ANDERSON, v. PACIFIC COAST STEAMSHIP COMPANY, CLAIMANT OF THE STEAMSHIP "QUEEN." JORDAN, v. PACIFIC COAST COMPANY, CLAIMANT OF THE STEAMSHIP "UMATILLA," ETC.

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. 1, § 8), Congress did not supersede the state legislation, but by the act of August 7, 1789, chap. 9, § 4 (1 Stat. at L. 53, 54, Rev. Stat. § 4235, U. S. Comp. Stat. 1901, p. 2903), 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. Port Wardens, 12 How. 299, 319, 321, 13 L. ed. 996, 1004, 1005; Pacific Mail S. S. Co. v. Joliffe, 2 Wall. 450, 459, 17 L. ed. 805, 807; Ex parte McNiel, 13 Wall. 236, 240, 20 L. ed. 624, 625; Wilson v. McNamee, 102 U. S. 572, 26 L. ed. 234; Olsen v. Smith, 195 U. S. 332, 341, 49 L. ed. 224, 229, 25 Sup. Ct. Rep. 52. In 1837 (5 Stat. at L. 153, chap. 22, U. S. Comp. Stat. 1901, p. 2903), 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; and thus 'for more than sixty years' it was 'acted on by the states, and the systems of some of them created and of others essentially modified during that period.' Cooley v. Port Wardens, supra, p. 321.

The act of August 30, 1852, chap. 106 (10 Stat. at L. 61), contained provisions for the licensing of pilots of steam vessels (§ 9, Ninth, id. 67). In Pacific Mail S. S. Co. v. Joliffe, 2 Wall. 450, 459, 17 L. ed. 805, 807, 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 provision 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, chap. 234, 14 Stat. at L. 227). After defining the vessels subject to the navigation laws of the United States, it enacted (§ 9) that 'every seagoing 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 year, however, this section was amended by the addition of a proviso that the act should not be construed to 'annul or affect any regulation established by the existing law of any state, requiring vessels entering or leaving a port in such state' to take a state pilot (act of February 25, 1867, chap. 83, 14 Stat. at L. 411). The existing state laws respecting port pilotage again became operative. Sturgis v. Spofford, 45 N. Y. 446, 451; Henderson v. Spofford, 59 N. Y. 131, 133.

The acts of 1852 and 1866 were repealed by the act of February 28, 1871, chap. 100 (16 Stat. at L. 440), the provisions of which were re-enacted in title 52 of the Revised Statutes. This act prescribes general regulations with respect to the licensing of pilots of steam vessels (§§ 14, 18; Rev. Stat. 4438, 4442, U. S. Comp. Stat. 1901, pp. 3034, 3037), similar to those of the act of 1852. The requirements as to the port pilotage of coastwise seagoing 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 seagoing 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 seagoing 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 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, 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: 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.'

These provisions were incorporated in §§ 4401 and 4444 of the Revised Statutes (U. S. Comp. Stat. 1901, pp. 3016, 3037), which are still in force. The-

Sec. 4401. All coastwise seagoing vessels, and vessels 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 title; and every coastwise seagoing 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.

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 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. change of arrangement which placed portions of what was originally a single section in two separated sections cannot be regarded as altering the scope and purpose of the enactment. For it will not be inferred that Congress, in revising and consolidating the laws, intended to change their effect, unless such intention is clearly expressed. United States v. Ryder, 110 U. S. 729, 740, 28 L. ed. 308, 312, 4 Sup. Ct. Rep. 196; United States v. LeBris, 121 U. S. 278, 280, 30 L. ed. 946, 7 Sup. Ct. Rep. 894; Logan v. United States, 144 U. S. 263, 302, 36 L. ed. 429, 442, 12 Sup. Ct. Rep. 617, United States v. Mason, 218 U. S. 517, 525, 54 L. ed. 1133, 1136, 31 Sup. Ct. Rep. 28.

It will be observed that the requirement of § 51 of the act of 1871 (Rev. Stat. § 4401), as to the piloting of coastwise seagoing steam vessels, is limited and explicit. It is that 'every coastwise seagoing 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 reqister.'

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 vessels 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 (United States v. Leetzel) 3 Wall. 566, 571, 18 L. ed. 67, 68. See Huus v. New York & P. R. S. S. Co. 182 U. S. 392, 395, 45 L. ed. 1146, 1150, 21 Sup. Ct. Rep. 827. The act of December 31, 1792 (1 Stat. at L. 287, chap. 1, U. S. Comp. Stat. 1901, p. 2803), applicable exclusively to vessels engaged in foreign commerce and to their registry, and the act of February 18, 1793 (1 Stat. at L. 305, chap. 8, U. S. Comp. Stat. 1901, p. 2959), relating to vessels engaged in the coasting trade and fisheries, and to their enrolment, constituted the basis for the regulations of the two classes. The latter act contained a provision (§ 20, id. 313; Rev. Stat. § 4361, U. S. Comp. Stat. 1901, p. 2980) that any registered vessel when employed in going from one district in the United States to any other district should 'be subject (except as to the payment of fees) to the same regulations, provisions, penalties, and forfeitures' as those prescribed in the case of vessels licensed for carrying on the coasting trade. This, however, had no reference to pilotage, for Congress had not made regulations upon that subject. In 1848 (act of May 27, 1848, 9 Stat. at L. 232, chap. 48, Rev. Stat. § 3126, U. S. Comp. Stat. 1901, p. 2036) it was provided that any vessel, 'on being duly registered,' might engage in trade between ports of the United States, 'with the privilege of touching at one or more foreign ports during the voyage, and land and take in thereat merchandise, passengers and their baggage, and letters and mails.'

