Atchison, T. & S. F. Ry. Co. v. California Sea Products Co.

We are not disposed to disturb the findings of the commissioner with regard to the strictly factual question of whether or not the repairs to the Lansing were done with the greatest expedition, and whether the whaling boats could have left port several days before their actual departure. There was strongly conflicting testimony on both sides of the question, and the commissioner made a decision after a full consideration of the matter. In the absence of palpable error, that finding may stand. But the basis on which the allowance of demurrage in the instant case was made was not merely factual: it .was a matter of surmises, a question of determining the “reasonable certainty” of the profits supposed to have been lost, and in such questions of “reasonable certainty of profits” our jurisdiction to consider the matter on its merits is not limited. With regard to the question of the probability of the number of whales that might have been caught in the six days in question and the use of that number as the basis of an award for damages, this court is quite within its powers in reaching a conclusion from the same facts that the commissioner considered in arriving at his…