'rHE ALCALDE.
133
first place, it is contrary-to the idea of a lien that one should acquire it on his own property. It is seen that, at the time when the8e services were rendered, the owner still retained dominion of the thing, and still asserted ownership of the entire property in the vessel. Secondly, the relation of an owner to his own property prevents his acquiring a lien upon it as a salvor. AU connected with the vessel are bound to use the utmost diligence and the most strenuous endeavor to save the vessel from peril, and for doing this there can be no salvage. It is true, as contended, that the abandonment relates back to the date of the loss, and vests the insurers with the title as of. that date. This was so held expressly in the case in. 1 Curt. 343, (The Ann C. Pratt.) This relation takes place only for the protection of the underwriters, and does not derogate from the title that is transferred b)t the abandonment, which is of all the substance insured, with the incidents adhering to that subject. Again, it was expressly stipulated in these policies that the insured should before abandonment use their strenuous endeavors to save the ship from destruction. The services rendered were such as this express obligation requires. It is impossible that now, after those efforts have been given over as unavailing, and the vessel abandoned to the insurers, these services should be converted into a salvage lien. I think that the result must be that the order for distribution in this court of these proceeds must be that the insurers are entitled to them.
THE ALCALDE, (GUNDERSON,
Libelant.)
(DiairictOourt, D. Oregon. March 1;1887.)
1.
PILoT-7COLUMBIA RrvER.
The pow!"r to regulate pilots and pilotage on the Columbia river is permit. ted to Oregon until congress exercises the same, and is directly conferred by congress on the legislature of Washington. Therefore the state and territorv have eqUal powers over the subject, and may appoint pilots for the river and prescribe their duties and compensation as to any and all vessels bound in or out of the same, without reference to the fact of whether the business or commerce in which they are engaged pertains to Oregon or Washingtonand neither can require that the legisJation of the other shall conform to own In any respect.
9.
SAME"":"QUALIFICATION AND AUTHORITY,
The warrant of a Washington pilot, granted to him by the commissioners ?f pilots, is sufficient for h,is tend,er of service to any vessel bound In or out of the ColumbIa rIver; and In a SUIt to recover half pilotage on such offer, and a refusal thereof, it cannot be shown, as a defense thereto that the pilot does not keep a sufficient boat on the bar to cruise for vessl'ls or to supin distress with an? water; and any failure' or derelictIOn In thIl! respect can only be mqUIred Into before the commissioners who may, in a proper case, deprive the pilot of his warrant. ' (Syllabu8 bytke Oourt.)
Suit for Pilotage. O. E. S. Wood, for plaintiff.
184
fA,B., DEA])Y,
RJ,1d W. S. Newbury,for claimant.
agai,nst the schooner: Alcalde to enforce the payment of 828, alleged to beduc him as half pilotage under the law of Washington Territory. It from the, pleadings and evidence that the Alcalde is an American v,essel of over 100 tons burden, .engagedin the coasting trade between San Francisco and.Astoria, and that on August 9, 1886, while so engaged, she was off the bar of the Columbia river, two milee south of the whistling buoy, bound in for Astoria, when the libelant, then on board the steam-tug Columbia, hailed her, and offered to pilot her in over the bar to Astoria, which offer the master declined, and went in, drawing eight feet of water, without a pilot; that the libelant was then a duJy licensed pilot for the bar of the Columbia river,underthe law of Washington Territory, and was thereby authorized to take charge of and pilot all vessels bound in or out of the Columbia river, and to demand and receive for such service $8 per foot draught for the first 12 feet. The law of the territory, however, permits any master to pilot in his own vessel, but in such case he must paythe pilot who first offers his services half pilotage; and vessels "under 100 tons burden, engaged in the coasting trade," shall not be compelleq to pay pilotage at all. In his answer, the master and claimant, Peter Crack, makes these two defenses to the suit: (1) The steam-tug on which the libelant was when he made the offer of pilot service was not a boat "kept" by the libelant, or other pilots, "as a pilot-boat to cruise outside of the' bar of the Columbia river by law required," but that said tug is "the private property of other parties not pilots," and "is licensed and enrolled and used exclusively