The opinion of the court was delivered by: DAWSON
This is a motion brought by libelant for an order overruling certain exceptions to the Commissioner's report filed by the respondent, H.A. Brassert & Co.
The action was instituted by the libelant, Pittston Marine Corporation, as the owner of the vessel S.S. Clyde Austin Dunning, against the respondent H.A. Brassert & Company, consignee, to recover damages alleged to have been sustained by said vessel in the discharge of its cargo of iron ore at Chester, Pennsylvania during the month of August, 1948, through the negligent unloading operations performed by the respondent consignee.
After the libel was filed on October 4, 1950, and after an answer had been filed, the proctors for the respective parties entered into a stipulation that a consent decree in favor of the libelant, Pittston Marine Corporation, could be entered against the respondent H.A. Brassert & Company for 90% of the provable items of libelant's damages. The decree referred the matter to John J. Donovan, Esq., as Commissioner, to ascertain and compute the amount of libelant's damages. Hearings were started before Commissioner Donovan, but before completion of these hearings Commissioner Donovan died. On June 8, 1955 the decree was amended to provide for the appointment of Emmett F. McNamara, Esq., as Commissioner, to ascertain and compute libelant's damages. The hearings thereafter were continued and completed before Commissioner McNamara.
Respondent has filed a total of seven separate exceptions to the Commissioner's report. In some respects the exceptions are repetitious of each other and they may be summarized and classified into two groups:
(1) Respondent contends that the Commissioner ignored the testimony of two of respondent's witnesses, Gunn and Prybyson, both of whom claimed that much of the damage listed in the survey was old damage and could not therefore have been sustained during the unloading operations at Chester, Pennsylvania. As a result it is contended that the Commissioner erred in computing the damages occurring at Chester, Pennsylvania, to the extent that he did. Consequently, it is alleged that the Commissioner improperly found that 13 1/2 days (or approximately one-half the time) were devoted to the repair of the damages which occurred at Chester, Pennsylvania (the remaining time allegedly being devoted to the repair of damage occurring elsewhere).
(2) Respondent contends that the Commissioner failed to find that no damage occurred during loading operations at Casablanca between July 19th and July 24, 1948.
Thus the question is not whether the reviewing court might have found differently since in any event this alone would not authorize the court to set aside the findings. 5A C.J.S. Appeal & Error § 1665. The question is whether there was sufficient evidence for the Commissioner to support the findings and reach the conclusions which he did.
It appears that respondent's exceptions are directed wholly to matters of fact and to the weight to be given to testimony. Despite the statements made by the respondent (in the notice of exceptions and the brief which was filed on behalf of the respondent) that the testimony of the two witnesses Gunn and Prybyson is uncontradicted, a review of the record shows that there is testimony to support the Commissioner's findings.
The testimony of Willis H. Duff, Chief Mate on the vessel during the period in question, showed, on page 84, that he inspected the ship following the discharge of coal in Marseille, France, in July, 1948. Mr. Duff testified that he observed the crane causing damage during the unloading operations at Chester, Pennsylvania, and thereafter was present during the survey at the Kensington Shipyards and observed all the damage in the cargo holds (page 99). Therefore, Mr. Duff could testify as to the damage which was caused by the crane at Chester, Pennsylvania, since he not only observed the unloading operations at Chester, Pennsylvania, but also inspected the ship for damage both before and after the discharging operations at Chester.
Furthermore the testimony of Alexander P. Stewart, who conducted the survey of the vessel after the unloading operations at Chester, Pennsylvania, supports the Commissioner's findings. Mr. Stewart testified, at page 212, as follows:
'Q. Are those your findings Mr. Stewart? A. Yes.
'Q. Does that consist of the full extent of the damage which you found? A. The full extent of the stevedoring damage to the cargo holds that occurred at Chester, Pennsylvania, at that time.
'Q. When you made your examination did you take into consideration such damage which existed on respondent's ...