laws of the state on the subject. State v. Livaudais, (1884) 36 La. Ann. 122. See to the same effect Dryden v. Com., (1855) 16 B. Mon. (Ky.) 598.

Authority of states to legislate respecting pilotage. Immediately upon the adoption of the Constitution, Congress recognized the propriety of local action with respect to pilotage, in view of the local necessities of navigation. And even now, while it has full power over the subject, and to a certain extent has prescribed rules, it is still in a large measure subject to the regulations of the states. Minnesota Rate Cases, (1913) 230 U. S. 352, 33 S. Ct. 729, 57 U. S. (L. ed.) 1511, Ann. Cas. 1916A 18, 48 L. R. A. (N. S.) 1151. See also Cribb v. State, (1861) 9 Fla. 409.

No monopoly or combination forbidden by the federal anti-trust laws is created by state regulations providing for the appointment of pilots, and restricting the right to pilot to those duly appointed. Olsen v. Smith, (1904) 195 U. S. 332, 25 S. Ct. 52, 49 U. S. (L. ed.) 224, affirming (Tex. Civ. App. 1902) 68 S. W. 320.

8.

The grant of commercial power to Congress does not contain any terms which expressly exclude the states from exercising an authority over its subject-matter. The power to regulate commerce embraces various subjects, quite unlike in their nature. Some imperatively demand single and uniform rule, operating equally on the commerce of the United States in every port; and some, like the subject of this statute, as imperatively demand that diversity which alone can meet the local necessities of navigation. This statute contains a clear and authoritative declaration by the First Congress that the nature of this subject is such that until Congress shall find it necessary to exert its power, it should be left to the legislation of the states; that it is local and not national; that it is likely to be the best provided for, not by one system or plan of regulation, but by as many as the legisla tive discretion of the several states should deem applicable to the local peculiarities of the ports within their limits. Cooley v. Board of Wardens, (1851) 12 How. 299, 13 U. S. (L. ed.) 996. See Hobart v. Drogan, (1836) 10 Pet. 108, 9 U. S. (L. ed.) 363.

The third clause of the eighth section of the first article of the Constitution, which declares that the Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes," does not exclude the exercise of any authority by the states to regulate pilots. On the contrary, the authority of the states to regulate the whole subject in the absence of legislation on the part of Congress has been recognized from the earliest period of the government. Pacific Mail Steam

ship Co. v. Joliffe, (1865) 2 Wall. 450, 17 U. S. (L. ed.) 805.

State pilotage statutes are not repugnant to the Constitution, as levying a duty not uniform throughout the United States, or as giving a preference to the ports of one state over those of another, or as obliging vessels to or from one state to enter, clear, or pay duties in another. Cooley v. Philadelphia, (1851) 12 How. 299, 13 U. S. (L. ed.) 996. See also Ex p. McNiel, (1872) 13 Wall. 236, 20 U. S. (L. ed.) 624.

No inherent rights guaranteed by the Federal Constitution are infringed by state regulations providing for the appointment of pilots, and restricting the right to pilot to those duly appointed. Olsen v. Smith, (1904) 195 U. S. 332, 25 S. Ct. 52, 49 U. S. (L. ed.) 224, affirming (Tex. Civ. App. 1902) 68 S. W. 320.

The adoption of compulsory pilotage regulations by a state, under the authority of this section, does not violate U. S. Const., art. 1, sec. 9, cl. 6, which provides that no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another. Thompson v. Darden, (1905) 198 U. S. 310, 25 S. Ct. 660, 49 U. S. (L. ed.) 1064.

Conceding that the pilot laws of the several states are regulations of commerce, Mr. Justice Story said, 'They have been adopted by Congress, and without question are controllable by it.' 2 Story, Const. sec. 1071." Wilson v. McNamee, (1881) 102 U. S. 572, 26 U. S. (L. ed.) 234.

The right to regulate pilots and pilotage on navigable waters of the United States belongs to Congress as a part of the power to regulate commerce, but until Congress exercises such power the subject may be regulated by the several states. The Glenearne, (D. C. Ore. 1881) 7 Fed. 606.

The statute was not a grant of power from Congress to legislate on the subject of pilots and pilotage, but was a mere legislative recognition of the concurrent power of the states over this subject so long as Congress does not act in the matter. The Panama, (1861) Deady 27, 18 Fed. Cas. No. 10,702.

This statute confers on a state authority over the subject of pilotage on the navigable waters within its limits. The authority thus conferred or recognized is not exclusive; it could only be exercised in such manner as is consistent with the relations which the several states bear to each other as members of the federal government. The Clymene, (E. D. Pa. 1881) 9 Fed. 164, affirmed (E. D. Pa. 1882) 12 Fed. 346.

