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trict court, southern district of New, posed by many of no less authority. TuckYork.

er v. Alexandroff must be read in the light Under a definite contract the Palmer of the particular matter under considera. Shipbuilding Company began construction,-detention of a foreign seaman,tion of the schooner at Groton, Connecti and the conclusion announced that after cut, and launched the hull. That com- the vessel was launched "she was a ship pany found itself unable to proceed fur- within the meaning of the treaty.” The ther, thereupon appellant agreed with the court had no immediate concern with conowner to complete the work, and for such tracts for ship construction, and there was purpose the hull was towed to its yard at no purpose to lay down any definite rule New London. While lying there in the applicable to them. On the other side, the stream the materials, work, and labor for following cases are cited, and they are enwhich recovery is now sought were fur- titled to the greater weight: The Isosco, nished. Later the vessel, so advanced, 1 Brown, Adm. 495, Fed. Cas. No. 7,060; was towed to Hoboken and finished by a The Pacific, 5 Hughes, 257, 9 Fed. 120; third company. When received by appel- The Count de Lesseps, 17 Fed. 460; The lant the schooner was manifestly incom- Glenmont, 32 Fed. 703 and 34 Fed. 403; plete,-her masts were not in, the bolts The Paradox, 61 Fed. 860; McMaster v. and beams and gaff were lying on deck, One Dredge, 95 Fed. 832; The United the forward house was not built, and she Shores, 193 Fed. 552; The Dredge A, 217 was not “in condition to carry on any serv- Fed. 617; The Winnebago, 205 Ù. S. 354, ice.” Appellant worked on her for six 363, 51 L. ed. 836, 841, 27 Sup. Ct. Rep. weeks, and thirty or forty more days were 509; North Pacific S. S. Co. v. Hall Bros. required to finish her.

Marine R. & Shipbuilding Co. 249 U. S. Is appellant's contract to furnish the 119, 125, 63 L. ed. 510, 512, 39 Sup. Ct. materials, work and labor for her comple- Rep. 221. tion, made after the schooner

Notwithstanding possible and once not launched, but while yet not sufficiently ad- inappropriate criticism, the doctrine is vanced to discharge the functions for now firmly established that contracts to which intended, within the admiralty and construct entirely new ships are nonmarimaritime jurisdiction? The district court time because not nearly enough related to thought not and so do we.

any rights and duties pertaining to comUnder decisions of this court the settled merce and navigation. It is said that in rule is that a contract for the complete no proper sense can they be regarded as construction of a ship, or supplying ma- directly and immediately connected with terials therefor, is nonmaritime, and not navigation or commerce by water. Ed. within the admiralty jurisdiction. People's wards v. Elliott, 21 Wall. 532, 554, 555, Ferry Co. v. Beers, 20 How. 393, 15 L. ed. 22 L. ed. 487, 491, 492; The William Win961; Roach v. Chapman, 22 How. 129, 16 dom, 73 Fed. 496; Pacific Surețy Co. v. L. ed. 294; Edwards v. Elliott, 21 Wall. Leatham & S. Towing & Wrecking Co. 80 532, 22 L. ed. 487; The Winnebago, 205 C. C. A. 670, 151 Fed. 440. And [245] U. S. 354, 363, 51 L. ed. 836, 841, 27 Sup. we think the same reasons which exCt. Rep. 509; North Pacific S. S. Co. v. clude such contracts from admiralty Hall Bros. Marine R. & Shipbuilding Co. jurisdiction likewise apply to agree249 U. S. 119, 125, 63 L. ed. 510, 512, 39 ments made after the hull is in the Sup. Ct. Rep. 221.

water, for the work and material necBut counsel for appellant insist that essary to consummate a partial conthere is a broad distinction between such a struction and bring the vessel into concontract and one for work and [244] dition to function as intended. material to finish a vessel after she has The judgment of the court below is been launched and is water-borne. In affirmed. 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.

