THE CARRIE L. TYLER, 106 F. 422

BIMONTON, Circuit Judge (after stating the facts as above). No objection lias been or can be made to the jurisdiction of the court beiow. Hobart v. Drogan, 10 Ret. 120, 9 L. Ed. 363. Nor can any objection be made to the provision of the law giving a pilot the same fees for services tendered and refused as he would have earned if the services had been accepted and performed. Cooley v. Board, 12 How. 299, 13 L. Ed. 996.

The sole question in the case is this: Was this barge, being wholly without motive power of any kind, bound by law to accept the services of a pilot while she was in tow of a steam tug, whose master was a licensed pilot of the bar and river over which she was navigating? The point is a narrow one. It is a municipal regulation of the state of North Carolina, recognized and made of force under the legislation of congress. Cooley v. Board, supra. No decision of any court in that state has been quoted, and none can be found, bearing on thin question. It comes up for the first lime for adjudication.

The class of pilots has existed from the earliest times, and laws have been enacted in every nation engaged in commerce regulating and protecting them. The purpose of these laws is to insure at all times a due ¡supply of men well qualified by skill, knowledge, and experience to protect vessels entering Into ports and harbors from the dangers of navigation. They are engaged in a perilous calling, and must he ready to brave the perils of their vocation.

To encourage such men, and to secure permanence in their ranks, every nation engaged in commerce, and all the states in the Union having harbors, have enacted laws making it compulsory upon all -vessels entering- their ports, except those of very small tonnage, to employ a duly-licensed pilot for the purpose of piloting them. The propriety and legality of these regulations by the states have been sanctioned by the supreme court of the United States. Steamship Co. v. Joliffe, 2 Wall. 450, 17 L. Ed. 805; Wilson v. McNamee, 102 U. S. 572, 26 L. Ed. 234.

And these cases also sustain the regulation that if a pilot offer his services, and they be refused, he is entitled to be paid the pilotage, unless some other pilot be first engaged. Mr. Justice Curtis, in Cooley v. Board, 12 How. 312, 13 L. Ed. 1002, speaking on this subject, says: ‘We think this particular regulation concerning half-pilotage fees is an appropriate part of a general system of regulations of this subject. Testing it by the practice of commercial states and countries legislating on this subject, we find it has usually been deemed necessary to make similar provisions.

Numerous laws of this kind are cited in the learned argument of the counsel for the defendant in error; and their fitness, as part of a system of pilotage, in many places, may be inferred from their existence in so many different states and countries.

Like other laws, they are framed to meet the most usual cases. ‘Quae frequentius accidunt.’ They rest upon the propriety of securing lives and property exposed to the perils of a dangerous navigation by taking on board a person peculiarly skilled to encounter or avoid them; upon the policy of discouraging the commanders of vessels from refusing to receive such persons on board at the proper times and places; and upon the expediency, and even intrinsic justice, of not suffering those who have incurred labor, and expense, and danger, to place themselves in a position to render important service generally necessary, to go unrewarded, because the master of a particular vessel either rashly refuses their proffered assistance, or, contrary to- the general experience, does not need it.

There are many cases in which an offer to perform, accompanied by present ability to perform, is deemed by law equivalent to performance. .

The laws of commercial states and countries have made an offer of pilotage service one of those cases; and we cannot pronounce a law which does this to be so far removed from the usual and fit scope of laws for the regulation of pilots and pilotage as to be deemed, for this cause, a covert attempt to legislate upon another subject under the appearance of legislating on this one.” This compulsion exists on the masters of all vessels, notwithstanding that they themselves, by frequent visits to the port, may possess sufficient knowledge to cross the bar and navigate the rivers in safety.

In every case the language is general, — “every ship or vessel.” The North Carolina statute says: “When any master of a vessel, not having a pilot on board, coming over the bar of Cape Fear river or being in the river and going out either of the inlets, shall refuse a pilot across the bar, then each pilot so refused shall be entitled to the same pilotage as if he had been actually employed to pilot and had piloted such vessel.” An examination of the regulations will disclose that the rates of pilotage are fixed by the draught of the vessel, and upon all vessels alike, — steam or sail vessels.

The appellee claims that the barge in the case at bar was exempt from this regulation of the statute for two reasons: First, because she had no motive power in herself, and therefore could not be navigated by a pilot; second, because the tug already had on board of her a duly-licensed pilot of the bar and river of the Cape Fear. It is true that the barge had no motive power in herself, but she supplied motive power when she engaged the services of the tug. She then began to be navigated, and by her great draught of 18 feet she encountered the dangers of the shoals and narrows of the bar and river.

