Edwards v. Steamship Panama

18 F. Cas. 1068, 1 Deady 27, 1 Or. 418

• Court: District Court, D. Oregon
• Decided: September 15, 1861
• Status: Published

Opinion

Deady, J.

The libel in this cause was filed on the 27th of March, 1861, and, after the formal allegations, avers that the libellant, on the 17th of March, 1861, and thereafter, was a duly licensed pilot, for the Columbia Elver bar, according to the laws of Oregon, and attached to the pilot-boat California, on said bar. That on the said 17th day of March, the libellant boarded the said steamship Panama “just outside” said bar, and offered his services as pilot to conduct said steamer over said bar to the port of Astoria, in' Oregon. That the said steamship at the time was bound in, and the said libellant was the only duly authorized pilot on board said steamship on the said day, and the first pilot who offered his services to her that day outside the bar.

That on the 22d of March, in the year aforesaid, the said steamship being bound outward, the said libellant hailed said steamship at the port of Astoria, and offered his services to conduct said steamship as pilot, across said bar to the sea. That libellant was the first pilot who offered his services to said steamship on said “ occasion,” and that there was no pilot on said steamship “ at the time.” That said steamship, when inward bound, on said 17th of March, drew fourteen feet of water,, and that libellant is entitled to full pilotage therefor, the same being twelve dollars per foot, in all, the sum of $168. That when outward bound, on the said 22d of March, she drew thirteen feet of water, and that libellant is entitled to half pilotage therefor, the same being six dollars per foot, in all, the sum of $78. That said sums of money remain due and unpaid to libellant.

Upon the Sling of the libel, process was issued upon which the steamship was arrested, and on the same day she was discharged, on the stipulation of John H. Couch and C. H. Lewis. Afterwards, on May the first, of the year aforesaid, Benjamin Halladay and E. Flint filed a claim and answer as owners of said steamship, and admit the allegations of the libel, except as follows: They deny that the libellant “ was duly authorized according to law, that is, according to the laws of the State of Oregon and the statutes of the United States, in such case made and provided, to pilot ocean-going steamships carrying passengers. They deny that the libellant was the first pilot who offered his services to said steamship on the 17th day of March, or on the 22d day of March aforesaid, and therefore that the libellant is not entitled to receive the said sums of money for pilotage. The answer then avers, “ that at the time the libellant boarded the steamship outside the bar, Moses Bogers, a pilot duly authorized and licensed, in accordance with the statutes of the United States as first pilot on steamboats, to pilot steamboats carrying passengers on the waters of the Columbia bar, coast and Puget Sound, and to San Francisco, California, was on board the said steamship Panama, and had charge and control of her as pilot,” and “ that said Moses Bogers did pilot said ship on the above occasion, from the high sea over the Columbia bar to the port of Astoria.” That at the date aforesaid, said “ Bogers was a duly licensed bar pilot, according to the laws of the territory of Washington,” regulating “pilotage on the Columbia Biver bar and Shoalwater Bay, passed February 28th, 1854.” That on the 22d of March, 1861, said “ Moses Bogers was the first duly authorized and licensed pilot according to law, to take charge of and pilot an ocean-going steamboat carrying passengers, who offered his services to the master of the Panama, and that said Bogers did on that day go on hoard of said steamship, take charge of, and pilot her •across the bar to sea.” That said vessel is an ocean-going ¡steamship, propelled, in whole or in part, by steam; and that •on the said 17th and 22d of March, the said steamship was prosecuting a voyage from the port of San Francisco to the port of Portland, and that on such voyage she was employed in carrying freight and passengers.

