The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
At all the times hereinafter mentioned and at the time of the trial the libelant, Frederick T. Moses, and his wife, Lillian F. Moses, in whose behalf the libel was also filed, were citizens and residents of Providence, R.I., in the United States of America, and respondent Compagnie Generale Transatlantique was a registered company and/or corporation organized and existing under the laws of the Republic of France.
Such corporation has no office nor officer within this District, but has from time to time property within this District, consisting of vessels owned by said Compagnie General Transatlantique, among others the motorship Lafayette, a vessel of French registry, and employed on the route between New York and ports in England and France.
On March 2, 1934, the said libelants engaged passage from New York to Plymouth, England, to go as passengers on motorship Lafayette, and as occupants of stateroom 157, on the starboard side of A deck of said motorship and paid to the respondent the required consideration for such passage. The said motorship Lafayette sailed from New York on March 11, 1934, with said libelants on board.
After one day at sea the wind blew a strong westerly gale, which was from a direction nearly astern as the vessel proceeded toward England so that the air in said vessel became very close, hot, and stuffy, and the portholes of the staterooms on A deck were opened by the room stewards and permitted to be open day and night, for four days and nights, after the departure from New York.
On March 15, 1934, the barometer began to fall, the wind was backing, and a swell was beginning, and there was every indication of the beginning of a bad storm.
March 16, 1934, opened with heavy weather, wind from W.N.W. strength 7 on Beaufort scale, high sea, ship rolling and pitching and good visibility. The wind continued very high during the day, its strength being 7, 6, 7, and 9. This was on the old Beaufort scale, the highest strength being 10. The barometer continued to fall, the wind and sea to rise until it became a very high sea, and the ship to roll greatly.
Pursuant to orders from the bridge conveyed through the highly organized and efficient service of security on the Lafayette, the room steward closed the porthole in libelant's room, or saw that it was closed. Neither libelant was in their room at the time. The libelants went down to their room to dress, and at about 8 o'clock p.m. went to dinner. After dinner they amused themselves in the public room of the ship and danced. The night steward coming in duty about 10 o'clock p.m. checked up on the porthole in libelant's room, and saw that it was closed and fastened tight. Neither of the libelants was in the room at that time. The libelants did not return to their room until about midnight. The storm had continued, the wind and the waves being high and increasing, and the ship rolling heavily. Both libelants were familiar with the ways of the sea, having taken various sea trips in steamers and sailing frequently in small vessels during the yachting season, and the libelant Frederick T. Moses was an experienced yachtsman, who was always skipper of his own boat. He was familiar with high winds and high seas, and capable of judging those conditions then prevailing when they returned to their room about midnight, as aforesaid, but in the face of all that, just before he retired, the said Frederick T. Moses, in the exercise solely of his own judgment, opened the porthole which had been securely closed by the steward. The storm continued to rage and about 1:30 o'clock a.m. on March 17, 1934, a tremendous sea broke over the vessel from astern breaking about fifty windows on both sides of the promenade deck and pouring into libelant's room through the porthole which the libelant Frederick T. Moses left open. He at once attempted to close the porthole, he had opened, and in so doing loosened the pivoted portlight, whereupon the violent motion of the vessel swung the pivoted glass against his arm and he suffered a compound fracture. The entrance of the water into their room damaged the clothing of both of the libelants. The force of the storm was so great, and the discomfort of the passengers so evident, that about ten minutes thereafter the master of the vessel, believing it necessary or advisable to bring the ship about with her bow into the wind, rounded to very gradually to port and she rode easier the moment she was turned from her course.
The theory on which this suit was tried differs greatly from that of the letter of September 6, 1934, written by libelant's proctor to the respondent, and from the cause of action alleged in the third paragraph of the libel filed December 20, 1934 as follows: "Third: That at about 1.30 A.M. on Saturday, March 17th, those in charge of the navigation of the 'Lafayette,' without any warning to the passengers, suddenly brought the vessel about, head to the wind, without first passing the word to close all portholes on the side of the vessel which would be washed in consequence of such a maneuver, and without first satisfying themselves that such an order, if given, had been obeyed in the case of each porthole," and it specified the respondent's faults as follows:
"Sixth: That the respondent has been negligent in the following particulars:
"1. In failing to notify the occupants of all of the state-rooms on the starboard side of the ship, including your libelant, that the ship was to be brought head to the wind by turning her toward said side.
"2. In failing to notify the occupants of all state-rooms, on the starboard side, including your libelant, to close the portholes of such staterooms in anticipation of such maneuver.
"3. In failing to await a report back to the bridge that the vessel was secure in all respects for the turning ...