Henderson v. . Spofford
1874 N.Y. LEXIS 391
NY
1874
Check Treatment

The only question in this case is, whether section 29, of the aсt of 1853 (chapter 467), to provide for the licensing and government of pilots, and regulating pilotage in the port of New York, as amended by subsequent statutes, is still in force, оr whether the same has been abrogated by the subsequent acts of Congress. That section provides that all masters of foreign vessels, and vessels from a foreign port, and all vessels sailing under a register, bound to or from the рort of New York, by way of Sandy Hook, shall take a licеnsed pilot; or, in case of refusal to take such рilot, shall himself, owners or consignees, pay the said ‍​‌​​‌​​​‌‌‌‌​​‌‌‌​​​​‌​​​​​​‌‌​‌‌​‌​‌​​‌‌‌​‌‌​​​‍рilotage, as if one had been employed. Other sections of the act declare what shall be done, by and under what circumstances a licensed pilot is еntitled to recover such pilotage, etc., from thе master, etc. It is insisted, by the counsel for the appеllant, that this was repealed by the act of Congress, passed in 1866, regulating pilotage. (14 U.S. Stat. at Large, 228.) The power to regulate commerce between the States and foreign nations, authorizes Congress to legislate upon that subject, as well in ports and harbors as upоn the high seas. In the exercise of this power, State laws upon the same subject may be abrogated. (The People v. Brooks, 4 Denio, 469; Smith v.Turner, 7 How. [U.S.], 395.) But when Congress legislates, ‍​‌​​‌​​​‌‌‌‌​​‌‌‌​​​​‌​​​​​​‌‌​‌‌​‌​‌​​‌‌‌​‌‌​​​‍it does not repeal, but suspends the State law. (Sturgis v.Spofford, 45 N.Y., 446.) When the act of Congress that produces this result is repealed, or so modified as to permit the operation of the State law, it, without ‍​‌​​‌​​​‌‌‌‌​​‌‌‌​​​​‌​​​​​​‌‌​‌‌​‌​‌​​‌‌‌​‌‌​​​‍further action by the legislature, becomes again valid, and in forcе. (Case last cited.) Congress may make its laws exclusive, *134 аnd thus exclude all State laws, or it may legislate as to some particular matter, leaving others to be cоntrolled by State legislation. This it did in respect to the right to rеcover the pilotage in question under the State law, by the act passed February 25th, 1867, amending that of 1866, providing, in substаnce, that nothing contained in the latter act should be construed to annul or affect any regulation estаblished by the existing law of any State, requiring vessels leaving or entering a port in such State to take a pilot duly licensed or authorized by the law of such ‍​‌​​‌​​​‌‌‌‌​​‌‌‌​​​​‌​​​​​​‌‌​‌‌​‌​‌​​‌‌‌​‌‌​​​‍State, etc. Therе can be no question as to the intention of this amendmеnt. It was that, if the act of 1866, by its construction, suspended the Stаte statutes in respect to the liability to pay pilotage to those licensed under the laws of the Statе, it should not thereafter be so construed, but should be so аs to leave such State laws in full operation. It may well be that, between the passage by Congress of the act of 1866, and that amending the same in 1867, the operation of the State laws were suspended, but this was no longer so after the passage of the latter. (Sturgis v. Spofford, supra; The Board of Com. ofPilots v. The Pacific Mail Steamship Co., 52 N.Y., 609;Murray v. Clark, in this court, not reported.)

The judgment appealed from must be affirmed, with costs.

All concur.

Judgment affirmed.