A vessel with all her sails furled has no power of locomotion, and in tow of a tug is absolutely depend-eut upon it; yet in no instance in any port is a vessel in this condition exempted from taking a pilot simply because she is in tow of a tug. A tug is engaged in the service of towage. This is her contract, and that is all for which she can be held responsible. “The parties to this contract contemplate risk in the performance of it, — the risk of winds and waves, and of obstacles, floating or fixed, that lie about or in her path.” Mach lachan, Merch. Shipp, p. 286.

Rut the pilot contracts to navigate the vessel safely through the narrow channels of the bar and river; a danger not seen, and only known by long observation and experience, tío distinct are the duties of tire tow and of the pilot that Dr. Lushing ton always held that the tug was subservient to and must obey the pilot on the vessel in tow. The Energy, L. R. 3 Adm. & Ecc. 52. But the appellee contends that, as the tug had on hoard, in her master, a regularly licensed pilot, no pilot was needed for the vessel. But the law is imperative.

A vessel must have a pilot, whether she needs one or not; and this to secure compensation to the privileged class of pilots. As ,has been said, very many ship masters, by frequent visits to ports, learn and know the channels. But this does not exempt them from employing a pilot. Gerrish v. Johnson, 46 N. C. 335. Again, the tug master was present, managing his tug, not as a pilot, not performing his duty as a pilot, and incurring liability as such, not charging or receiving compensation as a pilot, but engaged simply in the performance of his duty as tow master, and in fulfilling that, a wholly distinct, contract.

The congress of the United tí lates has passed

an act which exempts coastwise seagoing steam vessels from compulsory pilotage if ihey be under the control and direction of a pilot licensed by the United ¡States inspectors of steamboats. Rev. St. U. S. § 4444. But this

section in its terms is confined to coastwise seagoing steam vessels, and under the rule, “Expressio unius exclusio alierius,” no other class of vessels comes within this act. See Spraigue v. Thompson, 118 U. S. 95, 6 Sup. Ct. 988, 30 L. Ed. 115. The evidence does not disclose whether the barge was towed by a line, or whether the tug was alongside of her.

If the former mode of towing was used, it was necessary that the barge should have at her helm an experienced navigator, not only to enable her to follow the general direction of the tug, bul also cognizant of the dangers of the channel, so as to keep clear of them. If the tug were alongside, her helmsman must exercise the same care and he possessed of the same knowledge. It is said, however, that the tug and tow are, in contemplation of law, one vessel, and that one; under steam, thus giving to the combination the character of (he tug. So they are for some purposes.

They are governed by the international rules applicable to vessels approaching each other, and must observe the regulations applicable io .steam vessels. The Civilta and The Restless, 103 U. S. 699, 26 L. Ed. 599. But they are so far distinct from each other that, if a collision takes place, the tug can be held liable to the exoneration of (he tow. The James Gray v. The John Fraser, 21 How. 184, 16 L. Ed. 106.

The rubric of that case is this: Although the tow was the res or thing which struck the brig and did the damage, that does not make her liable for the injury, unless the collision was occasioned by her fault. In the recent case of The Minnie, 40 C. C. A. 312, 100 Fed. 128, we Reid the tug responsible for a collision, exonerating the tow. It seems, therefore, that a tug and her tow are not one vessel, except under certain peculiar circumstances, such as approaching a vessel whose movements are not controlled by steam. The learned counsel for the appellee quotes and relies upon The Glaramara (D. C.) 10 Fed. 678.

But that case depends upon the local law of Oregon. He also quotes Judge Lowell, in Flanders v. Tripp, Fed. Cas. Ho. 4,854. But in that case the vessel had encountered stress of weather, which had disabled her entirely. The master, leaving her in charge of the mate, had gone for assistance. Meanwhile a pilot boarded her for the purposes of salvage. The judge ruled that he could not, under these circumstances, compel her’to accept his services, nor to pay him because of his tender of them. The language of Mr. Justice Grier, in Smith v. The Creole, Fed. Cas.

No. 13,033, is not inappropriate to this case: “As a general rule, masters of vessels are not expected, to be, and cannot be, acquainted with the rocks and shoals on every coast, nor able to conduct a vessel safely into every port. Nor can the absent owners, or their agent, the master, be supposed capable of judging of the capacity of persons offering to serve as pilots. They need a servant, but are not in a situation to test or judge of his qualifications, and have not, therefore, the information necessary to a choice.

The pilot laws kindly interfere, and do that for the owners which they could not do for themselves. It selects persons of skill and experience, and requires them to give bonds for the faithful performance of their duty; and if it should so happen in some particular cases that owners may not need the services of such pilot selected by law, it is but just that they should contribute to the support of a system instituted for their benefit.” We are of the opinion that the barge comes within the letter of the law, and that the court below should have found for the libelant.

Let the case be remanded to the district court for such further proceedings as may be necessary. The decree of the district court is reversed, and the cause remanded to that court.