trict court, southern district of New, posed by many of no less authority. Tucker v. Alexandroff must be read in the light York. Under a definite contract the Palmer of the particular matter under consideraShipbuilding Company began construction,-detention of a foreign seaman,— and the conclusion announced that after the vessel was launched "she was a ship within the meaning of the treaty." The court had no immediate concern with contracts for ship construction, and there was no purpose to lay down any definite rule applicable to them. On the other side, the following cases are cited, and they are entitled to the greater weight: The Isosco, 1 Brown, Adm. 495, Fed. Cas. No. 7,060; The Pacific, 5 Hughes, 257, 9 Fed. 120; The Count de Lesseps, 17 Fed. 460; The Glenmont, 32 Fed. 703 and 34 Fed. 403; The Paradox, 61 Fed. 860; McMaster v. One Dredge, 95 Fed. 832; The United Shores, 193 Fed. 552; The Dredge A, 217 Fed. 617; The Winnebago, 205 U. S. 354, 363, 51 L. ed. 836, 841, 27 Sup. Ct. Rep. 509; North Pacific S. S. Co. v. Hall Bros. Marine R. & Shipbuilding Co. 249 U. S. 119, 125, 63 L. ed. 510, 512, 39 Sup. Ct. Rep. 221. tion of the schooner at Groton, Connecti was Is appellant's contract to furnish the materials, work and labor for her completion, made after the schooner launched, but while yet not sufficiently advanced to discharge the functions for which intended, within the admiralty and maritime jurisdiction? The district court thought not and so do we. Under decisions of this court the settled rule is that a contract for the complete construction of a ship, or supplying materials therefor, is nonmaritime, and not within the admiralty jurisdiction. People's Ferry Co. v. Beers, 20 How. 393, 15 L. ed. 961; Roach v. Chapman, 22 How. 129, 16 L. ed. 294; Edwards v. Elliott, 21 Wall. 532, 22 L. ed. 487; The Winnebago, 205 U. S. 354, 363, 51 L. ed. 836, 841, 27 Sup. Ct. Rep. 509; North Pacific S. S. Co. v. Hall Bros. Marine R. & Shipbuilding Co. 249 U. S. 119, 125, 63 L. ed. 510, 512, 39 Sup. Ct. Rep. 221. But counsel for appellant insist that there is a broad distinction between such a contract and one for work and [244] material to finish a vessel after she has been launched and is water-borne. In support of this position they rely upon The Eliza Ladd (1875) 3 Sawy. 519, Fed. Cas. No. 4,364; The Revenue Cutter (1877) 4 Sawy. 143, Fed. Cas. No. 11,714,-both by Judge Deady, in the United States district court for Oregon; The Manhattan, district court for Washington (1891) 46 Fed. 797, which followed the district court for Oregon; and Tucker v. Alexandroff, 183 U. S. 424, 438, 46 L. ed. 264, 270, 22 Sup. Ct. Rep. 195. The first three cases are directly in point, but are op Ed Notwithstanding possible and once not inappropriate criticism, the doctrine is now firmly established that contracts to construct entirely new ships are nonmaritime because not nearly enough related to any rights and duties pertaining to commerce and navigation. It is said that in no proper sense can they be regarded as directly and immediately connected with navigation or commerce by water. wards v. Elliott, 21 Wall. 532, 554, 555, 22 L. ed. 487, 491, 492; The William Windom, 73 Fed. 496; Pacific Surety Co. v. Leatham & S. Towing & Wrecking Co. 80 C. C. A. 670, 151 Fed. 440. And [245] we think the same reasons which exclude such contracts from admiralty jurisdiction likewise apply to agreements made after the hull is in the water, for the work and material necessary to consummate a partial construction and bring the vessel into condition to function as intended. The judgment of the court below is affirmed. ANA MARIA SUGAR COMPANY, Inc., THOMAS QUINONES. (See S. C. Reporter's ed. 245-251.) Appeal - errors by intermediate appellate court - necessity of bill of exceptions. 1. The rule that errors in rulings of 254 U. S. law occurring in the course of the trial cannot be considered on writ of error unless incorporated into the record by bill of exceptions has no application when the errors assigned are wholly those alleged to have been committed by an intermediate appellate court, even though such court has, like the supreme court of Porto Rico, power to review the evidence, to make new findings of fact thereon, and to enter such judgment as to it may seem proper. [For other cases, see Appeal and Error, VI. b. in Digest Sup. Ct. 1908.] Appeal appeal. which affirmed a judgment of the Supreme Court of Porto Rico, reversing a judgment of the District Court of Mayaguez in favor of defendant in an action to recover damages for breach of contract, and entering a judgment in favor of plaintiff. Affirmed. See same case below, 163 C. C. A. 493, 251 Fed. 499. The facts are stated in the opinion. scope of review - error or the cause and filed a brief for petition 2. The distinction between writs of er er. ror and appeals, so far as the scope of Mr. Jorge V. Dominguez submitted review in either proceeding is concerned, the cause for respondent. was not abolished by the provision of the Act of September 6, 1916, § 4, that the reviewing court shall not dismiss a writ [For other cases, see Appeal and Error, VIII. jurisdiction of circuit court of appeals review of facts. 