39 F. 871 | S.D. Fla. | 1889
This is the third suit for half pilotage against this vessel, the Mascotte, wherein the same principles and questions are involved. In the first two cases no o¡jinions were filed, but the conclusions of law and fact briefly stated from the bench, and are merely referred to here to show the opinions upon the different state of facts found in the three cases. The act of Florida ofFebruary 27,1872, provides that all steamers or vessels entering or leaving any port of this state shall pay to the pilot who shall first speak said steamer or vessel the regularly established rates of pilotage, but that all vessels carrying the regular United States mails shall pay half pilotage only. The Mascotte carried the regular mail, and would therefore pay no more when employing a pilot than when spoken and not accepting his services. The question in these several cases is what constitutes “a speaking” of a vessel, within the contemplation of the law,'and was this vessel spoken on the several occasions?
The relations existing between the masters of vessels and pilots under the so-called “Compulsory Pilotage Laws” are peculiar. It has been frequently held that although not, strictly speaking, a penalty for not employing a pilot, it is a gratuity, with no direct benefit rendered or service demanded, and therefore requires a strict construction as against the pilot. The pilot’s and master’s duty are reciprocal,—the pilot to be there and offer his services, and the vessel to pay whether his services are accepted or not. But, in order to justly demand of the master of a vessel a compensation for being on hand and offering his services, the pilot should offer them in a way which would not only be an offer on his part, but which must be so made as to be understood as such by the master. The simple term “speaking,” without further construction or explanation, cannot be accepted as expressing the will, intention, or design of the legislature. The pilot might speak a vessel, and ask any number of questions. What port she is from? what was her cargo? or, how long they had been on the voyage? any of which would be a speaking, but no one would for a moment consider that this was such a speaking as is'contemplated or required. The statutes of different states use different language in providing for the speaking of a vessel by a pilot. In New York, the term “offering his services” or “tendering his services” is used. In Pennsylvania, he “shall offer himself.” The vessels going up the Delaware river must pay half pilotage for “refusing or neglecting” to take a pilot. In North Carolina the vessel “pays pilotage for refusing to take a pilot;” and in Louisiana, for “refusing to take a pilot when one offers.” But there can be no question but what the legislatures of all states had one idea in common, and meant a plain and distinct offer by the pilot of his services, so made that the master of the vessel could have it within his power to employ or refuse him. Anything less than that would lead to an injustice and hardship that no court could sustain without the most positive enactment. •
I have been referred to one case in which the construction of the term “speaking” has been attempted, but which has left the question in but little better condition, if any, than before. The Ullock, 19 Fed. Rep. 207.
The “speaking” it could never have been intended should be left to the uncertainties of the human voice. Nor could every master be presumed to stop and pay attention to the hail of every small boat in entering a port, to ascertain if it is a pilot offering his services, unless there is some distinguishing signal. It is true, as was remarked by the learned judge in The Alcalde, 30 Fed. Rep. 133, that “it mattered not to the master to whom the pilot offered his services on the pilot-ground how he got there. Tie. may have trusted to a canoe, or even swam out. If he is on the ground, and ready and capable of taking charge of the vessel, that is all the master can require.” But the master is entitled to the full knowledge and information that it was a pilot speaking for pilotage, and where the question is -whether there had been a sufficient speaking and offer of services, when the testimony shows the hail was not heard on board, I am satisfied that the visible surroundings of the pilot should have much weight in determining it. And one speaking from a regular pilot-boat, with a jack flying by day at a mast-head, and flash-light at night, would be recognized, when the canoeist or swimmer would be disregarded.
