When the federal Constitution was adopted, each state had its
own pilotage regulations.
State pilotage laws are regulations of commerce, but they fall
within that class of powers which may be exercised by the states
until Congress shall see fit to act.
The provisions of former federal statutes relating to pilotage
were incorporated in §§ 4401 and 4444, Rev.Stat., which
are still in force. In adopting the Revised Statutes, change of
arrangement from earlier
Page 225 U. S. 188
statutes will not be regarded as altering their scope and
purpose; an intent of Congress to change the effect of prior law
will not be presumed unless clearly expressed.
Distinctions between registered and enrolled vessels and history
of statutes relating to state pilotage of registered and coastwise
vessels reviewed, and
held that:
Coastwise seagoing vessels sailing under register and having
officers with federal pilot's licenses are not free from liability
for pilotage fees under state laws by virtue of § 51 of the
Act of February 28, 1871, 16 Stat. 440, c. 100, as reenacted in
§ 4401 and 4444, Rev.Stat.
There are no provisions in Title 52 of the Revised Statutes
which may be construed as exempting coastwise seagoing vessels
sailing under register, whose officers have federal pilot's
licenses, from liability for pilotage fees under state laws, under
the rule of construction laid down in the last sentence of §
51 of the Act of February 28, 1871.
Congress did not intend to classify with the coastwise vessels
referred to in the last proviso of § 51 of the Act of February
28, 1781, as reenacted in § 4444, Rev.Stat., registered steam
vessels engaged in commerce with both foreign and domestic ports on
the same voyage.
The wisdom of establishing federal rules as to port pilotage for
such registered vessels now exempted is a question for Congress to
determine.
In this case,
held that American registered steam
vessels sailing from San Francisco clearing for final destination
to American ports and return, but stopping at foreign ports en
route for less than ten percent of the traffic, are subject on
entering and leaving the port of San Francisco to the state
pilotage laws of California as contained in §§ 2468, 2466
and 2432 of the Political Code of that state.
The certificate in these cases is as follows:
"The libels in the above cases involve the question of power of
a state to make pilotage regulations for certain classes of
registered seagoing steam vessels when entering and leaving harbors
within the confines of the state."
"The steamers
Queen and
Umatilla were
regularly sailing under register, and were either on a voyage from
the port of San Francisco in the State of California to a United
States port on Puget Sound or from a United
Page 225 U. S. 189
States port on Puget Sound to said port of San Francisco, but,
in either such case, said vessels did, while en route between said
ports of the United States, stop at the port of Victoria, B.C., to
and from which port of Victoria she did then carry and did then and
there deliver and receive both passengers, mail, and freight. Both
vessels sailed direct to Victoria from San Francisco and direct to
San Francisco from Victoria. At least ninety (90) percent of
passengers and cargo was carried between the United States ports,
and the parties stipulated that the voyage for which the vessels
cleared was between Puget Sound ports of the United States and San
Francisco, with the right to stop and trade en route at Victoria.
The stop at Victoria on each occasion was for about an hour. The
officers of each vessel had federal pilot's licenses, and each
vessel was in fact piloted in entering and leaving the port of San
Francisco by such an officer. Each of the vessels was tendered
pilotage services -- the
Umatilla on leaving port and the
Queen on entering -- by a resident bar pilot of the port
of San Francisco, duly commissioned and acting under the law of the
State of California. In each case, the tender was declined. The
ships refused to pay the pilotage fees imposed by the following
sections of the Political Code of the State of California:"
" 2468. Pilotage and half pilotage. All vessels sailing under an
enrollment and licensed and engaged in the coasting trade between
the port of San Francisco and any other port of the United States
shall be exempt from all pilotage unless a pilot be actually
employed. All foreign vessels and all vessels from a foreign port
or bound thereto, and all vessels sailing under a register between
the port of San Francisco and any other port of the United States
shall be liable for pilotage as provided in section twenty-four
hundred and sixty-six (2466) of this code."
