State v. Turner

• Decision Date: 05 December 1898
• Citation: 34 Or. 173,55 P. 92
• Parties: STATE v. TURNER.
• Court: Oregon Supreme Court

55 P. 92

34 Or. 173

STATE v. TURNER.

Supreme Court of Oregon

December 5, 1898

Appeal from circuit court, Clatsop county; T.A. McBride, Judge.

Joseph Turner was convicted of piloting on the Columbia river without a license, and appeals. Reversed.

The defendant was indicted, tried, and convicted of piloting on the Columbia river without a license; and, having been sentenced to pay a fine of $25, he appeals, assigning certain alleged errors, only one of which requires consideration in determining the issues presented.

S.B Linthicum, for appellant.

C.M Idleman, Atty. Gen., and James Gleason, for the State.

MOORE J.

The undisputed facts are that defendant has not been licensed as a pilot by the board of pilot commissioners of the state of Oregon, nor was he the master or owner of the vessel which he was accused of piloting. He was, however, master of the steamtug Oklahoma, and on May 7, 1897, run her alongside of and made fast to, the Japanese bark Tenckio Maro, which he towed in the Columbia and Willamette rivers from Astoria to Portland, arriving at the destination the next day. The defendant, being unable to steer the tow by the rudder of the tug alone, gave orders from the pilot house of the steamer to the Japanese sailors, who steered the bark under his directions. He offered to show that he was duly licensed as master and pilot of steam vessels, and authorized by the federal inspector of steamboats to navigate the waters of the Columbia and Willamette rivers and their tributaries but the court, holding that such license afforded no defense to the action, refused to permit it to be received in evidence, to which ruling defendant excepted.

It is contended by defendant's counsel that the bark having been made fast to the side of the tugboat rendered them a single vessel under steam; that their client having been duly licensed, under the laws of the United States, as a master and pilot of steam vessels, had the right, while on board of the tugboat, to direct its course, and in doing so was authorized, when necessary, to demand and receive the assistance of those who operated the rudder of the tow, to enable him to keep the tugboat in the channel, in view of which no offense was committed by him in towing the vessel over the pilot grounds, and hence the court erred in refusing to discharge him when the state rested. In considering the question presented, it will be assumed that defendant had been duly licensed as a master and pilot of steam vessels, under the laws of the United States; and, if such license constituted a defense to the action, it necessarily follows that the court erred in refusing to permit it to be received in evidence. A tugboat is not a public carrier, and hence is not an insurer of the vessels towed by her, notwithstanding which, to avoid accidents to such vessels resulting from the ignorance or carelessness of the master of the tug, certain rules in aid of navigation have been adopted by the courts, one of which is that, when a tugboat is lashed to a tow, the identity of the latter, so long as this union exists, is merged in the former, and under this legal fiction they are treated as a single vessel under steam. 16 Am. & Eng.Enc.Law, 319; The Johnson, 9 Wall. 146; The Northern Belle, Id. 526; Sturgis v. Boyer, 24 How. 110; The Civilta, 103 U.S. 699; The Pennsylvania, 3 Ben. 215, Fed.Cas. No. 10,946; The Merrimac, 2 Sawy. 586, Fed.Cas. No.

