Craig v. Gulf Barge & Towing Co.

Stacy, C. J. Tbe question to be determined is whether barges of over 60 gross tons, having no motive power of tbeir own, and being towed by steam tugs in and out of tbe harbor of Soutbport, are liable to compulsory pilotage dues under tbe State pilotage laws. C. S., 6955, provides tbat “All vessels, coastwise or foreign, over 60 gross tons, shall take a State licensed pilot from sea to Soutbport, and from Soutbport to sea,” and shall pay tbe designated rates of pilotage fixed by said section, etc. Tbe statute imposes compulsory pilotage on all vessels coming within its terms. This is in tbe interest of safety to navigation. St. George v. Hardie, 141 N. C., 88, 60 S. E., 920; Cooley v. Board, 12 How., 312. “Tbe 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 tbe dangers of navigation. They are engaged in a perilous calling, and must be ready to brave the perils of tbeir vocation. To encourage sucb men, and to secure permanence in tbeir ranks, every nation engaged in commerce, and all tbe states in tbe *253 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.” Simonton, Circuit Judge, in The Carrie L. Tyler, 106 Fed., 422. There is an exemption in C. S., 6985, of “vessels, barges, schooners, or other craft passing through the inland waterway of the State,” with the proviso that “steam vessels” not having on board a United States licensed pilot for the waters navigated shall be subject to pilotage. It is the position of the defendant that these sections run counter to the act of Congress, U. S. C. A., Title 46 — Shipping, sec. 213, which prohibits any discrimination in the pilotage laws adopted by a State. Similar statutes enacted in Virginia were assailed upon the same ground and upheld in the case of Thompson v. Darden, 198 U. S., 310. But aside from the decision in the Thompson case, section 215 of the Eederal Act provides that no State shall impose upon pilots of “steam vessels” an obligation to procure a State or other license in addition to that issued by the United States, etc., with the proviso that nothing therein shall be construed to annul or affect any State regulation requiring vessels entering or leaving a port of the State, other than cost-wise steam vessels, to take a duly-licensed State pilot. A steam vessel is defined in section 361 of the act of Congress as one that is “propelled in whole or in part by steam,” and it is conceded that barges are vessels within the meaning of the law. It is further conceded that if defendant’s barges are subject to pilotage, tender and refusal of such services, import the same liability as performance. C. S., 6991. The case, then, narrows itself to a single point: Are the barges in question “steam vessels” within the meaning of the law? If they are, the judgment is erroneous. If they are not, it is correct. The answer depends upon whether they are propelled in whole or in part by steam within the meaning of the act of Congress. For some purposes, especially in cases of collision, the tug and the tow are regarded as one vessel, just as a railroad engine and the cars drawn by it at a single time are regarded as one train. But in strictness, while the tug propels herself, she is said to “tow the tow,” i. e., she draws the vessel in tow either alongside or astern. And in strictness, an engine propels itself and draws or pushes the cars which go to make up the train. Neither the industry of counsel nor our own research has resulted in the discovery of an American decision which would seem to be determinative of the exact question here presented. The case of "The Carrie L. Tyler,” 106 Fed., 422, cited by the plaintiffs, is almost in point, but not quite. Nor is the case of The “Civilla” and The “Rest *254 less,” 103 U. S., 699, cited by defendant, controlling. Anderson v. Steamship Co., 255 U. S., 187, contains a valuable opinion on tbe subject by Mr. Justice Hughes (now Chief Justice), but does not decide tbe point presently mooted. Tbe precise question was before tbe English Privy Council in tbe case of The St. John Pilot Commissioners v. Cumberland Railway and Coal Co., Appeal Cases, 1910, Law Reports, 208. It was there held, reversing the Supreme Court of Canada, that barges moved by towage alone did not come within the meaning of “ships propelled wholly or in part by steam” as used in tbe Canadian Act, and that tbe word “propelled” bad reference to the motive power possessed by the vessel herself, “propellers nanem remis” — in Cicero’s phrase, and did not embrace tbe idea of traction. We are content to rest our decision on tbe reasoning of this case until tbe matter is decided by tbe Supreme Court of tbe United States. Affirmed.