ANA MARIA SUGAR COMPANY, Inc., Cas. No. 11,714,-both by Judge Deady,

Petitioner, in the United States district court for Oregon; The Manhattan, district

THOMAS QUINONES. court for Washington (1891) 46 Fed. 797, which followed the district court

(See S. C. Reporter's ed. 245–251.) for Oregon; and Tucker v. Alexan

Appeal - errors by interm diate appel. droff, 183 U. S. 424, 438, 46 L. ed. 264, late court necessity of bill of ex270, 22 Sup. Ct. Rep. 195. The first three ceptions. cases are directly in point, but are op- 1. The rule that errors in rulings of 246

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law occurring in the course of the trial, which affirmed a judgment of the Sucannot be considered on writ of error un, preme Court of Porto Rico, reversing a less incorporated into the record by bill judgment of the District Court of Mayof exceptions has no application when the errors assigned are wholly those alleged to aguez in favor of defendant in an achave been committed by an intermediate tion to recover damages for breach of appellate court, even though such court contract, and entering a judgment in has, like the supreme court of Porto Rico, favor of plaintiff. Affirmed. power to review the evidence, to make new See same case below, 163 C. C. A. 493, findings of fact thereon, and to enter such 251 Fed. 499. judgment as to it may seem proper.

The facts are stated in the opinion. (For other cases, see Appeal and Error, VI. b, in Digest Sup. Ct. 1908.)

Mr. E. Crosby Kindleberger argued Appeal scope of review

error or the cause and filed a brief for petitionappeal.

2. The distinction between writs of error 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

Mr. Justice Brandeis delivered the reviewing court shall not dismiss a writ of error because an appeal should have

opinion of the court: been taken, nor dismiss an appeal because

Quiñones sued the Ana Maria Sugar a writ of error should have been sued out, Co. Inc., in a district court of Porto Rico but shall disregard such mistakes and take to recover damages for breach of an oral the action appropriate if the proper appel contract to deliver sugar. Liability was late procedure had been followed. This denied on the ground that plaintiff had section merely provides that the party seek agreed to deposit the purchase price in a ing review shall have it in the appropriate bank to defendant's credit before the time way, notwithstanding a mistake in choosing for delivery, and failed to do so. The the mode of review, (For other cases, see Appeal and Error, viii. trial judge, sitting without a jury, found e, in Digest Sup. Ct. 1908.)

on conflicting testimony that this stipulaAppeal jurisdiction of circuit court tion was part of the contract; and, as the of appeals - review of facts.

deposit had not been made, entered judg3. Findings of fact in an action at law ment for the defendant. Quiñones aptried without a jury cannot be reviewed by pealed to the supreme court of Porto a circuit court of appeals in the exercise Rico with a bill of exceptions which emof its jurisdiction, under the Act of January 28, 1915, to review judgments and bodied all the proceedings taken, and indecrees of the Porto Rico courts.

cluded the evidence. The supreme court (For other cases, see Appeal and Error, viii. did not, like the trial court, make spe1, 3, in Digest Sup. Ct. Rep. 1908.)

cific findings, but it found as a fact upon Appeal scope of review

a review of conflicting evidence that the assigned or considered below.

4. Rulings of the supreme court of stipulation relied upon by the company Porto Rico on the measure of damages,

had not been made, reversed the judgwhich were not assigned as errors in the ment of the trial court, and itself entered circuit court of appeals, and were not con- judgment for Quiñones in the full amount sidered by it, cannot be insisted upon in claimed, with interest. 24 P. R. R. 614. the Federal Supreme Court as grounds for From that judgment the company apreversal.

pealed to the United States circuit court [For other cases, see Appeal and Error, VII. of appeals for the first circuit and asJ. in Digest Sup. Ct. 1908.]

signed fifteen

Ten of them charged in different forms that the find(No. 54.)

ings of fact on the main issue were erroArgued and submitted October 21, 1920. neous; three related to the measure of Decided December 6, 1920.

damages; the others were that the com

plaint did not set [247] forth a cause N WRIT of Certiorari to the United of action, and that the facts found

States Circuit Court of Appeals for were insufficient to support the judgthe First Circuit to review a judgment held" that it could consider the last

The circuit court of appeals Note.-As to when exceptions must two errors assigned, since they apbe taken to be available on review-see peared on the face of the record. note to Phelps v. Mayer, 14 L. ed. U. S. It gave as the reason for declining to con643.

sider the others, that the company had On distinction between appeal and failed to submit to the supreme court any writ of error-see note to Miners' Bank request for rulings, and had taken no exv. Iowa, 13 L. ed. U. S. 867.

ceptions to rulings made. Concluding

- error not

errors.

