Scripps v. Moran

GILBERT, Circuit Judge (after stating the facts as above). We have not the advantage possessed by the special master of seeing the witnesses and observing their demeanor, and thus estimating their credibility; but a careful consideration of the testimony leads us to the conclusion that the master properly weighed the evidence and correctly found the facts. There was evidence to sustain all of his findings. The appellee was a shipbuilder, with many years of experience. He had built the yacht for his own use. Capt. Tuttle, senior captain of the United States Guard Service, with 54 years of experience at sea, testified that the Sanwan was the strongest wooden vessel he had ever seen. By agreement between the parties, the charterer’s master and crew participated in the overhauling of the yacht before her delivery, and thereafter the-master receipted for the vessel as in good order. There was testimony that she was in every respect seaworthy. It is significant that the charterer, when he gave the- appellee notice of his intention to surrender the vessel, made no claim that she was unseaworthy, but stated only that she was unsatisfactory and not suited to his use. There was evidence tending to show that the employes of the charterer were unskilled or incompetent, and that the trouble they experienced in operating the yacht was due to their inefficiency. There was notable failure of the charterer to produce the testimony of members of his crew as to certain of the issues, and'there was failure to account for its absence. Nor do we find error in the method adopted by the special master to ascertain the damages, or that he erroneously determined the compensation for the use of the vessel or for the time during which she was laid up for repairs. The case is one for the application of the well-settled rule that the findings of a master or commissioner on [261] matters of fact on conflicting evidence, when approved by the District Court, will not be disturbed by an appellate court, unless in cases of palpable mistake. Kimberly v. Arms, 129 U. S. 512, 524, 9 S. Ct. 355, 32 L. Ed. 764; Warren v. Keep, 155 U. S. 265, 15 S. Ct. 83, 39 L. Ed. 144; Davis v. Schwartz, 155 U. S. 631, 15 S. Ct. 237, 39 L. Ed. 289; The Providence (C. C. A.) 98 F. 133; Dunckley Co. v. Central California Canneries (C. C. A.) 7 F. (2d) 972. As against this view the appellant cites decisions of this court, The Joseph B. Thomas (C. C. A.) 86 F. 658, 46 L. R. A. 58, and the Santa Rita (C. C. A.) 176 F. 890, 30 L. R. A. (N. S.) 1210; but those were cases in which there was no finding of fact by a master or a commissioner, and in which the trial court made findings upon the evidence, without the advantage of hearing and confronting the witnesses. The judgment is affirmed.