The opinion of the court was delivered by: BYERS
The libelant, a third class passenger on the S. S. Serpa Pinto bound from Lisbon to New York, was injured on January 5, 1941, as the result of being struck by a wave which boarded the C deck at the round of the stern on the starboard side.
The sole basis of his claim of negligence is thus stated in his proctor's brief: "The ship was at fault in failing to either rope off all exposed decks under the weather conditions prevailing, or warning passengers to keep off them."
There was no such warning, and the only roping off was on the life-boat deck, to prevent passengers from falling between the life-boats, and on the promenade and C decks, forward of the bridge.
The facts are not substantially in dispute, and may be tabulated as follows:
1. The Serpa Pinto is a twin-screw steamship of Portuguese registry, of 8480 gross tonnage, 450 1/4 feet long, 58 2/3 feet in beam, and 30 1/2 feet in depth.
2. She sailed from Lisbon for New York on December 28, 1940, with a full complement of officers and crew, and was in all respects seaworthy, and carried passengers as permitted by law.
3. The voyage proceeded without incident and without stress of seas or weather, until the afternoon of January 4, 1941.
4. The ship had five decks, lettered from the lowest to the highest as A to E, inclusive; C deck was the main deck and was open fore and aft, and the midship section contained cabins and other passenger accommodations. The aft portion of the main deck contained the smoking room and bar, and other housing, which did not extend the full width of the ship; the open space was available for deck use by the passengers including those traveling third class.
5. At 12 o'clock noon on January 5, 1941, the position of the ship, according to her log, was latitude 37 degrees 2' north and longitude 58 degrees 36' west.
6. The ordinary speed of the vessel under normal sea conditions was 13.6 knots, and at the time of the libelant's injury the ship's course was 282 degrees true and 306 degrees by compass, or between west and west-northwest.
7. The weather conditions on January 4, 1941, from noon until 4 o'clock according to the log were as follows: "Heavy seas. Fresh breeze. Bad weather."
From 4 to 8: "Strong breeze, heavy seas, and normal visibility."
From 8 to 12 midnight: "Strong breeze, squalls, heavy seas, ...