ON

that the complaint set forth a good cause, 794, 28 Sup. Ct. Rep. 548; Gonzales v. of action, that the supreme court had Buist, 224 U. S. 126, 56 L. ed. 693, 32 power to enter the judgment for Quiñ- Sup. Ct. Rep. 463; Rosaly v. Grabam y ones, and that the facts found supported Frazer, 227 U. S. 584, 57 L. ed. 655, 33 its judgment, the circuit court of appeals Sup. Ct. Rep. 333; Ochoa v. Hernandez y affirmed it. 163 C. C. A. 493, 251 Fed. Morales, 230 U. S. 139, 57 L. ed. 1427, 33 499. The case comes here on writ of Sup. Ct. Rep. 1033; Porto Rico v. Emcertiorari. 248 U. S. 555, 63 L. ed. 419, manuel, 235 U. S. 251, 59 L, ed. 215, 35 39 Sup. Ct. Rep. 11.

Sup. Ct. Rep. 33. When that act was First. The rule relied upon by the cir- superseded by $ 244 of the Judicial Code, cuit court of appeals for refusing to con- writs of error and appeals from the insider errors assigned is well settled. Er- sular supreme court became subject to the rors in rulings of law occurring in the same regulations which governed appeals course of the trial cannot be considered from the district courts of the United on writ of error, unless incorporated into States. Thereby this court acquired the record by bill of exceptions (Rodri- power to review questions of fact in guez v. United States, 198 U. S. 156, 165, cases coming to it on appeal in equity or 49 L. ed. 994, 997, 25 Sup. Ct. Rep. 617), admiralty (Elzaburu v. Chaves, 239 U. S. because they are not part of the record | 283, 285, 60 L. ed. 290, 36 Sup. Ct. Rep. proper (Newport News & M. Valley Co. | 47); but in actions at law which are rev. Pace, 158 U. S. 36, 39 L. ed. 887, 15 viewable on writ of error, there was no Sup. Ct. Rep. 743. Compare Nalle v. right in this court to review the facts, alOyster, 230_U. S. 165, 57 L. ed. 1439, though the case was tried without a jury 33 Sup. Ct. Rep. 1043). But this rule ap- (Behn v. Campbell, 205 U. S. 403, 407, 51 plies only when the error complained of L. ed. 857, 858, 27 Sup. Ct. Rep. 502). is that of the trial court. It has no appli- The jurisdiction to review judgments and cation when the errors assigned are wholly decrees of the Porto Rico courts conferred those alleged to have been committed by upon the circuit court of appeals by an intermediate appellate court; for iť Act of January 28, 1915, chap. 22, 38 the intermediate court has erred in its Stat. at L. 803, Comp. Stat. § 1120, is judgment, the error will appear by tho subject to the same limitation. The cause record of that court without a bill of ex- of action here sued on is, in its ceptions. Compare Morris v. Deane, 94 nature, a legal one. The review should Va. 572, 27 S. E. 482. This is true, al- therefore have been prosecuted by though the intermediate appellate court writ of error instead of by appeal, bas, like the supreme court of Porto Rico, although the was tried without power to review the evidence, to make new a jury. Oklahoma City v. McMaster, 196 findings of fact thereon, and to enter such U. S. 529, 49 L. ed. 587, 25 Sup. Ct. Rep. judgment as to it may seem proper. See 324. By reason of § 4 of the Act of SepCompilation of Revised Statutes & Codes tember 6, 1916, chap. 448, 39 Stat. at L. of Porto Rico, § 1141, p. 241, § 5350, p. 727, Comp. Stat. § 1619a, Fed. Stat. 867. Compare Andrews v. Cohen, 221 N. Anno. Supp. 1918, p. 421, this failure to Y. 148, 152, 153, 116 N. E. 862. No com adopt the proper appellate proceeding is plaint was made by the company of any no longer fatal. But the provision does action taken by the court of first [218] not abolish the distinction between writs instance, which had decided in its of error and appeals. It merely provides favor. The errors assigned in the cir- that the party seeking review [249] cuit court of appeals related wholly shall have it in the appropriate way, to action taken by the supreme court. notwithstanding a mistake in choosThe reason given by the circuit court ing the mode of review. Gauzon v. of appeals for refusing to consider Compañia General de Tabacos, 245 U. the errors assigned was, therefore, un- S. 86, 62 L. ed. 165, 38 Sup. Ct. Rep. 46. sound. But, for other reasons, which It was not contended in the insular will be stated, its decision was right. supreme court that there was no legal evi

