Menefee

This is an appeal from a decree in admiralty dismissing appellant’s libel for recovery (a) for certain moneys claimed to have been unlawfully withheld from the seaman’s wages when due him for subsistence; and (b) for damages to him for injury sustained by him, a seaman on the S. S. Robert Parrott on January 22, 1947,. during a winter voyage in the North Pacific-Ocean while the steamer was en route from Olympia, Washington, to Yokohoma, Japan,, claimed to be caused by appellee’s negligence in compelling him to work in an unsafe place on the vessel.

(a) The evidence supports the finding of the decree that appellee did not withhold the claimed moneys, and we affirm the-dismissal of the decree respecting that issue.

There is no evidence to support the court’s finding of absence of negligence in the appellee, but, on the contrary, all the evidence sustains the appellant’s contention of appellee’s negligence. The decision with respect to that negligence is clearly erroneous. As stated in Langnes v. Green, 282 U.S. 531, 537 , 51 S.Ct. 243, 245 , 75 L.Ed. 520 , citing Watts, Watts & Co. v. Unione Austriaca, di Navigazione, 248 U.S. 9, 21 , 39 S.Ct. 1 , 63 L.Ed. 100 , 3 A.L.R. 323 ,…

(dissenting).

The decision of the Trial Judge based upon fact findings should be affirmed.

*831 The Trial Judge found this seaman sustained injury solely as a result of the force of a wave. Thereupon, it was concluded the injury resulted from a peril of the sea, which the seaman had assumed, and not as a result of any negligence of respondent, directly or of the officers, agents or employees of the carrier. The monumental opinion of Judge Learned Hand in Petterson Lighterage & Towing Corporation v. New York Central Railway Co., 2 Cir., 126 F.2d 992 , establishes the doctrine that a finding of fact in admiralty is a finality unless “clearly erroneous.” It is difficult to comprehend how anyone would thereafter contend that a trial de novo on appeal in admiralty is a reality, or that the appellate courts have power to find facts. The close set foundations of that opinion, composed of crystalizations of traditional practice and the bulk of an explicit Rule, 1 renders it a landmark unshatterable by winds of doctrine. This principle so announced is applied in personal injury actions. 2 Judge Denman quotes and explicitly follows the corresponding Civil Rule 3 when writing for this…