" 2466. Rates of pilotage at San Francisco. The following shall
be the rates of pilotage into and out of the
Page 225 U. S. 190
harbor of San Francisco: all vessels under five hundred (500)
tons, three ($3.00) dollars per foot draught; all vessels over five
hundred (500) tons, three ($3.00) dollars per foot draught and
three (3c.) cents per ton for each and every ton registered
measurement; and every vessel spoken inward or outward bound except
as hereinafter provided shall pay the said rates. A vessel is
spoken by day by a pilot boat displaying a union jack or by night
displaying a torch or flare up within a distance of three (3) miles
of the vessel. In all cases where inward-bound vessels are not
spoken until inside of the bar, the rates of pilotage herein
provided shall be reduced fifty (50) percent. Vessels engaged in
the whaling or fishing trade shall be exempt from all pilotage
except where a pilot is actually employed."
" 2432. Vessel, owner, etc., liable for pilotage. All vessels,
their tackle, apparel, and furniture, and the master and owners
thereof, are jointly and severally liable for pilotage fees, to be
recovered in any court of competent jurisdiction."
"On February 28, 1871, Congress enacted an act 'for the better
protection of persons on vessels propelled in whole or in part by
steam, etc.,' section 51 of which is pertinent to these cases. This
section was in 1873 reenacted in sections 4401 and 4444 of the
revised statutes. The portions of the section and its subsequent
codification on which the court's question are based as
follows:"
" An act to Provide for the Better Security of Life on Board of
Vessels Propelled in Whole or in Part by Steam."
" SECTION 51. And be it further enacted that . . .
Page 225 U. S. 191
every coastwise seagoing steam vessel subject to the navigation
laws of the United States, and to the rules and regulations
aforesaid, not sailing under register, shall, when under way,
except on the high seas, be under the control and direction of
pilots licensed by the inspectors of steamboats. . . . Nor shall
any pilot charges be levied by any such [state] authority upon any
steamer piloted as herein provided . . . Provided, however, that
nothing in this act shall be construed to annul or affect any
regulation established by the laws of any state requiring vessels
entering or leaving a port in any such state, other than coastwise
steam vessels, to take a pilot duly licenses, or authorized by the
laws of such state, or of a state situate upon the waters of such
state."
" Revised Statutes Title LII. 'Regulation of Steam
Vessels.'"
" R.S. 4401. . . . and every coastwise seagoing steam vessel
subject to the navigation laws of the United States, and to the
rules and regulations aforesaid, not sailing under register, shall,
when under way, except on the high seas, be under the control and
direction of pilots licensed by the inspectors of steamboats."
" R.S. 4444. . . . nor shall any pilot charges be levied by any
such [state] authority upon any steamer piloted as provided by this
title. . . . Nothing in this title shall be construed to annul or
affect any regulation established by the laws of any state
requiring vessels entering or state, other than coastwise steam
vessels, to take a pilot duly licensed or authorized by the laws of
such state, or of a state situate upon the waters of such
state."
"The pilots, appellants here, libelled the vessels in the United
States District Court for the Northern District of California. The
two cases were consolidated for trial in
Page 225 U. S. 192
the district court. It was contended that there was a conflict
between the federal and the state law as to the control of the
vessels for the purposes of bar pilotage. The libelants relied upon
the state law giving the resident state bar pilotage control of the
vessels in question when entering or leaving port. The district
court held that the federal law excluded these vessels from state
control, and the libels were dismissed."
"On appeal to this Court, it has become apparent that the
decision of the two cases involves a question of conflict of
jurisdiction between the state and the federal government as to the
pilotage of all steam vessels touching at both foreign and domestic
ports on the one voyage, and also as to the pilotage of the large
number of registered steam vessels now engaged in traffic between
ports of the Atlantic and the Pacific coasts of the United States,
both by way of the Isthmus of Tehuantepec and the Isthmus of Panama
and around South America. The decision will also affect the very
large number of steam vessels which may reasonably be expected to
sail between American ports on the Atlantic and the Pacific Oceans
via the Panama Canal."
"In determining the intent of Congress in passing the Act of
February 28, 1871, the court had under consideration the following
statutes: the Act of August 7, 1789, codified in § 4235 of the
Revised Statutes, recognizing and adopting the pilotage regulations
of the various states so far as bar and entrance pilotage is
concerned; section nine, paragraphs nine and ten of the steamship
act of August 30, 1852, creating a certain class of federal pilots
(10 Stat. 67, reenacted in chapter 100, sections 18 and 14 of the
Act of February 28, 1871 [codified in Revised Statutes,
§§ 4442 and 4438]; Act of May 27, 1848, [codified in
Revised Statutes, § 3126]), permitting registered vessels
sailing between ports of the United States to trade with foreign
ports; section twenty of the Act of February
Page 225 U. S. 193
18, 1793 (1 Stat. 313, codified in Revised Statutes, §
4361), providing for the regulation and duties of officers on
registered vessels as to the carriage of foreign goods and
distilled liquors and the making of manifests."
