THE QUEEN. THE UMATILLA, 186 F. 725

ROSS, Circuit Judge. These cases were argued and submitted together. They are libels against the respective ships mentioned for alleged pilotage services. Both cases are alike, except that in that against the ship Umatilla a question is raised as to the sufficiency of the tender of the services sued for. .

The cases were submitted upon an agreed statement of facts, from which it appears that the libelant in each case was, at all the times mentioned in the libel, a duly licensed pilot of the port of San Francisco, holding a license from the United States local inspectors of steamships, and also one from the California State Board of Pilot Commissioners, of the port of San Francisco; that the libelant in the case of the Queen tendered to the master of that steamship, as she was entering the port of San Francisco on the 14th day of August, 1905, his services as a pilot, which services were refused; that the steamer Queen was at the time a duly registered American vessel, and was then completing a voyage from an American port on Puget Sound to the port of San Francisco, via Victoria, British Columbia, and for some time prior thereto had been engaged in making voyages between the port of San Francisco and American ports on Puget Sound, and that on each and every of such voyages the port of Victoria, British Columbia, was a regular port of call, being the first port of call on each voyage outward from San Francisco, and the last port of call on each voyage toward San Francisco from the American ports on Puget Sound; ■ that the steamship Umatilla was, at all of the times mentioned in the libel against tjiat ship, a duly registered American vessel, engaged in making similar voyages, and, being about to sail on her regular voyage from San Francisco to the ports of Puget Sound, the libelant in that case tendered to the master of the ship— “Ms, said Jordan’s, services as a pilot so licensed, to pilot said Umatilla on her then voyage out of said port of San Francisco, by going on board said vessel alongside the wharf to which said steamsMp was then made fast, and not more than one hour before she was to and did sail on her voyage therefrom, and then and there orally stating to said master that he, said Jordan, was then and there ready and able and willing to so pilot said vessel, and that he, said Jordan, then desired that he be so employed.” The agreed statement shows these further facts: “

(4) That each of said vessels in said several libels mentioned was, at all of the times in said libels and schedules referred to or mentioned, a duly registered American steam vessel; and was at all said times sailing under ‘register1; and each of said vessels at each of the several times in said several libels and schedules referred to was either on a voyage from the port of San Francisco in the state of California to a United States port on Puget Round, or from a United States port on Puget Round to said port of San francisco, but in either such ease said vessel did, while en route between said ports in the United States, stop at the port of Victoria, B.

C., to and from which said port of Victoria she did then carry, and did then and there deliver and receive, both passengers, mail, and freight; and on each and every such voyage the port of Victoria, B. C., was a regular port of call, being the first, port of call or stop on each voyage outward from San Francisco, California, and the last port of call or stop on each voyage toward San Francisco, California.

Each and every one of the ships in this, agreement mentioned, on sailing outward bound from the port of San Francisco on her said voyage above described, displayed at her foremast head the English Hag, which indicated, according to the usage and custom of vessels and their navigators, that she was destined to a port under the dominion of Great Britain, whose merchant flag was so as aforesaid displayed at her foremast liead; and similarly on eacli and every said inward voyage above described, .each and every one of the vessels in this agreement mentioned displayed the English flag on her foremast bead, to indicate that she had come direct from a port under the dominion of that country. “

(3) That each of the masters and first officers of each of said vessels, at all of the times in said several libels and schedules referred to, was duly licensed under the laws of the United States of America to act as and.serve as master and as pilot of any American steam vessel in entering and in departing from the said port of San Francisco, and all of the engineers and other officers of each of said vessels, who under the laws of the United States needed then to bo licensed, were then duly licensed officers thereof; and each of said masters, during the two years next prior to any of the times in said libels referred to. had many times safely, and without the assistance of any pilot licensed under authority of the state, of California, navi-gatod and piloted vessels under Ms command, then sailing under ‘register,’ and of the class of those in said libels and said schedules referred to, out of and into said port of San Francisco. “

