted; that there was a submerged pile somewhat beyond the limits of Bacon’s dock, but so near thereto that vessels of usual length, lying at the dock, would extend to that point; that the obstruction was unknown to appellee; that, though Bacon was also unaware of its existence, reasonable diligence on his part would have disclosed the danger; and that the damages to the schooner and her cargo were wholly due to the submerged obstruction.

Though a wharfinger is not a guarantor of safety, he must use reasonable diligence to ascertain the condition of the berths into which he invites vessels, and the navigator has the right to assume that such care has been exercised. Smith v. Burnett, 173 U. S. 430, 19 Sup. Ct. 442, 43 L. Ed. 756; C. F. Harms Co. v. Upper Hudson Stone Co., 234 Fed. 859, 148 C. C. A. 457. The decree is affirmed.