Francisco v. People — 18 How. Pr. 475

Majority

p. 475

SUPREME COURT.

Peter Francisco, appellant, agt. The People of the State of New-York, respondents.

Headnote

The act of 1841, (chapter 69, Lams of 1841, § 91), which provides and declares an offence of misdemeanor for any person other than a Hell Gate pilot to pilot a vessel through the Hell Gate, does not apply to, nor include within its provisions, the case of the pilot of a steaming towing a canvas through the Gate.

The act in question, by the term piloting through the Gate, has reference to a person on board of the canvas, and actually controlling its helm. Its intendment was to include only such persons as were actually on loará, piloting and directing the ship or vessel

The master of a canvas has the right to employ any motive power he may see fit, and for that purpose may make use of another vessel or boat, or a steamtug; and if such use cannot be made without necessarily devolving, upon those who may apply the power, the selection of the course, and a certain position, or indeed, all the charge and conduct of the vessel in that course; still, if the Iona fide object of the employment be the moving power, the person so employed is not a pilot, and has not the conduct and charge of the vessel, as such, within the meaning of the act. The case of Reilley agt. Scott (T Meeson & Welsly’s Reports, p. 93,) cited, commented on, and approved.

JLeld, that a charge by the court below that the defendant, while controlling the movements of the tug and its master spirit, was committing an act of pilotage, was erroneous, and a conviction was quashed.

New-York General Term, November, 1858.

Before Davies, Sutherland and Hogeboom, Justices.

The appellant was indicted in the general sessions, and convicted of a misdemeanor in violating the provisions of chapter 69, Laws of 1847, relating to the Hell Gate pilots.

That act provides that there shall be appointed, by the governor and senate, fit and proper persons to act as pilots for the safe pilotage of vessels through the channel of the East river, commonly called Hell Gate. The act provides for compensation for such service, and also provides that any pilot who shall first tender his services to any vessel passing through the Gate, and whose services shall not be accepted, shall be entitled to demand and receive half pilotage.

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The act further provides 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, cornmonly called Hell Gate, he shall forfeit and pay the sum of thirty dollars for each offence; or, on conviction thereof, shall be deemed guilty of a misdemeanor, and shall be punished as such; and the act also declares that it shall not be construed as applying to steamboats.

The defendant was the pilot "of the steamtug H. Mintum, which was used as such in the harbor of New-York. On the 7th of May, 1857, the two schooners called the George, and the Humming Bird, were lashed to the steamtug Minturn, one on each side, and thus taken through Hell Gate by the defendant, he being on the steamboat and piloting it, and making signals to those on board the schooners to change their helms to conform to the movements of the steamer. )

It is conceded that the piloting of the steamer was no offence under the act, for it is expressly excepted from its provisions. But it is insisted on the part of the people, that the act of taking the two schooners through the channel, in the manner stated, was an act of pilotage within the meaning of the act, and which it.has made an offence.

D. McMahon, for defendant,

contended that the mere act of towage was supplying a motor to the canvas—it was furnishing a breeze of wind. That the defendant, by acting as pilot of the steamtug, was the mere director of the motive power thus furnished. He also contended that the term pilot, within the act, evidently had reference to unauthorized persons taking upon themselves the management of the helm of the canvas, on board of it, with the intent to evade the act; whereas, the tugging a vessel was a bona fide employment, and was not necessarily in conflict with the pilot law, as a Hell Gate pilot might still be on board. Counsel cited the act of 1857, section 29, relative to Sandy Hook pilots, where it is expressly mentioned, that any master of a steamtug, who shall tow a vessel without a licensed pilot on board, shall be liable, &c., &c.

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If towage per se was pilotage, this last provision was unnecessary, for it would be an infringement of the statute of 1853, which imposed penalties on persons piloting through Sandy Hook, unless authorized, &c.

The counsel also cited the case of Reilley agt. Scott, (7 Mees. & Welsby, p. 93) ; Bouvier’s Law Dictionary, title Pilots ; Low agt. The Crown, (R. McCharlton’s R. 302); Creole & Sampson, (2 Wallace Jr. R. 512); Gibbons agt. Ogden, (7 Wheat. R.); and commented on the refusal of the recorder below to charge as requested by defence; and insisted that the act of 1847 was unconstitutional, as the defendant was licensed under the general act of Congress on steamtugs, August 30th, 1852. (10 Statutes at Large, p. 63.)

Johh McKeon, for the people,

insisted that the towing in question was a plain violation of the statute of 1847, and that the act was constitutional, and distinguished this case from the one cited in the English Exchequer.