A North Carolina statute (Pub. Laws 1907, p. 906, ch. 625, sec. 13) required all coastwise or foreign vessels over sixty gross tons to take a state licensed pilot between the sea and a certain port in the state. It was held that this statute was

not unconstitutional as undertaking to regulate commerce between the states and foreign countries, as applied to vessels other than coastwise steam vessels; the federal statute recognizing the right of the states to regulate pilots, except in so far as Congress sees fit to do so. St. George v. Hardie, (1908) 147 N. C. 88, 60 S. E. 920.

As to state laws afterwards adopted."Although Congress cannot enable a state to legislate, Congress may adopt the provisions of a state on any subject. When the government of the Union was brought into existence, it found a system for the regulation of its pilots in full force in every state. The Act which has been mentioned adopts this system, and gives it the same validity as if its provisions had been specially made by Congress. But the Act, it may be said, is prospective also, and the adoption of laws to be made in future presupposes the right in the maker to legislate on the subject. The Act unquestionably manifests an intention to leave this subject entirely to the states, until Congress should think proper to interpose; but the very enactment of such a law indicates an opinion that it was necessary; that the existing system would not be applicable to the new state of things, unless expressly applied to it by Congress." Gibbons v. Ogden, (1824) 9 Wheat. 1, 6 U. S. (L. ed.) 23. See also Hobart v. Drogan, (1836) 10 Pet. 108, 9 U. S. (L. ed.) 363.

The state may delegate to local boards the power to determine what rates should be paid by a vessel employing a pilot, and by one spoken that does not accept services. The Chase, (S. D. Fla. 1882) 14 Fed. 854.

State laws as effective beyond state limits. The pilot laws of a state have sufficient effect beyond the boundary of the state to fix the compensation of pilots. The Nevada, (1874) 7 Ben. 386, 18 Fed. Cas. No. 10,130.

Contracting for pilot's services. The owners of a steam vessel engaged a pilot to go out from the Savannah river and meet a vessel en route to that port from Philadelphia. The engaged pilot was taken on board and piloted the vessel to the city of Savannah. Before the engaged pilot was taken on board another pilot, duly licensed under the laws of Georgia, spoke the vessel and tendered his services to the master, and his services were refused. It was held that the pilot whose services were refused had no right of action for pilotage services. "The engagement of the services of the pilot actually taken, by previous contract, was equivalent to keeping him on board for that purpose during the whole voyage, as he was, in fact, under pay from its commencement; and had he been actually on board at the time the defendant in error

tendered himself as pilot, we think the right of the vessel to reject the offer could not have been reasonably questioned." Spraigue v. Thompson, (1886) 118 U. S. 90, 6 S. Ct. 988, 30 U. S. (L. ed.) 115, reversing (1882) 69 Ga. 409, 47 Am. Rep. 760.

Jurisdiction on claims for pilotage.Courts of admiralty have undoubted jurisdiction of all maritime contracts and torts. The amount due a pilot on refusing his services is not a penalty, but is an implied promise to pay the amount specified in the statute, and is such a contract relating to pilotage as is within the sphere of the admiralty jurisdiction. Ex p. McNiel, (1872) 13 Wall. 236, 20 U. S. (L. ed.) 624. See also The Wave, (1831) Blatchf. & H. Adm. 235, 29 Fed. Cas. No. 17,297; The Schooner Wave . Hyer, (1831) 2 Paine 131, 29 Fed. Cas. No. 17,300.

While a state law cannot give jurisdiction to any federal court, it may give a substantial right of such a character that where there is no impediment arising from the residence of the parties, the right may be enforced in the proper federal tribunal, whether it be a court of equity, of admiralty, or of common law. Ex p. McNiel, (1872) 13 Wall. 236, 20 U. S. (L. ed.) 624.

"If by power of this statute the state law becomes also a law of the United States in respect to the provision giving compensation to pilots who are prepared and tender their services but are refused by masters of vessels, and actually render none, it would not make the right so conferred one of which this court can take cognizance on the admiralty side. It would become a legal right triable on the common-law side of the court only." Arcularius v. Staples, (1859) 1 Fed. Cas. No. 509b.

Concurrent in state courts.- Suits for pilotage on the high seas, and on waters navigable beyond the sea as far as the tide ebbs and flows, are within the admiralty and maritime jurisdiction of the United States. The jurisdiction of the District Courts of the United States in cases of admiralty and maritime jurisdiction is not ousted by the adoption of the state laws by the Act of Congress. The only effect is to leave the jurisdiction concurrent in the state courts, and if the party should sue in the admiralty, to limit his recovery to the same precise sum to which he would be entitled under the state laws adopted by Congress if he should sue in the state courts. Hobart v. Drogan, (1836) 10 Pet. 108, 9 U. S. (L. ed.) 363.

