583 F.2d 1336 (5th Cir. 1978), 76-2876, Jackson v. Marine Exploration Co., Inc.

Docket Nº:76-2876.
Citation:583 F.2d 1336
Party Name:W. E. JACKSON et al., d/b/a Port Everglades Pilots Association, Plaintiffs- Appellees, Robert L. Shevin, as Attorney General of the State of Florida, and Florida State Pilots Assoc., Inc., Intervenors-Appellees, v. MARINE EXPLORATION COMPANY, INCORPORATED and Greyhound Leasing & Financial Corporation, Defendants-Appellants.
Case Date:November 16, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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583 F.2d 1336 (5th Cir. 1978)

W. E. JACKSON et al., d/b/a Port Everglades Pilots

Association, Plaintiffs-

Appellees, Robert L. Shevin, as Attorney General of the

State of Florida, and Florida State Pilots Assoc.,

Inc., Intervenors-Appellees,



Leasing & Financial Corporation, Defendants-Appellants.

No. 76-2876.

United States Court of Appeals, Fifth Circuit

November 16, 1978

Page 1337

[Copyrighted Material Omitted]

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Reginald M. Hayden, Jr., Miami, Fla., for defendants-appellants.

Louis de la Parte, Tampa, Fla., Underwood, Gillis, Karcher, Reinert & Gordon, David P. Karcher, Miami, Fla., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, THORNBERRY and CLARK, Circuit Judges.

JOHN R. BROWN, Chief Judge:

This case involves a challenge to the Florida version of one of the country's oldest monopolistic regulatory systems the institution of state compulsory pilotage. For years, Marine Exploration Company, Inc. (MECI) has operated tugs and barges under registry in and out of Port Laudania, Florida, without using or paying for the services tendered by the state-licensed local pilots as required by Florida law. The various local pilots, who had joined together as the Port Everglades Pilots Association (PILOTS), brought suit in the Southern District of Florida to recover the pilotage fees and charges to which they were entitled under Florida law. 1 MECI interposed a number of constitutional and statutory defenses. 2 None were found availing by the District Court, which, after a bench trial, entered judgment for PILOTS in the amount of $27,807.69, covering the pilotage fees the defendants had incurred through September 30, 1975. We affirm this judgment, as both history and the law stand in firm opposition to MECI's attempt to escape from one of the incidents of its maritime business.

To attempt an evaluation of the smokescreen of legal arguments raised here before us on appeal without first fixing our compass upon the system of compulsory pilotage would only invite confusion. Accordingly, we defer further discussion of the facts and our analysis of MECI's claims until after a brief review of the institution of pilotage and those aspects of the concurrent federal-state system for regulating pilotage that are relevant to this case.

Pilotage And Its Regulation In The United States

As a profession, pilotage owes its existence to the infinite variety of navigation

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hazards currents, tides, sand bars, submerged objects, weather conditions, and the like that mark the harbors and rivers open to commercial vessels. No matter how competent the master of a ship is at open sea, he cannot be expected to be familiar with the local navigation hazards of each harbor and river that he encounters as he conducts his ship in the course of a maritime trade. See The Framlington Court, 5 Cir., 1934, 69 F.2d 300, 304, 1934 A.M.C. 272. Accordingly, it has long been the practice of vessels to employ, for each port they enter and leave, a local pilot intimately familiar with the waters of that port to board and guide them through those waters in from or back to the open sea.

As the Supreme Court has remarked, "(p)ilots are * * * indispensable cogs in the transportation system of every maritime economy. Their work prevents traffic congestion and accidents which would impair navigation in and to the ports. It affects the safety of lives and cargo, the cost and time expended in port calls, and in some measure, the competitive attractiveness of particular ports." Kotch v. Board of River Port Pilot Commissioners, 1947, 330 U.S. 552, 558, 67 S.Ct. 910, 913, 91 L.Ed. 1093.

Indeed, local pilotage has been regarded so important to the conduct of maritime affairs that for centuries commercial states with substantial shipping trades have required vessels entering or departing their ports to take on board a local pilot or to pay some sort of penalty. 3 In this country, compulsory pilotage laws date back to the time of the Revolution 4 and today, at least 23 states have such laws as part of a comprehensive pilotage regulatory system. 5

Those states with pilotage laws typically establish some sort of licensing system for local harbor and river pilots. While vessels subject to the pilotage laws usually are not compelled to employ a state-licensed local pilot, they are required to pay some form of pilotage fees to the first state-licensed pilot who tenders his services to them whether they avail themselves of those services or not. 6 The actual pilotage fees are either

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specified by the state statute or fixed by an administrative agency.

