HUTCHESON, Circuit Judge.
This is an appeal from a decree in favor of appellee for damages sustained by it as shipper when a cargo of flour laden aboard the M/V Trader Horn, (owner Mick Trader Lines), at New Orleans, was outturned damaged at the port of Bluefields, Nicaragua.
By its specifications of error,1 the appellant does not question here the quan[264]*264turn of damages or that the damage was caused by the unseaworthiness of the carrying vessel or other fault of the carrier. Its attack upon the decree is based on the claims: (1) that, not being the owner of the vessel and not having issued the bill of lading under which the cargo was carried, it was not, it could not be, held responsible as the carrier for the vessel and the carriage; and (2) that libelant did not establish any right in its own behalf, or in behalf of the consignee and/or its carrier, to stand as plaintiff in judgment.
The district judge made detailed findings of fact and conclusions of law, with which, upon a consideration of the record, we find ourselves in substantial agreement, and, because they are reported in Tex-O-Kan Mills v. Higgins, Inc., D.C., 174 F.Supp. 198, we incorporate them herein by reference. To point up our discussion of the issues the appeal presents, however, we set out in the margin a summary of the material facts,2 and will from time to time make such reference to, and use of, the findings themselves as found necessary.
[265]*265Appellant’s attack upon the findings and conclusions, and the judgment based thereon, are sweeping and sustained. It begins with a challenge of the findings and conclusions as not entitled to full weight because prepared by appellant’s proctors and accepted by the district judge without change, a challenge which we have twice rejected in principle, expressly in O/Y Finlay[266]*266son-Forssa A/B v. Pan Atlantic Steamship Corp., 5 Cir., 259 F.2d 11, at page 18, and tacitly in Mississippi Shipping Co. v. Zander, 5 Cir., 270 F.2d 345.
It continues with a basic attack upon the findings of fact and of law: (1) that Abaunza, appellant’s agent, had actual authority to substitute Mick Trader Line and the M/V Trader Horn for the Angele Higgins and the Higgins Line; (2) that the substitution was in the contemplation of, and pursuant to, the contract of affeightment; (3) that the bill of lading under which the flour was carried, and not the shipping contract, was the controlling contract between the real parties in interest; and (4) that Abaunza, on behalf of appellant, substituted a new line without the knowledge of appellee.
It concluded with an attack upon the action of the court in concluding that appellee established any right in its own behalf or on behalf of the consignee, and/or its underwriters to bring the action and stand in judgment in it.
Emphasizing and reemphasizing the unusual feature, indeed the anomaly, of this case, that the shipper, under a bill of lading, is seeking to hold liable for the mishandling of the shipment, not the carrier named as issuer of the bill of lading, but another, appellant bears down hard on its claims that the court excluded evidence tendered by respondent to show that Abaunza did not have actual authority to do what the court found he had done. In support of its attack upon the finding that the substitution which took place in this case was contemplated by, and pursuant to, the contract of affreightment, appellant points out: that no mention of substitution was made in the contract; and that the only way this comes into the case is through the fact that Clause 9 of the Ocean Bill of Lading, to the conditions and clauses in which the contract was made subject, contained a provision for substitution, argues that this clause was never intended to support or allow the complete substitution of another line and its vessel, while retaining to the first line only the onerous provision of the contract, the responsibility for safe carriage.
Akin to this argument is that made in support of Specification 3, that the real, the controlling contract was the bill of lading issued by the Mick Trader Line and its effect was to extinguish the liability of Higgins under the shipping contract by the substitution of a new contract. It cites in support of this contention, the Queensmore, D.C., 51 F. 250; Strachan Shipping Co. v. Alexander Eccles, 5 Cir., 25 F.2d 361, and Luckenbach S. S. Co. v. American Mills, 5 Cir., 24 F.2d 704, 705, where, under facts in no sense analogous to those here, the courts have said: that a livestock freight contract is the preliminary agreement and the bill of lading is a special contract with a particular ship, binding the ship and its owner; that a dock receipt was merely preliminary to a bill of lading and did not purport to be a contract of carriage; and The Capitaine Faure, 5 Cir., 10 F.2d 950, 954, where it was said: “Bills of lading are commercial documents upon which the shippers and their indorsees are entitled to rely”.