Lien on vessel.- Claims for pilotage are cases of admiralty jurisdiction and they may be enforced against either the owner or the vessel. The offer and refusal of pilotage services under the law giving half fees therefor, create an obliga

tion or contract upon the part of the owner to pay the same, which may be enforced in admiralty against him or the vessel. The Glenearne, (D. C. Ore. 1881) 7 Fed. 604.

A claim for half pilotage given by statute for services offered and refused, so far as the remedy is concerned, stands upon the same footing as an ordinary claim for pilotage, and is a case of admiralty jurisdiction, and the suit therefor may be against the vessel or against the master, or one or both. The law of the state cannot take away the limit of admiralty jurisdiction of the District Court. The

George S. Wright, (1869) Deady 591, 10 Fed. Cas. No. 5,340.

Unless made so by positive law, a claim for half pilotage on refusal of services is not a lien on the vessel; such a claim is not a lien by the maritime law. The liability of the masters and owners to this mulet for a personal delinquency would no way impose a liability upon the vessel to satisfy their obligation; and as the law does not impose the obligation on the ship, no action can be maintained in rem to cover the demand." Leitch v. The George Law, (1858) 6 Am. L. Reg. 368, 15 Fed. Cas. No. 8,223.

In general. "There is no doubt that the respective states are the most competent to regulate the pilotage within their own ports, and that it is for the general advantage that it should rest with them. With the exception of the said act of 1837 [now R. S. sec. 4236] regulating pilotage in ports situate upon waters which are the boundary between two states, it has been left to them. The question naturally suggests itself, why did Congress make this exception? The answer is, to relieve the commerce of the country from any embarrassment arising from the laws of different states situate upon waters which are the boundary between them. In some such states, their laws compelled masters of vessels to take their pilots on board. Each state, where there is a port situate upon waters which are the boundary between them, without this regulation of Congress, might embarrass commerce by insisting that their pilot shall be taken as pilot. It was also to remedy the strife between the two states, so embarrassing to the master, that this act was passed. By the regulations under this act of Congress, there is no impediment to commerce. master of the vessel can employ a pilot licensed by either state, and the licensed pilot of either state can pilot the vessel in or out of the harbor of either state." Cribb v. State, (1861) 9 Fla. 409.

The

The word "state" includes any organized body politic or community within the territorial jurisdiction of the United States having the power to legislate on the subject of pilots and pilotage on a water forming a boundary between itself and a state of this Union, and, therefore, includes a territory. The Ullock, (D. C. Ore. 1884) 19 Fed. 207. See also The

Panama, (1861) Deady 27, 18 Fed. Cas. No. 10,702; Neil v. Wilson, (1887) 14 Ore. 410, 12 Pac. 810.

In the absence of legislation by Congress, the state may pass laws regulating pilots and pilotage on a river, and a territory may do the same. The Alcalde, (D. C. Ore. 1887) 30 Fed. 133.

Validity of state statutes.-A state law which has any direct and manifest collision with the federal statutes on the subject of pilotage is void. The South Cambria, (D. C. Del. 1886) 27 Fed. 525.

A state statute which contemplates an exclusive jurisdiction over the subject of waters within its limits, or which is designed to interfere with the right of a pilot, duly licensed by anothe state, to pilot a vessel to a port in that state, is inoperative and void. The Clymene, (E. D. Pa. 1881) 9 Fed. 164, affirmed (E. D. Pa. 1882) 12 Fed. 346. The Charles A. Sparkes, (E. D. Pa. 1883) 16 Fed. 480.

The state of Delaware has full authority to regulate pilotage services within her navigable waters; and while she cannot pass any law excluding the duly qualified pilots of adjoining states on the same waters, she can impose such regulations as she deems conducive to the public welfare upon the pilots licensed under her own laws. The William Law, (D. C. Del. 1882) 14 Fed. 792.

As between pilots of the same state, a state statute compelling the master of a vessel to take the pilot out of the river that brought him in, is valid and binding, but the statute cannot compel a master to take a pilot licensed by that state under any circumstances, or to pay him half or any pilotage if the master prefers to, and does, take a pilot licensed by the other state. The Abercorn, (D. C. Ore.

1886) 26 Fed. 877, affirmed (C. C. Ore. 1886) 28 Fed. 384. See also Neil v. Wilson, (1887) 14 Ore. 410, 12 Pac. 810.

