The China - 74 U.S. 53 (1868)


U.S. Supreme Court

The China, 74 U.S. 7 Wall. 53 53 (1868)

The China

74 U.S. (7 Wall.) 53

Syllabus

1. A state pilot law, having provided for the educating and licensing of a body of pilots, enacted that all masters of foreign vessels bound to or from one of the state ports "shall take a licensed pilot, or, in case of refusal to take such pilot, shall pay pilotage as if one had been employed." It enacted further that any person not licensed as a pilot who should attempt to pilot a vessel as aforesaid should be "deemed guilty of a misdemeanor, and, on conviction, be punished by a fine not exceeding $100 or imprisonment not exceeding sixty days," and that all persons employing anyone to act as a pilot not holding a license, should "forfeit and pay the sum of $100." The pilot first offering his services to a vessel inward bound had a right to pilot her in, and when she went out, the right to pilot her out. Held that under this statute, vessels were compelled to take a pilot.

2. But held further (the statute containing no clause exempting the vessel or owners from liability for the pilot's mismanagement) that the responsibility of the vessel for torts committed by it not being derived from the law of master and servant or from the common law at all, but from maritime law, which impressed a maritime lien upon the vessel in

Page 74 U. S. 54

whosesoever hands it might be for torts committed by it, the fact that the statute thus compelled the master to take the pilot did not exonerate the vessel from liability to respond for torts done by it, as ex gr., for a collision, though the result wholly of the pilot's negligence.

The pilot act of New York, having provided for the education and licensing of a body of pilots, enacts that all masters of foreign vessels, bound to or from the port of New York, "shall take a licensed pilot, or, in case of refusal to take such pilot, shall pay pilotage as if one had been employed." It enacts further that any person not licensed as a pilot who shall attempt to pilot a vessel bound as aforesaid

"shall be deemed guilty of a misdemeanor, and be punished by a fine not exceeding $100 OR imprisonment not exceeding sixty days. And all persons employing a person to act as pilot, not holding a license, shall forfeit and pay to the board of commissioners of pilots the sum of $100."

The pilot first offering his services to a vessel inward bound is entitled to pilot her in, and when she goes out has the right, by port rules, to pilot her out.

This pilot act of New York, it may be observed -- differing from certain acts of Great Britain, known as the "General Pilot Acts," though agreeing with others, sometimes called local pilot acts, to-wit, the Liverpool Pilot Act and the Newcastle Pilot Act, and also in its main features with a Pennsylvania Pilot Act (though this inflicts no penalty of imprisonment, and provides only for a money fine of half pilotage, in case of refusal) -- does not contain any provision to the effect that the owner or master of any ship shall not be liable for any loss or damage occasioned by the neglect, incompetency, or default of any licensed pilot.

With the Pilot Act of New York, above set forth, in force, the steamer China, a foreign vessel bound from the port of New York, and being then in pilot waters and in charge of a licensed pilot of that port, ran into the Kentucky, a vessel of the United States, and sank her. The collision was occasioned by gross fault of the licensed pilot then in charge

Page 74 U. S. 55

of the China. The owners of the Kentucky accordingly libeled the offending vessel in the District Court of New York. Her owners set up for defense that at the time of the collision, she was in charge of a pilot duly licensed by the State of New York; that the said pilot was taken in conformity with the laws of that state; that he directed all the maneuvers of the steamer which preceded the collision, and that the same was not in consequence of any negligence of her officers or crew.

The case thus presented the question whether a vessel, in charge of a licensed pilot, whom the statutes of the state governing the port whence she sailed enacted positively that the vessel should take aboard under penalties named, was liable in rem for a tort committed by her, the result wholly of this pilot's negligence.

The district court held that she was, and the circuit court having affirmed the decree, the question was now here on appeal.

Page 74 U. S. 58



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