for towing,i' and" is not known or equipped" or entitled to be recognized as a pilot-boat under the pilot-laws of Washington Territory. (2) The Alcalde, on August 9, 1886, and for more than a year before, was duly licensed and enrolled at San Francisco for the coasting trade, in which she was exclusively engaged between said last-named place and Astoria; "and by reason thereof is exempt from compulsory pilotage under and by virtue of the laws of Oregon in such cases made and provided." It is true that by the Jaw of Oregon (Sess. Laws 1882, p. 20) coasting vessels bound in or out of the Columbia river are exempt from compulsory pilotage, without reference to their tonnage; and it is. equally true that the law of 'Washington only exempts vessels so engaged from such pilotage when they are of less than, 100 tons burden., Oregon has no exclusive jurisdiction over the subject of pilots or pilotage on the Columbia river. The stream,for an the purposes of commerce, both domestic and foreign, including pilots and pilotage, is a navigable water of the United States. In the absence of legislation by congress, the state may pass laws regulating pilots and pilotage thereon, and the territory may do the same. The Glenearne, 7 Sawy. 202,7 Fed. Rep. 604. The organic act (10 St. 172) declares that the legislative power of Washington "shall extend to all rightful subjects of legislation not inconsistent with
J. This suit is brought by the libelant, C. S. ,Gunderson,
"
THE ALCALDE.
13.5
the constitution and laws of the United States." Pilots and. pilotage are beyond question rightful subjects of legislation, and were so regarded as early as the third century. Ex parte McNiel, 13 Wall. 239. Congress bas plenary power over the subject as well in the territories as the states, and may delegate the same to the territorial legislature. The Panama, 1 Deady, 31. It follows that the power of the state over pilots and pilotage is limited to pilots appointed by it and acting under its laws; and it has no power to regulate the conduct or compensation of pilots holding commissions under the laws of Washington Territory; nor to exempt any vessel entering the Columbia river from the authority or demands of said pilots. Nor is it. at all material that the Alcalde was engaged in the coasting trade only;. The subject of pilots and pilotage includes, in this respect, authority over all vessels that enter or leave the port, or navigate the water defined by law or usage as the pilot ground. Whether any or all vessels shall be exempt from compulsory pilotage is a question for the respective legislatures of the state and territory. Since 1882, Oregon has seen proper to exempt vessels engaged in the coasting trade from paying half pilotage to her pilots for an offer of service which is declined; while Washington has limited the, exemption, in the case of her pilots, to vessels ofless than 100 tons burden. Neither is it material that the Alcalde was bound to Astoria, aport on the Oregon side of the river. The Columbia, and all the ports on it, are navigable waters of the United States, and neither the state nor the territory 'bas any exclusive jurisdiction over them in matter of pilotage. Either may authorize or maintain pilots thereon, and prescribe their duties' and compensation, subject to the act of congress of 1837, (section 4236, Rev. St.,) which enacts that the master of any vessel "coming or going out of any port situate on the waters which are the boundary between two states," may "employ any pilot duly authorized or licensed by the laws" of either of said states "to pilot said vessel to or from said port." The question of whether Washington is a "state" within the meaning of this act does not necessarily arise in this case; for it is not claimed that the Alcalde took on an Oregon pilot after the after from the libelant. See The Ullock, 9 Sawy. 641, 19 Fed. Rep. 207 j The Abercorn, 26 Fed. Rep. 877, and 28 Fed. Rep. 384. The offer of the Washington pilot stands, then, in my judgment,. in the same light as if there were no Oregon pilots licensed for this water. Oregon has no more right to enact laws for the Columbia river than Washington has. The master of the Alcalde having made no choice be-tween the 'pilots of the two countries, but contented himself with the refusal of the libelant, such offer and refusal must have effect according to thelaw of Washington, under which they took place. Pennsylvania and Delaware are coterminous states, situate on the same navigable water, which is not, however, a separating boundary between them. The ca$e of The Clymene, 9 Fed. Rep. 184, grew out of an attempt on the part of the former sta.te to prevent the pilots of the latter
136
FEDERAL REPORTER.
