29 F. Cas. 464 | U.S. Circuit Court for the District of Southern New York | 1863
The respondents filed a libel in the district court, claiming an allowance as salvors of the schooner Wave and her cargo; and the court, by its decree, allowed as salvage one-tenth of the appraized value of the vessel and cargo to the libellants, amounting to $1,103.78. From this decree an appeal has been taken to this court. Some of the questions involved in the discussion at the bar, as connected with the circumstances of this case, are new, and by no means free of difficulty. In our complicated system of government, questions of jurisdiction must necessarily frequently arise; they are at all times interesting and sometimes doubtful, and minds equally enlightened and equally aiming at' correct results, may nevertheless arrive at different conclusions.
It will not be necessary for me. under the view which I have taken of the case, to enter into a particular examination of all the points which have been made and discussed at the bar. I shall confine myself strictly to this case, which requires me only to decide, whether the libellants in the court below, being pilots of the port of New York, appointed under the authority of the state, could, for the services rendered by them, sustain in the district court a claim for salvaged.
It is admitted that the libellants are pilots,
The character in which the libellants were acting, is important in no other point of view than for the purpose of deciding what dutj' was imposed upon them as pilots with respect to this vessel under the circumstances in which she was found; for I apprehend, if they did no more than was their duty to do as pilots, it is very clear they cannot set themselves up as salvors. We have in the ease of The Neptune. 1 Hagg. Adm. 227, Lord Stowell’s explanation or description of the character of a salvor, which is perhaps as accurate as is anywhere to be found in the books. A salvor, says he, is a person who, without any particular relation to a ship in distress, proffers useful service, and gives it as a volunteer adventurer, without any preexisting covenant that connected him with the duty of employing himself for the preservation of that ship; and, therefore, he says, the crew of a ship whose stipulated duty it is to protect that ship through all perils, cannot be considered salvors. He adds, that he will not say a case cannot exist where they might claim as salvors, but they must be very extraordinary circumstances indeed, for the general rule is very strong and inflexible, that they are not permitted to assume that character. They are excluded upon just grounds, although a liberal allowance in meritorious cases is founded in sound policy, as holding out strong inducements to men to exert themselves in the preservation of lives and property about to perish at sea; yet when such allowance is claimed by men who have a duty to discharge in the preservation of such property, great care should be taken not to hold out a temptation to a dereliction of duty. Hence it is, that in general, seamen, pilots and passengers cannot sustain a claim for salvage for the ordinary assistance they may have afforded a vessel in distress, it being no more than their duty; but for extraordinary exertions beyond their duty, such claim has been sometimes, though very rarely, allowed: always, however, accompanied by remarks showing the extreme caution with which such claim is admitted. This is fully exemplified in the case of The Neptune, already referred to, which was a claim of salvage by seamen. And the like language was held by the same judge as applicable to the claim of salvage by a pilot in the case of The Joseph Harvey, 1 C. Rob. Adm. 306. It may be, says he, in an extraordinary case, difficult to distinguish a case of pilotage from a case of salvage, properly so called, for it is possible that the safe conduct of a ship into port, under circumstances of extreme danger and personal exertion, may exalt a pilotage service into something of a salvage service, but in general they are distinguishable enough, and the pilot, though he contributes to the safety of the ship, is not to claim as a legal salvor. So, in the case of Mason v. The Blareau, 2 Cranch [6 U. S.] 240, in the supreme court of the United States, salvage was allowed a seaman under extraordinary circumstances, where the ship had been abandoned by the master and crew, and the seaman claiming salvage was considered as discharged from his contract as a mariner, and of course had no further duty as such to discharge. The ease of Dulany v. The Peragio [Case No. 4,123], decided in South Carolina, contains no doctrine at variance with the view I have taken of the one now before the court, but is in accordance with it in principle. The judge says, this case comes before the court as a case of salvage, but, on a full investigation of the evidence, it does not seem to be altogether such. The pilot took the sloop in tow, and it is admitted some compensation is due over and above the usual rate of pilotage. And as no question of law arose in the case, and he had consulted persons conversant in these matters, none of whom considered it a case of salvage, but all agreed compensation should be allowed, by way of encouragement to pilots to do more than their mere duty, he allowed $200. Here, although it was considered that the pilot did more than was strictly his duty, the court did not consider it a case of salvage.
