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Subject Area: Law
Topic: The American Revolution and Constitution

§ 224.: Regulation of harbors—Pilotage laws.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 224.

Regulation of harbors—Pilotage laws.—

Under the constitutional grant to the United States of the power to regulate foreign and interstate commerce is included, also, the power to regulate the harbors, and the conduct and management of ships within the harbors. But as long as Congress does not exercise this implied power, it rests with the States to provide all those local regulations of the use of harbors, which are aids to commerce rather than restrictions or interferences, and which go far towards eliminating the chances of injurious accidents which are more or less present in the absence of police regulations. Thus, it is lawful for the State or municipal corporation to prescribe when a vessel may lie in the harbor, how long she may remain there, what light she must show at night, and establish other similar regulations, without coming into conflict with any law of Congress.2 So, also, has it been held within the police power of the State, to forbid the sale of coal, imported into the State in barges, until the coal has been gauged by the State gaugers.1 On the other hand, it has been held to be an unconstitutional interference with interstate commerce, for a State, in the exercise of its police power, to prohibit the crews of foreign vessels from loading or unloading vessels in the harbors of the State.2

It is also lawful for a city, so far as the Federal authority is concerned, to require the payment of a tax or license fee from all boats coming into the harbor, or mooring at the city landings. The imposition of such a tax does not constitute an interference with interstate commerce in the constitutional sense.3 It has, however, been held recently by the United States Supreme Court, that the boats, which are engaged in interstate commerce, such as tugs in a harbor, which are employed in towing vessels into or out of the harbor and rivers of a State, cannot be subjected to liability to the State or city for the payment of any license tax, if such boats possess a license from the United States government to engage in the coasting and foreign trade.4

But all charges laid by the local authorities for the enjoyment of the facilities furnished to vessels, must be so computed as not to constitute a tonnage duty. By the United States constitution,5 the States are prohibited from laying any tonnage of duty without the consent of Congress. For example, the State board of harbor commissioners for the port of Charleston, South Carolina, under the authority given by the State to levy fees and port charges to defray the expenses of the police regulation of the harbor, imposed a scale of charges on vessels entering the port according to the “length over all” in feet. It was held by the Supreme Court of the State that the charges were unlawful, because they were a tonnage duty.1 And the Supreme Court of Louisiana held that a license tax, which was imposed by the State, and graduated according to gross receipts, is void as a State regulation of interstate commerce.2 But on the other hand, it has been held by the Supreme Court of the United States that the charge for the use of the wharf is not unlawful, as being a tonnage duty, because the amount of the fees is regulated according to the tonnage of freight.3

But the harbor charges must be reasonable, and be imposed in consideration of some service rendered, or benefit received. If the law provides for the exaction of certain fees from all the vessels entering the harbor, whether any service is rendered to it or not, the law is unconstitutional as being a restriction upon commerce.4

Another very important police regulation of commerce consists in the pilotage laws. Every ordinary sailing master is able to convey his vessel with safety in the open sea to any part of the world. His general knowledge of the science of navigation is a sufficient guaranty of safety to all on board. But a special knowledge of the shoals and currents of a harbor is necessary, in order that it may be entered with safety, and for this reason, it is the universal custom of all civilized nations to require that all vessels, in entering a harbor, shall be in charge of a pilot, specially licensed by the State; or, at least, to provide such pilots for the use of those who may desire their services, under the power to regulate commerce. Congress clearly possesses the right to establish pilot regulations. But as long as Congress does not assume this power, it is but reasonable to conclude that the States may exercise the power, as they had done before the formation of the present union.

In order to remove all doubt as to the power of the States to establish pilot regulations, the first Congress passed this act:—

“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.”1

Notwithstanding this statutory declaration, the State pilotage laws have frequently been attacked, for being an invasion of the power of Congress; but they have been uniformly sustained in the absence of regulations by Congress.2 The only regulation of pilots established by Congress, is that contained in an act of Congress, passed in 1837, which is as follows:—

“That it shall be lawful for the master or commander of any vessel coming in or going out of any port situated upon waters, which are the boundary between two States, to employ any pilot duly licensed or authorized by the laws of either of the States bounded on the said waters, to pilot said vessel to or from said port; any law, usage or custom to the contrary notwithstanding.”1

It is lawful for the States to exact the payment of pilotage fees, in whole or in part, by those owners or masters of vessels, who decline the service of a pilot, for it is within the power of the State to compel every vessel on entering a harbor of the State, to accept the service of a licensed pilot.2 Nor is it any violation of the provisions of the constitution for a State to discriminate in the amount of pilotage between vessels in foreign commerce and those which are engaged in the coasting trade.3 It has also been held lawful for a State to require the masters of vessels bound to ports in that State to accept the services of the first licensed pilot who offers himself.4

[2]The James Gray v. The John Fraser, 21 How. 421. See Mobile v. Kimball, 102 U. S. 691; Escanaba Company v. Chicago, 107 U. S. 678. In Vanderbilt v. Adams, 7 Cow. 349, an act of the legislature of New York was sustained as constitutional, which authorized the harbormasters of the city of New York to regulate the moorings and movements of all ships and vessels in the current of the East and North Rivers, and to remove from the wharves such vessels as were not employed in discharging or receiving freight, in order to make room for vessels, waiting for an opportunity to come up to the wharf.

[1]Pittsburg & S. Coal Co. v. Louisiana, 156 U. S. 590.

[2]Cuban S. S. Co. v. Fitzpatrick, 66 Fed. 63.

[3]Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365; Wheeler, etc., Transportation Co. v. City of Wheeling, 9 W. Va. 170 (27 Am. Rep. 552); City of New Orleans v. Eclipse Towboat Co., 33 La. Ann. 647 (39 Am. Rep. 279).

[4]Harmon v. City of Chicago, 147 U. S. 396; reversing s. c. City of Chicago v. Harmon, 37 Ill. App. 496; 140 Ill. 374; following Gibbons v. Ogden, 9 Wheat. 210; Foster v. Davenport, 22 How. 244; Moran v. New Orleans, 112 U. S. 69; and distinguishing Huse v. Glover, 119 U. S. 543; Sands v. Improvement Co., 123 U. S. 288.

[5]Art. I., § 10, ch. 3.

[1]Harbor Commissioners v. Pashley, 19 S. C. 315. See Inman Steamship Co. v. Tinker, 94 U. S. 238.

[2]Frere v. Von Schoeller, 47 La. Ann. 334.

[3]Packet Company v. Keokuk, 95 U. S. 80; People v. Roberts, 92 Cal. 659.

[4]Webb v. Dunn, 18 Fla. 721; see Harmon v. City of Chicago, 147 U. S. 396; reversing s. c. City of Chicago v. Harmon, 37 Ill. App. 496; 140 Ill. 374.

[1]U. S. Rev. Stat. 4235.

[2]Cooley v. Wardens, 12 How. 299; Ex parte McNiell, 13 Wall. 236; The Panama, Deady, 27; Ex parte Siebold, 100 U. S. 385; Wilson v. McNamee, 102 U. S. 572; State v. Penny, 19 S. C. 218.

[1]U. S. Rev. Stat. 4236. See Henderson v. Spofford, 59 N. Y. 131.

[2]Cooley v. Wardens, 12 How. 299.

[3]Collins v. Relief Society, 73 Pa. St. 94; Freeman v. The Undaunted, 37 Fed. 662. See Cooley v. Wardens, 12 How. 299.

[4]Thompson v. Spraigue, 69 Ga. 409 (47 Am. Rep. 760).