60 N.Y. 249, Brown v. Elwell

• Citation: 60 N.Y. 249
• Party Name: RICHARD BROWN, Appellant, v. JAMES W. ELWELL et al., Respondents.
• Case Date: March 23, 1875
• Court: New York Court of Appeals Court of Appeals

Page 249

60 N.Y. 249

RICHARD BROWN, Appellant,

v.

JAMES W. ELWELL et al., Respondents.

New York Court of Appeal

March 23, 1875

Argued Feb. 23, 1875.

Page 250

COUNSEL

Thos. B. Odell for the appellant. Congress has power to regulate commerce among the several States. ( Cooley v. Bd. Pt. Wardens of Phila., 12 How. [ U. S.], 299; 1 U.S. Stat. at Large, 54; 5 Id., 153.) Congress having left to the States the power of regulating pilotage, the regulations of the States must be considered in connection with the legislation of Congress as regulations of commerce and as applicable to all licensed pilots. (1 U.S. Stat. at Large, 53; 5 Id., 153; 1 S. L., 1857, 502; People v. Sperry, 50 Barb., 179.) The claim for spoken pilotage is not a penalty imposed by statute, but a compensation due upon an implied contract. (Ex parte McNeil, 13 Wall., 236; Stshp. Co. v. Joliffe, 2 Id., 451; Cooley v. Bd. Pt. Wardens Phila., 12 How. [ U. S.], 312; Comm. v. Ricketson, 5 Metc., 419.) The State laws in regard to pilotage are to be liberally and beneficially construed for the benefit of the pilots. ( Smith v. Swift, 8 Metc., 332; Gillespie v. Winberg, 4 Daly, 325.)

Saml. H. Valentine for the respondents. A pilot licensed under the laws of New Jersey cannot sue for and recover pilotage under the laws of New York. ( Hopkins v. Wyckoff, 1 Daly, 176.)

ANDREWS, J.

This action is brought by the plaintiff, a pilot licensed under the laws of the State of New Jersey, to recover of the defendant, the master and consignee of the bark "Live Oak," pilotage given by the twenty-ninth section of chapter 469, of the Laws of 1853, entitled "An act to provide

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for the licensing and government of pilots, and regulating pilotage of the port of New York," as amended by chapter 243 of the Laws of 1857, upon the ground that the plaintiff on the 8th of February, 1874, at sea off Sandy Hook, first spoke the "Live Oak," a vessel from a foreign port, sailing under register and bound to the port of New York, and offered his services to the master as pilot, which were refused.

That section provides: "That 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 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...