Before CHASE, Chief Judge, and SWAN and FRANK, Circuit Judges.
1. The opinion and findings of the district judge, reported in 111 F.Supp. 895, sufficiently state the facts. As he saw and heard the witnesses, we cannot say that his findings of fact are "clearly erroneous." We regard as wholly untenable Chile's argument, as applied to the facts, that the date of the oral charter, February 20, 1948 - when there was likely to be heavy ice on the river - shows that libellant, owner of the scow, assumed the risk of ice-caused damage. It is immaterial that Chile was a sub-charterer. Libellant is clearly entitled to recover from one or the other of the respondents.
2. The sole question deserving discussion is as to the dismissal of the impleaded respondent, McAllister, owner of the tug. Chile, found to have knowledge of the ice condition, ordered McAllister to do the towing. Since, however, the tug captain testified he would not have taken out the scow except under orders, as he expected it to be damaged, the tug would be primarily liable and the charterer secondarily liable, unless the contract between Chile and McAllister, evidenced by the letter of January 14, 1947, exonerated the tug. That letter reads as follows:
"Mr. J. McKinley, Vice President
Chile Steamship Company, Inc.
"We wish to notify you that this company is forced to decline liability for any damages sustained by your Scows and lighters and their cargoes which may result from or be caused by towing and navigating in ice while enroute from New York Harbor to Hastings on the Hudson, New York.
"It is understood, however, that such declination of liability does not free us from other liabilities customarily assumed by the tower.
"We shall keep you advised of the conditions in the river and if we are ordered to tow in ice we shall exercise all due diligence in the towing of your equipment. However, whether negligent or not, if any damage is sustained in towing in ...