The rule which governs all these cases is founded upon the soundest principles of justice and public policy, and is fully recognized by Mr. Justice Washington in the ease of Le Tigre [Case No. 8.281]. When, says he, the service for which the compensation is claimed by a public officer is required of him by the law virtute officii, or it becomes a duty necessarily connected with his public employment, we can perceive the most obvious reasons why a compensation beyond what the law allows should not be claimed from the owner of the property saved. And he mentions pilots as a class of officers falling within this rule. I am not disposed in the least to call in question the jurisdiction of the district court, as a court of admiralty, over suits for pilotage upon the high seas; nor. in denying the jurisdiction of the district court in this case, is it necessary that I should sustain the doctrine of the common law courts in England as to the jurisdiction of the admiralty; or hold, that if the contract be for services to be performed on a navigable river or waters within the body of a county, no suit will lie in the admiralty in favor of the pilot for such services. 2 Wils. 264. It may be admitted that pilotage services partake so much of a maritime character, that under our system, and the grant of admiralty and maritime jurisdiction to the district courts, those courts, in the absence of any legislative provision on the subject of pilotage, may sustain suits for such services, although performed within the body of a county. But it must be borne in mind that pilotage services are not so exclusively of a maritime character
Congress, under the power to regulate commerce, might doubtless establish by law a system of pilotage in ports and harbors within the territorial limits of the states, and give to the district courts jurisdiction of all cases arising under such law. But the cession by the states of all cases of admiralty and maritime jurisdiction, cannot be construed into a cession of the waters on which those cases may arise. The jurisdiction of the state, and its right to legislate, is co-extensive with its territory, and is still retained, except so far as it has been ceded to the United States. [U. S. v. Bevans] 3 Wheat. [16 U. S.] 386. Although the constitution of the United States declares that the judicial power of the Union shall extend to all eases of admiralty and maritime jurisdiction, yet the courts of the United States do not exercise criminal jurisdiction over maritime crimes and offences, without legislative authority. The inquiry in such eases is, not what power is given by the constitution to the government of the Union, but how far congress has legislated under that power; and unless the crime is brought within some act of congress, the courts of the United States have declined taking jurisdiction, where the offence was within the cognizance of state courts. [U. S. v. Bevans] 3 Wheat. [16 U. S.] 386; [U. S. v. Wiltberger] 5 Wheat. [18 U. S.] 76. This principle has not been adopted, to its full extent, with respect to the civil jurisdiction of the admiralty, and I think ought not to be. I am not, however, prepared to admit that the mere grant of the power to the Union is necessarily exclusive, and a denial of the exercise of the power by the states, until congress acts upon the subject. There are certainly very strong grounds for maintaining that, in those eases where, previous to the formation of the general government, the state tribunals possessed and were in the constant habit of exercising jurisdiction, they may continue to exercise the same where the common law affords a full and adequate remedy. But with respect to the subject of pilotage, congress has acted, and it becomes necessary to inquire, whether in such manner as to affect the jurisdiction cf the district court in this case.
The act of congress of the 17th of August, 17S9, 1 Story’s Laws, p. 33, § 4 [1 Stat. 54],— declares “that all pilots, in bays, inlets, rivers, harbors and ports of the United States, shall, continue to be regulated in conformity with the existing laws of the states respectively wherein such pilots may be, or with such laws; as the states may respectively hereafter enact for the purpose, until further legislative provisions shall be made by congress.” No further provision has been made by congress, and' we must look to the state law for the regulation on this subject. The act respecting pilots was passed at the same session of congress, and a few weeks previous to the judiciary act;' and congress having legislated specifically on the subject, and having withdrawn it temporarily from the cognizance of the general government, so far as related to pilots in the bays, inlets, rivers, harbors and ports of the United^ States, it cannot, upon any sound rules of construction, be considered as impliedly embraced in the general delegation of admiralty and maritime jurisdiction to the district court. This act came under the consideration of the supreme court of the United States, in the case of Gibbons v. Ogden, 9 Wheat. [22 U. S.] 207. It had been urged at the bar, that this-acknowledgment of a concurrent power in the states to regulate the conduct of pilots, was; an admission of their concurrent right with-congress to regulate commerce with foreign nations and among the states. The court thought this inference was not warranted. The-chief justice observed: “Although congress-cannot enable a state to legislate, congress may adopt the provisions of a state on any subject. When the government of the Union was ■ brought into existence, it found a system for-the regulation of pilots in full force in every state. The act which has been mentioned:' adopts this system, and gives it the same validity as if its provisions had been specially made by congress; but the act. it may be said, is prospective also, and the adoption of laws, to be made in future, presupposes the right in the maker to legislate on the subject. The act unquestionably manifests an intention to leave this subject entirely to the states, until congress should think proper to interpose; but the-very enactment of the law indicates an opinion that it was necessary: that the existing system would not be applicable to the new state of things, unless expressly applied to it by congress. But this section of the act is confined to pilots within the bays, inlets, rivers, harbors and ports of the United States, which are, of course, in whole or in part, within the-limits of some particular state. The acknowledged power of a state to regulate its police, its domestic trade, and to govern its own citizens, may enable it to legislate on this subject to a considerable extent; and the adop