On the first of July thereafter, the libellant filed an amended libel, and admits that on the said 17th of March said Rogers, “ a person pretending to be a duly authorized pilot, was on board said steamship Panama,” and piloted her across the bar to the port of Astoria, but avers that libellant offered his services before Rogers did. Admits the same as to the voyage out on the 22d of March, and avers that libellant “ hailed the said steamship, and offered his services as pilot,” before Rogers did. That said Rogers pretends to be an authorized pilot by virtue of a license from one Pitfield, “ a person pretending to be a supervising inspector of the fourth district of the "United States.” That “ if said license is genuine,” it does not authorize said Rogers to pilot steamships over the Columbia River bar. Admits that Rogers, at the dates aforesaid, had a license as pilot on the Columbia River bar from the board of pilot commissioners of "Washington Territory, by virtue of the said act of 1854, of said territory; hut avers that Rogers never performed the conditions imposed by said law, and on that account said license never toot effect. That said act of 1854 has long since been repealed, and that all licenses issued under it became void on such repeal. Admits that the steamship Panama is an ocean-going vessel, propelled, in whole or in part, by steam, engaged at the dates aforesaid in carrying freight and passengers between San Francisco and Portland, and avers that she also sails to the port of Yietoria, in British Columbia, and that she was regisas a “ vessel trading to and with a foreign port.”

From the evidence, it appears that the libellant was constituted a bar pilot of the Columbia River bar, under a law of the State of Oregon, “approved October 17th, 1860,” by a warrant from the “hoard of pilot commissioners,” bearing date January 22d, 1861. That Moses Rogers was constituted a bar pilot of the Columbia River bar under a law of Washington Territory, passed February 28th, 1854, by a warrant of the “ board of pilot commissioners ” of that territory, bearing date “ January 13th, 1860.” In the argument for libellant it is contended, that this warrant is without legal effect, because it is said that Rogers did not give bond, or keep a suitable boat on the bar. Rogers is not a party to this suit, and the steamship cannot be held liable for any want of authority on his part as pilot, which is not apparent. The exhibition of his warrant entitled him to be treated, and requires the ship to receive him, as prima faoie a pilot. By the law of Washington Territory he “ is authorized to take charge of any vessel requiring his services, but shall first show the master his warrant.” "Upon the production of the warrant by Rogers the master had a right to presume that the conditions of his appointment (if any were made) had been complied with to the satisfaction of the commissioners, who, by law, have complete control of the subject, and may suspend or remove any pilot, “ and appoint another in his place.” It is true, that the law of 1854 requires a pilot, “ before entering upon the duties of his oifice, to give bond to the commissioners.” But it does not require, or allow, that he shall keep the bond to exhibit, or that the warrant shall show upon its face that the bond is given. The law does not expressly say that the bond shall be given before the warrant issues, or at the time; but it is fair to presume that it so intends, and the commissioners who take the bond would require that it be so done. Besides, the pleadings, on the part of the libellant, do not allege any specific condition or act that Rogers failed to perform. The amended libel avers, that the libellant “is informed and believes said Rogers never fulfilled the conditions imposed by said law, and upon the fulfilment of which said license was to take effect.” This allegation is altogether too indefinite, and uncertain to put the claimants upon the proof of any thing in relation to such conditions. The amended libel also alleges, that the pilot act of Washington Territory of 1854 “ has long since been repealed,” and that said warrant, on that account, “ is now utterly void, and of no effect.” The fact appears to be, that on January 31st, 1861, the fourth section of the act of 1854 was repealed, and another section enacted in its place, requiring each pilot to keep a boat on the bar “ of not less than fifty tons burden,” while the fourth section of the act of 1854 only required the pilot to keep such boat “ as the commissioners might approve.” This was no repeal of the law as such, and in no way makes the warrant before granted to Rogers “ void, and of no effect.” It only imposed a fixed rule on the pilot in relation to the kind of boat he should keep, instead of leaving it to the discretion of the commissioners as before. But it is further insisted, on the part of the libellant, that a territory has no authority to pass pilot laws, and that the warrant to Rogers is invalid on that account. The argument proceeds upon the assumption that the act of Congress, August 7th, 1789, grants the power to States to pass pilot laws, and that as territories are not included in the word States, they have no power to legislate on the subject. Admitting this position, for the sake of the argument, I do not think the conclusion follows. The power to govern the territories subject to the constitution is in Congress. It may do it mediately or immediately; either by the creation of a territorial government, with power to legislate for the territory, subject to such limitations and restraints as Congress may impose upon it, or by the passage of laws directly operating upon the territory without the intervention of the subordinate government. The act organizing a government for Washington Territory declares, that “ the legislative power of the territory shall extend to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States.” A rightful subject of legislation is a subject which, from the nature of things, the course of experience, and the genius of our government, properly belongs to the legislation to regulate and control, as distinguished from those subjects which properly pertain to the judicial and executive departments of the government. Rilots and pilotage are as peculiarly the subjects of legislation, and have been from their earliest history, as any subject ever embraced in the laws of a territory. Unless Congress has specially prohibited the territory from the passage of such laws, it may pass them under that grant of power. No such prohibition is shown or pointed out, nor can it be. But the act of 1789 was not á grant of power from Congress to the States to legislate on the subject of pilots and pilotage. The power is concurrent in the State and Federal government until exercised by the latter, and thén, and to the extent exercised, it becomes exclusive. If the power was exclusively in the Federal government, Congress could not grant it to the States, and being concurrent, there is no need of it. Accordingly, it has been substantially, held, that the act of 1789 is a mere legislative recognition of the concurrent power of the State. (Cooley v. Board of Wardens, 12 How. 299.) The warrant of Rogers is further objected to, because it is headed, “ Temporary.” The word is superfluous; but if it have any legal effect, it is the same that the law would attach to the warrant without it, that is, that the party held it during the pleasure of the commissioners.- It has nevér been revoked as far as appears.

