1. The Act of Feb. 16, 1875, c. 77, whereby the appellate
jurisdiction of this Court in admiralty causes is limited to the
determination of questions of law arising on the record is
constitutional.
2. Where the court below, when thereunto requested, refuses to
give any finding upon an ultimate disputed fact, established by
competent evidence and which is involved in the cause, and material
to its determination, or where, against remonstrance, it finds such
a fact, in the absence of all evidence, the ruling, if excepted to
at the time, and incorporated in a bill of exceptions whist states
the alleged error and the ground relied on below to sustain the
objection presented, may, as a question of law, be reviewed
here.
3. The Court condemns the practice of drawing up bills of
exception, which, so far from being "prepared as in actions at
law," are framed as, if possible, to secure here a reexamination of
the facts.
4. The Court, upon the facts found, affirms the decree
below.
Duncan & Poey, the libellants, entered into the following
charter party with Woodhouse & Rudd, the claimants:
"This charter party, made in the city of New York this
thirteenth day of September, in the year one thousand eight hundred
and seventy-two, between Messrs. Woodhouse & Rudd, owners of
the steamer 'Francis Wright,' of New York, of the burthen of 600
tons or thereabouts, now lying in the harbor of New York, of the
first part, and Messrs. Duncan & Poey, merchants of
Philadelphia, of the second part, witnesseth:"
"That the said party of the first part, in consideration of the
covenants and agreements hereinafter mentioned, to be kept and
performed by the said party of the second part, does covenant and
agree on the freighting and chartering of the said vessel to the
said party of the second part for the term of six months, to run
between Philadelphia or New York and Galveston, or any intermediate
safe port in the United States, or any foreign port not prohibited
by the insurance."
"It is further understood and agreed, that the said parties of
the second part are to have the privilege of cancelling this
charter at the expiration of three months, upon giving the parties
of the first part fifteen days' notice, and the payment of fifteen
hundred dollars bonus on the terms following,
viz.: "
Page 105 U. S. 382
"
First, the said party of the first part agrees the
said vessel, in and during the said voyage, shall be kept tight,
stanch, well fitted, tackled, and provided with every requisite for
such a voyage."
"
Second, the said party of the first part further
agrees the whole of the said vessel (with the exception of the
necessary room for the sails, cables) shall be at the sole use and
disposal of the said party of the second part during the voyage
aforesaid."
"
Third, the said party of the first part further agrees
to take and receive on board the said vessel, during the aforesaid
voyage, all such lawful goods and merchandise as the said party of
the second part, or their agents, may think proper to ship."
"And the said party of the second part, in consideration of the
covenants and agreements to be kept and performed by the said party
of the first part, do covenant and agree with the said party of the
first part to charter and hire the said vessel, as aforesaid, on
the terms following,
viz., to man, coal, and victual
steamer, and pay all expenses of every nature (including port
charges, &c.) connected with running of the steamer, except
insurance on vessel and repairs, and to pay to the said party of
the first part, or their agent, for the charter or freight of said
vessel, during the voyage aforesaid, in manner following,
viz., eighty-five ($85) dollars per day, United States
currency, due daily, but payable at the expiration of each and
every month, in New York; vessel to be returned to the owners at
the expiration of this charter, in the same order and condition as
she is now in, less the ordinary wear and tear. Charterer to take
and deliver the steamer at New York; owners to nominate and
charterers to appoint chief engineer, to be paid by charterers at
rate of one hundred and twenty-five ($125) dollars per month.
Charterers to appoint captain subject to the approval of the
owners. It is also agreed that this charter shall commence at New
York on the 18th of September, 1872."
"If from any derangement of machinery steamer is delayed, the
time lost is not to be paid for by charterers, and in case such
derangement, if any, owners to have privilege of cancelling
charter. In case of any wreckage, towage, or salvage, accruing to
the vessel whilst under this charter, one-half of said earning to
be paid to the owners of the steamer. To the true and faithful
performance of all the foregoing covenants and agreements the said
parties do hereby bind themselves, their heirs, executors,
administrators, and assigns, and also the said vessel, her freight
and appurtenances, and the merchandise to be laden on board each to
the other in the penal sum of estimated amount of this charter.
"
Page 105 U. S. 383
"In witness whereof the said parties have hereunto
interchangeably set their hands and seals the day and year first
above written."
