The Alcalde

• Decision Date: 01 March 1887
• Citation: 30 F. 133
• Parties: THE ALCALDE, (GUNDERSON, Libelant.
• Court: U.S. District Court — District of Oregon

30 F. 133

THE ALCALDE, (GUNDERSON, Libelant.

United States District Court, D. Oregon.

March 1, 1887

Syllabus by the Court

The power to regulate pilots and pilotage on the Columbia river is permitted to Oregon until congress exercises the same, and is directly conferred by congress on the legislature of Washington. Therefore the state and territory have equal powers over the subject, and may appoint pilots for the river, and prescribe their duties and compensation as to any and all vessels bound in or out of the same, without reference to the fact of whether the business or commerce in which they are engaged pertains to Oregon or Washington; and neither can require that the legislation of the other shall conform to its own in any respect.

The warrant of a Washington pilot, granted to him by the commissioners of pilots, is sufficient authority for his tender of service to any vessel bound in or out of the Columbia river; and in a suit to recover half pilotage on such offer, and a refusal thereof, it cannot be shown, as a defense thereto, that the pilot does not keep a sufficient boat on the bar to cruise for vessels, or to supply vessels in distress with provisions and water; and any failure or dereliction in this respect can only be inquired into before the commissioners, who may, in a proper case, deprive the pilot of his warrant.

C. E S. Wood, for plaintiff.

C. B Watson and W. S. Newbury, for claimant.

DEADY J.

This suit is brought by the libelant, C. S. Gunderson, against the schooner Alcalde to enforce the payment of $28, alleged to be due him as half pilotage under the law of Washington Territory. It appears from the pleadings and evidence that the Alcalde is an American vessel of over 100 tons burden engaged in the coasting trade between San Francisco and Astoria, and that on August 9, 1886, while so engaged, she was off the bar of the Columbia river, two miles south of the whistling buoy, bound in for Astoria, when the libelant, then on board the steam-tug Columbia, hailed her, and offered to pilot her in over the bar to Astoria, which offer the master declined, and went in, drawing eight feet of water, without a pilot; that the libelant was then a duly licensed pilot for the bar of the Columbia river, under the law of Washington Territory, and was thereby authorized to take charge of and pilot all vessels bound in or out of the Columbia river, and to demand and receive for such service $8 per foot draught for the first 12 feet. The law of the territory, however, permits any master to pilot in his own vessel, but in such case he must pay the pilot who first offers his services half pilotage; and vessels 'under 100 tons burden, engaged in the coasting trade,' shall not be compelled to pay pilotage at all.

In his answer, the master and claimant, Peter Crack, makes these two defenses to the suit: (1) The steam-tug on which the libelant was when he made the offer of pilot service was not a boat 'kept' by the libelant, or other pilots, 'as a pilot-boat to cruise outside of the bar of the Columbia river as by law required,' but that said tug is 'the private property of other parties not pilots,' and 'is licensed and enrolled and used exclusively for towing,' and 'is not known or equipped' or entitled to be recognized as a pilot-boat under the pilot-laws of Washington Territory. (2) The Alcalde, on August 9, 1886, and for more than a year before, was duly licensed and enrolled at San Francisco for the coasting trade, in which she was exclusively engaged between said last-named place and Astoria; 'and by reason thereof is exempt from compulsory pilotage under and by virtue of the laws of Oregon in such cases made and provided.'

It is true that by the law of Oregon (Sess. Laws 1882, p. 20) coasting vessels bound in or out of the Columbia river are exempt from compulsory pilotage, without reference to their tonnage; and it is equally true that the law of Washington only exempts vessels so engaged from such pilotage when they are of less than 100 tons burden. Oregon has no exclusive jurisdiction over the subject of pilots or pilotage on the Columbia river. The stream, for all the purposes of commerce, both domestic and foreign, including pilots and pilotage, is a navigable water of the United States. In the absence of legislation by congress, the state may pass laws regulating pilots and pilotage thereon, and the territory may do the same. The Glenearne, 7 Sawy. 202, 7 F. 604. The organic act (10 St. 172) declares that the legislative power of Washington 'shall extend to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States. ' Pilots and pilotage are beyond question rightful subjects of legislation, and were so regarded as early as the third century. Ex parte McNiel, 13 Wall. 239. Congress has plenary power over the subject as well in the territories as the states, and may delegate the same to the territorial legislature. The Panama, 1 Deady, 31. It follows that the power of the state over pilots and pilotage is limited to pilots appointed by it and acting under its laws; and it has no power to regulate the conduct or compensation of pilots holding commissions under the laws of Washington Territory; nor to exempt any vessel entering the Columbia river from the authority or demands of said pilots.

Nor is it at all material that the Alcalde was engaged in the coasting trade only. The subject of pilots and pilotage includes, in this respect, authority over all vessels that enter or leave the port, or navigate the water defined by law or usage as the...