The power of the states to engage in such regulation of pilotage was at center stage in the Supreme Court's decision in Cooley v. Board of Wardens, 1851, 53 U.S. (12 How.) 299, 13 L.Ed. 996, which remains the landmark case construing the interrelationship of state and federal regulatory power under the Commerce Clause. In Cooley a penalty equal to half the pilotage had been imposed pursuant to state statute upon a shipmaster who had failed to engage a local pilot while entering the port of Philadelphia. The shipmaster challenged the Pennsylvania compulsory pilotage law as an unconstitutional state regulation of interstate commerce. The Supreme Court acknowledged that state laws concerning pilotage are regulations of commerce within the scope of Congress's Commerce Clause power, but held that pilotage was among those peculiarly local concerns that could constitutionally be regulated by the states in the absence of any conflicting federal legislation, Id. at 319. In reaching this determination, which it has subsequently reaffirmed on numerous occasions, 7 the Court relied heavily on the Act of Aug. 7, 1789, c. 9, § 4, in which Congress provided that state pilotage regulations would remain in effect until "further legislative provisions shall be made by Congress." 8

In 1837 Congress began to enact "further legislative provisions" and to shape a system of concurrent federal-state regulation of pilotage. By 1871, the broad outline of this system as relevant to this case had been completed. 9 Central to this concurrent system of pilotage regulation is the distinction between enrolled vessels and registered vessels, a classification scheme that has existed since the early days of the Republic.

Ships engaged in trade with foreign lands are "registered," a documentation procedure set up * * * in the Act of Dec. 31, 1792, 1 Stat. 287, and now codified in 46 U.S.C. c. 2. * * * Vessels engaged in domestic or coastwise trade or used for fishing are "enrolled" under procedures established by the Enrollment and Licensing Act of Feb. 18, 1793, 1 Stat. 305, codified in 46 U.S.C. c. 12.

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Douglas v. Seacoast Prods., Inc., 1977, 431 U.S. 265, 272-73, 97 S.Ct. 1740, 1745, 52 L.Ed.2d 304, 1977 A.M.C. 566 (Emphasis added). 10

The federal government has assumed exclusive authority over the regulation of pilots on Enrolled vessels. 46 U.S.C.A. § 364 provides that all coastwise seagoing vessels Not sailing under register shall be "under the control and direction of pilots licensed by the Coast Guard." 11 In addition, by virtue of 46 U.S.C.A. § 215, the states are specifically precluded either from requiring the pilots of such coastwise seagoing vessels to obtain a license in addition to the Coast Guard license or from imposing pilotage fees upon such vessels. 12

But § 215 also underscores the fact that federal preemption of pilotage does not extend to Registered vessels. The last sentence of that section stipulates that nothing in the federal pilotage law "shall be construed to annul or affect any regulation established by the laws of any State, requiring vessels entering or leaving a port in any such State, Other than coastwise steam vessels, to take a pilot duly licensed or authorized by the laws of such States * * *." (Emphasis added).

The combined effect of sections 364 and 215 was summarized succinctly by the Supreme Court only Last Term. "(J)ust as it is clear that States may not regulate the pilots of enrolled vessels, it is equally clear that they are free to impose pilotage requirements on registered vessels entering and leaving their ports." Ray v. Atlantic Richfield Co., 1978, 435 U.S. 151, 159-60, 98 S.Ct. 988, 995, 55 L.Ed.2d 179, --- A.M.C. ---; See also Anderson v. Pacific Coast S.S. Co., supra, 225 U.S. at 201, 32 S.Ct. 626.

Pilotage Regulation In Florida

The history of pilotage regulation in Florida, although not as long as in most Eastern coastal states, is still a venerable one. Florida

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first enacted a pilotage statute in 1868 and the provision at issue in this case, Florida Statute § 310.11 (1973), is a direct descendant of an 1872 enactment. Set out in full below, 13 § 310.11 requires all vessels not exempted from its provisions that enter or leave a Florida port to pay pilotage fees either (a) to the state-licensed pilot who actually serves on board the vessel upon entering or leaving the port, or (b) to the first state-licensed pilot to contact the vessel and tender his services for the journey in or out of port. The pilotage fees are to be fixed by the board of pilot commissioners for each port, but the statute specifies a minimum rate. The statute also exempts certain vessels from its scope namely, "all steamers or vessels drawing less than six feet of water and having a coastwise license." Although this exemption is framed in the conjunctive, federal pilotage laws specifically 46 U.S.C.A. §§ 215, 364 14 preclude Florida from regulating any vessels with a coastwise license (I. e., any vessels under enrollment)...

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