"The members of the court are unable to agree as to the
interpretation of the cited portions of § 51 of the Act of
February 28, 1871, codified in Revised Statutes, sections 4401 and
4444, and for this reason, and because of the importance of the
interests affected, both governmental and commercial, the Circuit
Court of Appeals for the Ninth Circuit certify the following
questions to the United States Supreme Court, and request its
instructions upon them:"
"1. Are coastwise seagoing steam vessels, sailing under
register, and having officers with federal pilot's licenses, free
from any liability for pilotage fees created by sections 2468,
2466, and 2432 of the Political Code of the State of California,
upon the proper tender of services of resident bar pilots of the
state pilotage establishment, when entering or leaving the port of
San Francisco, by virtue of section 51 of the Act of February 28,
1871, entitled, 'an Act to Provide for the Better Security of Life
on Board of Vessels Propelled in Whole or in Part by Steam,' as
reenacted of date December 1, 1873, in sections 4401 and 4444 of
the Revised Statutes?"
"2. Are there any provisions of title 52 of the Revised Statutes
which may be construed as exempting coastwise seagoing steam
vessels sailing under register whose officers have federal pilot's
licenses from any liability for pilotage fees created by sections
2468, 2466, and 2432 of the Political Code of the State of
California, upon the proper tender of services of resident bar
pilots of the state pilotage establishment, when entering or
leaving the port of San Francisco, State of California, under the
rule of construction laid down in the last sentence of section 51
of the Act of February 28, 1871, entitled, 'An Act to Provide
Page 225 U. S. 194
for the Better Security of Life on Board of Vessels Propelled in
Whole or in Part by Steam,' and as reenacted in section 4444 of the
Revised Statutes?"
"3. Did Congress intend to classify with the 'coastwise vessels'
referred to in the last proviso of section 51 of the Act of
February 28, 1871, entitled, 'An Act to Provide for the Better
Security of Life on Board of Vessels Propelled in Whole or in Part
by Steam,' and reenacted in section 4444 of the Revised Statutes,
registered steam vessels engaged in commerce with both foreign and
domestic ports on the same voyage?"
"4. Did Congress, in enacting the last proviso of section 51 of
the Act of February 28, 1871, reenacted in section 4444 of the
Revised Statutes, intend to exempt registered steam vessels whose
officers have federal pilot's licenses from any liability for
pilotage fees created by sections 2468, 2466, and 2432 of the
Political Code of the State of California upon proper tender of
services of resident bar pilots of the state pilotage establishment
on entering or leaving the port of San Francisco on regular voyages
on which they steamed to Victoria, British Columbia, and carried
cargo, mail, and passengers direct thereto and direct therefrom
when, after leaving Victoria, British Columbia, on the outward
voyage, they steamed to Puget Sound ports of the State of
Washington for which they had originally cleared, and returned
therefrom to Victoria, British Columbia when the stop at Victoria,
British Columbia, is for about an hour on each occasion, when at
least ninety (90) percent of the passenger and cargo traffic for
the outward and inward voyages is between the port of San Francisco
and the ports of Washington, and when the traffic with the foreign
port may be deemed en route between the domestic ports? "
Page 225 U. S. 195
MR. JUSTICE Hughes, after making the above statement, delivered
the opinion of the Court.
When the Constitution of the United States was adopted, each
state had its own regulations of pilotage. While this subject was
embraced within the grant of the power "to regulate commerce with
foreign nations and among the several states" (Art. I, § 8),
Congress did not supersede the state legislation, but by the Act of
August 7, 1789, c. 9, § 4 (1 Stat. 53, 54, R.S. § 4235),
it was enacted that
"all pilots in the bays, inlets, rivers, harbors, and ports of
the United States, shall continue to be regulated in conformity
with the existing laws of the states respectively wherein such
pilots may be, or with such laws as the states may respectively
hereafter enact for the purpose, until further legislative
provision shall be made by Congress."