3. Findings of fact in an action at law tried without a jury cannot be reviewed by a circuit court of appeals in the exercise of its jurisdiction, under the Act of January 28, 1915, to review judgments and decrees of the Porto Rico courts. [For other cases, see Appeal and Error, VIII. 1, 3, in Digest Sup. Ct. Rep. 1908.] Appeal scope of review -error not assigned or considered below. 4. Rulings of the supreme court of Porto Rico on the measure of damages, which were not assigned as errors in the circuit court of appeals, and were not considered by it, cannot be insisted upon in the Federal Supreme Court as grounds for reversal. [For other cases, see Appeal and Error, VIII. 3, in Digest Sup. Ct. 1908.] [No. 54.] Mr. Justice Brandeis delivered the opinion of the court: The Quiñones sued the Ana Maria Sugar Co. Inc., in a district court of Porto Rico to recover damages for breach of an oral contract to deliver sugar. Liability was denied on the ground that plaintiff had agreed to deposit the purchase price in a bank to defendant's credit before the time for delivery, and failed to do so. trial judge, sitting without a jury, found on conflicting testimony that this stipulation was part of the contract; and, as the deposit had not been made, entered judgment for the defendant. Quiñones appealed to the supreme court of Porto Rico with a bill of exceptions which embodied all the proceedings taken, and included the evidence. The supreme court did not, like the trial court, make specific findings, but it found as a fact upon a review of conflicting evidence that the stipulation relied upon by the company had not been made, reversed the judgment of the trial court, and itself entered judgment for Quiñones in the full amount claimed, with interest. 24 P. R. R. 614. From that judgment the company appealed to the United States circuit court of appeals for the first circuit and assigned fifteen errors. Ten of them charged in different forms that the findings of fact on the main issue were erro Argued and submitted October 21, 1920. neous; three related to the measure of Decided December 6, 1920. ON N WRIT of Certiorari to the United States Circuit Court of Appeals for the First Circuit to review a judgment Note. As to when exceptions must be taken to be available on review-see note to Phelps v. Mayer, 14 L. ed. U. S. 643. On distinction between appeal and writ of error-see note to Miners' Bank v. Iowa, 13 L. ed. U. S. 867. damages; the others were that the complaint did not set [247] forth a cause of action, and that the facts found were insufficient to support the judgment. The circuit court of appeals held that it could consider the last two errors assigned, since they appeared on the face of the record. It gave as the reason for declining to consider the others, that the company had failed to submit to the supreme court any request for rulings, and had taken no exceptions to rulings made. Concluding that the complaint set forth a good cause of action, that the supreme court had power to enter the judgment for Quiñones, and that the facts found supported its judgment, the circuit court of appeals affirmed it. 163 C. C. A. 493, 251 Fed. 499. The case comes here on writ of certiorari. 248 U. S. 555, 63 L. ed. 419, 39 Sup. Ct. Rep. 11. First. The rule relied upon by the circuit court of appeals for refusing to consider errors assigned is well settled. Errors in rulings of law occurring in the course of the trial cannot be considered on writ of error, unless incorporated into the record by bill of exceptions (Rodriguez v. United States, 198 U. S. 156, 165, 49 L. ed. 994, 997, 25 Sup. Ct. Rep. 617), because they are not part of the record proper (Newport News & M. Valley Co. v. Pace, 158 U. S. 36, 39 L. ed. 887, 15 Sup. Ct. Rep. 743. Compare Nalle v. Oyster, 230 U. S. 165, 57 L. ed. 1439, 33 Sup. Ct. Rep. 1043). But this rule applies only when the error complained of is that of the trial court. It has no application when the errors assigned are wholly those alleged to have been committed by an intermediate appellate court; for if the intermediate court has erred in its judgment, the error will appear by the record of that court without a bill of exceptions. Compare Morris v. Deane, 94 Va. 572, 27 S. E. 482. This is true, although the intermediate appellate court has, like the supreme court of Porto Rico, power to review the evidence, to make new findings of fact thereon, and to enter such judgment as to it may seem proper. See Compilation of Revised Statutes & Codes of Porto Rico, § 1141, p. 241, § 5350, p. 867. Compare Andrews v. Cohen, 221 N. Y. 148, 152, 153, 116 N. E. 862. No com plaint was made by the company of any action taken by the court of first [248] instance, which had decided in its favor. The errors assigned in the circuit court of appeals related wholly to action taken by the supreme court. The reason given by the circuit court of appeals for refusing to consider the errors