Nicolay v. The France

50 F. 125, 1892 U.S. Dist. LEXIS 148

• Court: District Court, S.D. New York
• Decided: March 26, 1892
• Status: Published

Opinion

Brown, District Judge.

In my judgment the provisions of chapter 90 of the Laws of 1884 of this state, in regard to the fees of pilots for piloting inward and outward bound vessels, wore not designed to supersede, and do not supersede, sections 16, 17, and 21, c. 467, Act 1853. Sections 13 and 14 of the act last named provide the “fees for piloting inward and outward bound vessels” respectively. Sections 1 and 2 of the act of 1884 cover precisely the same ground as sections 13 and 14 of the former act, and no more, and section 3 repeals only what is inconsistent therewith. But sections 16, 17, and 21 of the act of 1853 relate to other matters evidently not designed to be included in sections 13 and 14. Section 17 provides a compensation of three dollars “to bo added to the pilotage for detention at the wharf, or in the harbor,” etc.; and section 21 provides certain compensation for “ services” rendered by pilots “for removing or transporting vessels in the harbor of Yew York.” The act of 1884 does not touch the subject of those special provisions. Its scope is co-extensive with sections 13 and 14 of the former act, and no further. Sections 17 and 21 of the act of 1853 are not repealed by the act of 1884, because they are not inconsistent with the act of 1884, any more than with sections 13 and 14 of the act of 1853.

Section 16 of the act of 1858 provides that between the 1st day of November and the 1st day of April inclusive, four dollars “shall be added to the full pilotage of every vessel coming into, or going out of, the port of Yew York.” The previous sections 13 and 14 had determined what that “'full pilotage” was; and as I regard the provisions of sections 1 and 2 of the act of 1884 as a mere substitute for sections 13 and 14 of the former act, it follows that the provisions of section 16 of the act of 1853 remain in force.

The amount of pilotage allowed under both acts is to be computed according to the draft at certain rates “per foot.” The practice under both acts has always been to recognize in the computation fractions of a foot, and to reckon to a half foot or to the even foot, to whichever the actual draft in inches might be nearest. In later years upon the demand of the Wilson line the proportions of a foot have been computed and allowed for according to the exact draft in feet and inches.

In the présent case the bill was rendered to the master and approved, as for 26⅞ feet, the actual draft being 26 feet 5 inches. The'usual practice is evidently one that carries out equitably the general intention of the law. I know of nothing that forbids computation for fractions of a foot; and the usual practice to make a rest at the half foot, and to compute the rates according to the even foot or the half foot, whichever is nearest the actual draft, is recommended by its practical convenience. The rule works in no way unjustly to the ship, or to the advantage of the pilots; and the difference between the results afforded by that rule and an exact proportionate measurement, is so small as to fall within the maxim de minwvis non curat lex.

Decree for the libelant for the bill as rendered, with three dollars additional under sections 17 and 21 of the act of 1853, with interest and costs.