Flanigen v. Washington Insurance

7 Pa. 306, 1847 Pa. LEXIS 267

Opinion

Rogers, J.

(after stating the pleadings.) — In support of the judgment it is necessary to show that the act of the 29th March, 1803, on which the question turns, is imperative, that every ship or vessel arriving from or bound to any foreign port or place, and every ship or vessel of the burden of seventy-’ five tons, or more, sailing from or bound to any port not within the river Delaware, shall be obliged to receive a pilot; that the part of the 29th section which provides that when the master of the vessel shall refuse or neglect to take a pilot, the master, owner, or consignee, shall forfeit and pay to the warden, a sum equal to half pilotage, to the use of the society for the relief of distressed and decayedpilots, their widows and children, operates as a penalty, intended for no other object than to enforce the employment of pilots on the navigation of the bay and river. In this view of the act, it is contended that a statutory seaworthiness is created, and secondly, that an omission to comply with the act, in this respect, renders the voyage illegal, and consequently, on both grounds the policy is avoided.. The learned judge repudiates the latter, and bases his opinion on the first ground. The objections to the plea are twofold ; one as to the form, the other goes to the substance. The plea is drawn with an eye to the legislation of this state, the act of 1803, which undoubtedly proceeds on the supposition that they had the exclusive control over every question pertaining to the navigation of the bay and river Delaware. It refers alone to pilots licensed by the authority of this state. And in this view of the case, no doubt the plea is good. But this is a pretension founded in error, and is subsequently corrected by the act of Congress, of the 3‘d of March, 1837, (4 Story’s Laws, 2536,) which provides that it shall and may be lawful for the master or commander of any vessel coming into or going out of any port situate upon waters which are the boundaries between two states, to employ any pilot duly licensed or authorized by the laws of either of the states bounded on the said waters, to pilot said vessel to and from said port, any law, usage, or custom to the contrary, notwithstanding. That the subject of pilotage in bays and rivers bounded by two states is within the constitutional power of the federal government, cannot, I think, admit of doubt. In this view, therefore, of the act of Congress, the plea would be bad, as undoubtedly, if the fact was that the vessel received a pilot from either of those states which bound the waters of the Delaware, no penalty can be inflicted under the laws of Pennsylvania. What, then, is the effect of the act of Congress ? Does it repeal the act, or does it excuse its violation, as the court supposes, in a single case ? Can this court judicially take notice that there are any laws upon the subject in the states of New Jersey and Delaware ? Is it true that the plaintiff is bound to set up this excuse, if, in point of fact, he can maintain such a plea ? As a general principle, I freely admit that the laws, even of a sister state, must be proved as facts, and that we cannot judicially take notice of their existence; but I am strongly inclined . to the opinion that the rule is not applicable to this case. We judicially know that the waters of the Delaware river and bay are bounded at least by three states.