Arguing that in no proper legal sense could contract No. 113 be considered controlling here, it insists that the court should have dismissed appellee’s libel against it since appellant was not a party to the bill of lading, the real contract [267]*267which covered the rights and obligations of the parties.
In support of its specification, that it was error for the court to find that respondent substituted another line without appellee’s knowledge or consent, appellant insists that, while this contention that appellee had acted in good faith, had plainly and strongly influenced the district judge, the evidence showing that appellee, in preparing assignments authorizing it to prosecute this action, first prepared them to state specifically that the claim was against the Mick Trader Line and the M/V Trader Horn, completely refutes the claim of good faith.
Finally, planting itself firmly upon its specification No. 5, that libelant had no sufficient interest in the action to permit it to maintain it, appellant, urging that in admiralty, as in law, the action must be brought by the real party in interest, and pointing to the fact that it is conceded that libelant has been paid its loss, insists that none of the documents on which it relies give it right or title to sue.
Appellee meets all these contentions frontally with the positive overall contentions that the trial court’s findings and conclusions were carefully considered and are fully supported by the record, and that the evidence of Abaunza’s actual authority is conclusively established by the answers made by Higgins to interrogatories Nos. 6 and 7:
“ * * * that the letter dated Dec. 6, 1946, annexed to the libel * * * as Exhibit “B” (i. e. the letter substituting the M/V Trader Horn for the Angele Higgins) constitutes, and is evidence of, an agreement * * * between Higgins, Inc., d/b/a Las Americas Steamship Line, represented by its duly authorized agent, Gonzalo Abaunza, Jr. * * * and Tex-O-Kan Flour Mills Co., to substitute the M/V Trader Horn as the carrier to transport the shipment of flour originally booked for the M/V Angele Higgins.”
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HUTCHESON, Circuit Judge.
This is an appeal from a decree in favor of appellee for damages sustained by it as shipper when a cargo of flour laden aboard the M/V Trader Horn, (owner Mick Trader Lines), at New Orleans, was outturned damaged at the port of Bluefields, Nicaragua.
By its specifications of error,1 the appellant does not question here the quan[264]*264turn of damages or that the damage was caused by the unseaworthiness of the carrying vessel or other fault of the carrier. Its attack upon the decree is based on the claims: (1) that, not being the owner of the vessel and not having issued the bill of lading under which the cargo was carried, it was not, it could not be, held responsible as the carrier for the vessel and the carriage; and (2) that libelant did not establish any right in its own behalf, or in behalf of the consignee and/or its carrier, to stand as plaintiff in judgment.
The district judge made detailed findings of fact and conclusions of law, with which, upon a consideration of the record, we find ourselves in substantial agreement, and, because they are reported in Tex-O-Kan Mills v. Higgins, Inc., D.C., 174 F.Supp. 198, we incorporate them herein by reference. To point up our discussion of the issues the appeal presents, however, we set out in the margin a summary of the material facts,2 and will from time to time make such reference to, and use of, the findings themselves as found necessary.
[265]*265Appellant’s attack upon the findings and conclusions, and the judgment based thereon, are sweeping and sustained. It begins with a challenge of the findings and conclusions as not entitled to full weight because prepared by appellant’s proctors and accepted by the district judge without change, a challenge which we have twice rejected in principle, expressly in O/Y Finlay[266]*266son-Forssa A/B v. Pan Atlantic Steamship Corp., 5 Cir., 259 F.2d 11, at page 18, and tacitly in Mississippi Shipping Co. v. Zander, 5 Cir., 270 F.2d 345.