Second. Under $ 35 of the Act of dence to support the finding of the disApril 12, 1900, chap. 191, 31 Stat. at L. trict court. Its judgment was reversed 77, 85, Comp. Stat. $$ 3747, 3791, 7 Fed. solely because the insular supreme court Stat. Anno. 2d ed. pp. 1259, 1275, the reached a different conclusion on the issue power to review final judgments and de- of fact raised by conflicting testimony. crees of the supreme court of Porto Rico, Nor was it contended in the circuit court then exercised exclusively by this court, of appeals that there was no legal eviwas limited to matters of law. Garzot v. dence on which the insular supreme court Rios de Rubio, 209 U. S. 283, 52 L. ed. I could properly rest its finding. Ten of the

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assignments of error were directed to find-/ gust, sold at $6.52 large quantities of ings of fact by the supreme court. As sugar, including the lot in question, and these assignments of error raised no ques- justified its allowance of damages on three tion of law, and as the circuit court of ap- grounds: (1) That on the facts the peals had no power to review findings of profits through sale at increased market fact in an action at law, it properly prices were in contemplation of the pardenied consideration to these ten assign- ties when the contract was entered into, ments of error.

and the profit which would have been Third. It is contended that the judg- earned, being ascertainable, could be rement of the circuit court of appeals covered at common law; (2) that the should be reversed because the supreme profits were earned by the company on court adopted an erroneous measure of sugar actually belonging to Quiñones, and damages. The contract was made August that, under the Civil Code of Porto Rico, 4, 1914, and the contract price was $3.221 he was entitled to these profits either “as per hundred weight. All the sugar was damages or as the proceeds of a resulting to have been delivered before the close of trust;" and (3) that if the company the following week, which ended on wished to limit the damages by the market August 15. The supreme court allowed price on August 6, it must have proved as damages the sum of $6,173.24, with in- that other sugar was obtainable on that terest. It is insisted here that the sugar day in Porto Rico, at what it contended was deliverable in instalments; that there was the then market price, but that it had

a gradual rise in sugar between not done so. These rulings by the suAugust 6 and August 15; and that the preme court on the [251] measure of supreme court should have determined the damages were not assigned as amount recoverable by ascertaining the in the circuit court of appeals, and, market price when each of the instal- so far as appears, objection to them ments was deliverable.

was not otherwise called to its attenIn the circuit court of appeals the com- tion. Under Rule 11 of that court pany likewise assigned as error that the (79 C. C. A. xxvii., 150 Fed. xxvii.), supreme court had allowed compensation errors not assigned are to be disrebased upon the difference between the con- garded, except that the court, in its traet price of the sugar and its market discretion, may notice a plain error not price at the end of the term fixed for de assigned. As the above rulings of the livery. This assignment entitled [250] supreme court on the measure of damages it to have that question considered were not assigned as errors in the circuit in the circuit court of appeals, al- court of appeals, and were not considthough no exception had been taken ered by it, they cannot be insisted upon in the supreme court. The circuit here as grounds for reversal.! court of appeals did not consider The judgment of the Circuit Court of whether the supreme court had adopt- Appeals is affirmed. ed 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

UNITED STATES, Petitioner, ages; that it had power to do so itself upon a review of the evidence introduced be- NORTHERN PACIFIC RAILWAY COM

PANY. low; and that its discretion in doing this could not be said to have been exercised

(See S. C. Reporter's ed. 251–255.) unreasonably, since the question of damages had been tried fully below, citing Master and servant safety appliances Burnet v. Desmornes y Alvarez, 226 U. S. transfer trains – terminal rail. 145, 148, 57 L. ed. 159, 160, 33 Sup. Ct. ways. Rep. 63.

1. Transfer trains operated by an in. The difficulty with the company's con

terstate railway carrier under the yardmas. tention is that it does not appear that rule which requires all trains to move at

ter's orders, and under the single operating 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; Litehtenstadt v. Rose, 98 III. 643 ; other grounds. The court found that the Taylor v. Pierce, 174 III. 9, 12, 50 N. E. company had, during the month of Au- 1109; Wilson v. Vance, 55 Ind. 584, 591.

V.