This was
"a clear and authoritative declaration by the first Congress
that the nature of this subject is such that, until Congress should
find it necessary to exercise its power, it should be left to the
legislation of the states,"
and it has long been established by the decisions of this Court
that, although state laws concerning pilotage are regulations of
commerce, they fall within that class of powers which may be
exercised by the states until Congress shall see fit to act.
Cooley v. Board of
Wardens, 12 How. 299,
53 U. S. 319,
53 U. S. 321;
Steamship Company v.
Joliffe, 2 Wall. 450,
69 U. S. 459;
Ex Parte
McNiel, 13 Wall. 236,
80 U. S. 240;
Wilson v. McNamee, 102 U. S. 572;
Olsen v. Smith, 195 U. S. 332,
195 U. S. 341.
In 1837 (5 Stat. 153), it was provided that a master of a vessel
entering or leaving a port situate upon waters which are the
boundary between two states might employ a pilot licensed by either
state. There was no other federal legislation upon the subject of
pilots until 1852,
Page 225 U. S. 196
and thus "for more than sixty years" it was "acted on by the
states, and the systems of some of them created and of others
essentially modified during that period."
Cooley v. Board of
Wardens, supra, p.
53 U. S.
321.
The Act of August 30, 1852, c. 106 (10 Stat. 61), contained
provisions for the licensing of pilots of steam vessels (§ 9,
Ninth, id., 67). In
Steamship Company v.
Joliffe, 2 Wall. 450,
69 U. S. 459,
it was contended that the statute of the State of California of May
20, 1861, providing for port pilots at San Francisco was in
conflict with this act, but the Court took the contrary view,
holding that the federal law did not relate to port pilots. The
Court said (pp.
69 U. S.
460-461):
"The Act of 1852 was intended, as its title indicates, to
provide greater security than then existed for the lives of
passengers on board of vessels propelled in whole or part by steam.
. . . The act contains few provisions relating to pilots; indeed,
it was not directed to the remedy of any evils of the local pilot
system. There were no complaints against the port pilots; on the
contrary, they were the subjects of just praise for their skill,
energy, and efficiency. The clauses respecting pilots in the act
relate, in our judgment, to pilots having charge of steamers on the
voyage, and not to port pilots, and the provision that no person
shall be employed or serve as a pilot who is not licensed by the
inspectors has reference to employment and service on the voyage
generally, and not to employment and service in connection with
ports and harbors."
In 1866, Congress passed a more comprehensive statute, embracing
port pilotage (Act of July 25, 1866, c. 234, 14 Stat. 227). After
defining the vessels subject to the navigation laws of the United
States, it enacted (§ 9) that "every seagoing steam vessel" so
subject should,
"when under way, except upon the high seas, be under the control
and direction of pilots licensed by the inspectors of steam
vessels, vessels of other countries and public vessels of the
United States only excepted."
In the following
Page 225 U. S. 197
year, however, this section was amended by the addition of a
proviso that the act should not be construed to "annul or affect
any regulation established by the existing law of any state,
requiring vessels entering or leaving a port in such state" to take
a state pilot (Act of February 25, 1867, c. 83, 14 Stat. 411). The
existing state laws respecting port pilotage again became
operative.
Sturgis v. Spofford, 45 N.Y. 446, 451;
Henderson v. Spofford, 59 N.Y. 131, 133.
The Acts of 1852 and 1866 were repealed by the Act of February
28, 1871, c. 100 (16 Stat. 440), the provisions of which were
reenacted in Title 52 of the Revised Statutes. This act prescribes
general regulations with respect to the licensing of pilots of
steam vessels (§§ 14, 18; R.S. 4438, 4442), similar to
those of the Act of 1852. The requirements as to the port pilotage
of coastwise seagoing steam vessels were set forth in § 51, to
which reference is made in the questions propounded in the
certificate. This section was as follows:
"SEC. 51.