It continues with a basic attack upon the findings of fact and of law: (1) that Abaunza, appellant’s agent, had actual authority to substitute Mick Trader Line and the M/V Trader Horn for the Angele Higgins and the Higgins Line; (2) that the substitution was in the contemplation of, and pursuant to, the contract of affeightment; (3) that the bill of lading under which the flour was carried, and not the shipping contract, was the controlling contract between the real parties in interest; and (4) that Abaunza, on behalf of appellant, substituted a new line without the knowledge of appellee.
It concluded with an attack upon the action of the court in concluding that appellee established any right in its own behalf or on behalf of the consignee, and/or its underwriters to bring the action and stand in judgment in it.
Emphasizing and reemphasizing the unusual feature, indeed the anomaly, of this case, that the shipper, under a bill of lading, is seeking to hold liable for the mishandling of the shipment, not the carrier named as issuer of the bill of lading, but another, appellant bears down hard on its claims that the court excluded evidence tendered by respondent to show that Abaunza did not have actual authority to do what the court found he had done. In support of its attack upon the finding that the substitution which took place in this case was contemplated by, and pursuant to, the contract of affreightment, appellant points out: that no mention of substitution was made in the contract; and that the only way this comes into the case is through the fact that Clause 9 of the Ocean Bill of Lading, to the conditions and clauses in which the contract was made subject, contained a provision for substitution, argues that this clause was never intended to support or allow the complete substitution of another line and its vessel, while retaining to the first line only the onerous provision of the contract, the responsibility for safe carriage.
Akin to this argument is that made in support of Specification 3, that the real, the controlling contract was the bill of lading issued by the Mick Trader Line and its effect was to extinguish the liability of Higgins under the shipping contract by the substitution of a new contract. It cites in support of this contention, the Queensmore, D.C., 51 F. 250; Strachan Shipping Co. v. Alexander Eccles, 5 Cir., 25 F.2d 361, and Luckenbach S. S. Co. v. American Mills, 5 Cir., 24 F.2d 704, 705, where, under facts in no sense analogous to those here, the courts have said: that a livestock freight contract is the preliminary agreement and the bill of lading is a special contract with a particular ship, binding the ship and its owner; that a dock receipt was merely preliminary to a bill of lading and did not purport to be a contract of carriage; and The Capitaine Faure, 5 Cir., 10 F.2d 950, 954, where it was said: “Bills of lading are commercial documents upon which the shippers and their indorsees are entitled to rely”.
Arguing that in no proper legal sense could contract No. 113 be considered controlling here, it insists that the court should have dismissed appellee’s libel against it since appellant was not a party to the bill of lading, the real contract [267]*267which covered the rights and obligations of the parties.
In support of its specification, that it was error for the court to find that respondent substituted another line without appellee’s knowledge or consent, appellant insists that, while this contention that appellee had acted in good faith, had plainly and strongly influenced the district judge, the evidence showing that appellee, in preparing assignments authorizing it to prosecute this action, first prepared them to state specifically that the claim was against the Mick Trader Line and the M/V Trader Horn, completely refutes the claim of good faith.
Finally, planting itself firmly upon its specification No. 5, that libelant had no sufficient interest in the action to permit it to maintain it, appellant, urging that in admiralty, as in law, the action must be brought by the real party in interest, and pointing to the fact that it is conceded that libelant has been paid its loss, insists that none of the documents on which it relies give it right or title to sue.
Appellee meets all these contentions frontally with the positive overall contentions that the trial court’s findings and conclusions were carefully considered and are fully supported by the record, and that the evidence of Abaunza’s actual authority is conclusively established by the answers made by Higgins to interrogatories Nos. 6 and 7:
“ * * * that the letter dated Dec. 6, 1946, annexed to the libel * * * as Exhibit “B” (i. e. the letter substituting the M/V Trader Horn for the Angele Higgins) constitutes, and is evidence of, an agreement * * * between Higgins, Inc., d/b/a Las Americas Steamship Line, represented by its duly authorized agent, Gonzalo Abaunza, Jr. * * * and Tex-O-Kan Flour Mills Co., to substitute the M/V Trader Horn as the carrier to transport the shipment of flour originally booked for the M/V Angele Higgins.”
