12 F. Cas. 538 | E.D.N.Y | 1872
This case comes before the court upon exceptions to the libel. The action is brought by a Hell Gate pilot to recover half pilotage of the owners of the bark. David McNutt. The libel alleges that the libellant, a.duly licensed pilot, at a point in the East river, on Long Island Sound, to the eastward of Hart’s Island, and in the channel, tendered his services to pilot the bark David McNutt to the port of New York, by way of Hell Gate, which service was refused; that the libellant was the first pilot who offered the service, and the bark was, at the time, bound to New York, by way of Hell Gate, and was a foreign and registered vessel drawing fourteen feet of water. To this libel exception is taken on the ground that it does not appear that the libellant tendered his services in “the channel of the East river commonly called Hell Gate,” nor that the bark was “navigating the channel of Hell Gate” when spoken by the pilot. The statute
On the part of the defence it is contended that, by virtue of these provisions, the liability to pay half pilotage attaches only to such vessels as are boarded and refuse the pilot, when navigating the channel of Hell Gate; and that, while the libel may be considered to aver a tender and refusal to the westward of Execution Rocks and Sand’s Point, it locates the place of tender and refusal to the eastward of Hart’s Island, and therefore discloses, on its face, that the vessel was not at the time navigating the channel of Hell Gate, within the meaning of the act. I cannot agree to the construction of the statute upon which this argument is based. The 6th section, above quoted, provides for pilotage services by Hell Gate pilots at and to eastward of Execution Rock or Sand’s Point, and the act, by its terms, describes a vessel at Sand’s Point and bound inward, as on her inward passage through Hell Gate. Moreover, it offers an inducement to pilots to go on board inward bound vessels as far to the eastward as Sand’s Point, and it would require clear and positive words to warrant the conclusion, that it was not intended to compensate for services rendered in making a tender at any place westward of that point, as well as for services rendered in piloting the vessel, when the pilot is taken in that part of the Sound. The words “navigating the channel of Hell Gate,” where used in the seventh section, do not refer to an actual present navigation of the Gate, but are to be taken as intended to cover any vessel which, approaching the Gate, on a voyage which carries her through it, has reached a point as far to westward as Execution Rock or Sand’s Point. ■ Such a vessel is, • according to the words of the sixth section of the act, on her inward voyage through Hell Gate, and is a vessel navigating the channel of Hell Gate, within the meaning of the seventh section. It is unnecessary to go further in this case, and determine what would be the effect of a tender made to eastward of Sand’s Point, but it may be remarked, as tending to confirm the construction I have given to the statute under consideration, that it is the policy of most pilot laws to induce the pilots to make an early tender of their services to inward bound vessels. The ordinary provision, there-' fore, is, that extra compensation shall be given if the tender be made as far out as a designated line, without fixing any limit, beyond which an effective tender may not be made. See the statutes of New York, and also those of Massachusetts. State boundaries have been sometimes considered as furnishing the outward limit (1 Daly, 185), although Sandy Hook pilots are sought for, and their services taken, much farther out than a marine league. In France it has been adjudged, in regard to vessels bound to Havre, that the pilots may board such vessels. at any time or distance out, and the liability to take a pilot has been adjudged to attach to a French ship although she was at the time in English waters, as at the Downs. Cour. Cass. D. 1866, p. 303; Caumont, Traite Pilote, 31. The present case does not, however, call for any determination as to the effect of a tender made to eastward of Sand’s Point, and no opinion is expressed as to the law of such a case. Here the tender was made to westward of Sand’s Point, where simple pilot-age would have been due if the pilot had been taken, and for the tender which was so made half pilotage is due. The exceptions are overruled, and a decree will be entered in favor of the libellant, with liberty to answer within ten days, on payment of costs of the hearing.