The power of the state of Oregon over pilots and pilotage is limited to pilots appointed by it and acting under its laws, and it has no power to regulate the conduct or compensation of pilots holding commissions under the laws of Washington territory, nor to exempt any vessel entering the Columbia river from the authority or demands of said pilots. The Alcalde, (D. C. Ore. 1887) 30 Fed. 133.

In Brown . Elwell, (1875) 60 N. Y. 249, it was said that it seemed that in view of this section a vessel in charge of a New Jersey pilot going from Sandy Hook to the port of New York was not required to take a New York pilot.

When waters are not the boundary.-In Leech r. Louisiana, (1909) 214 U. S. 175, 29 S. Ct. 552, 53 U. S. (L. ed.) 956, it was held that the state of Louisiana may make it a criminal offense for a pilot not duly qualified under its laws to pilot a foreign vessel from the Gulf of Mexico to New Orleans, Louisiana, although he holds a license issued under the authority of the state of Mississippi; since New Orleans, although upon the Mississippi river, is not "situated upon waters which are the boundary between two states." The court said: The case for the plaintiff in error depends upon the assumption that the 'waters which are the boundary between two states' are, in this case, the whole Mississippi river so far as navigable. We are of opinion that the assumption is wrong, and that the limit of the waters referred to is the point at which they cease to be a boundary between two states. Neither continuity of water nor identity of name will carry them beyond that point. If the plaintiff in error had undertaken to pilot from the Gulf to Natchez, a different question would have been presented, and it may be that in that case the Mississippi license would have been good. But New Orleans, although upon the Mississippi, is not situate upon waters which are the boundary between two states, and therefore the section relied upon does not apply."

Though the waters of the Delaware bay and river are not a boundary between the states of Delaware and Pennsylvania, these states are coterminous and border on the same waters within the purview of the statute. The South Cambria, (D. C. Del. 1886) 27 Fed. 526.

This statute applies to the pilotage laws of coterminous states situated upon the same navigable waters, but which are not a separating boundary between them. The Clymene, (E. D. Pa. 1882) 12 Fed. 346, affirming (E. D. Pa. 1881) 9 Fed. 166.

A seagoing vessel, bound up the Columbia river, is on pilotage ground subject to the laws of both Oregon and Washing

ton, and might take a pilot from either, after declining the services of one from the other, without becoming liable for half pilotage to the latter. But the statute does not apply to the pilotage ground of the Wallamet river, which is within the exclusive jurisdiction of Oregon. Between Astoria and Portland the Columbia and Wallamet rivers are a pilotage ground for the Oregon river pilots, but the pilotage ground of the Washington pilots stops at the mouth of the latter. By the employment of an Oregon pilot at Astoria the voyage between the two places may be made with one pilot and for one pilotage. But if the master chooses to incur the expense of double pilotage he may employ a Washington pilot from Astoria to the mouth of the Wallamet, and an Oregon pilot from thence to Portland. But he cannot evade the offer, or its effect, of the Oregon pilot to conduct his vessel over any part of his pilot ground within the exclusive jurisdiction of his state, by employ ing a Washington pilot on the Columbia river to conduct him to the Wallamet, and from there accompany him to Portland." The Glenearne, (D. C. Ore. 1881) 7 Féd. 604.

Selection of pilot by master. The statute confers on the master of any vessel requiring a pilot the right of electing who shall serve him in that capacity. The South Cambria, (D. C. Del. 1886) 27 Fed. 525.

Jurisdiction of claim for pilotage.—This section, in conjunction with the preceding R. S. sec. 4235, makes applicable in favor of pilots the laws of one state or the other, and a pilot licensed under the laws of the state of New Jersey may maintain an action in the southern district of New York for pilotage services rendered in piloting a vessel into the port of New York. Reardon . Arkell, (S. D. N. Y. 1894) 59 Fed. 624.

Refusal to take pilot.- In the Belle Hooper, (E. D. Pa. 1886) 28 Fed. 928, the libelant was a Delaware pilot and he sued because he was not allowed to take a vessel out to sea from the Delaware river where it was the boundary of Delaware and Pennsylvania. It was contended by the respondent that he was privileged to take a Pennsylvania pilot, but the court replied that as he had not exercised the privilege he was not entitled to refuse a Delaware pilot. The court said: "By the pilot. act of Delaware (section 2, Amendments) it was the libelant's right to pilot the respondent out to sea. Act of Congress conferring on the respondent the privilege of electing to take another, a Pennsylvania pilot, does not stand in the libelant's way. His right was subject to such privilege; but, inasmuch as the respondent did not avail himself of the privilege, the federal statute is unimportant in the case."

The