Murray v. Clark

4 Daly 468

• Court: New York Court of Common Pleas
• Decided: April 15, 1873
• Status: Published

Opinion

By the Court.

*—Daly, Ch. J.

—The facts stated in the plaintiff’s affidavit were sufficient to warrant a finding that the plaintiff was, within the meaning of the State law of April 3, 1857, § 29, the pilot first speaking .or offering his services to pilot the vessel. The remaining question is, whether the vessel was a “ coastwise steam vessel,” within the meaning of the 51st section of'the United States act of February 28, 1871.

That section provides that all vessels propelled in whole or in part by steam, when navigating within the jurisdiction of the United States, shall be subject to the rules and regulations established by the United States for the government of steam vessels, and that every coastwise seagoing steam vessel, subject to such rules and regulations, and to the navigation laws of the United States, not sailing under register, shall, when under way, except upon the high seas, be under the control and direction of pilots licensed by the inspectors of steamboats. This section further declares that no pilot charges shall, by the authority of any State or'municipal government, be levied upon' any steamer piloted as therein provided for, and a subsequent provision in declaring that nothing in the act of 1871 shall be construed to annul or affect any regulation established by the la^vs of any State requiring vessels entering or leaving a port in. that State to take a pilot, expressly excepts “ coastwise steam vessels ” from the operation of this saving clause. . It follows, from these provisions, that coastwise sea-going steam vessels cannot, by any law of the State, be compelled to take a State pilot upon- entering or leaving any port in this State, such vessels being piloted by pilots licensed by the inspectors of steamboats- under the law of the United States, it being well settled that this is a matter within the exclusive authority of .the government of the United States, if it thinks proper to exercise it; and any law enacted by the general government upon this subject, supersedes the authority of any State law that may be, in whole or in part, inconsistent with it (Steamship Company v. Joliffe, 2 Wall. 450; Cisco v. Rogers, 36 N. Y. 292; Sturgis v. Spofford, 45 Id. 446).

The question then presented is what is meant in this provision by a “ coastwise sea-going steam vessel,” and it appears to me that the section itself gives the explanation by the language “ not sailing under register.” Under the various laws of the United States collectively known as the registering acts, vessels obtain their national character by being registered, enrolled or licensed. If under twenty tons, they may be licensed only. If twenty tons or over and they are to be employed in the coasting trade, the whale or the cod fishery, they must be both licensed and enrolled, and the license must be renewed annually (Act of February 19th, 1793, §§ 1, 4, 5) and for any trade or purpose beyond this they are registered (Act of December 31st, 1792). Our laws do not positively require registration or enrollment, but until a vessel is registered or enrolled she is not an American ship. If she engages in the foreign, the coasting trade, or the fisheries, she is liable to forfeiture, and as she cannot, without her proper papers, have the privileges of a foreign or an American vessel, her registry or enrollment becomes a practical necessity. When this statute, therefore, refers to a coastwise sea-going steam vessel, not sailing under registry, it must mean one that is enrolled and licensed for the coasting trade in the manner provided by law, whose license is renewable annually; a vessel sailing from one part of the coast of the United States to another, or which is employed in the whale or coast fisheries. It certainly does not refer to a registered vessel that may trade or sail to any part of the world, as it expressly declares “ not sailing under registry.”

It appears to have -been the design of the act to require steam vessels of this description to he under the control and direction of pilots licensed by the inspectors of steamboats. Making frequent voyages, and sailing in and out of ports upon our coast at short intervals, they are, for the better security of life upon such vessels (Act of February 28th, 1871, title and sections 14, 15, 19, 51) required, when under way and not upon the high seas, to be under the control and direction of the peculiar class of pilots provided for by this act; and as these pilots have charge of them when enteriifg ^r coming out of the ports of this State, there is no occasion for the services of State pilots. To distinguish them from all other steam vessels, they are, as I have stated, described in the act as “ coastr wise sea-going steam vessels, not sailing under registry.”

The State pilot law of April 24th, 1867, in no way conflicts with the provision of the United States act; the eleventh section of the State law imposing the obligation of taking a pilot licensed by the State board, only upon the masters of foreign vessels, vessels coming from a foreign port, and vessels sailing under registry.

A coastwise vessel is one sailing by the way of, or along a coast. In a certain sense, the St. Louis was a vessel of this description. For a year previous to the commencement of this suit she was employed as one of a line of steamers running regularly between New York and New Orleans, hut was not necessarily limited to running by the way of, or to and from ports upon our coast. She was a registered vessel, and being so, was privileged to go to or stop at foreign ports, and did so. Upon two occasions she stopped at other ports, one being the voyage in question, when she stopped at Havana upon her voyage from New Orleans to New York, and when the plaintiff offered his services, she was, in the language of the State law, both a registered vessel and coming from a foreign port, Havana. If she had been an unregistered vessel, the casual circumstance of her stopping at a foreign port from stress of weather or other justifiable cause, not in the way of business or traffic, would not affect her specific character under the United States act as a coastwise sea-going steam vessel, not sailing under register. But being a registered vessel, she stopped at Havana as she was privileged to do, and for all that appears may have done so not from necessity, but in the course of business. The admission states that upon the voyage in question she was under the control and direction of her master, who was a pilot duly licensed by the inspectors of steamboats, according to the United States act of 1871. I do not think that this affects the question, whether she was or was not the kind of vessel provided for by that act; for if she were not, she would not become &b ‘by the inspectors of steamboats licensing her master as a pilot under the United States act. That was a privilege, office, or right personal to him, which in no way attached to the vessel, if she were not of the description or class required by that act to be under the direction and control of such a pilot, when not upon the high seas.

The judgment, I think, should, therefore, be affirmed.

Judgment affirmed.

Present, Daly, Ch. J., Bobinson and Lobw, JJ.