I conclude, from these premises, that the pilot laws of Washington Territory are valid and binding, and that Moses Rogers was a duly authorized pilot for the Columbia bar, on the 17th of March, 1861, when the libellant boarded the Panama. By the law of Oregon, the first pilot that “ offers his services outside of the bar” to a vessel bound inward is entitled to full pilotage, whether his services are accepted or not, and to one bound outward, half pilotage. Did the libellant or Rogers first offer his services on the 17 th of March? It is substantially admitted by the pleadings that the libellant was the first pilot that boarded the Panama outside the bar, and from the evidence, it satisfactorily appears that Rogers was on board at the time, hired by the month, to run on board as pilot between the ports of San Francisco and Portland, and that he brought the steamship over the bar as pilot on the occasion in question. Under these circumstances, is Rogers to be considered as a bar pilot, tendering his services to the Panama before the libellant. I think while Rogers holds the warrant, in a suit between third persons, he must be considered. If be were a party to the suit claiming compensation as pilot, it might possibly be shown that he does not remain on the bar and cruise for vessels, with a sufficient boat, &e. But even then the rule would be of doubtful propriety. The legislature has confided the administration of the law in these matters to the commissioners. "Whenever they are satisfied that the pilot is evading the law, and using his authority to the detriment of the pilot service, they can and should remove him. This conclusion renders it unnecessary to consider whether the act of Congress of the 2d of March, 1837, applies to this case. By that act, the master of a vessel is authorized, upon waters that form the common boundary between two States, to take a pilot from either; and in that case, he is not bound to take the first pilot that offers, but may take one authorized by the other State, although he offer his service's subsequently. Whether the word State, as used in the statute, should be construed to include a territory, is not free from doubt. The case is certainly within the mischief intended to be remedied by that act, and, I can conceive, might, without any violation of principle, be hold within its purview. But waiving this question, the libellant not being the first pilot to offer his services to the Panama, as she was bound inward, as he alleges in his libel, is, therefore, not entitled to recover any thing on that account.

