Clyde Mallory Lines v. State ex rel. State Docks Commission

• Decision Date: 24 January 1935
• Docket Number: 1 Div. 822.
• Parties: CLYDE MALLORY LINES v. STATE ex rel. STATE DOCKS COMMISSION.
• Court: Alabama Supreme Court

159 So. 53

229 Ala. 624

CLYDE MALLORY LINES v. STATE ex rel. STATE DOCKS COMMISSION.

1 Div. 822.

Supreme Court of Alabama

January 24, 1935

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Action to recover harbor fees by the State, on the relation of the State Docks Commission, against the Clyde Mallory Lines. From a judgment for plaintiff, defendant appeals.

Affirmed.

The substance of the rules and regulations for the port of Mobile is as follows:

Rule 1 requires vessels on arrival to take in jib booms, other outriggers, to cockbill their yards, and take anchors on when not in use, and provides that, when permission is given by the chief wharfinger for a vessel to keep the jib boom and other outriggers out, such vessel shall be responsible for damage done thereby to other vessels.

Rule 2 requires arrival of all vessels in the port to be reported to the chief wharfinger's office.

Rule 3 charges the chief wharfinger with the duty of selecting and changing anchorages, movements of vessels into and out of slips and berths, and with all other ship movements affecting a fair use of the facilities of the port.

Rule 4 requires all vessels moving in the river to receive or discharge cargo or ballast to moor on a line parallel with the channel, all vessels to be on the same line, moored at both ends with sufficient anchors.

Rule 5 requires that all lighters, barges, timber, rafts, or similar floating objects placed alongside vessels, wharves, piling or dolphins to be so placed as to not unnecessarily obstruct navigable water, to be made fast to prevent swinging with the tides, and to display suitable lights at night.

Rule 6 prohibits any vessel in the channel from making fast a line ashore except in emergency.

Rule 7 prohibits any vessel from receiving or discharging cargo while anchored in the river below Cochrane Bridge, without permission from the chief wharfinger.

Rule 8 provides that masters requiring anchor berths for purpose of laying up their vessels apply to the chief wharfinger, who will designate a berth.

Rule 9 provides for report to the chief wharfinger by any vessel finding itself blocked by other vessels when proceeding down the channel.

Rule 10 fixes the maximum rate of speed of vessels through the water from Chickasaw creek to the mouth of Mobile river.

Rule 11 requires the chief wharfinger to inform masters of vessels as to the maximum draft to which vessels can be safely loaded for passage through the channel.

Rule 12 provides that ships lying in slips must not project into the river beyond the harbor line.

Rule 13 prohibits berthing of vessels, barges, and boats more than two abreast at marginal wharves, on ends of piers or alongside piling placed on the harbor line.

Rule 14 requires vessels lying alongside a marginal wharf or at end of pier to heave anchors up in to hawse pipe or be taken on deck.

Rule 15 forbids the shifting of any vessel or change of its anchorage in the inner harbor without the assistance of a deputy wharfinger unless the chief wharfinger has authorized such movement to be made by the master or some other duly licensed navigating officer.

Rule 16 defines the inner harbor of Mobile as comprising that portion of Mobile Bay lying north of an east and west line drawn through beacon 40 and that part of all tributary streams flowing into such harbor in which the tide ebbs and flows.

Rule 17 prohibits any manufacturing or repair plant, steamship, oil tanker, barge, or any other vessel within the waters of the harbor subject to the jurisdiction of the state docks commission from casting, discharging, or suffering to flow into and upon the waters of such harbor any oil or oily mixture (of a fixed oil content) or other oily mixture of a character to cause an oil film on the water; prohibits any craft carrying fuel, crude, or Diesel oil in bulk as cargo or as fuel from pumping bilge containing oil or oily mixtures into such waters; provides for immediate service by pilots boarding vessels entering Mobile Bay of copies of these regulations upon the masters of such vessels, and for prompt boarding of all seagoing vessels, other than war vessels, carrying oil, upon arrival at wharf or anchorage within the harbor of Mobile by a representative of the state docks commission, who shall serve copy of these regulations and seal all valves and suctions in manner prescribed; and provides the circumstances under which such seals may be opened or oil or oily mixture pumped out, under direction of chief wharfinger and approval of the state docks commission.

This rule 17 also schedules the "Harbor Fees for the Port of Mobile prescribed by the State Docks Commission," pertinent items of which are set out in the opinion.

