On Petitions for Rehearing
Upon petitions for rehearing appellees assert that our opinion is in error in stating that there was no evidence to support the trial judge’s theory, based on Exhibit 38, that naphthalene “permeates tarpaulins and hatch boards,” and that “the creosote oil and gases could impregnate the tarpaulin and thereby make the tarpaulin as inflammable as the impregnated bagging.”1 Appellees say there is credible uncontradicted evidence that the gases and oils would impregnate or saturate a tarpaulin and “make it as inflammable as the impregnated bagging.”
Our opinion makes plain why we think the trial court misunderstood or misinterpreted Exhibit 38, and why we consider the findings drawn therefrom clearly erroneous. As for the contention of the petitions that there was other evidence to support the judge’s view of Exhibit 38, we cannot so read the record. The witnesses whose testimony is listed by petitioners carefully avoided saying any such thing.2 One said that if a tar*790paulin became impregnated with naphthalene it would become inflammable. Others said if tarpaulins were used for cover they would be impregnated with the “odor” or “smell” of naphthalene. No testimony supported the court’s theory, mistakenly deduced from Exhibit 38, that use of a tarpaulin as a cover would “make the tarpaulin as inflammable as the impregnated bagging.” The trial court’s theory was dependent upon this “as inflammable.” If, as Capt. Hollaar testified, a cigarette or cigar butt “would be much less likely to ignite the stow if it were covered by tarpaulin than if the stow were uncovered,” then the theory of lack of causation falls to the ground.
Again petitioners challenge our statement that the trial judge’s opinion described the deck temperature as “in excess of 120° F.” It says this was a mere recital of libelant’s argument. We do not so read the judge’s opinion. The finding as to bridge temperatures, in the shade, was irrelevant. The evidence in the record shows that the 120° F. which the judge took as being accurate, was in fact so. It was arrived at by adding to the 77° bridge temperature the 43° difference which Dr. Purdy testified would exist in the higher temperature on deck.
As for the petitions’ statement that we misread the Coast Guard regulations as requiring tarpaulin covers, reference to the opinion will show we did not say that. In footnote 4 we listed the alternative “Required Conditions for Transportation.” One of these is “on deck protected.” Regulation 146.27-6 provides that this condition may be satisfied by the use of “structural erections, awnings, or tarpaulins.” By underscoring the word “may” in the last sentence, petitioners argue this means such protections are merely permissive. This ignores the words “Required Conditions,” and ignores the words “shall be protected” in Regulation 146.03-34(b) quoted in the opinion. But this is all beside the point. Libelants contended that the naphthalene might have been protected by covering with tarpaulin. Petitioners concede that the regulations say “hazardous articles may be protected by the use of a tarpaulin.” The judge’s finding was that the naphthalene could not possibly have been protected by such means. It is with this that we have mainly found fault.
As for the contention that the Dutch regulations, or portions thereof, were not in effect because not published, for our purposes it is of no consequence whether the Dutch regulations shown in the record had the force of Dutch law or not. Plainly they were drafted by officials who presumably knew their business. Our mention of them has not been for the purpose of disclosing any vielation of any regulation having the force of law. Our reference was merely to show that like the Coast Guard regulations they represent an accepted standard of care.
The petitions for rehearing are denied.
. “The Judge’s theory, there disclosed, is that if the stow had been covered by a tarpaulin, the gases and the creosote oil given off by the crude naphthalene would have impregnated the tarpaulin or saturated it and made it as inflammable as the impregnated bagging. There is no such evidence in the record.”
. Thus Black Diamond quotes Captain Ilollaar’s testimony as follows :
“Q. Captain Hollaar, it has been suggested by Mr. Longley if the tarpanlin were put over the stow of naphthalene it would become, to use his words, permeated with naphthalene. Captain, in your opinion, would a tarpaulin which had become permeated with naphthalene be about as inflammable, more inflammable or less inflammable, than burlap bags? A. Well, if it had become permeated with naphthalene of course it *790would be in practically the same condition as the jute bags.”
(On recross examination) : “Q. Captain, are you seriously telling us as an experienced mariner that a tarpaulin is as readily ignitable as a burlap bag? A. If it was impregnated with naphthalene, I do not see any difference.”
Thus the Captain carefully says: If the tarpaulin was impregnated with naphthalene it would be inflammable. No word from him says that a tarpaulin used to cover such a stow would become impregnated ; much less that it would, as the judge seemed to think, .become “as inflammable as the impregnated bagging.”