He cited Webster's Dictionary, title Pilot; Blunt's Commercial Dig. 465; Reeves agt. The Constitution, (Gilpin's Reps. 579); Cooley agt. Wardens of Philadelphia, (12 Howard's Supreme Court, U. S., Reports, 299).

—The duties of the pilots authorized by the act to be appointed, and to act as pilots for the safe pilotage of vessels through the channel, commonly called Hell Gate, are prescribed by law; and any person not such pilot, who shall pilot any vessel, is made subject to the penalties of the act. Bouvier's Law Dictionary, (Vol. 2, p. 337,) 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 on board the ship piloted; that he is not, in the legal

p. 478

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 the shore and directed the course of the vessel by signals; or ran along the banks of the stream, and by words or signs controlled and directed the course of the vessel navigating the stream? We think not; and that the intendment of the act was to apply to pilots on board, piloting and directing the ship or vessel while on board of it. The defendant was conducting the steamtug through the channel of the East river, as he lawfully might do. The two schooners, which it is claimed he piloted, were lashed to the steamboat, and must necessarily obey its every motion. As a consequence, they were piloted through the channel; and so they would have been if placed on the deck of the steamer. It is true, the persons on the schooners had to obey, and did obey, signals given to them by the defendant while on board the steamer. He might have given the same if on the land, but we do not see that this, circumstance determines that he was piloting the schooners.

We have not seen any decision of our courts upon the proper construction to be given to this statute, upon the point now presented for consideration. But a case has been decided by the English court of exchequer upon a similar statute, which seems to us of high authority and quite controlling. The language of the English statute is, (6 Geo. 4th, chap. 125, § 70), “ Every person assuming or continuing to act in the charge or conduct of any ship or vessel, without being a licensed pilot, after any licensed pilot shall have offered to take charge of such ship or vessel, shall forfeit,” &c.

It will be seen that the language of this statute is more comprehensive than ours, and is not so technical in the terms used. Ours is “ to pilot,” or “piloting;” theirs, “ to act in the charge or conduct of any ship or vessel.” Reilly agt. Scott (7 Meeson & Welsby's Reports, page 93,) was an action to recover a penalty, -incurred under this statute, for doing an act like that for which the defendant in this case was convicted of a misdemeanor.

p. 479

Baron Parke, in delivering the opinion of the court, says : “ The first question arising in this case is, whether the defendant had the charge of the ship within the meaning of the pilot act? We are of the opinion that he had not. These words are to be understood in the sense ascribed to them in other parts of the act; that is, they mean the taking the charge and direction as a pilot, whose appropriate and indeed sole duty it is to select the course, and take the management and conduct of the vessel for the purpose of directing her in that course. The master of a coasting vessel may, if he pleases, perform that duty himself; but if he chooses to employ another for that purpose, he must employ a licensed pilot; and an unlicensed per-' son taking that duty on himself by command of the master, when a licensed pilot offers his services, would be liable to the penalty in the 70th section.

“ But the master is not precluded from employing any moving power which he may please—he may make use of another vessel or boat, or a steamtug, for that purpose; and if that cannot be done without necessarily devolving upon those who may apply the power, the selection of the course and a certain position, or indeed all the charge and conduct of the vessel in that course, still, if the bona fide object of the employment be the moving power, the person so employed is not a pilot, and has not the conduct and charge of the vessel, as such, within the meaning of the act. If, indeed, the real object in any case should appear to be to obtain the assistance of the skill of a pilot, and to give him the charge and conduct of the vessel under some colorable duty then assigned to him, the case would be within the act; but in the present instance it is expressly found that the steamtug was bona fide hired for the purpose of conducting the vessel into the river, and the court in that case hold that no penalty was incurred."

It was assumed, on the trial of the defendant, that he was engaged in the business of towage. If not, the 5th and 6th requests of the defendant to the judge raised the question, and brought the case within that in the English exchequer. The fifth request was that, if the jury believed that the act done by

p. 480

the defendant on this occasion was of towage only, the defendant must be acquitted, for that offence was not contemplated by the act, and the judge so charged, with this qualification, that if the defendant directed and controlled the movements of the steamer, and was the controlling spirit, then his act is one of pilotage. To this the defendant excepted, and in holding that the defendant, while controlling the movements of the tug and its master spirit, was committing an act of pilotage, we think the learned recorder erred. So also we think he erred in refusing to charge that the steamtug Minturn, being a steamboat propelled by steam, had a right to tow vessels through Hell Gate, without being subject to the laws relating to pilotage; and that, by the 10th section of the act of 1847, steamboats were excepted from its operation.

We think that, upon the facts, the defendant has not been guilty of any offence under the act of 1847, and that there was error in refusing to charge in the particulars mentioned as requested, and that, consequently, the conviction must be reversed.

Judgment against the people.