Thus, at the time of the passage of the act of 1871, there were coastwise seagoing steam vessels sailing under register and having this privilege of touching at foreign ports, and also coastwise seagoing 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 the necessary effect of the limitation of the requirement was to exempt the coastwise seagoing steam vessels which did sail under register, from its terms.

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 suthority, 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 seagoing 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 Rev. Stat. § 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 license, or any regulation which would impede them 'in the performance of their duties, as required by this act.' The 'steamer piloted as herein provided' was the steamer required to be so piloted, and it was upon such steamer that no pilot charges were to be levied by state authority. The same construction must be given to these provisions as re-enacted in § 4444 of the Revised Statutes, where the words 'piloted as provided by this title' take the place of the words 'piloted as herein provided.' The Federal requirement as to port pilotage of coastwise seagoing steam vessels was applicable only to those 'not sailing under register;' as to those which sailed under register, there were no port pilots provided for, and the regulation of pilotage in the case of such vessels entering and leaving the state ports was left to the states. The fact that a vessel of this sort had on board a pilot holding a Federal license when the services of such a pilot were not required by the Federal law did not oust the state of the power to compel the use of a state pilot.

Nor was the proviso in § 51 of the act of 1871 (now the last sentence of Rev. Stat. § 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 seagoing steam vessels sailing under register. For this would be to impute to Congress the intent to withdraw from the state the power to act in the cases omitted from Federal regulation. Even on the construction of the statute for which the appellees contend, it is conceded that 'a coastwise steam vessel sailing under register, which is not piloted by a Federal pilot, may be compelled by the state to take a state pilot when entering or leaving port.' And if in any case the vessel might be forced to take a pilot under the state law, it would necessarily follow that it is not excluded by the proviso from the operation of that law. The natural interpretation of the proviso is that it was intended to prevent misapprehension as to interference with local rules,—to declare the continued efficacy of those rules when not in conflict with the Federal authority,—and not to introduce an independent limitation of state power over port pilotage with respect to registered steam vessels, where the Federal control had not been asserted. The enacting clause and the proviso are to be read together 'with a view to carry into effect the whole purpose of the law.' White v. United States, 191 U. S. 545, 551, 48 L. ed. 295, 297, 24 Sup. Ct. Rep. 171. So read, the words 'other than coastwise steam vessels' must be deemed to refer to those 'not sailing under register,' to which the requirement of Federal pilots applied. The same meaning must be ascribed to this clause as it now appears in § 4444 of the Revised Statutes, taken, as it must be, in connection with § 4401.

The statute was thus construed in Murray v. Clark (1873) 4 Daly, 468, affirmed in 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. 133, while it was held that a libel for pilotage could not be sustained, for the reason that the law of Massachusetts, in question, was not by its terms applicable, Judge Lowell said (page 135): 'This statute' (referring to the Federal act of 1866) 'has been modified, and the employment of such a pilot is now compulsory only upon coasting steam vessels not sailing under a register. Rev. Stat. § 4401. Murray v. Clark, supra. This vessel, therefore, was not bound to carry such a pilot, and was bound by any law of Massachusetts which might require her to take a local pilot. Rev. Stat. § 4444.' In Spraigue v. Thompson, 118 U. S. 90, 96, 30 L. ed. 115, 117, 6 Sup. Ct. Rep. 988, where a claim for pilotage under the law of Georgia was disallowed, the steamer 'was a coastwise seagoing steam vessel,' and 'was not sailing under register.' In Huus v. New York & P. R. S. S. Co. 182 U. S. 392, 394, 45 L. ed. 1146, 1149, 21 Sup. Ct. Rep. 827, after quoting from §§ 4401 and 4444 of the Revised Statutes, the court said: 'The general object of these provisions seems to be to license pilots upon steam vessels engaged in the coastwise or interior commerce of the country, and at the same time, to leave to the states the regulation of pilots upon all vessels engaged in foreign commerce.' There, the steamer was enrolled and licensed for the coasting trade under the laws of the United States, and was engaged in trade between Porto Rico and New York after the treaty of cession. It was held that she was not within the pilotage laws of New York.

The provisions of the Political Code of the state of California, set forth in the certificate, do not apply to coastwise seagoing 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, in the light of the well-known conditions of trade which existed at the time of its enactment, between coastwise seagoing steam vessels, not sailing under register, and those which did sail under register. Whether or not it is wise to establish Federal rules as to port pilotage for the registered vessels exempted from this regulation is a question for Congress to determine.

We conclude that each one of the questions certified should be answered in the negative.

It is so ordered.

Petition for writs of certiorari to bring up the whole record in these cases denied May 27, 1912.