"WOODHOUSE & RUDD"
"DUNCAN & POEY"
"Sealed and delivered in presence of"
"W. H. STARBUCK, witness to both signatures"
The libel filed in the district court alleges that, in
accordance with the terms of the charter party, Sherman was
appointed chief engineer of the steamer, and Denison her captain;
that the libellants took her to Philadelphia, where they fitted her
with refrigerators and other appliances for bringing a cargo of
fresh beef from Galveston to Philadelphia, and then dispatched her
to Galveston; that on the outward voyage the vessel gave signs of
unseaworthiness in the blowing and leaking of some of her boiler
tubes, by which the time of the voyage was fourteen instead of ten
days, the usual time; that at Galveston, the chief engineer was
notified by the libellants to make repairs, &c., but he
refused, whereby she, having taken a cargo of about seventy tons of
fresh beef, was, Oct. 31, 1872, being then four hours at sea, out
of the port of Galveston, compelled to put back there for repairs
by reason of the boiler tubes again blowing out and leaking, and
was detained at Galveston seven days for repairs, leaving there
again Nov. 7, 1872, and was fifteen days making the passage to
Philadelphia, owing to the unseaworthy and defective condition of
the boiler; and that by reason of these detentions and of the
unseaworthy condition of the boiler, and also of the hot water
which escaped from the boiler-tubes and was negligently allowed to
run into the steamer's bilge and melt the ice in the refrigerators
where the fresh beef was stowed, the beef became spoiled and
entirely lost, to the damage of libellants $30,000, which they
claim to recover.
The steamer was attached, but was subsequently released, upon
the claimants entering into the usual stipulations conformably to
the rules and practice of that court. The claimants answered,
admitting the making of the charter party, the appointment of the
chief engineer and captain, and the libellants' taking possession
of the steamer. They deny all the other material allegations of the
libel, and aver that she, as far
Page 105 U. S. 384
as they were bound to do, was kept as required by the
contract.
The District Court dismissed the libel, and the Circuit Court
entered a decree of affirmance. The libellants excepted to certain
of the findings of fact and to the refusal to find certain facts by
them requested and to the conclusions of law. They thereupon
appealed here. The bill of exceptions is incorporated in the
record.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
Three questions have been presented on the argument of this
appeal:
1. Whether Congress has the constitutional power to confine the
jurisdiction of this court on appeals in admiralty to questions of
law arising on the record;
2. Whether, upon the bill of exceptions, the court below erred
in refusing to find certain facts which, as is claimed, were
established by uncontradicted evidence, and in finding others which
had no evidence at all to support them; and,
3. Whether, on the facts found, the decree below was right.
1. As to the jurisdiction.
If we understand correctly the position of the counsel for the
appellants, it is precisely the same as that which occupied the
attention of the Court in
Wiscart v.
Dauchy, decided at February Term, 1796, 3 Dall.
321. There the question was what, under the Judiciary Act of 1789,
could be considered on a writ of error bringing to this court for
review a decree in admiralty. The decision turned on the
construction to be given the twenty-second section of the act, and
Mr. Justice Wilson, in his minority opinion, said: "Such an
appeal," that is to say, an appeal in which all the testimony is
produced in this court,
"is expressly sanctioned by the Constitution; it may therefore
clearly, in the first view of the subject, be considered as the
most regular process, and as there are not any words in the
Page 105 U. S. 385
judicial act restricting the power of proceeding by appeal, it
must be regarded as still permitted and approved. Even, indeed, if
positive restriction existed by law, it would, in my judgment, be
superseded by the superior authority of the constitutional
provision."
Mr. Chief Justice Ellsworth, however, who spoke for the majority
of the Court, said:
"If Congress has provided no rule to regulate our proceedings,
we cannot exercise an appellate jurisdiction, and if the rule is
provided, we cannot depart from it. The question, therefore, on the
constitutional point of appellate jurisdiction, is simply whether
Congress has established a rule for regulating its exercise."
And, further on:
"It is observed that a writ of error is a process more limited
in its effects than an appeal; but whatever may be the operation,
if an appellate jurisdiction can only be exercised by this court
conformably to such regulations as are made by the Congress, and if
Congress has prescribed a writ of error, and no other mode, by
which it is to be exercised, still, I say, we are bound to pursue
that mode, and can neither make, nor adopt, another."