assigned was, therefore, unsound. But, for other reasons, which will be stated, its decision was right. Second. Under § 35 of the Act of April 12, 1900, chap. 191, 31 Stat. at L. 77, 85, Comp. Stat. §§ 3747, 3791, 7 Fed. Stat. Anno. 2d ed. pp. 1259, 1275, the power to review final judgments and decrees of the supreme court of Porto Rico, then exercised exclusively by this court, was limited to matters of law. Garzot v. Rios de Rubio, 209 U. S. 283, 52 L. ed. | 794, 28 Sup. Ct. Rep. 548; Gonzales v. Buist, 224 U. S. 126, 56 L. ed. 693, 32 Sup. Ct. Rep. 463; Rosaly v. Graham y Frazer, 227 U. S. 584, 57 L. ed. 655, 33 Sup. Ct. Rep. 333; Ochoa v. Hernandez y Morales, 230 U. S. 139, 57 L. ed. 1427, 33 Sup. Ct. Rep. 1033; Porto Rico v. Emmanuel, 235 U. S. 251, 59 L. ed. 215, 35 Sup. Ct. Rep. 33. When that act was superseded by § 244 of the Judicial Code, writs of error and appeals from the insular supreme court became subject to the same regulations which governed appeals from the district courts of the United States. Thereby this court acquired power to review questions of fact in cases coming to it on appeal in equity or admiralty (Elzaburu v. Chaves, 239 U. S. 283, 285, 60 L. ed. 290, 36 Sup. Ct. Rep. 47); but in actions at law which are reviewable on writ of error, there was no right in this court to review the facts, although the case was tried without a jury (Behn v. Campbell, 205 U. S. 403, 407, 51 L. ed. 857, 858, 27 Sup. Ct. Rep. 502). The jurisdiction to review judgments and decrees of the Porto Rico courts conferred upon the circuit court of appeals by Act of January 28, 1915, chap. 22, 38 Stat. at L. 803, Comp. Stat. § 1120, is subject to the same limitation. The cause of action here sued on is, in its nature, a legal one. The review should therefore have been prosecuted by writ of error instead of by appeal, although the case was tried without a jury. Oklahoma City v. McMaster, 196 U. S. 529, 49 L. ed. 587, 25 Sup. Ct. Rep. 324. By reason of § 4 of the Act of September 6, 1916, chap. 448, 39 Stat. at L. 727, Comp. Stat. § 1649a, Fed. Stat. Anno. Supp. 1918, p. 421, this failure to adopt the proper appellate proceeding is no longer fatal. But the provision does not abolish the distinction between writs of error and appeals. It merely provides that the party seeking review [249] shall have it in the appropriate way, notwithstanding a mistake in choosing the mode of review. Gauzon v. Compañia General de Tabacos, 245 U. S. 86, 62 L. ed. 165, 38 Sup. Ct. Rep. 46. It was not contended in the insular supreme court that there was no legal evidence to support the finding of the district court. Its judgment was reversed solely because the insular supreme court reached a different conclusion on the issue of fact raised by conflicting testimony. Nor was it contended in the circuit court of appeals that there was no legal evidence on which the insular supreme court could properly rest its finding. Ten of the Third. It is contended that the judgment of the circuit court of appeals should be reversed because the supreme court adopted an erroneous measure of damages. The contract was made August 4, 1914, and the contract price was $3.224 per hundred weight. All the sugar was to have been delivered before the close of the following week, which ended on August 15. The supreme court allowed as damages the sum of $6,173.24, with interest. It is insisted here that the sugar was deliverable in instalments; that there was a gradual rise in sugar between August 6 and August 15; and that the supreme court should have determined the amount recoverable by ascertaining the market price when each of the instalments was deliverable. assignments of error were directed to find-| gust, sold at $6.52 large quantities of In the circuit court of appeals the company likewise assigned as error that the supreme court had allowed compensation based upon the difference between the contract price of the sugar and its market price at the end of the term fixed for delivery. This assignment entitled [250] it to have that question considered in the circuit court of appeals, although no exception had been taken in the supreme court. The circuit court of appeals did not consider whether the supreme court had adopted the proper measure of damages. It decided only that the supreme court was not obliged to send the case back to the court of first instance to fix the dam The judgment of the Circuit Court of Appeals is affirmed. UNITED STATES, Petitioner, V. ages; that it had power to do so itself up- NORTHERN PACIFIC RAILWAY COM on a review of the evidence introduced be- PANY. 1. Transfer trains operated by an inThe difficulty with the company's con- ter's orders, and under the single operating terstate railway carrier under the yardmastention is that it does not appear that rule which requires all trains to move at the supreme court fixed the amount of the such speed that they can be stopped at recovery by applying the measure of vision, over a terminal railway a part of damages objected to. The contention that which is single track, and on