And be it further enacted that all coastwise
seagoing vessels, and vessel[s] navigating the Great Lakes shall be
subject to the navigation laws of the United States when navigating
within the jurisdiction thereof, and all vessels propelled in whole
or in part by steam, and navigating as aforesaid, shall be subject
to all the rules and regulations established in pursuance of law
for the government of steam vessels in passing, as provided by this
act, and every coastwise seagoing steam vessel subject to the
navigation laws of the United States, and to the rules and
regulations aforesaid, not sailing under register, shall when under
way, except on the high seas, be under the control and direction of
pilots licensed by the inspectors of steamboats. And no state or
municipal government shall impose upon pilots of steam vessels
herein provided for any obligation to procure a state or other
license in addition to that issued by the United States, nor
other
Page 225 U. S. 198
regulation which will impede such pilots in the performance of
their duties, as required by this act, nor shall any pilot charges
be levied by any such authority upon any steamer piloted as herein
provided, and in no case shall the fees charged for the pilotage of
any steam vessel exceed the customary or legally established rates
in the state where the same is performed:
Provided,
however, that nothing in this act shall be construed to annul
or affect any regulation established by the laws of any state
requiring vessels entering or leaving a port in any such state,
other than coastwise steam vessels, to take a pilot duly licensed
or authorized by the laws of such state, or of a state situate upon
the waters of such state."
These provisions were incorporated in §§ 4401 and 4444
of the Revised Statutes, which are still in force.
* The
Page 225 U. S. 199
change of arrangement which placed portions of what was
originally a single section in two separated sections cannot be
regarded as altering the scope and purpose of the enactment. For it
will not be inferred that Congress, in revising and consolidating
the laws, intended to change their effect unless such intention is
clearly expressed.
United States v. Ryder, 110 U.
S. 729,
110 U. S. 740;
United States v. LeBris, 121 U. S. 278,
121 U. S. 280;
Logan v. United States, 144 U. S. 263,
144 U. S. 302;
United States v. Mason, 218 U. S. 517,
218 U. S.
525.
It will be observed that the requirement of § 51 of the Act
of 1871 (R.S. § 4401), as to the piloting of coastwise
seagoing steam vessels, is limited and explicit. It is that
"every coastwise seagoing steam vessel subject to the navigation
laws of the United States and to the rules and regulations
aforesaid, not sailing under register, shall, when under way,
except on the high seas, be under the control and direction of
pilots licensed by the inspectors of steamboats."
This covers port pilotage, for it relates to such vessels "when
under way, except on the high seas," and it applies only to those
"
not sailing under register."
American vessels are of two classes -- those registered and
those enrolled and licensed.
"The purpose of a register is to declare the nationality of a
vessel engaged in trade with foreign nations, and to enable her to
assert that nationality wherever found. The purpose of an
enrollment is to evidence the national character of a vessel
engaged in the coasting trade or home traffic, and to enable such
vessel to procure a coasting license. The distinction between these
two classes of vessels is kept up throughout the legislation of
Congress on the subject, and the word 'register' is invariably used
in reference to the one class, and 'enrollment' in reference to the
other."
The Mohawk, 3
Wall. 566,
70 U. S. 571.
See Huus v. New York & Porto Rico Steamship Co.,
182 U. S. 392,
182 U. S. 395.
The Act of December 31, 1792 (1 Stat. 287, c. 1), applicable
exclusively to vessels engaged in foreign commerce and to their
Page 225 U. S. 200
registry, and the Act of February 18, 1793 (1 Stat. 305, c. 8),
relating to vessels engaged in the coasting trade and fisheries,
and to their enrollment, constituted the basis for the regulations
of the two classes. The latter act contained a provision (§
20,
id. 313; R.S. § 4361) that any registered vessel
when employed in going from one district in the United States to
any other district should "be subject (except as to the payment of
fees) to the same regulations, provisions, penalties, and
forfeitures" as those prescribed in the case of vessels licensed
for carrying on the coasting trade. This, however, had no reference
to pilotage, for Congress had not made regulations upon that
subject. In 1848 (Act of May 27, 1848, 9 Stat. 232, c. 48, R.S.
§ 3126), it was provided that any vessel, "on being duly
registered," might engage in trade between ports of the United
States,
"with the privilege of touching at one or more foreign ports
during the voyage, and land and take in thereat merchandise,
passengers and their baggage, and letters and mails."
Thus, at the time of the passage of the Act of 1871, there were
coastwise seagoing steam vessels sailing under register and having
this privilege of touching at foreign ports, and also coastwise
seagoing steam vessels which were enrolled and licensed, not
sailing under register. It was with respect to the vessels of the
latter sort that Congress imposed the requirement of § 51 to
use federal pilots. The reason for the distinction may be found in
the fact that the registered vessels, under the conditions of trade
then existing, would presumably be engaged in the longer voyages,
touching at foreign ports where federal pilots would not avail, and
at domestic ports, for all of which the ship's pilot might not hold
a federal license, and, as Congress did not create local federal
establishments for port pilotage, it was evidently deemed unwise to
compel registered vessels in entering and leaving ports to be under
the control of federal pilots. Certainly the distinction was made,
and
Page 225 U. S. 201
the necessary effect of the limitation of the requirement was to
exempt the coastwise seagoing steam vessels which did sail under
register from its terms.
