dissenting.
The issue is whether substantial evidence supports the board’s finding that appellant was negligent in stacking 450 wooden packing crates closely together which, when set afire by children, created a firestorm with such intense heat that household goods stored in a metal-walled warehouse fifty feet away were burned. Was there sufficient evidence supporting that finding that, had trial been before a jury, the question could not be taken from the jury? See Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966); Corning Glass Works v. United States Int’l Trade Comm’n, 799 F.2d 1559, 1566, 230 USPQ 822, 826 (Fed.Cir.1986). Clearly, there was.
The Distance Between the Crates and the Warehouse does not Negate Appellant’s Negligence
The majority’s reversal is based primarily on the premise that the contract required appellant to store the 450 crates only twenty feet from its warehouse and that appellant provided a clearance of more than twice that distance. Appellant itself tells us that the only contract clause relating to any area outside the warehouse is the following:
Care shall be exercised to ensure that household goods are not exposed to hazardous materials or operations inside or outside the warehouse.
The confusion apparently arises from the board’s imprecise statement that “[t]he contract required that the crates be stored no closer than 20 feet from the warehouses.” Elmore Moving & Storage, Inc., ASBCA Nos. 29990, 30136, 87-1 BCA (CCH) ¶ 19,383, at 97,999 (Sept. 3, 1986). The majority relies on that statement and the testimony of Mr. Webster, the former contracting officer, and the warehouse owner’s testimony to establish its erroneous premise. The record shows Mr. Webster testified concerning storage contracts generally and stated that twenty feet was the minimally acceptable cleared area inasmuch as some storage operators had no more than that much space. But that minimum distance applies to .even one crate. Per Webster, “If it was a hazardous type operation, it had to be farther than that or it wouldn’t even be allowed at all in some cases.” Assuming a twenty-foot area free of all debris was the minimum requirement, that provides no escape from liability for the creation of a firestorm hazard at twenty-one feet, at fifty feet, or at any distance if the hazard was a foreseeable threat to the stored goods. Whether there was a foreseeable hazard depends on the combination of such variables as the number of crates, how they were stacked, what they were made of, how far they were from the warehouse, and the construction of the warehouse itself.1 Distance alone is not determinative. In response to questioning by the board, Mr. Webster specifically acknowledged that even a fifty-foot clearance would not protect a warehouse operator from liability in all cases.
The Fire Codes are Pertinent to the Finding of Appellant’s Negligence
Appellant argues that the contract required it to follow the fire codes only with respect to the manner of storage within a warehouse itself, not outside. Thus, it asserts the board erred, as a matter of contract interpretation, in applying to the instant facts any provisions of the fire code relating to outside storage. The fire codes recommend no less than ten-foot wide aisles between discrete piles of crates stored in the yard regardless of distance from any building. The aisles serve as firebreaks and allow fire equipment to move among the stacks. The purpose of the outside storage code recommendations is to protect goods in the warehouse from a firestorm in the yard. Thus, the outside *1007storage recommendations are pertinent with respect to the question of whether appellant satisfied the contract provision mandating that stored goods not be exposed to a hazardous operation outside the warehouse.
Next, appellant argues that, even if the contract made the fire codes applicable to its outside, storage area, the codes merely provide recommendations, not requirements, and thus, it was not bound to comply with them. The majority buys that argument in exonerating appellant from liability. No authority exists that the mandatory requirements of the fire codes fix the limits for a finding of negligence.
Whether a hazard existed in the yard which endangered the goods in violation of the contract was the sum of variables. The precise recommendations of the code need not be treated as mandatory to constitute evidence pertaining to appellant’s lack of prudent care, and the board did not hold appellant liable simply because it failed to comply with the recommendation of at least ten-foot wide aisles among the crates. Rather, the board found that appellant’s manner of stacking a maximum number of crates into essentially a single pile2 within fifty feet of the metal-walled warehouse created a foreseeable hazard to the stored goods. Per the board, while the flames from the fire did not reach the warehouse, the radiated heat was so intense that it heated the metal wall and set fire to the household goods stored inside. It properly rejected appellant’s excuse that appellant necessarily had to store the crates close together on a limited area of pavement because appellant’s forklifts could not operate on unpaved areas. That excuse is patently specious.
Appellant also argues that the lack of aisles between stacks of crates had no causal connection to the loss of goods because the fire was so hot by the time the fire fighters arrived (without undue delay) that it melted their equipment, and the aisles could not have been used in any event. However, it is unchallenged that file absence of aisles creating discrete piles of crates was the reason for the firestorm and that, if a firestorm occurred at that distance, the stored goods were at risk in a metal-walled warehouse. Thus, considering the record as a whole, the finding by the board that appellant created a potential firestorm hazard with the foreseeable consequences of damage to stored goods is reasonable, i.e., supported by substantial evidence.
The majority overturns the board’s finding of negligence by a selective culling of the record supplemented with original fact-finding. It looks for evidence to support a contrary finding rather than for evidence supporting the board’s finding, as required by the “substantial evidence” standard of review. See Fischer & Porter Co. v. United States Int’l Trade Comm’n, 831 F.2d 1574, 1577, 4 USPQ2d 1700, 1701-02 (Fed.Cir.1987).
The majority relies on evidence of an inspection report four months before the fire in which no citation was given for “improper aisle and/or stacking clearance.” Appellant submitted the report to show past compliance with fire codes and to establish its general reputation for fire safety. The majority assumes, without any foundation, that conditions were the same four months later (in May at the start of the busy period) and erroneously implies that the report approved the absence of aisles in a pile of 450 crates.
In addition to the nonmandatory nature of the code specifications, the majority relies on testimony of a warehouse operator that the recommended minimum aisle width was seldom achieved in practice. Although it may be that warehousemen provide aisles less than the ten-foot minimum, no one testified that two-foot aisles, which is effectively no aisles at all, among 450 crates was standard industry practice, or that that number of crates could be stacked without vehicle-wide aisles within fifty feet of a metal-walled building without creating a foreseeable hazard to stored goods.
*1008 The Fence and the Children
Appellant urged that it cannot be held negligent because children intentionally set the fire. No authority exists for such a sweeping rule of law. It then argues that the board could not rely on out-of-court statements by its foreman, to the effect that children coming through the hole in the fence were a continuing problem, because the foreman tried to extort money from appellant. However, the foreman’s statements were corroborated partially by physical examination by officers on the scene and by photographs showing a well-worn path to the opening. Further, appellant was found to be aware of one such incident, at least. Thus, evidence supports the board’s finding that the owners knew or should have known about the condition of the fence and the children using their property.
The majority finds an excuse for appellant not keeping its fence in repair because a fence is only recommended, not required, by the fire code. It then goes on to criticize the board for relying on “common knowledge that children will play with matches and will often start fires” and overturns the board’s finding of a causal connection between the unrepaired hole in the fence, the children, and the fire. The majority would require evidence that the children had set fires previously on the property before attaching any significance to the unrepaired hole in the fence. Because of the absence of such evidence, the majority discounts an important factor which supports the finding of negligence.
Conclusion
In view of the ample evidence supporting the board’s finding of negligence, the majority pays only lip service to our standard of review in reversing.
For the above reasons, I would affirm the board.
. The majority discards the fire code recommendation of fifty feet of clearance from wood-framed buildings because appellant’s building had corrugated-metal walls. That is a non se-quitur. Moreover, appellant does not make that argument.
. The board's finding that there was a single pile of crates is unchallenged. Two-foot aisles provide no access by fire equipment and are the same as no aisles at all.