The next question is, the claim of the libellant for half pilotage on the outward-bound voyage. I find from the evidence, that on the 22d of March, between upper and lower Astoria, and below the custom-house, as the Panama was proceeding to sea, the libellant rowed out into 'the stream, hailed the Panama, and offered his services as pilot. That the master of the Panama paid no attention to him, but proceeded with the vessel some three or four hundred yards down the stream, and opposite the wharf at lower Astoria. There the vessel was stopped, and Sogers, who appears to have been on the shore waiting for the vessel, came on board immediately, and took charge of her as pilot, and took her out to sea. This all occurred on what is understood among navigators, who frequent the harbor, as pilot-ground. It does not appear that the boundaries or limits of the pilot-ground have ever been defined by any authority, and are only known from usage. As a question of fact, I find that the libellant first offered his services, and, as between himself and Rogers, considered as a Washington Territory pilot, was entitled to be employed, or paid half pilotage. But it further appears from the evidence and the admission of the pleadings, that Moses Rogers was duly licensed as a first class pilot of steamboats on the 3d day of July, A. D. 1860, under the act of Congress, “approved August 30, 1852,” by “O. A. Pitfield, supervising inspector for the fourth supervising district.” This license, by the provisions of the law and its own terms, is to continue one year from its date. It is admitted by the pleadings, that the Panama is a steamship engaged in carrying passengers, and this brings her within the description or class of vessels provided for in the act of Congress, entitled “ An aet to provide for the better security of the lives of passengers of vessels, propelled, in whole or in part, by steam.” “Approved July 7, 1838,” and the “ Act to modify” the same, “approved March 3, 1843,” and the aet amendatory thereof, entitled, “ An aet to amend an aet, entitled an act to provide for the better security of the lives of passengers on board of vessels, propelled, in whole or in part, by steam, and for other purposes.” The aet of 1838 provides for the inspection of hulls and boilers. The act of 1843 provides, in addition, that such vessels shall be provided with means of steering that may be available in cases of fire. The act of 1852 completely supplies the provisions of both acts on these subjects, and then provides for thé “ other purposes” suggested in the title of the act. Among these appear to be the employment of engineers and pilots on board of such vessels, “ instead of the present system of pilotage and mode of employing engineers.” The act provides for a board of inspectors who shall examine, classify and license accordingly, “ all engineers and pilots of steamers carrying passengers.”

That “ it shall be unlawful for any person to employ, or any person to serve, as engineer or pilot on any such vessel, who is not licensed by the inspectors; and any one so offending shall forfeit one hundred dollars for each offence.” For the libellant, it is contended, that Congress did not intend, by the provisions of this act, to supersede the existing State laws on the subject of pilotage; because, it is said, the act does not expressly so declare; because of the inconvenience that would result from such construction; and, because it being eminently proper and necessary that the States should control this subject themselves, it is not to be supposed that Congress would interfere with it.