And again:
"But surely it cannot be deemed a denial of justice that a man
shall not be permitted to try his cause two or three times over. If
he has one opportunity for the trial of all the parts of his case,
justice is satisfied; and even if the decision of the Circuit Court
has been made final, no denial of justice can be imputed to out
government; much less can the imputation be fairly made, because
the law directs that, in case of appeal, part shall be decided by
one tribunal and part by another, -- he facts by the court below,
and the law by this court. Such a distribution of jurisdiction has
long been established in England."
This was the beginning of the rule, which has always been acted
on since, that while the appellate power of this court under the
Constitution extends to all cases within the judicial power of the
United States, actual jurisdiction under the power is confined
within such limits as Congress sees fit to prescribe. As was said
by Mr. Chief Justice Marshall in
Durousseau
v. United States, 6 Cranch 307,
10 U. S.
314,
"The appellate powers of this court are not given by the
judicial act. They are given by the Constitution. But they are
limited and regulated by the judicial act, and by such other acts
as have been passed on
Page 105 U. S. 386
the subject."
The language of the Constitution is that "the Supreme Court
shall have appellate jurisdiction, both as to law and fact, with
such exceptions and under such regulations as Congress shall make."
Undoubtedly if Congress should give an appeal in admiralty causes,
and say no more, the facts, as well as the law, would be subjected
to review and retrial; but the power to except from -- take out of
-- the jurisdiction, both as to law and fact, clearly implies a
power to limit the effect of an appeal to a review of the law as
applicable to facts finally determined below. Appellate
jurisdiction is invoked as well through the instrumentality of
writs of error as of appeals. Whether the one form of proceeding is
to be used or another depends ordinarily on the character of the
suit below; but the one as well as the other brings into action the
appellate powers of the court whose jurisdiction is reached by what
is done. What those powers shall be, and to what extent they shall
be exercised, are, and always have been, proper subjects of
legislative control. Authority to limit the jurisdiction
necessarily carries with it authority to limit the use of the
jurisdiction. Not only may whole classes of cases be kept out of
the jurisdiction altogether, but particular classes of questions
may be subjected to re-examination and review, while others are
not. To out minds, it is no more unconstitutional to provide that
issues of fact shall not be retried in any case, than that neither
issues of law nor fact shall be retried in cases where the value of
the matter in dispute is less than $5,000. The general power to
regulate implies power to regulate in all things. The whole of a
civil law appeal may be given, or a part. The constitutional
requirements are all satisfied if one opportunity is had for the
trial of all parts of a case. Everything beyond that is matter of
legislative discretion, not of constitutional right. The
Constitution prohibits a retrial of the facts in suits at common
law where one trial has been had by a jury (Amendment, art. 7); but
in suits in equity or in admiralty Congress is left free to make
such exceptions and regulations in respect to retrials as on the
whole may seem best.
We conclude, therefore, that the Act of Feb. 16, 1875, c. 77, is
constitutional, and that under the rule laid down in
The
Page 105 U. S. 387
Abbotsford, 98 U. S. 440, and
uniformly followed since, our inquiries are confined to questions
of law arising on the record, and to such rulings, excepted to at
the time, as may be presented by a bill of exceptions prepared as
in actions at law.
2. As to the questions arising on the bill of exceptions.
It is undoubtedly true that if the circuit court neglects or
refuses, on request, to make a finding one way or the other on a
question of fact material to the determination of the cause, when
evidence has been adduced on the subject, an exception to such
refusal taken in time and properly presented by a bill of
exceptions may be considered here on appeal. So, too, if the court,
against remonstrance, finds a material fact which is not supported
by any evidence whatever, an exception is taken, a bill of
exceptions may be used to bring up for review the ruling in that
particular. In the one case the refusal to find would be equivalent
to a ruling that the fact was immaterial, and in the other that
there was some evidence to prove what is found when in truth there
was none. Both these are questions of law, and proper subjects for
review in an appellate court. But this rule does not apply to mere
incidental facts, which only amount to evidence bearing upon the
ultimate facts of the case. Questions depending on the weight of
evidence are, under the law as it now stands, to be conclusively
settled below and the fact in respect to which such an exception
may be taken must be one of the material and ultimate facts on
which the correct determination of the cause depends.
In the present case, the ultimate fact to be determined was
whether the loss for which the suit was brought happened because of
the insufficient refrigerating apparatus or the unseaworthiness of
the vessel. It is found in express terms that the loss was
"caused by the defective construction and working of the
refrigerating room and apparatus connected therewith, either from
inherent defects in said apparatus, or from not using a sufficient
quantity of ice, and not by any fault of the claimants."
