Shepherd v. Mitchill

10 Johns. 112 | N.Y. Sup. Ct. | 1813

Per Curiam.

The act (sess. 28. c. 81.) gives the rate of pilotage for piloting a vessel from the eastward or southward of the outer middle ground to the port of New-York, and the rate of pilotage for piloting her from the westward of that ground to the port of New-York. The situation of the vessel when the pilot is received on board, is always a matter of fact and of proof, and the weight of evidence in this case, was decidedly in favour of the conclusion drawn by the justice that the vessel was to the S. or E. of the outer middle ground. This testimony was, however, objected to, because the pilot had not immediately ascertained the bearing and distance of the light-house, and caused an entry thereof to be made in the log-book, according to the 10th rule of the regulations of the master and wardens of New-York. The act authorizes them to make rules, and to punish the infraction of them by fines or suspension from office, but the non-observance of this 10th rule cannot take away from the pilot his right, as against the shipowner, of proving the fact. It may subject him to a fine, and if the situation of the ship when he takes charge of her be uncertain, every presumption ought, undoubtedly, to be turned against him, for not observing the rule, unless he can well account, as he attempted to do in this case, for the non-observance. But when the proof is clear and satisfactory, it must prevail, eVen admitting the excuse not to be well founded.

The fact that the pilot left the vessel without a written permission from the master, as required by the 6th rule of the regulations of the master and wardens, does not destroy his right of action, provided he left a competent substitute on board, and was unable to perform the duty himself. But the person who was left as a substitute in this case, was not a branch or deputy pilot; nor did it appear that he had, at the time, obtained the certificate requisite to his appointment as such, though he had at the time been verbally authorized by the master and wardens of the port to act as * deputy during a certain vacancy. The public have a security from branch and deputy pilots, which they do not have from other persons, as they are bound in a recognisance; and the statute gives the specified fees only to the branch or deputy pilots. The plaintiff below did not pilot the ship into port by himself, or a competent substitute under the act. He had no right, therefore, to sue for the fees given by the act to the regular pilot. The substitutemig ht, perhaps, in this case, have been entitled to his action upon a quantum meruit; and, perhaps, the plaintiff below, as his principal, might have sustained the suit upon that ground. But the judgment was rendered by virtue of the statute, for the fees therein prescribed, as being legally due; and the worth of the service by an unauthorized pilot was not taken into consideration.

On this point the judgment was erroneous, and must be reversed.

Judgment reversed.