As these registered vessels were free from this federal
regulation, they would be under no compulsion whatever as to port
pilotage save by virtue of the operation of state laws. And it is
an inevitable conclusion, on considering the prior history of
pilotage regulations in this country and the policy which has been
maintained with respect to the exercise of state authority, that,
as Congress did not see fit to require federal pilots, it left the
regulation of port pilotage as to such vessels to the states.
It is contended, however, that, although the employment of
federal pilots was not made compulsory for coastwise seagoing steam
vessels sailing under register in entering and leaving ports, still
they had an option to use such pilots, and if in fact such a vessel
was piloted by a federal pilot, she could not be required to take a
state pilot. The argument is based on the following provisions of
§ 51 (now found in R.S. § 4444):
"And no state or municipal government shall impose upon pilots
of steam vessels herein provided for any obligation to procure a
state or other license in addition to that issued by the United
States, nor other regulation which will impede such pilots in the
performance of their duties, as required by this act; nor shall any
pilot charges be levied by any such authority upon any steamer
piloted as herein provided. . . ."
This language gives no support to the contention. Wherever the
regulations of the statute applied, they were absolute. The "pilots
of steam vessels herein provided for" were those whom, under the
provisions of the statute, the vessels described were bound to use.
It was upon the pilots, whose use was made compulsory by the
federal law, that "no state or municipal government" was to impose
any obligation to procure a state or other
Page 225 U. S. 202
license, or any regulation which would impede them "in the
performance of their duties, as required by this act." The "steamer
piloted as herein provided" was the steamer required to be so
piloted, and it was upon such steamer that no pilot charges were to
be levied by state authority. The same construction must be given
to these provisions as reenacted in § 4444 of the Revised
Statutes, where the words "piloted as provided by this title" take
the place of the words "piloted as herein provided." The federal
requirement as to port pilotage of coastwise seagoing steam vessels
was applicable only to those "not sailing under register;" as to
those which sailed under register, there were no port pilots
provided for, and the regulation of pilotage in the case of such
vessels entering and leaving the state ports was left to the
states. The fact that a vessel of this sort had on board a pilot
holding a federal license when the services of such a pilot were
not required by the federal law did not oust the state of the power
to compel the use of a state pilot.
Nor was the proviso in § 51 of the Act of 1871 (now the
last sentence of R.S. § 4444) a restriction of this state
authority. This proviso was as follows:
"
Provided, however, that nothing in this act shall be
construed to annul or affect any regulation established by the laws
of any state requiring vessels entering or leaving a port in any
such state, other than coastwise steam vessels, to take a pilot
duly licensed or authorized by the laws of such state, or of a
state situate upon the waters of such state."
Manifestly, this did not enlarge the scope of the requirement as
to federal pilotage contained in the preceding portion of the
section. The words "other than coastwise steam vessels" did not
mean that the state could not require port pilots for coastwise
seagoing steam vessels sailing under register. For this would be to
impute to Congress the intent to withdraw from the state the power
to
Page 225 U. S. 203
act in the cases omitted from federal regulation. Even on the
construction of the statute for which the appellees contend, it is
conceded that
"a coastwise steam vessel sailing under register which is not
piloted by a federal pilot may be compelled by the state to take a
state pilot when entering or leaving port."
And if in any case the vessel might be forced to take a pilot
under the state law, it would necessarily follow that it is not
excluded by the proviso from the operation of that law. The natural
interpretation of the proviso is that it was intended to prevent
misapprehension as to interference with local rules -- to declare
the continued efficacy of those rules when not in conflict with the
federal authority -- and not to introduce an independent limitation
of state power over port pilotage with respect to registered steam
vessels, where the federal control had not been asserted. The
enacting clause and the proviso are to be read together "with a
view to carry into effect the whole purpose of the law."