We also know that the Congress of the United States have legislated on this subject, and have, in effect, incorporated into their act, (the act of the 2d March, 1837,) the regulations of the states of Pennsylvania, New Jersey, and Delaware. It is understood that the act of Congress grew out of a dispute between the states of New York and New Jersey, as to the employment of pilots, the former asserting a right to prescribe that none but pilots licensed by their law should be employed in navigating vessels bound to their port. I am at a loss for a reason why we are not bound to notice the acts of the respective legislatures in the same manner as if incorporated, verbatim et literatim, into the body of the act. Under the act of Congress, they form parts of one system, incon-' gruous, it may be, in some of its enactments, but perhaps not more so than we sometimes find in acts of the legislature, confessedly local, and confined exclusively to the bounds of the state. If this view of the case be correct, the plea is bad, because the pleader should have averred that the vessel sailed on her voyage without •.having a pilot, &e., in accordance with the act of Congress, and the acts of Assembly of tbe several states of Pennsylvania, New Jersey, and Delaware. But this is a matter relating to the form of pleading, and touches the principal point only so far as it sheds some light on the principal question. It enables us to decide whether it was the intention of the respective legislatures to make it imperative on the owner of the ship or vessel, in the cases specified, to employ a pilot. The main question is, is it absolutely enjoined, undermuq^nalty, or has the owner the choice of employing a pilot, or paying halfpilotage, when he deems one unnecessary, the master of the vessel being selected for his skill, and fully competent, in his judgment, to navigate the waters of the bay and river. The question thus presented is one of some interest to the commerce of this port. The act, it is true, in 'its terms, seems to justify the position assumed by the learned judge, for in the 29th section of the act of 11808, on Avhich his decision is based, the legislature say, that every ship or vessel, &c., shall be obliged to receive a pilot; and in the subsequent part of the same section, they speak of half-pilotage as a penalty. But in the construction of this act, we must avoid laying too much stress on particular expressions. An eye must be had to the general intent, as evinced in its whole tenor. If Ave give the section a literal construction, every vessel above the burden of seventy-five tons is obliged to employ a pilot, even when trading between the city of Philadelphia and any port within the Capes, on the Delaware Bay. But this surely never entered into the contemplation of the legislature, as it would put an end to business in vessels of that description, of which a great number are constantly employed, very much to the advantage of this domestic and gainful commerce. It is very evident, from a glance at the act, Avkick is too long to be noticed in detail, connected AYitk the knowledge Ave have of its history, and subsequent legislation, there has been a conflict of interests between the owners of ships and vessels employed in the foreign and coasting trade, and particularly the latter, on this subject,- one contending for, and the other against, the compulsory employment of pilots in the navigation of these waters. This difference has resulted in a compromise. The legislature have Avisely decided not to compel the owners to employ one, but have permitted them, if they please, to compound by paying half-pilotage, for the benevolent and beneficial purpose of relieving distressed and decayed pilots, their widoAVS and children. The act sets out an induce- ' ment to avail themselves of their services, but does not compel them to do so. This construction of the act is reasonable and just. The legislature had two objects in view, the encouragement of that meritorious and patriotic class of men, by employment im tbeir profession, and when that cannot be accomplished, by providing a fund, at the expense of the owners, for the support of themselves, their widows and families, when, either from age or disease, they may need assistance. It is just as to the owners, whose interest it is to encourage a race of men surrounded by peril and hardship, and who contribute so much to the security of life and property, in' the intricate navigation of our waters. But while this object is; kept steadily in view, care has been taken not to throw too great a burden on the owners, which would certainly be the result of compelling them to employ a pilot, and of course pay full pilotage, even when the master of the vessel may have equal, if not greater skill than those whom they may be obliged to employ, many of .them being selected because of their intimate knowledge of the navigation. It will add much to the expense, from the fact of the frequent voyages they make in the prosecution of the trade; and this should be avoided, as it is well known that so much of the prosperity of the city is owing to the coasting trade, that it may be safely asserted, that to cripple it with an onerous tax, would be aiming a deadly blow at the commerce of the port,, alike' injurious to the pilots themselves, and the great and increasing-trade of our citizens. And thus it stands on our own act ;- but those suggestions are given additional force when taken in. connection with the statutes of our sister state. The Delaware act, which is copied in part from the Pennsylvania statute, was- plainly intended, as its title imports, not for the purpose of creating a statutory seaworthiness of the vessel, which never entered into the-minds of the legislators, but for the relief of distressed and decayed pilots, their widows and children. Although in substance nearly the same as the act of 1808, yet in connection with the title to the bill, which is entitled to some weight, I cannot view it as indicating any other intention than to leave it optional with the owner. But’ the statute of New Jersey is still less equivocal. The-act of the 8th February, 1837, sect. 18, enacts, that if any master of a vessel,, except schooners and sloops employed in the coasting trade,.licensed for that purpose, and not making the usual signal for a pilot, coming into the ports of Jersey City, Newark, and Perth Amboy, or into any of the ivaters of New Jersey, shall refuse to receive on board and employ a pilot, who shall have offered to go on board, and to take charge of the pilotage of such vessel, the master, owner, or consignee of such vessel shall pay to the pilot half-pilotage, from the place at which such pilot shall have offered himself, to the port of destination. It will be observed, that' from a coasting vessel, neither full nor half-pilotage can he collected, unless with the consent of the master of the vessel, indicated by his making the usual signal for a pilot. And further, there is not the slightest intimation that a pilot must be employed in every case. The master is left free to do so or not, upon paying to the person offering himself as a pilot, half-pilotage, differing, as to the recipients, from the acts of Pennsylvania and Delaware. Taking, then, all the acts as in pari materia, which, since the passage of the act of Congress, we deem ourselves bound to do, we have come to the conclusion that there is nothing in the statutes which makes it obligatory on the owner or master of a vessel, whether engaged in the foreign or coasting trade, to employ a pilot. - •

This proposition being thus established, there is an end of the argument, based, as it is, on the supposition that the act is imperative. The argument is founded on the hypothesis that there is a statutory seaworthiness prescribed; that, failing or omitting to comply with the provisions of the act is a breach of an implied warranty in the policy which awards it. And further, that there is a penalty imposed which renders the voyage illegal. It must be observed that there are other issues on which the case must ultimately depend. It is not my intention to deny that it is part of the implied warranty of seaworthiness that there shall be on board the vessel, at the time the risk commences, not only a sufficient crew and a master of competent skill and ability to navigate her; but, if she sails from a port where there is an establishment of pilots, and the nature of the navigation requires one, that the master should take a pilot on board: Phillips v. Headlam, 2 Barn. & Ad. 390. This, as a general proposition, is true, with some explanation. It is not necessary in all cases to take a pilot without regard to the burden of the vessel or the nature of the trade. In 1 Emerigon, p. 402, it is laid down that a captain, who knows the place to which he is bound, is not obliged to employ a coast pilot. These matters must be regulated by the custom of the port, and hence the necessity of inquiring into the -custom, which can be done only through the medium of a jury. Is it customary, or necessary, for a vessel engaged in the coasting trade, of the burden of the one in question, to take a pilot, when the master, in the opinion of the owner, has competent skill to conduct her to the ocean ? That the river and bay of the Delaware is pilot ground for all vessels engaged in the foreign or coasting trade, is most true; but it is made so, not by force of the act of 1803, but by the usage of the trade or port. It is coeval with the settlement of the province, or, at any rate, existed, and was judicially known long before the passage of the act in question. That the nsage may he modified by statute, may he conceded, hut not to the extent of creating a statutory seaworthiness. That a policy may be affected by the provisions of the statute, cannot he denied; but this ought to he admitted with great caution. It is a matter in which all nations, foreign and domestic, are interested. The custom of the port may he known to foreigners engaged in trade; hut it is difficult for them to know onr complicated regulations by statute. A statutory seaworthiness may give rise to impediments in the way of friendly intercourse, the effect of which may he injurious to commerce.

Judgment reversed, and judgment for plaintiff on the demurrer and remittitur, with directions for a venire to try the issues, assess the damages, &c., as in the form, ante, p. 220.