from piloting vessels entering the Delaware bay to the port ofPhiladel· phia. on the ground that the port was within the state, and therefore its exclusive jurisdiction. The claim was disregarded, and the case decided to be within the meaning and purpose of the act of 1837, although the river was not the boundary between the two states, because they were coterminous states situate thereon. The decision was affirmed in the circuit court. The Olymffie, 12 Fed. Rep. 346. In the district court, Mr. Justice BUTLER, speaking generally of the claim of Pennsylvania to have exclusive jurisdiction of pilotage for the port of Philadelphia and its commerce, said: "The relations of the states as members of the general government-the fact that they are not separate independencies, and that the navigable waters within their respective limits aresub.iect to common ust be constantly Kept in view. The commerceon the Delaware bay and river. no matter where from or where bound, does' not belong to PennsylV'ania. That she and her citizens derive a larger share of benefit from it than her neighbors is her good fortune, but it confers no right on her to say who shall enter a port within her limits, or What pilot shall, be employed. The port itself, tuted of the public waters of the nation, is not hers; and it is but by the grace of the general government that she allowed any independent voice respect. ing it." "
As to the other defense. a few words will suffice. The law of Washington Territoty, under whiQh the libelant acted, provides for a pilot commissioners, and gives them ,the exclusive authority examine and license pilots for the Columbia river and bar. Each pilot is required, to give bond in the sum of $5,000; and "the pilots" are required "to. keep a sea-worthy boat of not less thim forty tons burden, full-decked, to cruise outside the bar," and, in default thereof,shall be deprived "of their warrants by the pilot commissioners." They are also required to carry provisions and water, for the aid of vessels in distress. It appears that the steam-tug Columbia is a full-decked vessel, of 70 tons burden, propelled by steam, used for both towing and pilotage on the bar of the Columbia river; that she is owned by private parties, not pilots, and the libelant gets frOIll her owners $100 a month for his compensation or share of the earnings. , The claimant contends that this is not a compliance with the law of Washington on. the subject of keeping a boat. But is this contention well founded? And, first, it is to be, observed that the pilots are not required "to own" a pilot-boat,but only "to keep" one. It makes no difference who owns the boat, so they have the use of her for pilot purposes. Nor is it an that she is propelled by steam rather than sails, but the contrary; or that she is engaged in towing also, unless she is thereby prevented from putting a pilot on board a vessel in due time. Again, the pilots may compensate the owner of the tug for her use or service in any way the parties may agree on. For instance, they may put the sums received for pilotage and towage into a common fund, and divide it on some prearranged basis, or they may agree that the pilot shall have so much a month in any event. These are matters which do not concern the parties to whom pilot service is tendered; and it is not
137
apparent why such an arrangement is not a substantial and even 11 fun compliance with tl:e law. But I am satisfied that the question of whether a pilot is complying with the law in keeping a sufficient boat for pilot purposes can only be made before the commissioners. Indeed, it matters not to the master of a vessel to whom a pilot offers his services on the pilot ground how he gets there. He 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 aU the master can require. In the case of The Panama, 1 Deady, 33, the qu.estion was mooted, but not actually decided, whether, in a suit for pilotage, it could be set up as a defense that the libelant did not keep a!lufftcient boat on or outside the bar to cruise for v!'lssels. In dismissing the question, tpe court said: "The legiSlature has ·confided the administration of the law in these matters to the pilot commissioners.". . The ;commissioners have the power to deprive a pilot of his wanant for inattlmtionto his duty, or a failure to provide or keep a sufficient boat wherewith to perform' the s.ame. The statute has expressly ,conferredthisauthority on them, and it is contrary to all the analogies of the law that 'a dereliction inthis respect should be inquired ofcollaterally or elsewhere. Indeed, itwQuld be intolerable and interminable if, in every suit for half pilotage, the libelant could be required to .sho'f to the satisfaction of the court that he had kept a: shfficient boat on the bar, sufficiently supplied with "provisions and water" for the aid of vessels in distress. The fact is, I suppose, that the resistance in this and other cases to the employment of Washington pilots is carried on· in the interest of the state pilots at Astoria, who seem to assume that, because the commerce of the Columbia river belongs mainly to Oregon, Washington ought to be allowed to maintain pilots thereon, or to make any rules or regulations in the matter of pilotage different from those of Oregon. But, as neither Oregon nor Washington have any power over the subject except what is permitted to them by congress, neither can require that the legislation of the other shill be conformed to its own, or be confined to . the commerce pertaining to the ports thereof. The only mode of securing uniformity ofregulation is by an appeal to congress,with whom the ultixnate control ofilie whole subject rests. There IDlist.be a decree for the libelant for the amount sued for, with interest from the filing of the libel, and costs and disbursements; and it is so ordered.