- Where the pilot uses all the usually accepted and ordinary means of conveying information of his character, the burden of proof is on the master who claims that the speaking, hailing, or offering was not sufficient to give him the necessary knowledge; but where all the ordinary
In the first ease mentioned (Acosta v. The Mascotte) it appears that the pilot-boat was anchored in or near the channel, at night, without any light, but that the pilot went off on a small boat, and, as the steamer came by, hailed it. The master said that he saw a vessel anchored there without any light, and so reported to the officers of the customs, upon arriving in port, but that he had no knowledge that it was a pilotboatp that he saw a small boat, but heard no hail, nor did the officer on the bridge, the lookout, or the quartermaster know of the steamer’s having been spoken by a pilot. The small boat had a plain white light, which it showed a short time before the steamer passed.
In the second case, (Shaw v. The Mascotte,) the pilot-boat lay in back of Sand Key, with an anchor light up, but showing no other light, and when the Mascotte was seen coming the pilot went off in a small boat, some over a mile, to speak her. This small boat was seen in the channel, and, just as the steamer approached, showed a lantern. The pilot says he put his hat over it occasionally to make it a flash-light, and hailed the steamer as she passed; but all of the witnesses, officers and men, on the deck of the steamer, testify that they heard no hail, nor anything that could be understood, and that they had no knowledge that it was a pilot. In these cases, I considered that there had been a willful concealment of the character of the pilot-boat, and that the evidence was not enough to show the bringing home to the master the knowledge of the offer of his services sufficiently to compel the payment of the compulsory pilotage, and therefore dismissed the libels.
In this case a new question of fact arises. The pilot-boat was anchored back of the Eastern dry-rocks, two and a half miles from the channel where the steamer was expected, and a dingy-boat, with a pilot and two men, sent out from Sand Key light, a light-house station about half way between where the pilot-boat was lying and the channel where the steamer was expected. The pilot says he had a bright white light,—a lantern,—which he showed all the time, and a flash-light, which he showed just as he came to the steamer. He says the white light was a lantern which he held in his hand so it could be seen all around; that the flash was a regular flash-light; that he displayed it once, dipping it down two or three seconds, so as to make it show plainer; that the steamer was passing when he last displayed it. He says he was about 100 feet off the steamer’s port bow when he first showed the flash-light. Weltus, one of the pilot’s crew, with him in the boat, says they went off in the boat, and stopped until the steamer came up abreast of them. Then they spoke her. The captain held the lantern up in his hand. The flash-light was used once,—dipped once and shown twice. He says they were 100 or more feet away when they displayed these lights. Williams, another of the crew, testifies to the
In this condition of the testimony, what can be accepted as the true state of facts? When was the flash-light shown? for, viewed from the standpoint of the respondent, this may be considered an important question in the case. According to the testimony of the pilot and crew, it was off the bow, or where it must have been seen by the officers of the steamer; but they swear positively that there was no flash shown—nothing but a white lantern light—until the boat had passed abaft the beam. Their business was forward, and not aft, and they naturally paid no attention to what they had passed, and therefore saw no flash. The testimony is directly contradictory in this respect, and where has been the mistake, if any? I thought at first that the testimony of the light-keeper at Sand Key would determine the question, but, upon considering the course the vessel was steering, and the direction the light-house bore from her, it appears that a light could be seen from the lighthouse in a range forward of the bow of the steamer when abaft her beam, if
What is the legal effect of this condition of facts? I am satisfied the flashlight was not displayed until the boat was so far abaft the beam of the steamer that the master did not see it. Nor was it flashed so that with due diligence he could have seen it. The rule for the lights of a pilot-boat (article 11, § 4233, Rev. St.) is a flash-light every 15 minutes. The usual signal as recognized in The Ullock, and with which I heartily concur, is a flash at frequent intervals. The pilot says he saw the steamer coming some 15 miles off; but, making all allowance, she must have been in sight from half to three-quarters of an hour at the least, and no light was shown, according to his own statement, until he was within about 100 feet, or, the statement of those on the steamer, 100 yards; and Í am satisfied no flash—the light to distinguish the boat as containing a pilot—was shown until she was too far abaft the beam to be seen by those in charge of the steamer. The flash was to denote the character of the boat, and should have been shown from the small boat, if that