9,478; The Fred W. Chase, 31 F. 91; The Bordentown, 40 F. 682; The Columbia, 19 C.C.A. 436, 73 F. 226; Sproul v. Hemmingway, 14 Pick. 1. The application of this rule makes the tugboat liable to the vessel to which she is attached for any injury which the latter may sustain in consequence of the want of reasonable skill and care on the part of the master of the tugboat whose mind controls the movements and directs the course of the united vessels thus committed to his charge. It has been held that this unity of power and weight impose upon the master of the tugboat the duty of knowing the location and character of all obstructions to navigation that may be discovered by the exercise of reasonable diligence; to be acquainted with the various configurations of the bottom of the channel, the course thereof, and the depth of water thereon; and also to understand the velocity of the current, the state of the tide, and the effect of the wind, so far as either may tend to divert the combined vessels from pursuing their proper passage. The Lady Pike, 21 Wall. 1; The Margaret, 94 U.S. 494; The Effie J. Simmons, 6 F. 639; The Henry Chapel, 10 F. 777; The Narragansett, 20 F. 394; The Ellen McGovern, 27 F. 868; The Robert H. Burnett, 30 F. 214. When a steamtug is engaged to tow a vessel in charge of a pilot, the captain of the tug is bound to obey the orders of the pilot, whose duty it is to superintend her navigation. The Energy, 3 L.R.Adm. & Ecc. 48. When given charge, he becomes pro hac vice the master of the tow, whether he occupies a position upon her deck, or upon the boat which furnishes the motive power. Wilson v. Association, 57 F. 227. With these preliminary observations upon the unity of the tug and tow, and of the duty which the master of the tug owes to the tow when acting in the dual character of pilot and master, the statute relating to pilotage will be examined, with a view of ascertaining what acts constitute a violation thereof.

An act of the legislative assembly approved October 20, 1882 (Laws Or.1882, p. 15), incorporated in 2 Hill's Ann.Laws Or. as sections 3892 et seq., defines the pilotage grounds of the Columbia river bar, and of the Columbia and Willamette rivers and their tributaries; creates a board of pilot commissioners, and authorizes the members thereof to license pilots therefor; exempts from pilotage dues vessels engaged in the whaling or fishing trade, and such as are licensed and engaged exclusively in the coasting trade between any port in this state and other Pacific coast ports; prescribes pilotage dues. And section 26 of the act, being section 1908, 1 Hill's Ann.Laws Or., provides the following penalty for piloting a vessel without a license, to wit: "Any person who pilots any vessel upon or over the bar or river pilot grounds, not being then a licensed pilot therefor, nor the master or owner thereof, or any pilot who shall demand or receive any greater compensation for piloting a vessel over or upon either of said grounds than is allowed by law, is guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment in the county jail not more than six months, or by a fine of not more than five hundred dollars, or by both such imprisonment and fine." It is contended by counsel for the state that the taking of the bark over the pilot grounds from Astoria to Portland, in the manner stated, was an act of pilotage, within the meaning of the statute, while defendant's counsel insist that the act complained of constitutes the performance of a towage contract only. The case which best illustrates the point for which defendant's counsel contend is Francisco v. People, 4 Park.Cr.R. 139, in which it appeared that the pilot of a steamtug was indicted, tried, and convicted for violating a statute of New York which provided that "if any person, other than a Hell Gate pilot shall pilot for any other person any vessel of any description through the channel of the East river, commonly called Hell Gate, he shall *** be deemed guilty of a misdemeanor," and on conviction thereof be punished, etc. It was also provided that the act should not be construed as applying to steamboats. It was proved at the trial that two schooners were lashed, one on each side of the steamtug of which Francisco was the pilot, and thus towed through Hell Gate; he being on the steamtug, piloting it, and making signals to those on board the schooners to change their helms to conform to the movements of the steamer. At the trial the court was requested to charge the jury that, if they believed the act done in the manner stated was one of towage only, the defendant must be acquitted. The judge gave the charge requested, with the qualification that if the accused directed the movements of the steamer, and was the controlling spirit, the act complained of was one of pilotage. An exception to the charge as given having been taken, the court, in reversing the judgment, say: "Bouvier's Law Dictionary defines a pilot to be--First, an officer serving on board of a ship during the course of a voyage, and having the charge of the helm and of the ship's route; and, secondly, an officer, authorized by law, who is taken on board at a particular place for the purpose of conducting a ship through a river, road, or channel, or from or into a port. This definition would seem to carry the idea that the pilot is to be put on board the ship piloted; that he is not, in the legal sense, a pilot, unless on board the ship which he is conducting through a river

or channel. Could he be said to be a pilot, if he stood on...