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Safety Appliance Acts of March 2, 1893, control, and the passenger trains of an. and March 2, 1903, as to the coupling of other company cross it. train brakes so as to be under engine con- [For other cases, see Master and Servant, II. trol, since, even under the inadmissible sug

a, 2, b, in Digest Sup. Ct. 1908.) gestion that the use of the road as part of Master and servant - safety appliances the main line is essential to the application - operation on other than main line of this provision, such requirement would trains. be satisfied in a case like the one at bar, 2. The requirement of the Safety Apwhere two independent railway companies pliance Acts of March 2, 1893, and March use the road for freight trains under air 12, 1903, as to the coupling of train brakes

Note.—On duty and liability under | apart, and are not so linked together Federal and state railway Safety Ap- that cars may be moved from one to pliance Acts-see notes to Chicago, M. another with the freedom which is usual & St. P. R. Co. v. United States, 20 and essential in intrayard movements, L.R.A.(N.S.) 473, and Lake Shore & M. and which are, in actual practice, treated S. R. Co. v. Benson, 41 L.R.A.(N.S.) 49. as separate yards, is a train within the

As to whether a terminal railway com- meaning of such act. United States v. pany, in moving interstate traffic, is Erie R. Co. supra. The court said: within Federal Safety Appliance Acts— "They were made up in yards like other see note to Belt R. Co. v. United States, trains, and then proceeded to their des22 L.R.A.(N.S.) 582.

tination over main-line tracks used by

other freight trains, both through and Trains and train movements within the local. They were not moving cars about

meaning of the Federal Safety Ap- in a yard or on tracks set apart for pliance Acts contrasted with switching operations, but were engaged switching operations.

in main-line transportation, and this in It seems to be well settled that cars

circumstances where they had to pass hauled by a switch engine between two through a dark tunnel, over switches railroad yards over a main track, across

leading to other tracks, and across passwitches and crossings, and known as senger tracks whereon trains were fretransfer trains, are trains, and not quently moving: Thus, it is plain that, switching operations, within the mean

in common with other trains using the ing of the Federal Safety Appliance Act same main-line tracks, they were exposed of March 2, 1893, and its amendment, to hazards which made it essential that which forbids the operation of trains in appliances be at hand for readily and which less than the requisite number of quickly checking or controlling their cars controlled by air United States v. Erie R. Co. 237 U. S.

So, too, the term “trains," as used in 402, 59 L. ed. 1019, 35 Sup. Ct. Rep.

such act, includes transfer trains of 621; United States v. Chicago, B. & Q. freight cars carrying no caboose or R. Co. 237 U. S. 410, 59 L. ed. 1023, 35 marker, which are operated by yard or Sup. Ct. Rep. 634; Louisville & J. Bridge switching crews of an interstate railway Co. v. United States, 244 U. S. 533, 63 company between freight yards in difL. ed. 757, 39 Sup. Ct. Rep. 355; Atchi- ferent states, over a considerable stretch son, T. & S. F. R. Co. v. United States, of main-line tracks which intersect at 117 C. C. A. 341, 198 Fed. 637; United grade the tracks of other railway comStates v. Pere Marquette R. Co. 211 Fed. panies. United States v. Chicago, B. & 220; Chesapeake & o. R. Co. v. United Q. R. Co. 237 U. S. 410, 59 L. ed. 1023, States, 141° C. C. A. 439, 226 Fed. 683; 35 Sup. Ct. Rep. 634. The court stated United States v. Galveston, H. & H. R that it was immaterial that the trains Co. 167 C. C. A. 01, 255 Fed. 755; carried no caboose or marker, since othUnited States v. Gulf, C. & S. F. R. Co erwise freight trains could easily be put 167 C. C. A. 104, 255 Fed. 758; La Mere beyond the reach of the statute, and its v. Railway Transfer Co. 125 Minn. 159,

remedial purpose defeated. Neither is 145 N. W. 1068, Ann. Cas. 1915C, 667; it material that the men in charge were Kramer v. Chicago & N. W. R. Co.

designated as yard or switching crews, Minn. 181 N. W. 847.

for the controlling test of the statute's Thus, a transfer train of freight cars

application lies in the essential nature which are moved over main tracks and of the work done, rather than in the over switches leading to other tracks, and names applied to those engaged in it. through a dark tunnel and across pas

A transfer of twenty-six freight cars senger tracks in their operation by an

as a unit from one railway terminal to interstate railway company between two another, for delivery, without of its yards, which lie 2 to 3} miles / pling or switching out any car, involving

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brakes. movements."

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