138
FEDERAL
REPORTER.
NEILSEN v. JESUP and others. (District Oourt,S. D. New York. March 4, 1887.) 1. DEMUIIRA.GE-BILL OF LADlNG--HOJ,D;ER'S LIABILITy-SUBCONTRACTS.
'.
2. I.
A vessel, in delivering cargo! is not bound to look beyond the owner and hOlder of the bill of lading. As he has the control of the delivery and accept· ance of the goods. he is responsible, on accepting the goods under the bill oflading, for freight and demurrage according to its terms. He cannot relieve himself from responsibility by subcontracts for a delivery to others. who do not act directly'under the bill of biding, but only under the consignee's orders.
SAME-'-CASE STATED.
handing and order on vessel when they arrive in New York." On arrival; J. e,ntered the goods at the custom'house, and paid duties and freight. P. & C., who had acted as agents for J. in some matters concerning the rails, procuredthe.ship a berth, and received from J. the invoice and order on the vesselfor:dertV'ety, with a to collect payment, fro,m the railroa?- com, ,pany, whlcb..they subsequently dId. There was ,unr6llsonable delay In un, loading tlle ship, partly in remoying the iron from the dock, and partly through 'difficulty in getting lighters, ,Held that, whether or not P. & C. really aoted in reference to the delt,·V,eryOf.t,he, iro,n f,or thems,elves or, fO,r'the railroad, the demurrage, and must look to his company., J. was liable, to. t4e , :orto P. & C. for his ,indeniniW, i,f the delay was by their fault. "
J., the owner and consignee of certain iron rails, sold them to arrive, to a railroad company, to be dEllivered "ea: ship, free of duties; terms, cash on
',
,tihel fp; Demurrage. ,': ' 4da'Ql8' &i Macklin;. for Hbelant. Biddle c!; Ward, for respondents. ':BROWN, 1.. ',' Qn;the of May, 1880, the bark Porro arrived at this port with of iron rails, shipped Cardiff by Guest & Co., to be, "!l,eUvered at New York,:unto order or assigns, he or they paying freigM, of. said goods, an,d qonditipnsa!O per' charter-party." 'l'he charter-party provided for the discharge" as fast as the custom of -the port will admit, ", and. for" demurrage over and above the lying days at register ton per day." The vessel was entered at the op., first day of June.. .On the 3d she was ordered. to South where she arrived the next day, got a .berth, and.. was *e,lj.dy Jo discharge. Part of the .c!1rgo was discharged on the dock and part into lighter!!., . The ;(jln the dock W;:;tS stopped tb,at alreaPY was not reIll.oved,eo as to permit more: wit,hQ\lt. incumbering.t4edockj and, there miS q.elay in sending lighters, in part, at least, through difficulty in obtaining. them. at that time. Through these various causes, the cargo was not fully discharged until June 25th. Fourteen days were a reasonable time to discharge, which should have been completed, omitting the intervening Sundays, at least by the 21st. There is no custom proved that throws upon the ship the unnecessary loss of the remaining four days. She is therefore entitled to demmrage for that time, and the only question is whether the respondents in this action are responsible for it. The respondents, constituting the firm of