Burlingham, Veeder, Clark & Hupper, of New York City, and Pillans, Cowley & Gresham, of Mobile, for appellant.

Gaillard & Gaillard, of Mobile, for appellee.

BOULDIN Justice.

The state of Alabama, on the relation of the state docks commission, brought suit against Clyde Mallory Lines to recover a sum alleged to be due for "Harbor Fees" prescribed by order of said commission.

By such order the commission fixed a schedule of "Harbor Fees for the purpose of meeting the expense attendant upon the supervision of the Port and execution of the regulations and providing for the proper accommodation of vessels at this Port."

This schedule included the following:

Vessels under 500 tons"making weekly trips, .. $2.50

Vessels under 500 tons, ....................... 5.00

Vessels 500 tons and over, .................... 7.50

Clyde Mallory Lines operates ships in the coastwise trade between New York and Mobile, all over 500 tons, registered tonnage.

The demand sued for covers items accruing wholly under the schedule of "Vessels, 500 tons and over, $7.50."

Special fees are scheduled for "shifting" and "mooring" of vessels.

This harbor fee of $7.50, under the evidence, as well as the tenor of the above order, is a charge against each vessel of that class entering the harbor in the conduct of its shipping business.

This charge is challenged as in violation of two provisions of the Constitution of the United States: First, that it lays a "duty of tonnage" forbidden to any state, without the consent of Congress. Article 1, § 10, cl. 3. Second, that it imposes an unlawful burden on interstate commerce, and violative of article 1, § 8, cl. 3.

The state docks commission is a state agency created in 1923. Gen. Acts 1923, p. 330. Among its duties and powers is the construction and operation of state docks, terminals, and other facilities, in aid of commerce and shipping through the port of Mobile, a state project authorized by constitutional amendment. This function is not here involved.

The state docks commission was also created in lieu of a state harbor commission, and vested with the powers and duties theretofore pertaining to the state harbor commission under chapter 44 of the Code of 1923, section 2427 et seq.; Gen. Acts 1923, p. 330, § 2.

By an Act of January 17, 1927 (Gen. Acts 1927, p. 1), the functions and powers of the state docks commission were further defined.

The jurisdiction of the commission extends over the waters and shores of Mobile river and its tributaries to the head of tidewater, and to the outer bar of Mobile Bay. Code, § 2434; Gen. Acts 1927, p. 1, § 3.

The state docks commission is charged with the "operation" of the harbor and seaport, and empowered to "adopt rules not inconsistent with the provisions of this Act for the purpose of regulating, controlling and conducting the said operation." Gen. Acts 1927, pp. 8, 13, and 14, §§ 9 and 18.

The commission is authorized to "fix from time to time reasonable rates of charges for all services and for the use of all improvements and facilities provided under the authority of this Act." Gen. Acts 1927, p. 12, § 14. See, also, Code, § 2443.

The state docks commission did adopt and promulgate in 1924, and readopt in 1927, rules and regulations, 17 in number, deemed by the commission best adapted to conditions in that harbor.

The inner harbor is defined as beginning at beacon 40 located in the bay, some 2 miles out from the mouth of Mobile river, and extends up the river and tributaries to the head of tidewater, a distance of some 4 miles above the mouth of Mobile river.

The busy shipping zone is in the lower stretches of the river, which is 800 to 1,000 feet in width. The dredged channel for navigation is 500 feet in width up to the state docks, and then narrows to 300 feet.

A synopsis of the rules and regulations above mentioned appear in the report of the case.

Suffice to say here, they look to the safety of vessels and the dispatch of shipping business in the port. For such purpose an active and continuance harbor master service is provided through a chief wharfinger and his deputies.

The supervision thus provided and shown by evidence to be necessary covers services properly referable to "mooring" and "shifting" of vessels for which a special fee is fixed.

But supervision extends to keeping the channel clear, not only by the placement of ships and their proper anchorage, but by controlling rafts, etc.; and protection against fire from the discharge of oils on the waters.

These services may be said to inure to each vessel which enters the harbor and comes within the zone where such supervision affords protection.

Other regulations and the active supervision required to assure their observance constitute a more direct service to each ship.

Each ship is required to notify the harbor master of its arrival the pilot is required to furnish the shipmaster with a copy of the harbor rules and regulations; and on entering the harbor there is...