MR. JUSTICE HUGHES, after making the above statement, delivered the opinion of the court.
When the Constitution of the United States was adopted, each State had its own regulations of pilotage. While this subject was embraced within the grant of the power "to regulate commerce with foreign nations, and among the several States" (Art. I, § 8), Congress did not supersede the state legislation, but by the act of August 7, 1789, c. 9, § 4 (1 Stat. 53, 54; R.S., § 4235), it was enacted that "all pilots in the 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 provision shall be made by Congress." This was "a clear and authoritative declaration by the first Congress, that the nature of this subject is such, that until Congress should find it necessary to exercise its power, it should be left to the legislation of the States;" and it has long been established by the decisions of this court that, although state laws concerning pilotage are regulations of commerce, they fall within that class of powers which may be exercised by the States until Congress shall see fit to act. Cooley v. Board of Wardens, 12 How. 299, 319, 321; Steamship Company v. Joliffe, 2 Wall. 450, 459; Ex parte McNiel, 13 Wall. 236, 240; Wilson v. McNamee, 102 U.S. 572; Olsen v. Smith, 195 U.S. 332, 341. In 1837 (5 Stat. 153), it was provided that a master of a vessel entering or leaving a port situate upon waters which are the boundary between two States, might employ a pilot licensed by either State. There was no other Federal legislation upon the subject of pilots until 1852;
The act of August 30, 1852, c. 106 (10 Stat. 61), contained provisions for the licensing of pilots of steam vessels (§ 9, Ninth, id. 67). In Steamship Company v. Joliffe, supra, it was contended that the statute of the State of California of May 20, 1861, providing for port pilots at San Francisco, was in conflict with this act; but the court took the contrary view, holding that the Federal law did not relate to port pilots. The court said (pp. 460, 461): "The act of 1852 was intended, as its title indicates, to provide greater security than then existed for the lives of passengers on board of vessels propelled in whole or part by steam. . . . The act contains few provisions relating to pilots; indeed, it was not directed to the remedy of any evils of the local pilot system. There were no complaints against the port pilots; on the contrary, they were the subjects of just praise for their skill, energy, and, efficiency. The clauses respecting pilots in the act relate, in our judgment, to pilots having charge of steamers on the voyage, and not to port pilots; and the provisions that no person shall be employed or serve as a pilot who is not licensed by the inspectors has reference to employment and service on the voyage generally, and not to employment and service in connection with ports and harbors."
In 1866, Congress passed a more comprehensive statute embracing port pilotage (act of July 25, 1866, c. 234, 14 Stat. 227). After defining the vessels subject to the navigation laws of the United States, it enacted (§ 9) that "every sea-going steam vessel," so subject, should "when under way, except upon the high seas, be under the control and direction of pilots licensed by the inspectors of steam vessels; vessels of other countries and public vessels of the United States only excepted." In the following
The acts of 1852 and 1866 were repealed by the act of February 28, 1871, c. 100 (16 Stat. 440), the provisions of which were reenacted in Title 52 of the Revised Statutes. This act prescribed general regulations with respect to the licensing of pilots of steam vessels (§§ 14, 18; R.S. 4438, 4442) similar to those of the act of 1852. The requirement as to the port pilotage of coastwise sea-going steam vessels were set forth in § 51, to which reference is made in the questions propounded in the certificate. This section was as follows:
"SEC. 51. And be it further enacted, That all coastwise sea-going vessels, and vessel [s] navigating the great lakes, shall be subject to the navigation laws of the United States, when navigating within the jurisdiction thereof; and all vessels, propelled in whole or in part by steam, and navigating as aforesaid, shall be subject to all the rules and regulations established in pursuance of law for the government of steam-vessels in passing, as provided by this act; and every coastwise sea-going steam-vessel subject to the navigation laws of the United States, and to the rules and regulations aforesaid, not sailing under register, shall, when under way, except on the high seas, be under the control and direction of pilots licensed by the inspectors of steamboats. And no State or municipal government shall impose upon pilots of steam-vessels herein provided for any obligation to procure a State or other license in addition to that issued by the United States, nor other
These provisions were incorporated in §§ 4401 and 4444 of the Revised Statutes, which are still in force.
It will be observed that the requirement of § 51 of the act of 1871 (R.S. § 4401), as to the piloting of coastwise sea-going steam vessels, is limited and explicit. It is that "every coastwise sea-going steam-vessel subject to the navigation laws of the United States and to the rules and regulations aforesaid, not sailing under register, shall, when under way, except on the high seas, be under the control and direction of pilots licensed by the inspectors of steamboats." This covers port pilotage, for it relates to such vessels "when under way, except on the high seas;" and it applies only to those "not sailing under register."
