106 F. 422 | 4th Cir. | 1901
(after stating the facts as above). No objection lias been or can be made to the jurisdiction of the court beiow. Hobart v. Drogan, 10 Ret. 120, 9 L. Ed. 363. Nor can any objection be made to the provision of the law giving a pilot the same fees for services tendered and refused as he would have earned if the services had been accepted and performed. Cooley v. Board, 12 How. 299, 13 L. Ed. 996. The sole question in the case is this: Was this barge, being wholly without motive power of any kind, bound by law to accept the services of a pilot while she was in tow of a steam tug, whose master was a licensed pilot of the bar and river over which she was navigating? The point is a narrow one. It is a municipal regulation of the state of North Carolina, recognized and made of force under the legislation of congress. Cooley v. Board, supra. No decision of any court in that state has been quoted, and none can be found, bearing on thin question. It comes up for the first lime for adjudication. The class of pilots has existed from the earliest times, and laws have been enacted in every nation engaged in commerce regulating and protecting them. The purpose of these laws is to insure at all times a due ¡supply of men well qualified by skill, knowledge, and experience to protect vessels entering Into ports and harbors from the dangers of navigation. They are engaged in a perilous calling, and must he ready to brave the perils of their vocation. To encourage such men, and to secure permanence in their ranks, every nation engaged in commerce, and all the states in the Union having harbors, have enacted laws making it compulsory upon all -vessels entering- their ports, except those of very small tonnage, to employ a duly-licensed pilot for the purpose of piloting them.
‘We think this particular regulation concerning half-pilotage fees is an appropriate part of a general system of regulations of this subject. Testing it by the practice of commercial states and countries legislating on this subject, we find it has usually been deemed necessary to make similar provisions. Numerous laws of this kind are cited in the learned argument of the counsel for the defendant in error; and their fitness, as part of a system of pilotage, in many places, may be inferred from their existence in so many different states and countries. Like other laws, they are framed to meet the most usual cases. ‘Quae frequentius accidunt.’ They rest upon the propriety of securing lives and property exposed to the perils of a dangerous navigation by taking on board a person peculiarly skilled to encounter or avoid them; upon the policy of discouraging the commanders of vessels from refusing to receive such persons on board at the proper times and places; and upon the expediency, and even intrinsic justice, of not suffering those who have incurred labor, and expense, and danger, to place themselves in a position to render important service generally necessary, to go unrewarded, because the master of a particular vessel either rashly refuses their proffered assistance, or, contrary to- the general experience, does not need it. There are many cases in which an offer to perform, accompanied by present ability to perform, is deemed by law equivalent to performance. . The laws of commercial states and countries have made an offer of pilotage service one of those cases; and we cannot pronounce a law which does this to be so far removed from the usual and fit scope of laws for the regulation of pilots and pilotage as to be deemed, for this cause, a covert attempt to legislate upon another subject under the appearance of legislating on this one.”
This compulsion exists on the masters of all vessels, notwithstanding that they themselves, by frequent visits to the port, may possess sufficient knowledge to cross the bar and navigate the rivers in safety. In every case the language is general, — “every ship or vessel.” The North Carolina statute says:
“When any master of a vessel, not having a pilot on board, coming over the bar of Cape Fear river or being in the river and going out either of the inlets, shall refuse a pilot across the bar, then each pilot so refused shall be entitled to the same pilotage as if he had been actually employed to pilot and had piloted such vessel.”
An examination of the regulations will disclose that the rates of pilotage are fixed by the draught of the vessel, and upon all vessels alike, — steam or sail vessels. The appellee claims that the barge in the case at bar was exempt from this regulation of the statute for two reasons: First, because she had no motive power in herself, and therefore could not be navigated by a pilot; second, because the tug already had on board of her a duly-licensed pilot of the bar and river of the Cape Fear. It is true that the barge had no motive power in herself, but she supplied motive power when she engaged the services of the tug. She then began to be navigated, and by her great draught of 18 feet she encountered the dangers of the shoals and narrows of the bar and river. A vessel with all her sails furled has no power of locomotion, and in tow of a tug is absolutely depend-
The evidence does not disclose whether the barge was towed by a line, or whether the tug was alongside of her. If the former mode of towing was used, it was necessary that the barge should have at her helm an experienced navigator, not only to enable her to follow the general direction of the tug, bul also cognizant of the dangers of the channel, so as to keep clear of them. If the tug were alongside, her helmsman must exercise the same care and he possessed of the same knowledge. It is said, however, that the tug and tow are, in contemplation of law, one vessel, and that one; under steam, thus giving to the combination the character of (he tug. So they are for some purposes. They are governed by the international rules applicable to vessels approaching each other, and must observe the regulations applicable io .steam vessels. The Civilta and The Restless, 103 U. S. 699, 26 L. Ed. 599. But they are so far distinct from each other that, if a collision takes place, the tug can be held liable to the exoneration of (he tow. The James Gray v. The John Fraser, 21 How. 184, 16 L. Ed. 106. The rubric of that case is this: Although the tow was the res or thing which struck the brig and did the damage, that does not make her liable for the injury, unless the collision was occasioned by her fault. In the recent case of The Min
“As a general rule, masters of vessels are not expected, to be, and cannot be, acquainted with the rocks and shoals on every coast, nor able to conduct a vessel safely into every port. Nor can the absent owners, or their agent, the master, be supposed capable of judging of the capacity of persons offering to serve as pilots. They need a servant, but are not in a situation to test or judge of his qualifications, and have not, therefore, the information necessary to a choice. The pilot laws kindly interfere, and do that for the owners which they could not do for themselves. It selects persons of skill and experience, and requires them to give bonds for the faithful performance of their duty; and if it should so happen in some particular cases that owners may not need the services of such pilot selected by law, it is but just that they should contribute to the support of a system instituted for their benefit.”
We are of the opinion that the barge comes within the letter of the law, and that the court below should have found for the libelant. Let the case be remanded to the district court for such further proceedings as may be necessary. The decree of the district court is reversed, and the cause remanded to that court.