¶1*647Finkler & McEntire, of New York City (Frank I. Finkler, of New York City, of counsel), for libelants.
¶2Loomis & Ruebush, of New York City (Homer L. Loomis, of New York City, of counsel), for claimant.
¶4This suit is brought by libelants against the steamer Cherea, to recover for damages alleged to have been caused to a shipment of onions owned by them and carried on the steamer Cherea, by reason of the negligence and want of care of the owners, officers, crew, and others in charge of the said steamer, and the cargo of the said steamer, in respect to the loading, stowage, delivery, custody, and care of the said cargo, and also by reason of the unseaworthiness and deviation of the said vessel on the said voyage.
¶5I find the facts as follows:
¶6The libelants, Carl I. Dingfelder and Benjamin Balish, were at all the times hereinafter mentioned and at the time of the trial co-partners doing business under the firm name of Dingfelder & Balish, and had an office and place of business in the borough of Manhattan, city, county, and state of New York.
¶7At all the times hereinafter mentioned the said steamer Cherea was engaged in the carriage of merchandise for hire between Spain and the port of New York.
¶8The steamer Cherea was during the pendency of this action within the Eastern District of New York and the jurisdiction of this court.
¶9On the 15th day of December, 1927, there were delivered to the steamship Cherea, in Spain, for delivery at New York, 4,762 crates of onions marked D & B, and 8,000 crates and 811 half cases of onions marked John Bull, for which bills of lading were issu'ed on behalf of the master of'said steamer, bills of lading No. 2 covering 4,762 crates, and bills of lading No. 4 and No. 5 covering the 8,000 crates and 811 half eases.
¶10All of the said bills of lading recited,; “Shipped in apparent good order and condition.”
¶11On or about the 16th day of December, 1927, the steamer Cherea, having the said onions on board, sailed from the Port of Valencia, Spain, and on or about the 8th day of January, 1928, arrived at the Port of New York, where she made discharge of said onions and delivered part thereof.
¶12The libelants were at all the times hereinafter mentioned and at the time of the trial holders of the said bills of lading covering the merchandise above mentioned and entitled to delivery thereof.
¶13Delivery as to a considerable portion of said shipments was made in bad order.
¶14Notice of damage as required by the bills of lading was given by the libelants.
¶15A number of packages were seized by the board of health and there was a short shipment.
¶16All of the onions of the libelants on the steamer Cherea were stowed in Nos. 2, 3, 5, and 6 tween decks and No. 5 lower hold.
¶17None of the onions of the libelants on the steamer Cherea were in the No. 4 tween deck.
¶18There are six hatches on the steamer Cherea, numbered 1 to 6, inclusive, and abaft of No. 6 hatch there is a tank, the upper part of which is sometimes used for the Carriage of cargo. Hatchway No. 4 is immediately abaft of the amidship house.
¶19Nos. 4 and 5 tween decks are a continued tween deck, there being no permanent bulkhead between tween decks Nos. 4 and 5, but there was a temporary wooden bulkhead between them, a small portion of which only was open.
¶20No. 4 hatch is between No. 4 and No. 5 tween decks, No. 4 tween decks being forward of and including No. 4 hatch to the after hatch coaming, and No. 5 tween decks aft of No. 4 hatch.
¶21The No. 2 hatch had two ventilators one forward and one aft, No. 3 had two ventilators one forward and one aft, No. 5 had three Ventilators two forward and one aft, and No. 6 had three ventilators two forward and one aft. The ventilators in No. 5 hatch were the regular 30-ineh ventilators. ,
¶22The steadier Cherea was in good eondi-i tipn, a steel'vessel built in 1'920, and had the *648highest classification in Lloyds Register, and also the highest class registration in Nation-ale Italiano Register.
¶23The regular season for the exportation of onions from .Spain is June, July, and August.
¶24They raise two crops of onions a year in Spain, the first crop is sown in January and the second crop in May, about one month after the first crop is harvested.
¶25The second crop is harvested about August, and the regular season for exporting the second crop is August, September, and October.
¶26The shipment of onions on the Cherca was a late shipment and near the time when the onions would begin to sprout.
¶27The crates in which the onions were shipped were about one and a half feet long, one foot wide, and one and one-half feet deep, made of slats of pine and .fir wood, one inch wide, one-half inch thick and spaced one and one-half inches apart; the crate being divided into two nearly equal sized compartments by a piece of wood.
¶28Generally the cases were placed on dunnage of two inches, double one-inch thick planks grating fashion, and in tiers four or five tiers high. The crates were first arranged crosswise, then longitudinal, and thereafter alternating to impart greater strength to the pile. The loading started at the sides of the ship and came on toward the center from each side, until they came together. In so loading, however, at each sixth or seventh ease as they went across the ship, they left a canal for ventilation, such canals being a little less than the length of a crate, one and one-half feet wide, and every sixth tier had cases put athwart the tiers to serve as braces between the respective tier of the front line and the front tier of the last line.