“Higgins, Inc. states that throughout the negotiations with Tex-O-Kan Flour Mills Co., it was represented by its agent, Gonzalo Abaunze, Jr. * *
These were made for the purpose of establishing its defense of novation, a defense which the district court rejected not because of lack of authority of Abaunza to bind Higgins but because of the lack of knowledge of libelant that a novation was sought or intended and a lack of agreement on its part to a novation.
Meeting appellant’s contention that appellee relied below, and relies here, on apparent, rather than actual, authority, appellant, pointing to the affreightment contract and the Las Americas bill of lading and to the letter of Abaunza, agent for Las Americas Steamship Line, confirming that “our booking contract No. 113, originally booked for the M/V Angele Higgins for Bluefields, has been transferred to the M/V Trader Horn,” argues that the evidence is overwhelming that the matter occurred just as the district judge found that it did, and that the findings fully conform to the truth and right of the case.
In reply to appellant’s contention that the Trader Horn’s bill of lading, and not the affreightment contract, was the controlling contract, appellee cites and quotes from Carver, “Carriage of Goods by Sea”, 10 Ed. (1957) at page 42:
“When a special contract is made with the carrier, its terms must be looked at, and if it appears that the shipper himself was the contracting party, he is the person able to sue and liable on the contract, although he may have been acting for the benefit of another and may have no interest in the goods.”
Arguing that all parties understood the Shipping Contract No. 113 to be, and it was, the controlling contract: that the consignee of all the bills of lading was Tex-O-Kan; and that this suit is brought on behalf of Tex-O-Kan, under the loan receipt; appellee insists: that there [268]*268was never any defense in the case at any time except the defense of novation; and that, that defense having been vigorously tried out for two days with the court finding that novation was not established and dismissing the defense, the only defense to the suit failed.
Pointing to the specific finding and conclusion of the court, that the substitution of the M/Y Trader Horn for the M/V Angele Higgins and the issuance, and the acceptance by libelant, of Mick Trader Line bills of lading, did not under the evidence novate respondent’s shipping contract No. 113, appellee, arguing vigorously that, under the facts in this case, it was clearly entitled to sue appellant, returns to its contention that, where there is a binding contract of affreightment predating the issuance of the bills of lading, such as Shipping Contract No. 113, the law is, as stated in Carver, “Carriage of Goods by Sea” at page 47, as follows:
“When Bill of Lading Does Not Contain the Contract.
“In any event the bill of lading is not always the expression of the contract. That may have been definitely concluded before it was given. In such cases the original contract generally determines the relation between the shipper and the ship owner.”
“Affect of Authorities.
“The true view of the authorities may be that it depends on the facts of each case whether the bill of lading contains the actual contract.”
It will serve no useful purpose for us to further state or discuss the contentions of the parties. A careful and full consideration of these contentions, in the light of the briefs and record, and of the findings and conclusions of law, convinces us that, though the situation presented by the facts is an unusual one and no precise case in point has been cited to, or found by, us, the case was fully tried on correct legal theories, and the findings of fact and the conclusions of law find full support in the record.
Of the appellee’s complaint of the judgment that, in allowing interest on the judgment only from date of decree, the district judge erred, we think it sufficient to say that it was in the discretion of the district court and of this court to deny interest and that, under the facts of this case, the discretion to deny it from date of judicial demand was properly exercised.
The judgment should be, and it is, affirmed.
CAMERON, Circuit Judge, dissents.
Rehearing denied; CAMERON, Circuit Judge, dissenting.