V. A. Davis v. M/v Ester S, Her Engines, Boilers, Tackle, Etc., and the Barge Aunt Mame, Steuart Transportation Company, Movant-Appellant

509 F.2d 1377
CourtCourt of Appeals for the Fifth Circuit
DecidedApril 30, 1975
Docket74--1933
StatusPublished
Cited by2 cases

This text of 509 F.2d 1377 (V. A. Davis v. M/v Ester S, Her Engines, Boilers, Tackle, Etc., and the Barge Aunt Mame, Steuart Transportation Company, Movant-Appellant) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
V. A. Davis v. M/v Ester S, Her Engines, Boilers, Tackle, Etc., and the Barge Aunt Mame, Steuart Transportation Company, Movant-Appellant, 509 F.2d 1377 (5th Cir. 1975).

Opinion

ROSENN, Circuit Judge:

This appeal presents issues of interest to maritime' navigation in the delicate waters of federal-state relations. Florida requires that certain vessels, upon entering or leaving her ports, take on state-licensed pilots, for whose services a fee is charged. 1 In order to discourage noncompliance, Florida holds vessels liable for the fee whether or not pilots actually are utilized. We must determine whether, insofar as the Florida pilotage statute applies to nonself-propelled barges carrying inflammable or combustible liquid cargo in bulk, it is preempted by federal legislation.

The St. Johns Bar Pilot Association (Pilot Association) instituted this in rem admiralty action to recover a fee of $156.00 for pilot services which were offered to but refused by the tug ESTER “S” and her tow, the barge “AUNT MAME.” The Pilot Association served *1379 process only on the “AUNT MAME,” which was claimed by Steuart Transportation Company (Steuart). 2 The United States District Court for the Middle District of Florida heard the case as on cross-motions for summary judgment. In connection with their motions, the parties submitted exhibits and a stipulation of facts, the relevant portions of which we shall summarize.

The “AUNT MAME,” towed by the ESTER “S,” left Philadelphia, Pennsylvania, bound for Jacksonville, Florida. Although the crew members of the “AUNT MAME” were federally licensed, none held a valid federal or state, pilot’s license for the Port of Jacksonville. When the barge and tug reached the mouth of the St. Johns River, the Pilot Association offered to provide a state-licensed pilot for the inbound passage to the Port of Jacksonville. The pilot’s services were refused.

The “AUNT MAME” is a federally enrolled and inspected tank barge, specially constructed to transport liquid bulk cargo. At the time of its voyage to Jacksonville, the “AUNT MAME” was transporting asphalt, an inflammable or combustible liquid cargo in bulk.

The district court held that the “AUNT MAME” was not a “coastwise seagoing steam vessel” on which federal pilots are required and that, since federal law did not require a pilot, Florida’s pilotage statute is not preempted as applied to the “AUNT MAME” and similar vessels. We reverse.

I.

The Pilot Association acknowledges that the constitutional grant of power to the federal government to regulate commerce with foreign nations and among states includes the power to regulate pilotage. U.S.Const. art. I, § 8. It contends, however, that at the time the Constitution was adopted the maritime states regulated pilotage and that Congress in 1789 plainly indicated that state regulation was to continue until Congress specifically provided otherwise. Act of Aug. 7, 1789, ch. 9, § 4, 1 Stat. 54, 46 U.S.C. § 211 (1970). The Pilot Association asserts that Congress has not withdrawn from the states regulatory power over pilotage of nonself-propelled vessels. We disagree.

Congress has required that “coastwise seagoing steam vessels,” with certain exceptions not here relevant, be manned by federally licensed pilots in coastal waters.

[E]very coastwise sea going steam vessel subject to the navigation laws of the United States, and to the rules and regulations aforesaid, not sailing under register, shall, when under way, except on the high seas, be under the control and direction of pilots licensed by the Coast Guard.

46 U.S.C. § 364 (1970), formerly 52 R.S. § 4401; see Olsen v. Smith, 195 U.S. 332, 343, 25 S.Ct. 52, 49 L.Ed. 224 (1904); Spraigue v. Thompson, 118 U.S. 90, 96, 6 S.Ct. 988, 30 L.Ed. 115 (1886). Thus, the threshold question is whether the “AUNT MAME” is a “coastwise seagoing 3 steam vessel” for purposes of section 364.

Congress broadened the definition of a “steam vessel” as that term was employed in title 52 of the Revised Statutes to include barges transporting certain hazardous cargoes.

Sec. 4417a. (1) All vessels, regardless of tonnage, size, or manner of propulsion, and whether self-propelled or not, and whether carrying freight or passengers for hire or not, that shall have on board any inflammable or combustible liquid cargo in bulk, except public vessels owned by the United States, other than those engaged in commercial service, shall be considered steam vessels for the purposes of this title [52] and shall be subject to the provisions thereof

Act of June 23, 1936, ch. 729, 49 Stat. 1889, 52 R.S. § 4417a, as amended, 46 U.S.C. § 391a(l) (1970). Because on this *1380 voyage to Jacksonville the “AUNT MAME” was transporting asphalt, an inflammable or combustible liquid cargo in bulk, the district court concluded, as do we, that the “AUNT MAME” was a “steam vessel.” The district court went on to hold, however, that, even though Congress expressly expanded the definition of “steam vessel” “for purposes of this title [52],” it intended the broadened definition to apply only to the inspection provisions of title 52 and not to provisions of the same title governing operation and manning, including piloting, of such vessels. We. disagree.

We are persuaded that Congress, in enacting section 391a, was concerned with the operation and manning of steam vessels as well as with their inspection. One year earlier, during the first session of the Seventy-fourth Congress, similar legislation was passed which proved inadequate to achieve the objectives intended by its drafters. Act of Aug. 26, 1935, ch. 697, 49 Stat. 868. This legislation, Public 343, as it was known, was intended to “bring about a reasonable and uniform set of rules and regulations concerning . . . operation and manning” of vessels transporting hazardous cargoes. H.R.Rep. No. 2962, 74th Cong., 2d Sess., at 2 (1936). The Solicitor of the Department of Commerce 4 ruled, however, that under Public 343

no rules and regulations could be made regarding manning or the operation or movement of the vessel, its cargo, or any of its equipment. Inasmuch as these items constituted a great part of the hazard against which protection was needed, it was deemed best to secure this legislation [section 391a].

Id. Congress thereupon authorized the Department of Commerce to promulgate regulations “with respect to the operation of such vessels; and with respect to the requirements of the manning of such vessels and the duties and qualifications of the officers and crews thereof . .” Act of June 23, 1936, ch. 729, 49 Stat. 1889, as amended, 46 U.S.C.

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Related

Moran Maritime Associates v. United States Coast Guard
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Bluebook (online)
509 F.2d 1377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/v-a-davis-v-mv-ester-s-her-engines-boilers-tackle-etc-and-the-ca5-1975.