American vessels are of two classes, those registered, and those enrolled and licensed. "The purpose of a register is to declare the nationality of a vessel engaged in trade with foreign nations, and to enable her to assert that nationality wherever found. The purpose of an enrolment is to evidence the national character of a vessel engaged in the coasting trade or home traffic, and to enable such vessel to procure a coasting license. The distinction between these two classes of vessel is kept up throughout the legislation of Congress on the subject, and the word register is invariably used in reference to the one class and enrolment, in reference to the other." The Mohawk, 3 Wall. 566, 571. See Huus v. New York & Porto Rico Steamship Co., 182 U.S. 392, 395. The act of December 31, 1792 (1 Stat. 287, c. 1), applicable exclusively to vessels engaged in foreign commerce and to their
Thus, at the time of the passage of the act of 1871, there were coastwise sea-going steam vessels sailing under register and having this privilege of touching at foreign ports, and also coastwise sea-going steam vessels, which were enrolled and licensed, not sailing under register. It was with respect to the vessels of the latter sort that Congress imposed the requirement of § 51 to use Federal pilots. The reason for the distinction may be found in the fact that the registered vessels, under the conditions of trade then existing, would presumably be engaged in the longer voyages, touching at foreign ports where Federal pilots would not avail and at domestic ports for all of which the ship's pilot might not hold a Federal license; and, as Congress did not create local Federal establishments for port pilotage, it was evidently deemed unwise to compel registered vessels in entering and leaving ports to be under the control of Federal pilots. Certainly the distinction was made; and
As these registered vessels were free from this Federal regulation, they would be under no compulsion whatever as to port pilotage save by virtue of the operation of state laws. And it is an inevitable conclusion, on considering the prior history of pilotage regulations in this country and the policy which has been maintained with respect to the exercise of state authority, that, as Congress did not see fit to require Federal pilots, it left the regulation of port pilotage as to such vessels to the States.
It is contended, however, that although the employment of Federal pilots was not made compulsory for coastwise sea-going steam vessels sailing under register in entering and leaving ports, still they had an option to use such pilots, and, if in fact such a vessel was piloted by a Federal pilot, she could not be required to take a state pilot. The argument is based on the following provisions of § 51 (now found in R.S. § 4444):
"And no State or municipal government shall impose upon pilots of steam-vessels herein provided for any obligation to procure a State or other license in addition to that issued by the United States, nor other regulation which will impede such pilots in the performance of their duties, as required by this act; nor shall any pilot charges be levied by any such authority upon any steamer piloted as herein provided, . . ."
This language gives no support to the contention. Wherever the regulations of the statute applied, they were absolute. The "pilots of steam-vessels herein provided for" were those whom, under the provisions of the statute, the vessels described were bound to use. It was upon the pilots, whose use was made compulsory by the Federal law, that "no State or municipal government" was to impose any obligation to procure a state or other
Nor was the proviso in § 51 of the act of 1871 (now the last sentence of R.S. § 4444) a restriction of this state authority. This proviso was as follows:
"Provided, however, That nothing in this act shall be construed to annul or affect any regulation established by the laws of any State requiring vessels entering or leaving a port in any such State, other than coastwise steam-vessels, to take a pilot duly licensed, or authorized by the laws of such State, or of a State situate upon the waters of such State."
Manifestly, this did not enlarge the scope of the requirement as to Federal pilotage contained in the preceding portion of the section. The words "other than coastwise steam-vessels" did not mean that the State could not require port pilots for coastwise sea-going steam vessels sailing under register. For this would be to impute to Congress the intent to withdraw from the State the power to
The statute was thus construed in Murray v. Clark (1874), 4 Daly, 468, affirmed, 58 N.Y. 684, where a steamer sailing under register between New York and New Orleans, and touching at a foreign port as was her privilege, was held to be subject to the law of the State of New York as to pilotage in entering the port of New York, although at the time she was under the control of her master who was a pilot licensed by the Federal inspectors. In Joslyn v. Nickerson (1880), 1 Fed. Rep. 133, while it was held that a libel for pilotage could not be sustained, for the reason that the law of Massachusetts,
The provisions of the Political Code of the State of California, set forth in the certificate, do not apply to coastwise sea-going steam vessels "not sailing under register" and are not in conflict with the statutes of the United States. Their enforcement is simply a recognition of the limits which Congress has thus far set to the exercise of the unquestioned Federal power. The criterion is not whether the stops of registered vessels at foreign ports may be deemed en route between domestic ports, and is not to be found in the length of such stops or in the relative amount of foreign trade. The statute made the distinction,
We conclude that each one of the questions certified should be answered in the negative.
It is so ordered.
SEC. 4444. No State or municipal government shall impose upon pilots of steam-vessels any obligation to procure a State or other license in addition to that issued by the United States, or any other regulation which will impede such pilots in the performance of the duties required by this Title; nor shall any pilot-charges be levied by any such authority upon any steamer piloted as provided by this Title; and in no case shall the fees charged for the pilotage of any steam-vessel exceed the customary or legally established rates in the State where the same is performed. Nothing in this Title shall be construed to annul or affect any regulation established by the laws of any State, requiring vessels entering or leaving a port in any such State, other than coast-wise steam-vessels, to take a pilot duly licensed or authorized by the laws of such State, or of a State situate upon the waters of such State.