The constitution gives Congress power to regulate commerce. {Art. I., seo. 8.) This includes the power to regulate navigation, and pilot laws are regulations of navigation. In the case of Cooley v. Board of Wardens, 12 How. 315-16, the Supreme Court says : “ That the power to regulate commerce includes the regulation of navigation, we consider settled. And when we loot to the nature of the service performed by pilots, to the relation which that service and its compensations bear to navigation between the several States, and between the ports of the United States and foreign countries, we are brought to the conclusion, that the regulation of the qualification of pilots, of the modes and times of offering and rendering their services, of the responsibilities which shall rest upon them, of the powers they shall possess, of the compensation they may demand, and of the penalties by which their rights and duties may be enforced, do constitute regulations of navigation, and consequently of commerce, within the just meaning of this clause of the constitution.” The power of Congress in the premises cannot be questioned. As to its intent, there is no limitation in the words of the act. It speaks of all “ such vessels,” wherever they may be, whether upon bars, bays, rivers or inlets. As to the argument from inconvenience and the impropriety of superseding the State laws, I cannot agree with it. The acts of Congress within its power are not to be restrained in their import, or limited in their operation, because it can be supposed or shown that some State law is thereby rendered inoperative, or that the State prefers some other system, which she thinks preferable. The law of Congress is paramount, and all State legislation which is inconsistent with its terms, liberally and fairly construed, must yield to it. Nor is it true that there is any presumption in favor of the State law and against the law of Congress, which, in doubtful cases, would determine the question in favor of the State law. But on the contrary, where, as in this case, the power is primarily and inherently in Congress, and is only allowed to the State by the sufferance of Congress, the presumption should be the other way. The wisdom of the law was a question for Congress, and not for the court or the State, to determine. I think the act intended just what it says, “ to change the system of pilotage for vessels spoken of, so that instead of the present system, the following regulations shall be observed.” That is, one to take the place of the other. What was the present system at the date of the law ? It was the pilot laws of the States regulating pilots and pilotage upon the bays, lakes and rivers within their several jurisdiction. It did not extend to the high seas. This was the system which the regulations of the act of 1852 as to steamboats were to be “ instead” of, that is, in lieu of, to take the place of. Is the Columbia River bar exempted in any way from the operation of these general words ? If so, I cannot see it. The new regulations are to take the place of the then existing system throughout the United States. Because the State has a systém of pilotage there with which this “ regulation” interferes, so far as steam-vessels are concerned, is no reason why the bar should be exempt from the law. If it were, the proposition would be reversed, and the act of 1852 should read, the “following regulations” shall be observed, instead of the present system, (that is, State pilot laws,) only where the present system does not exist. There can be no question but that the act of 1852 applies to the whole route, and every part of it. It is made a crime for the master of any such vessel to employ any one as a pilot unless licensed by the United States inspectors, or for any one not having such a license to be so employed. ITor tbe greater security of life, it seems to have been the intention of. Congress to no longer leave tbe subject to tbe conflicting, contradictory and inefficient legislation of tbe several States, but to provide a uniform authority for examining and licensing steamboat pilots; men wbo were not merely acquainted witb tbe channels, rocks and shoals of a particular route, but wbo were well acquainted witb tbe machinery, motion and motive power of steam-vessels, and knew bow to control them and guide them under any and all emergencies. A bar pilot may be a good seaman, and intimately acquainted witb tbe currents, tides and shoals of a particular pilotage ground, but this alone does not render him a competent or safe person to take charge of a vessel propelled by steam. Again, tbe difficulty suggested by counsel for libellant, that pilots licensed by tbe inspectors might be ignorant of tbe channels on particular pilot grounds, is possible, but not very probable. Tbe inspectors are to inquire diligently into tbe qualification of tbe applicant, and may call third persons before them as witnesses. The inspectors are appointed for collection districts, and their licenses are for routes within that district, where they may reasonably be supposed to have as much local knowledge and means of information as a board of pilot commissioners of tbe State. No inspectors have been appointed for this State, and tbe duty has devolved upon tbe supervising inspector living upon tbe Atlantic coast. Under this state of things, it is not to be expected that tbe law would be very thoroughly administered in the examination of pilots and engineers; but doubtless. Congress will provide for inspectors in this collection district, and that difficulty will be obviated. Tbe law only so far abrogates tbe State law as to require that a steam-vessel carrying passengers shall have a pilot licensed by its authority, and to prohibit any pilot without such license from serving as pilot on such vessel. Tbe compensation of pilots, tbe mode and manner of offering their services, until Congress sees proper to provide for them, still remain legitimate subjects of State legislation. The bar pilot, licensed by tbe State, may apply to the United States inspectors for license to pilot steam-vessels, and, if found competent, and licensed, [may pilot such vessel. The libellant, then, although he first offered his services to the Panama, as she was outward bound, is not entitled to recover his claim of half-pilotage. The law of the State under which he claims, as to the Panama, was void. He was prohibited, under a penalty of one hundred dollars, from being employed on the Panama as pilot, and the master in the like sum from employing. The decree of the court will be, that the libel be dismissed, and that claimants recover of the libellant and his sureties their costs.

G. EL. Cartter, for libellant. D. Logan, for claimants.