Nash v. The Thebes

17 F. Cas. 1175

Opinion

SPRAGUE, District Judge.

In the case of Com. v. Ricketson, 5 Metc. [Mass.] 412, it was held that the 11th section of the 32d chapter of the Revised Statutes of Massachur setts applied to the port of Boston; and that a pilot whose services are refused, when duly tendered to a vessel bound into that port, is entitled to full fees. It is agreed that the words “port” and “harbor,” as used in the act, are synonymous. Was this vessel bound into the port or harbor of Boston, within the meaning of the law, so as to entitle the libel-lant to his stated fees as a pilot? The statute has neither prescribed the fees, nor defined the duties of pilots for the harbor of Boston, but has left that to be done by certain commissioners, who are authorized to appoint and commission pilots, and to make regulations respecting pilotage. Rev. St. c. 32, §§ 15-22. The commissioners have established the fee to be paid for piloting a vessel like the Thebes into the harbor of Boston, and one of the regulations is as follows: “It shall be the duty of every pilot, after having brought a vessel into the harbor of Boston, to have such vessel properly moored in the stream, or secured to a wharf, at the option of the master, within twenty-four horns after the arrival of said vessel, if the weather permits, without extra charge.” Regulations, No. 8. The duty to be performed is entire, and the fee prescribed supposes the performance of the whole duty, including that of securing the vessel to a wharf, or mooring her in' a place of safety. These regulations made pursuant to the statute, are of the same force as if they had been incorporated into it; and they do not contemplate a case in which only a part of the service can be performed within the harbor of Boston, and where it must be completed in another port In the present case, if the track of the Thebes, in going to Lynn and Dorchester, would be over waters which may, for any purpose, be deemed within the limits of Boston Harbor, it does not appear that there was any anchorage or any place used as a harbor for repose or security, or where a vessel could be moored in safety, in any part of such track. And it is proved that she would pass beyond the limits of Boston Harbor before she could be moored or secured in the port to which she was bound; and if she had taken the libellant on board, he would have left her while still under way to her port of destination, and she must have sought another pilot for the residue of the ■voyage. Suppose a Lynn pilot, duly commissioned by the governor, under the statute, should take charge of a vessel bound to Lynn, outside the line from Harding's Rocks to the Outward Graves, and thence to Nahant Head, the construction contended for by the libel-lant would compel the master to pay a Boston .pilot also, and that, too, for the service of perhaps but a moment; for if it be said that, within the strict letter, a vessel is bound into Boston Harbor if she be about to cross any of its waters, it may also be said that She is bound out of that harbor the instant she enters it, and the services of a Boston pilot would no longer be required for the purpose of bringing her into it. Another result of 'that construction would be, that a Lynn pilot, who should merely conduct a vessel from- sea, directly to his own port, would incur the' penalty imposed by the 23d section of the statute for piloting a vessel into Boston Harbor.' Such construction is not required either .by the language of the act, or its general scope and policy, and ought not, I think, to be adopted. The Thebes was cleared for Boston, but was in fair truth bound to Lynn and Dorchester respectively, and actually proceeded directly to those ports. It is usual at Digby to clear for Boston, although bound to those other ports, and there is no sufficient ground to presume that any fraud or evasion was intended. It is not the being cleared for a port, but being actually bound into it, that imposes on a vessel the obligation to pay a pilot. Libel dismissed, with costs.