Untitled New York Attorney General Opinion, 2016-F2

New York Navigation Law requires “every foreign vessel” to take a New York‑licensed pilot when entering or departing New York ports; no express statutory exemptions.
Question presented: whether foreign public (noncommercial) vessels—e.g., naval ships at Fleet Week—are subject to New York’s compulsory pilotage.
Federal law delegates pilot regulation to the states except where Congress has acted; Congress has regulated pilotage for certain commercial/coastwise vessels but has not addressed foreign public vessels.
Arguments implicate federal supremacy in foreign affairs: state laws that significantly intrude on foreign relations may be preempted or unconstitutional.
Office concludes that New York’s generally applicable pilotage statute applies to foreign public vessels, but enforcement against a foreign sovereign may be blocked by sovereign immunity (FSIA) and practical/diplomatic issues may arise.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether New York’s compulsory pilotage applies to foreign public (noncommercial) vessels	NY (plaintiff) contends statute’s plain text—“every foreign vessel”—covers public vessels too	Foreign state argues federal foreign‑affairs powers (and international comity) preclude state imposition on warships	Held: NY law likely applies; statute of general applicability does not meaningfully intrude on federal foreign‑affairs power
Whether federal law or treaties preempt state pilotage rules for foreign public vessels	NY: Congress has not legislated for foreign public vessels, so no federal preemption	Defendant: Commerce Clause/federal supremacy or treaties could preempt or exempt public vessels	Held: No federal statute or known treaty preempts NY; federal pilot statutes govern certain commercial circumstances only
Whether enforcement in U.S. courts against a foreign sovereign is available	NY: statutory penalty and enforcement mechanisms exist against noncompliant vessels	Foreign state: sovereign immunity prevents judicial enforcement against a foreign state or its naval vessel	Held: Enforcement may be practically unavailable—FSIA likely bars judicial enforcement; diplomatic measures may be necessary

Huus v. New York & Porto Rico Steamship Co., 182 U.S. 392 (interpreting federal licensing for coasting trade) (supports federal regulation of certain merchant pilotage)
Cooley v. Board of Wardens, 53 U.S. 299 (1852) (states may regulate pilotage absent conflicting federal regulation)
Gibbons v. Ogden, 22 U.S. 1 (1824) (Commerce Clause foundation for federal/state allocation of navigation regulation)
Schooner Exchange v. McFaddon, 11 U.S. 116 (1812) (distinct concerns for foreign warships and sovereignty)
United States v. Pink, 315 U.S. 203 (1942) (federal supremacy in foreign affairs context)
Zschernig v. Miller, 389 U.S. 429 (1968) (state laws that substantially intrude on foreign relations are invalid)
Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) (state regulation with only insignificant foreign consequences is permissible)
Interport Pilots Agency, Inc. v. Sammis, 14 F.3d 133 (2d Cir. 1994) (state pilotage statutes valid for vessels engaged in foreign commerce)
767 Third Ave. Assocs. v. Permanent Mission of Republic of Zaire, 988 F.2d 295 (2d Cir. 1993) (sovereign immunity and nonjudicial enforcement considerations)
USAA Casualty Insurance Co. v. Permanent Mission of Republic of Namibia, 681 F.3d 103 (2d Cir. 2012) (FSIA tort exception and liability of foreign missions in certain circumstances)
Clark v. Allen, 331 U.S. 503 (1947) (treaties can supersede state law obligations)