Richard Brown, Appellant, v. James W. Elwell et al., Respondents

Richard Brown, Appellant, v. James W. Elwell et al., Respondents. (Argued February 23, 1875; decided March 23, 1875.) In the provision of the pilotage act (§ 39, chap. 469, Laws of 1853, as amended by chap. 243, Laws of 1857), which requires the masters of vessels sailing under register to or from the port of New York, by way of Sandy Hook, to take a “licensed pilot,” or in case of refusal to pay pilotage, the words “ licensed pilot ” include only those deriving their authority from the appointment of the board of commissioners established by the act, and no others are entitled to claim the benefit of said provision. Accordingly held, that a pilot, licensed under the laws of New Jersey, who first spoke a vessel off Sandy Hook, and whose offered services were refused, could not maintain an action under said provision. It seems, that in view of the act of Congress of 1837 (5 U. S. Stat. at Large, 153), providing that the master of a vessel coming in or going out of a port situate upon waters which are the boundary between two States may employ any pilot licensed by the laws of either, a vessel in charge of a New Jersey pilot is not required to take a New York pilot, and is exempted from the penalty imposed by said provision. Appeal from judgment of the Court of Common Pleas for the city and county of New York, affirming a judgment of the District Court of the city of New York for the first judicial district, entered upon an order sustaining a demurrer to plaintiff’s complaint. This action was brought to recover pilotage fees under section 29 of the pilotage act. (Chap 469, Laws of 1853, as amended by chap. 243, Laws of 1857.) The complaint alleged that plaintiff was a pilot duly licensed by and under the laws of New Jersey; that on the 8th February, 1874, he first spoke at sea, off Sandy Hook, defendants’ vessel “ Live Oak,” a vessel from a foreign port, sailing under register to the port of New York, and offered his services to the master, which were refused. Defendants demurred on the ground, among others, that plaintiff had not a legal capacity to sue, not being a pilot licensed under the laws of the State of New York, and that the complaint did not state facts constituting a cause of action. Thos. B. Odell for the appellant. Congress has power to regulate commerce among the several States. (Cooley v. Bd. Pt. Wardens of Phila., 12 How. [U. S.], 299;,1 U. S. Stat. at Large, 54; 5 id., 153.) Congress having left to the States the power of regulating pilotage, the regulations of the States must be considered in connection with the legislation of Congress as regulations of commerce and as applicable to all licensed pilots. (1 U. S. Stat. at Large, 53; 5 id., 153; 1 S. L., 1857, 502; People v. Sperry, 50 Barb., 179.) The claim for spoken pilotage is not a penalty imposed by statute, but a compensation due upon an implied contract. (Ex parte McNeil, 13 Wall., 236; Stshp. Co. v. Joliffe, 2 id., 451; Cooley v. Bd. Pt. Wardens Phila., 12 How. [U. S.], 312; Comm. v. Ricketson, 5 Metc., 419.) The State laws in regard to pilotage are to be liberally and beneficially construed for .the benefit of the pilots. (Smith v. Swift, 8 Metc., 332; Gillespie v. Winberg, 4 Daly, 325.) Saml. H. Valentine for the respondents. A pilot licensed under the laws of New Jersey cannot sue for and recover pilotage under the laws of New York. (Hopkins v. Wyckoff, 1 Daly, 176.) [MAJORITY — Andrews, J.] Andrews, J. This action is brought by the plaintiff, a pilot licensed under the laws of the State of Hew Jersey, to recover of the defendant, the master and consignee of the bark “ Live Oak,” pilotage given by the twenty-ninth section of chapter 469, of the Laws of 1853, entitled “ An act to provide for the licensing and government of pilots, and regulating pilotage of the port of New York,” as amended by chapter 243 of the Laws of 1857, upon the ground that the plaintiff on the 8th of February, 1874, at sea off Sandy Hook, first spoke the “Live Oak,” a vessel from a foreign port, sailing under register and bound to the port of New York, and offered his services to the master as pilot, which were refused. That section provides: “ That all masters of foreign vessels, and vessels from a foreign port, and all vessels sailing under register, bound to or from the port of New Fork by way of Sandy Hook, shall take a licensed pilot; or in case óf refusal to take such pilot shall himself, owners or consignees, pay the said pilotage as if one had been employed; and such pilotage shall be paid to the pilot first speaking or offering, his services as pilot to such vessel.” The question upon which the right to recover depends, is whether the phrase licensed ¡pilot in this section includes a New Jersey pilot, or such pilots only as are licensed under the provisions of the act. The act, as the title indicates, relates to pilots of the port of New York. It establishes a “ Board of Commissioners of Pilots,” with authority to license pilots for that port, under the restriction that no license shall be granted to any person holding any license or authority from any other State. It authorizes the commissioners to make rules and regulations for the government of the pilots thus licensed; to revoke licenses granted ; to declare and enforce forfeitures and penalties for direlection of duty, and establishes the fees for pilotage to be allowed to the pilots appointed by the board. The act does not purport to confer jurisdiction upon the commissioners over pilots appointed by the authority of any other State; and so far as it confers rights or imposes duties or obligations upon pilots, it plainly relates to pilots licensed by the board, unless the provision in question is an exception. In view of the general purpose of the act, and of the fact that the pilotage fees given by the thirty-ninth section are such as are by the previous section given to pilots licensed by the commissioners, we think that the words licensed pilots in the thirty-ninth section was intended to designate pilots who derive their authority from the appointment of the commissioners, and that no others are entitled to claim the benefit of that section. By the act of Congress of March 2,1837 (5 Stat. at L., 153), it is provided that the master of any vessel coming into or going out of any port, situate upon waters which are the boundary between any two States, may employ any pilot licensed or authorized by the laws of either, and that part of the thirty-ninth section of our statute, which makes it the duty of a master to take a licensed pilot—meaning, as we construe it, a pilot appointed by the board of commissioners of pilots—and imposing a penalty for a refusal, must, in view of the act of Congress, be read as if the case was excepted of a vessel in charge of a New Jersey pilot, when spoken by a pilot appointed under the act of 1853. The judgment should be affirmed with costs. All concur. Judgment affirmed.