126 F.2d 18 | 5th Cir. | 1942
The libel was for bottom damages to the tank steamer, Ruth Kellogg. The claim in general was that they were the result of grounding in an unsafe berth designated and furnished by respondent charterer, in violation of a charter party covenant that the vessel should safely lie afloat. Specifically, the claim was: that, while being piloted to the dock, assisted by tugs, she went aground about 50 to 70 feet off, with her port side parallel to the dock and a 2 to 3% list to starboard; that the tugs, with the assistance of the vessel’s lines, managed to shove her within about 20 feet of the dock; and that she lay there aground, her starboard bottom resting on some hard substance, from approximately 7:30 in the morning to 3:00 in the afternoon. The defense was a denial that the vessel grounded and was damaged as claimed and, on the issue so joined, evidence was taken by deposition and orally before the court.
The trial judge found (1) that the Ruth was not aground about 75 to 100 feet from the dock as claimed and that her starboard bottom was at no time aground in respondent’s berth; (2) that on the day before the berthing, the vessel struck a submerged object in the channel, and part of the claimed damage could have been the result of that striking; (3) that in December, 1937, some months after the berthing, she experienced heavy weather which could have caused the balance of the damage sued for; and (4) that libellant had failed to sustain the burden of showing that any of the claimed damage had resulted from the failure of the respondent to furnish a safe berth as required in the Charter Party. So finding he dismissed the libel.
Libellant here by appeal, fully recognizing its burden to convince us that the findings and decree may not stand, insists that an examination of the findings in the light of the record, will demonstrate that they are unsupported by the evidence and that the decree should be reversed. We recognize the correctness of the rule invoked by appellant and uniformly followed by the court, that though we accord them due weight, we are not bound to accept the findings and judgment of the district judge. We must examine the record and determine for ourselves, whether it fairly supports them. A careful study of the record reveals that the difficulty with libellant’s case .is that which, confronting
To set out the testimony would serve no useful purpose. It is sufficient to say that while it might support a finding in appellant’s favor and if one had been made we might not disturb it, it certainly does not demand one nor does it furnish a basis for our setting aside the district judge’s findings as findings with which we cannot agree, his decree as one which should not stand.
Affirmed.