Parties

The libelant Alfred J. Lind (Lind), aged 23 years, with about “seven years, on and off” experience as a seaman, on January 13, 1958, signed regular shipping articles on the S.S. Virginia Trader (Vessel) at the Port, of Vancouver, Washington, as an ordinary seaman for a foreign voyage to India, with way ports and return. American Trading & Production Corporation is the claimant of the Vessel following her libel and attachment within the District of Western Washington on October 4, 1958.

Jurisdiction

Lind brought this action in admiralty under the Jones Act, Title 46 U.S.C.A. § 688 , based upon alleged negligence on the part of the master of Vessel, acting through the boatswain, and alleged unseaworthiness of the vessel proximately resulting to his alleged personal injury.

The District Judge entered a judgment adverse to Lind upon his contentions of liability, from which Lind appeals, and this Court has jurisdiction pursuant to Title 28 U.S.C.A. § 1291 .

Statement of the Case

Shortly before noon of January 24, 1958, while the Vessel was under way on the high seas, about three days out of Honolulu, Hawaii, the boatswain directed Lind and three of his fellow crew members to relieve a prior watch and to continue the soogeeing of the overhead and sides of the port midships shelter deck of Vessel. Lind and the other three members of the watch were supplied with a Turks head brush, approximately eight inches in diameter, with a handle of four or five feet in length; a bucket of soogee solution, consisting of a degreasing compound of soap mixed with water. The process of soogeeing is the application or brushing on of the soogee solution to the surface of the vessel to be cleaned and the washing off of the solution with fresh water. The footing in the area of where soogeeing was taking place was necessarily slippery from the soogee solution itself and the water used in washing down. There is testimony that seawater was also on the deck area. Lind and his fellow watch members had been engaged in this ship’s duty approximately two hours when Lind slipped and fell against a shelf protruding from a bulkhead, causing him personal injury.

As stated above, the District Judge held adverse to Lind upon his claim of liability by reason of alleged negligence and unseaworthiness, and on this appeal Lind asserts five “specifications of error” of which we deem it necessary to deal with only the following three:

As was pointed out by Mr. Justice Frankfurter in his concurring opinion in Pope & Talbot, Inc. v. Hawn et al., 1953, 346 U.S. 406, 414 , 74 S.Ct. 202, 207 , 98 L.Ed. 143 , it was

In considering specification of error No. 2, we find from the record that the testimony of a witness for Lind, one Elon H. Anderson, a seaman of some “20 years or better” experience, having-sailed as ordinary seaman A.B., bos’n, deck maintenance, and holding an unlimited license, was given by way of deposition. Anderson was a member of Lind’swatch and an eye witness as to the conditions and circumstances during the period of Lind’s work at soogeeing and his-fall.

Turning to Lind’s “offer of proof concerning whether it was dangerous to soogee at the time and place libelant was injured,” we find the following pertinent testimony:

(Deposition of Elon H. Anderson — direct) :

In rejecting Anderson’s advisory opinion, the District Judge was exercising his judicial discretion on the subject of expert advisory testimony.

We find no abuse of the District Judge’s judicial discretion, and therefore Lind’s specification of error No. 2 is without merit.

Going out of numerical order, we turn now to Lind’s specification of error No. 4, and conclude that the performance of soogeeing by crew members in and of itself cannot render a vessel unseaworthy. It is a necessary, normal and recurring seaman’s duty, and work that must be done on board and which is customarily done while the vessel is at sea, causing the deck within the working area to become necessarily slippery, with footing thereon unsteady, and requiring the seaman to be alert as to his footing. Therefore, the District Judge’s finding of fact No. VII, complained of in Lind’s specification of error No. 4, is not clearly erroneous.

In dealing with specification of error No. 3, it is well to recall Lind’s full allegation of negligence:

We find in this allegation what Gilmore & Black in their work “The Law of Admiralty,” at p. 320, referred to as the “almost theoretical” construct:

In short, we observe that Lind claims negligence on the part of the master because the boatswain “improvidently” ordered him to engage in soogeeing the Vessel “ivhile said vessel was at sea in a heavy swell.” [Italics supplied.] As to the condition of the sea and waves and the roll of the Vessel, witness Anderson deposed that “she was rolling 10-15 degress,” supra. We comment that the Vessel’s log is conspicuous by its absence from the record and the better and more competent evidence admonition is timely recalled.

We inquire as to what are the necessary elements of maritime negligence. Gilmore & Black, supra, pp. 310-11, says:

We add that the Jones Act libelant, under an allegation of negligence, also has a rule of evidence in his favor — the doctrine of res ipsa loquitur. In Johnson v. United States, 333 U.S. 46 , 68 S.Ct. 391, 393 , 92 L.Ed. 468 , an action in admiralty tried without a jury, arising in this Circuit, Justice Douglas said:

The District Judge heard Lind’s testimony in open court and had the opportunity to evaluate the witness’ intelligence, motive and state of mind and view his demeanor and manner while on the stand, a privilege we are denied from a perusal of the cold record. But we do comment that Lind’s testimony:

does not find corroboration in witness Anderson’s direct statement of a “10-15 degree roll.” While the District Judge in his challenged findings of fact does not find that the doctrine of res ipsa loquitur does not apply in this case, we do

master through the boatswain. Gillen v. United States, 9 Cir., 1960, 281 F.2d 425, 429 .