As to this both the circuit and district courts agree. This fact
being established, it was unimportant to inquire whether the vessel
was seaworthy or not. If the unseaworthiness was not the proximate
cause of the loss, it is not contended the vessel can be charged
with the damages.
Page 105 U. S. 388
But if it be conceded that the case depended on the
seaworthiness of the vessel, we think the exceptions which have
been taken cannot be considered here. The only unseaworthiness
alleged was in respect to the boiler, and as to this the court has
found that the boiler was a tubular one; that tubular boilers are
liable to leakage in the tubes; that such leakage does not
necessarily interfere with the capacity or fitness of the boiler
for the purposes of navigation; that this particular boiler had one
hundred and forty-four tubes; that some of these tubes gave out
from time to time and were plugged up; that when the vessel arrived
at Philadelphia at the end of her voyage, twenty-six of the tubes
had been plugged up, but that the boiler was still efficient and
seaworthy. It was also found that the voyage from Galveston to
Philadelphia was two days longer than was usually occupied by well
equipped steamers, and that the vessel put back for repairs, by
which an additional week's time was lost at Galveston.
The complaint now made is, that the court refused to state in
its findings that there was leakage in the tubes and stoppage for
repairs while the vessel was on her voyage from Philadelphia to
Galveston, and while she was lying in the harbor at Galveston
taking in her cargo, and that when the vessel put back to Galveston
the engineer had not sufficient tools with which to make his
repairs. All these are mere incidental facts, proper for the
consideration of the court in determining whether the boiler and
the vessel were actually seaworthy or not. It is not pretended that
the question at issue was to be determined alone by the probative
effect of these circumstances. They were part only of the evidence
on which the ultimate finding depended, and occupy in the case the
position of testimony rather than of the facts to which the law is
to be applied by the judgment of the court. The refusal of the
court to put such statements into the record, even though
established by uncontradicted evidence, cannot properly be brought
here by a bill of exceptions, unless it also appears that the
determination of the ultimate fact to be ascertained depended alone
upon the legal effect as evidence of the facts stated. Such clearly
is not this case.
Page 105 U. S. 389
There is another equally fatal objection to this bill of
exceptions. An evident effort has been made here, as it has been
before, to so frame the exceptions as, if possible, to secure a
reexamination of the facts in this Court. The transcript which has
been sent up contains the pleadings and all the testimony used on
the trial below. The bill of exceptions sets forth that at the
trial the pleadings were read by the respective parties, and the
testimony then put in on both sides. This being done, the
libellants presented to the court certain requests for findings of
fact and of law. These requests were numbered consecutively,
sixteen relating to facts and three to the law. Afterwards, six
additional requests for findings of fact were presented. It is then
stated that the court made its findings of fact and of law and
filed them with the clerk, together with an opinion in writing of
the circuit justice who heard the cause. The libellants then filed
what are termed exceptions to the findings and the refusals to
find. In this way exceptions were taken separately to each and
every one of the facts found and the conclusions of law, and to the
refusal to find in accordance with each and every one of the
requests made. The grounds of the exceptions are not stated. Many
of the requests of the libellants are covered explicitly by the
findings as actually made, some being granted and others
refused.
We have no hesitation in saying that this is not a proper way of
preparing a bill of exceptions to present to this Court for review
rulings of the Circuit Court such as are now complained of. A bill
of exceptions must be "prepared as in actions at law," where it is
used, "not to draw the whole matter into examination again," but
only separate and distinct points, and those of law. Bac.Abr., Bill
of Exceptions; 1 Saund. Pl. & Ev. 846. Every bill of exceptions
must state and point out distinctly the errors of which complaint
is made. It ought also to show the grounds relied on to sustain the
objection presented, so that it may appear the court below was
properly informed as to the point to be decided. It is needless to
say that this bill of exceptions meets none of these requirements.