which are it did so finds some support both in the several grade highway and railway crosscomplaint and in the evidence. But the ings, are subject to the requirement of the opinion which discusses the subject of 1 Compare Davis v. Hines, 6 Ohio St. 473, damages at length rests the allowance on 478; Litchtenstadt v. Rose, 98 Ill. 643; other grounds. The court found that the Taylor v. Pierce, 174 Ill. 9, 12, 50 N. E. company had, during the month of Au-1109; Wilson v. Vance, 55 Ind. 584, 591. Safety Appliance Acts of March 2, 1893, and March 2, 1903, as to the coupling of train brakes so as to be under engine control, since, even under the inadmissible suggestion that the use of the road as part of the main line is essential to the application of this provision, such requirement would be satisfied in a case like the one at bar, where two independent railway companies use the road for freight trains under air Note. On duty and liability under Federal and state railway Safety Appliance Acts-see notes to Chicago, M. & St. P. R. Co. v. United States, 20 L.R.A. (N.S.) 473, and Lake Shore & M. S. R. Co. v. Benson, 41 L.R.A. (N.S.) 49. As to whether a terminal railway company, in moving interstate traffic, is within Federal Safety Appliance Actssee note to Belt R. Co. v. United States, 22 L.R.A. (N.S.) 582. Trains and train movements within the meaning of the Federal Safety Appliance Acts as contrasted with switching operations. It seems to be well settled that cars hauled by a switch engine between two railroad yards over a main track, across switches and crossings, and known as transfer trains, are trains, and not switching operations, within the meaning of the Federal Safety Appliance Act of March 2, 1893, and its amendment, which forbids the operation of trains in which less than the requisite number of cars are controlled by air brakes. United States v. Erie R. Co. 237 U. S. 402, 59 L. ed. 1019, 35 Sup. Ct. Rep. 621; United States v. Chicago, B. & Q. R. Co. 237 U. S. 410, 59 L. ed. 1023, 35 Sup. Ct. Rep. 634; Louisville & J. Bridge Co. v. United States, 244 U. S. 533, 63 L. ed. 757, 39 Sup. Ct. Rep. 355; Atchison, T. & S. F. R. Co. v. United States, 117 C. C. A. 341, 198 Fed. 637; United States v. Pere Marquette R. Co. 211 Fed. 220; Chesapeake & O. R. Co. v. United States, 141 C. C. A. 439, 226 Fed. 683; United States v. Galveston, H. & H. R Co. 167 C. C. A. 101, 255 Fed. 755; United States v. Gulf, C. & S. F. R. Co. 167 C. C. A. 104, 255 Fed. 758; La Mere v. Railway Transfer Co. 125 Minn. 159, 145 N. W. 1068, Ann. Cas. 1915C, 667; Kramer v. Chicago & N. W. R. Co. Minn., 181 N. W. 847. Thus, a transfer train of freight cars which are moved over main tracks and over switches leading to other tracks, and through a dark tunnel and across passenger tracks in their operation by an interstate railway company between two of its yards, which lie 2 to 3 miles 2. The requirement of the Safety Appliance Acts of March 2, 1893, and March 2, 1903, as to the coupling of train brakes apart, and are not so linked together that cars may be moved from one to another with the freedom which is usual and essential in intrayard movements, and which are, in actual practice, treated as separate yards, is a train within the meaning of such act. United States v. Erie R. Co. supra. The court said: "They were made up in yards like other trains, and then proceeded to their destination over main-line tracks used by other freight trains, both through and local. They were not moving cars about in a yard or on tracks set apart for switching operations, but were engaged in main-line transportation, and this in circumstances where they had to pass through a dark tunnel, over switches leading to other tracks, and across passenger tracks whereon trains were frequently moving. Thus, it is plain that, in common with other trains using the same main-line tracks, they were exposed to hazards which made it essential that appliances be at hand for readily and quickly checking or controlling their movements." So, too, the term "trains," as used in such act, includes transfer trains of caboose or freight cars carrying no marker, which are operated by yard or switching crews of an interstate railway company between freight yards in different states, over a considerable stretch of main-line tracks which intersect at grade the tracks of other railway companies. United States v. Chicago, B. & Neither is R. Co. 237 U. S. 410, 59 L. ed. 1023, 35 Sup. Ct. Rep. 634. The court stated that it was immaterial that the trains carried no caboose or marker, since otherwise freight trains could easily be put beyond the reach of the statute, and its remedial purpose defeated. it material that the men in charge were designated as yard or switching crews, for the controlling test of the statute's application lies in the essential nature of the work done, rather than in the names applied to those engaged in it. A transfer of twenty-six freight cars as a unit from one railway terminal to another, for delivery, without uncoupling or switching out any car, involving |