The district court considered the libellants as having a right to sue in that court, whether they claimed compensation as salvors or as pilots. For a century past, there have been in force in the colony and state of New York, laws regulating the duty of pilots in the port of New York; these laws have undergone various revisions and re-enactments, but have continued substantially the same, so far as they relate to the questions presented in this case. There can be no doubt but from the condition in which the Wave was found, and the circumstances under which relief was afforded by the libellants, they are entitled to extra compensation for their services. But this, in my judgment, is provided for by law, and is not to be set up as a claim for salvage. These laws have at all times regulated the compensation or fees of pilots for their ordinary services, and have also provided for extra services rendered to vessels in distress. The last act on.this subject was passed in the year 1S19. In the nineteenth section it is enacted, “that the master, owner, or consignee of any ship or vessel appearing in distress, and in want of a pilot on the coast, shall pay unto such branch pilot or deputy pilot, who shall have exerted himself for the preservation of .such ship or vessel, such sum for extra services as the said master or consignee and pilot -can agree upon; and in case no such agreement can be made, the board of wardens shall -determine what is a reasonable reward, and the sum so determined by them shall be paid in manner aforesaid.” It has been contended that the act contemplated no other than mere pilot services by pilots, in the ordinary discharge of their duties; and reference has been made to Abbott’s Treatise on Shipping for the meaning of the term “pilot.” The name of pilot or steersman, says he, “is applied either to a particular officer serving on board a ship -during the' course of a voyage, and having the charge of the helm, and of the ship’s route; •or to a person taken on board at a particular place for the purpose of conducting a ship through a river road, or channel, or from or into a port.” Abb. Shipp. 148. The second •class of pilots is the one embracing the appellants; but a mere definition of the term can .give but very imperfect information as to the •duties of the officer. And this duty, so far as it is implied by the term “steersman,” can mean only the ordinary duty of a pilot; but it certainly cannot be maintained that the legislature cannot superadd to that duty any other that may be deemed fit and proper; and we must, therefore, look to the act of the legislature to ascertain the duty of pilots. And I cannot think it the true construction of this section of the act to confine it to the mere navigation of the vessel; when that is the service performed, the fees are regulated and fixed by other parts of the act. But this section provides for extraordinary services to vessels in distress, and for their preservation, and which are expressly called extra services. The degree of distress cannot change the character of the service, or discharge the obligation to render assistance; it serves to regulate the amount of compensation, but cannot couvert pilots into salvors. It would be difficult to fix the point at which pilots might withdraw their services as pilots, and set themselves up as salvors; and if practicable, it would be extremely dangerous and repugnant to every sound principle of public policy to admit any such doctrine; it would be holding out strong temptations to pilots to neglect their duty, under the hope and expectation of receiving a greater compensation by way of salvage. Ample provision is made to compensate them for such extra services. The board of wardens is always composed of men peculiarly fitted and qualified to judge of such services. The plain and obvious light, as it seems to me, in which this act views pilots is, that their ordinary duty is to navigate the vessel, and for this one rule of compensation is given. Their extraordinary duty is to assist vessels in distress, and for this another rule of compensation is provided.
If we look through these laws regulating pilots from the earliest period, we find it made a part of their official duty to assist vessels in distress. The neglect or refusal has sometimes been declared a forfeiture of office, s- me-times punished by fine. The act of 1T7Ó. I believe, is the first which provides for compensation for extra services. Should any objection be supposed to lie against the act of congress adopting prospectively the state regulation on this subject, it cannot affect the present ease. There can certainly be no objection to adopting the then existing system; and the act of 17S4, which was the law in force in New York when the act of congress was passed, contains substantially the same provision, accompanied with a recital that the provision is made for the encouragement of pilots who shall distinguish themselves by their activity and readiness to aid and assist vessels appearing in distress; and it declares that this extra compensation shall be collected in the same manner as directed by the act for the collection of pilotage, which was before the mayor, or recorder, or alderman, of New York, in a summary manner. By some of these laws, jurisdiction is given, in general terms, to any court having cognizance thereof. If this subject, as is said in the Case of Gibbons and Ogden, has been entirely left to the
I do not enter into the merit or extent of the services rendered by the libellants, because I hold that whatever they may have been, these pilots cannot claim compensation as salvors. That admitting cases may exist where pilots, for services upon the high seas, where their duty is prescribed, and to be determined by the general principles of the maritime law, may, in very extraordinary eases, become salvors and claim as such; yet, in the present case, where their duty is prescribed by statute, which, according to my understanding of it, requires of them to render all the aid and assistance in their power to vessels in distress, under all circumstances, they cannot abandon their duty as pilots and become salvors. It may, I believe, be laid down as a rule admitting of no exception, that where the service performed is required by law as a duty, it cannot be set up as a salvage service. I am, accordingly, of opinion that the decree of the district court must be reversed without costs.
[See note at end of case.]
The act for the regulation of pilots and pilot-age for the port of New York (Sess. 7, c. 31, §§ 2. 3) makes it the duty of pilots to give all the aid and assistance in their power to any vessel appearing in distress on the const, and for neglect or refusal subjects them to a fine or forfeiture of their places; but for the encouragement of such pilots who shall distinguish themselves by their activity and readiness to aid vessels in distress, it enacts, that the master or owner of such vessel shall pay to such pilot who shall have exerted ■himself for the preservation of such vessel, such sum for extra services as the master or owner and such pilot can agree tmon; and in case no such agreement can be made, the master and wardens of the port are empowered to ascertain the reasonable reward.