¶29There were no toms to hold the stow rigid and none were needed.
¶30The amount of coal customarily required for a’ voyage from Spain to New York at that season of the year was from 430 to 450 tons, and when the Cherca left Valencia she had 605 tons'of coal aboard, an excess of from 155 to 175 tons; that is, an excess of more than 25 per cent.
¶31The voyage usually is completed within 17 days. The consumption of coal when all three boilers are used was 28 tons per day, and the ship could make with the three boilers in use a little over 11 miles per hour, with but two boilers in use the consumption of coal was reduced to 24 or 25 tons per day, and the speed that the vessel could make was reduced to 10^4 miles per hour. It was customary to use but two boilers for a considerable portion of the voyage.
¶32The vessel left Valencia about 2 o’clock a. m. on December 16, 1928.
¶33During good weather both the ventilators and hatches were kept open to afford ventilation, but when the weather started to get bad the hatches and ventilators were closed.
¶34This was necessary for the protection of the cargo.
¶35The weather was good on the 16th and 17th of December, 1928.
¶36The Cherca passed Gibraltar on the 17th day of December, 1928, with good weather, and headed for St. Vincent, intending to go right across the ocean; but when close to St. Vincent, on December 18th, a southwest middle force wind started to blow and the barometer to fall. This was an indication of bad weather, and the master of the Cherca, in the exercise of his judgment, steered southwesterly instead of westerly. That was the recommended admiralty course for that season.
¶37Ventilation was had both by the opening of the hatches and ventilators on December 18th.
¶38On December 19, 1928, the wind was southwest, force 5 of the Beaufort scale with light squalls; that is, intermittent rain. The sea continued getting rougher with heaving, rolling, and pitching of the ship. Ventilation was had intermittently by the ventilators and hatches.
¶39On December 20th the wind continued to rise and squalls continued. Ventilation was had intermittently by ventilators and hatches.
¶40On December 21st the wind continued to rise, the sea became rougher and reached the deck, the ship to roll, heaving and pitching, the propeller to race, the ship to lose headway, and ventilation became impossible by ventilators or hatches.
¶41On that day the Cherca received a report from the steamer Splendor of the same company, which she had received from the steamer Vigor, of bad weather at 1,300 miles.
¶42The master of the Cherca then ordered the third boiler to be put out, and the Cherca continued to run on two boilers and changed her course more to the southerly.
¶43On December 22d the weather became worse and ventilation by ventilators and hatches was impossible; the temperature was rising and the propeller racing.
¶44*649On December 23d the same conditions prevailed as on the 22d, but worse, and on pumping tho master had reason to believe that the general cargo not the onions in the' lower holds had shifted.
¶45An inspection followed, but the fact eould not be determined.
¶46On December 24th the bad weather continued, the ship was struck by heavy seas, and ventilation by ventilators and hatches was impossible.
¶47On- December 25, 1928, the weather improved, the hatches were opened, and it was found that the onions were germinating, sprouting, and that duo to the heavy weather 100 to 150 eases of onions had fallen.
¶48• There had been some disarrangement of the eases, but that was all that had fallen.
¶49On December 26, 27, 28, 29, 30, and 31, the weather again grew worse, working into a true hurricane, with little if any chance for ventilation by ventilators or hatches.
¶50On January 1, 1929, the weather had improved, and on opening the hatches it was found that a few onions had rotted and that most of them were sprouting. The crew were set to work separating those that were entirely decayed from the others and some twenty crates were thrown overboard.
¶51On January 1, 1929, the Cherea was in latitude 29.58 north, longitude 55.15 west.
¶52Eighteen days had elapsed on the voyage on January 3, 1929, and the Cherea was then less than 200 miles from Bermuda and about 1,000 miles from New York.
¶53The Bermudas were then directly on the Cherea’s course.
¶54Tho Cherea had already been at sea one day longer than tho ordinary trip to New York and had about 120 tons of coal on board.
¶55Bain again started, and the master of the Cherea, in view of tho possibility of gales arising, in the exercise of his judgment steered for St. George. On arrival there the Cherea took 85 tons of coal aboard.
¶56The Cherea left St. George, Bermuda, the next day and sailed for New York, encountering north northwest and west winds, and was able to ventilate the cargo with ventilators and hatches.
¶57The Cherea arrived in New York on the 8th day of January, 192,9, 5% days beyond the usual time for the voyage, and longer than the longest previous voyage of the master from Valencia to Now York, w’hieh had been 18 days.
¶58The Cherea in addition to other means of ventilating used canvas ventilators in No. 5 lower hold and tween decks.
