1. An objection not taken in the court below cannot be
considered here.
2. The pilot laws of the State of New York are not in conflict
with the Constitution of the United States.
Ex Parte
McNiel, 13 Wall. 236, and
Cooley v.
Board of Wardens of Port of Philadelphia, 12 How.
299, cited and reaffirmed.
3. The pilot may recover pilotage although his services were
tendered to and refused by the master of the vessel when she was
without the jurisdiction of the State.
McNamee tendered his services as a licensed Sandy Hook pilot to
conduct the schooner
E. E. Racket by way of Sandy Hook to
the port of New York. He was the first that offered his services.
The tender was made at sea, about fifty miles from that port. The
vessel was from a foreign port, sailing under register, and drew
nine feet of water. The master refused to accept the services, and
came into port without a pilot. McNamee demanded the compensation
allowed by the local State law, and, payment having been refused,
brought this suit and recovered judgment in the District Court of
the City of New York for the First Judicial Circuit against Wilson,
the consignee of the schooner. The case was thereupon removed by
appeal to the proper Court of Common Pleas, and subsequently to the
Court of Appeals of the State. Those courts successively affirmed
the judgment. Wilson sued out this writ.
The laws of New York on the subject of pilotage contain, among
other provisions, the following:
"All masters of foreign vessels, and vessels from a foreign
port, and all vessels sailing under register, bound to or from the
port of New York, by the way of Sandy Hook, shall take a licensed
pilot; or, in case of refusal to take such pilot, shall himself,
owners or consignees, pay the said pilotage, as if one had been
employed; and such pilotage shall be paid to the pilot first
speaking or offering his services as pilot to such vessel."
The fourth section of the Act of Congress approved Aug. 7, 1789,
1 Stat. 54, declares that
Page 102 U. S. 573
"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 enactment will also be found in sec. 4235 of the Revised
Statutes.
The proviso to the second section of an act of Congress of Feb.
2, 1867, 14 Stat. 412, is in these words:
"Nothing in this act contained, or in the act of which it is
amendatory, shall be construed to annul or affect any regulations
established by the existing laws of any state requiring vessels
entering or leaving a port in such state to take a pilot duly
authorized by the laws of such state, or of a state situate upon
the waters of the same port."
MR. JUSTICE SWAYNE, after stating the case, delivered the
opinion of the Court.
The only point argued here was the validity of the pilot law of
New York with reference to the Constitution of the United
states.
At the close of the opening argument of the learned counsel for
the plaintiff in error, we announced that the affirmative of the
question thus presented was so well settled by the repeated
adjudications of this court, that we had no desire to hear the
counsel for the defendant in error upon the subject.
Thereafter, the counsel who had been heard submitted a
memorandum, in which he called our attention particularly "to the
tenth point of the brief of the plaintiff in error, namely, that
the tender took place outside of the jurisdiction of the State of
New York." He added: "This question has never yet been passed upon
by this court in either of the other pilot cases."
Our opinion will be confined to that subject.
Page 102 U. S. 574
There are several answers to the suggestion.
1. The objection does not appear to have been taken in the
circuit court, and cannot, therefore, be considered here.
Edwards v.
Elliott, 21 Wall. 532.
2. A vessel at sea is considered as a part of the territory to
which it belongs when at home. It carries with it the local legal
rights and legal jurisdiction of such locality. All on board are
endowed and subject accordingly. The pilot, upon his boat, had the
same authority from the laws of New York to tender and demand
employment, and the same legal consequences, under the
circumstances, followed the refusal of the master as if both
vessels had then been
infra fauces terrae, where the
municipal jurisdiction of the state was complete and exclusive. The
jurisdiction of the local sovereign over a vessel, and over those
belonging to her, in the home port and abroad on the sea, is,
according to the law of nations, the same. Dana's Wheaton, p. 169,
sec. 106; 1 Kent Com. 27; Vattel, bk. 1, c. 19, sec. 216; 2
Rutherford's Inst., bl. 2, c. 9, secs. 8, 19.
The principle here recognized is, of course, subject to the
paramount authority of the Constitution and laws of the United
states over the foreign and interstate commerce of the country, and
the commercial marine of the country engaged in such commerce, and
subject also to the like power of Congress "to define and punish
piracies and felonies committed on the high seas and offenses
against the law of nations."
See Ex Parte
McNiel, 13 Wall. 236.
Speaking of the universal law of reason, justice, and
conscience, of which the law of nations is necessarily a part,
Cicero said:
"Nor is it one thing at Rome and another at Athens, one now and
another in future, but among all nations it is, and in all time
will be, eternally and immutably the same."
Lactantius Inst. Div., bk. 7, c. 8.
3. Conceding that the pilot laws of the several states are
regulations of commerce, Mr. Justice Story said, "They have been
adopted by Congress, and without question are controllable by it."
2 Story, Const., sec. 1071.
Mr. Chief Justice Marshall, in
Gibbons v. Ogden,
said:
"When the government of the Union was brought into
existence,
Page 102 U. S. 575
it found a system for the regulation of pilots in force in every
state. The act which has been mentioned adopts this system, and
gives it the same validity as if its provisions had been specially
made by Congress."
22 U. S. 9 Wheat. 1,
22 U. S. 207. The
long-continued silence of Congress, with its plenary power, in the
presence of such legislation by the states concerned, is itself an
implied ratification and adoption, and is equivalent in its
consequences to an express declaration to that effect.
Atkins v. The Disintegrating
Company, 18 Wall. 272.
The several acts of Congress bearing on the subject are fully
referred to in
Ex Parte McNiel, supra. In that, and in the
earlier and more elaborate case of
Cooley v.
Board of Wardens of Port of Philadelphia, 12 How.
299, this subject, in all its aspects, was so fully considered that
further remarks on the present occasion are deemed unnecessary.
Judgment affirmed.