From anything which is here presented no judge would be presumed to
understand that the specific objection made to any one of his
findings was that no evidence whatever
Page 105 U. S. 390
had been introduced to prove it, or to one of his refusals, that
the fact refused was material and had been conclusively shown by
uncontradicted testimony. No ground whatever is stated for any one
of all the exceptions that have been taken. To entitle the
appellants to be heard here upon any such objections as they now
make to the findings, they should have stated to the court that
they considered the facts refused material to the determination of
the cause, and that such facts were conclusively proven by
uncontradicted evidence. Under such circumstances, it might have
been permissible to except to the refusal and present the exception
by a bill of exceptions, which should contain so much of the
testimony as was necessary to show that the fact as claimed had
been conclusively proven. And so if the exception is as to facts
that are found, it should be stated that it was because there was
no evidence to support them, and then so much of the testimony as
was necessary to establish this ground of complaint, which might
under some circumstances include the whole, should be incorporated
into the bill of exceptions. In this way the court below would be
fairly advised of the nature of the complaint that was made in time
to correct its error, if satisfied one had been committed, or to
put into the bill of exceptions all it considered material for the
support of the rulings.
From this it is apparent we cannot on this appeal consider any
of the rulings below which have been presented by the bill of
exceptions.
3. As to the sufficiency of the facts found to support the
decree.
Upon this branch of the case we have had no more difficulty than
upon the others. The case made may be generally stated as
follows:
The libellants, being about to engage in the business of
transporting fresh beef by the use of a newly patented process,
applied to the claimants for a charter of their steamer for six
months, to be put into that trade. The claimants knew for what
business the vessel was engaged, and the libellants knew that she
was furnished with a tubular boiler. Such boilers are liable to
leak, but that does not necessarily interfere
Page 105 U. S. 391
with their capacity or fitness for the purposes of navigation.
The charter party contained this clause:
"
First, the said party of the first part agrees the
said vessel, in and during the said voyage, shall be kept tight,
stanch, well fitted, tackled, and provided with every requisite for
such a voyage."
The charter party makes no mention of the special business in
which the vessel was to be engaged. She was chartered generally for
six months to run between Philadelphia and New York and Galveston,
or any intermediate safe port in the United States, or any foreign
port not prohibited by the insurance. The only complaint made as to
her seaworthiness is in respect to her boiler, and about this it is
found that though to some extent leaking, as boilers of that class
are liable to be, it was still efficient and seaworthy. The
libellants fitted the vessel with the necessary apparatus for the
use of their patented process, and with a full knowledge that her
boiler was apt to leak, put a cargo of fresh beef on board to be
taken from Galveston to Philadelphia. The vessel was twenty-three
days in making that voyage instead of fourteen, which was the usual
time of well equipped steamers. The beef was spoiled before it got
to Philadelphia, but it is expressly found that this was because of
the defective construction and working of the refrigerating room,
and the apparatus and machinery connected therewith, for which the
claimants were in no respect responsible.
Upon these facts the court below dismissed the libel, which we
think was clearly right. That the vessel was in fact seaworthy is
settled by the findings. All the claimants covenanted for was, that
she was provided with every requisite for safe navigation. While
they knew that her charterers intended to use her in connection
with their contemplated business, it is neither found nor insisted
that any higher degree of seaworthiness was required for that kind
of transportation than any other, much less that the claimants knew
it. Under these circumstances the language of the charter party is
to be construed only as an agreement that the vessel was seaworthy
for the purpose of navigating such a voyage as she was chartered to
make, without any regard to what she was to carry.
Page 105 U. S. 392
The claimants did not contract that their vessel was in a
condition to make her voyages in any particular time, but only to
make them safely. They were not applied to for a vessel suitable
for carrying fresh beef, but for one suitable for navigation
generally between the designated ports and places. Such a vessel
according to the findings they got. It was their fault alone if
they did not apply for what they wanted. They took all the risks of
the undertaking, except such as arose from the general
unseaworthiness of the vessel when she was delivered into their
possession, for after they got her she was to be subject to their
entire control within the terms of the charter. If repairs were
necessary to keep her in a seaworthy condition, while under the
charter the claimants might be chargeable with the expense of
making them, it would be the duty of the charterers to see that
they were made, or to notify the claimants of what was required.
The provision that the claimants were to nominate and the
charterers appoint the engineer, and that the appointment of the
captain by the charterers should be subject to the approval of the
claimants, did not affect the relation of the parties in this
particular. Delays growing out of derangement in the machinery were
to be deducted from the charter time, and the pay for the use of
the vessel correspondingly reduced, but beyond that the owners were
not to be bound if the vessel was actually seaworthy when delivered
into the possession of the charterers under the charter.
Affirmed.