White
v. United States, 191 U. S. 545,
191 U. S. 551.
So read, the words "other than coastwise steam vessels" must be
deemed to refer to those "not sailing under register," to which the
requirement of federal pilots applied. The same meaning must be
ascribed to this clause as it now appears in § 4444 of the
Revised Statutes, taken, as it must be, in connection with §
4401.
The statute was thus construed in
Murray v. Clark
(1873), 4 Daly, 468,
aff'd, 58 N.Y. 684, where a steamer
sailing under register between New York and New Orleans, and
touching at a foreign port, as was her privilege, was held to be
subject to the law of the State of New York as to pilotage in
entering the port of New York, although at the time she was under
the control of her master, who was a pilot licensed by the federal
inspectors. In
Joslyn v. Nickerson (1880), 1 F. 133, while
it was held that a libel for pilotage could not be sustained, for
the reason that the law of Massachusetts
Page 225 U. S. 204
in question was not, by its terms, applicable, Judge Lowell said
(page 135):
"This statute [referring to the federal Act of 1866] has been
modified, and the employment of such a pilot is now compulsory only
upon coasting steam vessels not sailing under a register. Rev.Stat.
§ 4401.
Murray v. Clark, 4 Daly 468,
aff'd,
58 N.Y. 684. This vessel therefore was not bound to carry such a
pilot, and was bound by any law of Massachusetts which might
require her to take a local pilot. R.S. § 4444."
In
Spraigue v. Thompson, 118 U. S.
90,
118 U. S. 96,
where a claim for pilotage under the law of Georgia was disallowed,
the steamer "was a coastwise seagoing steam vessel," and "was not
sailing under register." In
Huus v. New York & Porto Rico
Steamship Co., 182 U. S. 392,
182 U. S. 394,
after quoting from §§ 4401 and 4444 of the Revised
Statutes, the Court said:
"The general object of these provisions seems to be to license
pilots upon steam vessels engaged in the coastwise or interior
commerce of the country, and at the same time to leave to the
states the regulation of pilots upon all vessels engaged in foreign
commerce."
There, the steamer was enrolled and licensed for the coasting
trade under the laws of the United States, and was engaged in trade
between Porto Rico and New York after the treaty of cession. It was
held that she was not within the pilotage laws of New York.
The provisions of the Political Code of the State of California
set forth in the certificate do not apply to coastwise seagoing
steam vessels "not sailing under register," and are not in conflict
with the statutes of the United States. Their enforcement is simply
a recognition of the limits which Congress has thus far set to the
exercise of the unquestioned federal power. The criterion is not
whether the stops of registered vessels at foreign ports may be
deemed en route between domestic ports, and is not to be found in
the length of such stops or in the relative amount of foreign
trade. The statute made the distinction,
Page 225 U. S. 205
in the light of the well known conditions of trade which existed
at the time of its enactment, between coastwise seagoing steam
vessels, not sailing under register, and those which did sail under
register. Whether or not it is wise to establish federal rules as
to port pilotage for the registered vessels exempted from this
regulation is a question for Congress to determine.
We conclude that each one of the questions certified should be
answered in the negative.
It is so ordered.
*
"SEC. 4401. All coastwise seagoing vessels, and vessels
navigating the Great Lakes shall be subject to the navigation laws
of the United States, when navigating within the jurisdiction
thereof, and all vessels, propelled in whole or in part by steam,
and navigating as aforesaid, shall be subject to all the rules and
regulations established in pursuance of law for the government of
steam vessels in passing, as provided by this title, and every
coastwise seagoing steam vessel subject to the navigation laws of
the United States, and to the rules and regulations aforesaid, not
sailing under register, shall, when under way, except on the high
seas, be under the control and direction of pilots licensed by the
inspectors of steamboats."
"SEC. 4444. No state or municipal government shall impose upon
pilots of steam vessels any obligation to procure a state or other
license in addition to that issued by the United States, or any
other regulation which will impede such pilots in the performance
of the duties required by this title; nor shall any pilot charges
be levied by any such authority upon any steamer piloted as
provided by this title, and in no case shall the fees charged for
the pilotage of any steam vessel exceed the customary or legally
established rates in the state where the same is performed. Nothing
in this title shall be construed to annul or affect any regulation
established by the laws of any state requiring vessels entering or
leaving a port in any such state, other than coastwise steam
vessels, to take a pilot duly licensed or authorized by the laws of
such state, or of a state situate upon the waters of such
state."