¶59The bills of lading contained the following provision: “The carrier will not be responsible for loss, damage, injury or other consequences occasioned by or arising directly or indirectly from ......heat - of holds ...... wastage, breakage, ...... decay, heating, sweating.......”
¶60From the facts as found it appears that libelants’ claim may be divided into two classes: That caused by heat and sweating, and that caused by breakage.
¶61Libelants also charge deviation.
¶62Lack of ventilation causes heat and sweating, and these are exceptions of the bill of lading.
¶63As to the loss by heat and sweating, there can be no recovery without showing negligence on the part of the Cherea. No such negligence has been shown. On the contrary, it clearly appears that tho onions were well and properly stowed to secure ventilation, that the method of securing the cases to form ventilating alleys was a usual one, and that it was not negligence to refrain from using toms.
¶64Every effort appears to have been made to ventilate the holds and tween decks by the opening of the hatches and ventilators whenever the weather permitted.
¶65The onions were shipped too late, and the damage to tho onions by heat and sweating was developed as early as the 19th of December, before the bad weather set in, and during all of the time from the day of sailing to that day full ventilation had been had, and was so great by the 25th of December as to affect a very large portion of the onions, and necessitated the throwing overboard, on January 1, 1929, of those that had rotted.
¶66The weather encountered on this voyage was very bad and much worse than should reasonably have been expected, and that constituted a peril of the sea.
¶67The onions in question were shipped very lato and are known to be a cargo requiring particular cafe.
¶68Libelants were right in their contention that having accepted the cargo the ship should have given the cargo particular care-, .and this seems to be exactly what it did, as tho testimony clearly shows special efforts to-give the cargo ventilation whenever possible, but ventilators -and hatches could not bo left open in the weather described.
¶69*650With great respect for the opinion of Judge. Moscowitz in the Schnell Case (D. C.) 52 F.(2d) 644, involving another shipment on the same vessel, it is not authority ’for what libelants contend here.
¶70In that case the shipment in the tween decks was only in No. 4, and the court-found that No. 4 tween decks was not properly ventilated. ’ • ’ '■
¶71In the instant suit none of the shipment was in the No. 4 tween decks, and the evidence.is conclusive that the tween decks 2, 3,' 5, and 6 and lower hold 5 were provided with reasonably proper and adequate ventilation, except when the use of the ventilators was prevented by the unusual weather, which constituted a peril of the sea.
¶72As to the stowage of the cargo as a whole, the evidence shows it was usual and proper, and any such breakage as there may have been was caused by the disarrangement of some crates on top, or pressure due to the rolling and pitching of the ship in the unusually heavy weather and storm which constituted a peril of the sea.
¶73When the Cherca left Valencia, she had an excess of coal in addition to what was ordinarily required for a voyage to New York, of more than 25 per cent., and that is all that could reasonably be required. The Willdomino (C. C. A.) 300 F. 5,13, affirmed 272 U. S. 718, 47 S. Ct. 261, 71 L. Ed. 491.
¶74Neither the master nor engineer, when, the Cherca left Valencia, had the slightest idea of making port in Bermuda to obtain coal, and it was not until it became apparent, after the ship had been at sea for 18 days and had 1,000 miles to go, that for safety moré coal should be obtained, that the chief engineer notified the master of the quantity of coal that he had on board, and the master put into Bermuda for more coal.
¶75This did not constitute deviation. The Caledonier (C. C. A.) 31 F.(2d) 257, 259.
¶76That the Cherca arrived in New York with about 15 to 20 tons of coal more than the 85 tons she took at Bermuda certainly does not show lack of good judgment on the part of the master, as one real heavy storm on the way from Bermuda to New York would have absorbed that quantity.
¶77The cutting off of the third boiler and the operation on two, when the heavy weather was met, was evidence of good and not bad judgment on the part of the master, reducing the coal consumption and not greatly reducing her speed, and not an unusual thing to do.
¶78I find as conclusions of law :
¶79That the onions belonging to libelants were shipped in.apparent'good order and condition, and were delivered in bad order.
¶80That the damages to the onions were caused by heat, sweating, and breakage.
¶81That heat, sweating, and breakage were exceptions in the bill of lading.
¶82That the Cherca and her master, officers, and crew were not guilty of any negligence, but that such damages by heat, sweating, and breakage were caused by perils of the sea.
¶83That going into Bermuda for coal was, not a deviation.
¶84That the claimant is entitled to a decree dismissing the libel with costs against the libelants.
¶85A decree may be entered dismissing the libel with costs against the libelants.
¶86Settle on notice.
¶87If this opinion is not considered a sufficient compliance with rule 46% of the Admiralty Buies (28 USCA § 723), proposed findings of fact and conclusions of law may be submitted for the assistance of the court.