The appellee argues in its brief that in spite of the testimony of appellant himself and Anderson to the effect that the deck was in such slippery condition that you “couldn’t walk on it” and that it was “nearly impossible to try to stand,” the undisputed fact that Lind and his watch worked approximately two hours following the previous four-hour watch of soogeeing, is indicative of normal working conditions at the time.

In conclusion, we cannot say that the District Judge was “clearly erroneous” in his finding of fact No. VI, as complained of by Lind in his specification of error No. 3.

The District Judge’s judgment is affirmed.

. Lind had a second cause of action wherein he claimed “unearned wages from the time he left the Vessel until the end of the voyage in the amount of $866.61,” for which the District Judge allowed judgment in Lind’s favor. . “One activity the merchant seaman can count on as one of the most common duties aboard ship is that of washing down paintwork or ‘soogeeing.’ Soogee is generally a mixture of water and a strong soap powder * * *. Citing Merchant Ships, a Pictorial Study, issued by Cornell Maritime Press, Cambridge, Maryland, 1955, p. 7.” . In Lind’s libel, he alleges that his “injuries were directly and proximately caused by defendant’s [sic] careless and negligent failure to provide plaintiff [sic] a seaworthy vessel and a safe place to work, in the following respects (applicable to specification of error No. 4) : “1 — Said vessel was unseaworthy in that its shelter deck was covered with a soapy and greasy solution, making it slippery and dangerous to stand on.” (applicable to specification of error No. 3): “5 — Defendant [sic] negligently required the plaintiff [sic] to engage unnecessarily in the inherently hazardous work of seuging [sic] and cleaning the vessel with a soapy solution while said vessel was at sea in a heavy swell.” . “By section 33 of the Merchant Marine Act, as heretofore construed, the prior maritime law of the United States was-modified by giving to seamen injured through negligence the rights given to railway employees by the Employers Liability Act of 1908 and its amendments,. * * * and permitting these new substantive rights to be asserted and enforced-in actions in personam against the employers in federal or state courts administering common-law remedies, with the right of trial by jury, or in suits in admiralty in courts administering maritime remedies, without trial by jury. Panama, R. R. Co. v. Johnson, 264 U.S. 375 [ 44 S.Ct. 391 , 68 L.Ed. 748 ]; Engel v. Davenport, 271 U.S. 33 [ 46 S.Ct. 410 , 70 L.Ed.. 813]; Panama R.R. v. Vasquez, 271 U. S. 557 [ 46 S.Ct. 596 , 70 L.Ed. 1085 ];. Baltimore S.S. Co. v. Phillips, 274 U.S. 316 [ 47 S.Ct. 600 , 71 L.Ed. 1069 ].” Pacific S.S. Co. v. Peterson, 278 U.S. 130, 134-135 , 49 S.Ct. 75, 76 , 73 L.Ed. 220 . . We are forced to assume that the District Judge, with his vast experience in matters maritime, took it to be a matter of common knowledge among seafaring men that if a merchantman loaded with a homogeneous cargo, such as grain, was under way at sea and “rolling 10-15 degrees back and forth,” she was riding a moderate, to say the most, “swell.” . (Capt. Adrian Raynaud, a man of some 40 years’ experience in sailing, testified as follows): “Q. (By Mr. Holland) Would you state whether or not there is any custom as to the conditions under which the men work while doing soogeeing in the course of a voyage and with particular reference to the footing underneath where they are walking? A. Yes. It’s generally slippery from the spilling of the soogee itself and the washing of it off on the deck, and consequently a man has to be alert at all times to watch his footing. “Q. Wliat have you observed to be the custom, if any, with reference to whether that work is done in port, at sea, or one or the other, or both? A. Generally it’s done at sea. One of the first tasks put on the crew when leaving port. It is occasionally done in port, but not very often.” R. Vol. II105. “ * * * Q. (By Mr. Holland) Will you state whether or not there is any custom, Oaptain, as to whether or not that work is done at sea when the sea is calm, or whether it is done when the vessel is rolling or both? Just yes or no, is there a custom? A. There is a custom. “Q. Would you state what that custom is? A. The custom is, the primary job immediately leaving the port is to wash the ship down, and that goes on whether or not the weather is fine or stormy. As a general rule it’s better to do it when it’s wet and raining because then you wash off the grime and the filth a lot easier. Your soogee doesn’t have the chance to dry on the paint work and become attached to it.” R. Vol. II106. "221 * * * With more reason, so far as the facts were concerned, the Sixth Circuit in Imperial Oil, Ltd. v. Drlik, 234 F.2d 4 , 1956 . “Since that decision (McAllister) [v. United States, 348 U.S. 19 , 75 S.Ct. 6 , 99 L.Ed. 201 this court has uniformly regarded determinations as to negligence made in admiralty cases as findings of fact which are not to be overturned unless clearly erroneous.” Citing Pacific Tow Boat v. States Marine Corp., 9 Cir., 1960, 276 F.2d 745 , 752. . Justice Frankfurter, concurring in Pope & Talbot v. Hawn, supra, remarked that « * * * ¡t will be rare that the circumstances of an injury will constitute negligence but not unseaworthiness.” . Title 46 U.S.C.A. § 201 : “Every vessel making voyages from a port in the United States to any foreign port, or, being of the burden of seventy-five tons or upward, from a port on the Atlantic to a port on the Pacific, or vice versa, shall have an oificial log book; and every master of such vessel shall make, or cause to be made therein, entries of the following matters, that is to say: “Fifth. Every case of illness or injury happening to any member of the crew, with the nature thereof, and the medical treatment.”