(6) That no master of any vessel owned or employed by either of said claimants, and sailing under ‘register,’ had ever, during the twenty (20) and more years next prior to any of the times in said libels referred to, accepted the services of any of said libelants, nor of any state licensed pilot, to pilot any such vessel out of or into said port of San Francisco; and during all of the times herein last referred to each of said libelants and all state licensed pilots well knew that their services as pilots licensed by the state of California to so pilot any such vessel would not, if tendered, be availed of or accepted by either or any of the masters of such vessel, nor by either or by any of said claimants. “

(7) That each and every and all of the said vessels, in said several libels or in any

schedule hereto attached referred to, was, long prior to any of the times in said several libels or schedules referred to, well known to each and every and all of said libelants, and to all state licensed pilots of the said, port of San Francisco; that said several vessels sailed from and arrived at San Francisco on a regular schedule, and could be and were by each and all of said libelants, and all state licensed pilots, identified and known in approaching the port of San Francisco long before he or any pilot needed or. in the ordinary course of his business, would make any effort to ‘speak’ the same, if such vessel were by him thought to be in need of a pilot. •‘

(8) That when the present state pilotage regulations of the port of San Francisco were under consideration by the .Legislature of the state of California, the state licensed pilots of said port appeared before each of the committees of said Legislature having such matters in charge, and then by themselves and by their representatives were heard in connection with such regulations, and were likewise so heard by the Governor of said state before the act of the Legislature fixing such regulations, as now embodied in certain sections of the Political Code, was approved by him; and the fact long before then had been, and then was, and since then lias been, and still is, that the only steam vessels that had been or were engaged in the coasting trade, touching en route at a foreign port, and sailing under ‘register' out of or into the said port of San Francisco, were such of the vessels of said claimants, to-wit, Pacific Coast Steamship Company, or the Pacific Company, as had been and were so employed.” The answer in each case set up that the steamship referred to in it, during all the times mentioned, was a duly registered steam vessel of the United States, and then was and during many months prior thereto had been continuously employed in the carriage of persons and property between the port of San Francisco, Cal., and the ports of Port Townsend, Seattle, Tacoma, Everett, Anacortes, South Belling-ham, and Bellingham, all in the state of Washington, and in like business when returning to San Francisco; that during all of said times the said ship was á coastwise steam vessel of the United States then engaged in interstate coastwise commerce and transportation, and during all of said times was under the command of a master who then held a pilot’s license or certificate that had been theretofore duly and regularly issued to him by the proper-and competent authorities of the United States, and which said pilot’s license authorized the said master under the pilot laws of the United States to pilot any and all enrolled or registered steam vessels of the United States, including the steamship in question, into and out of the port of San Francisco, and that the chief officer of the said steamship also held, during all of the said times, a similar pilot’s license, which said licenses were then in full force, and that all the engineers of the said steamship were duly and regularly licensed by the proper United States authorities as required by the United States statutes, which licenses were in full force, .and that each of the several officers of said ship had taken the oath of office prescribed by statute; that the said ship on its regular voyages between the port of San Francisco and the Puget Sound ports of the United States touched en route at the port of Victoria, British Columbia, and there received on board passengers and freight for carriage thereon, the stop and stay of the ship at Victoria for such purpose being about one hour only, which stop the ship was authorized to make by the clearances granted at the United States custom house; that the number of passengers and the amount of freight taken on •board at Victoria were insignificant as compared with the number of passengers and amount of freight taken on board at the American .ports mentioned and transported by the steamship to and from the ¡said American ports. ■• The record in each case shows that the services sued for were never in fact rendered, and that the acceptance of the proffered services was expressly refused by the respective steamships, and that the real question in each case is whether these registered steamships of the United States, plying between the American ports mentioned and making a brief incidental stop at the British port of Victoria, were compelled to accept the services at the port of San Francisco of a state pilot of California, We are of opinion that the court below rightly held that they were not.

On behalf of the appellants it is suggested that the alleged error .on the part of that court arose because it failed to remember that the 'existing statutes of the United States upon the subject were enacted .for the “better protection of the lives of passengers.” The learned judge of the court below could hardly have been unmindful of the fact that the primary purpose of all pilotage laws is the safety of persons on board the vessels to be piloted.

Nor is it true, as contended on behalf of the appellants, that unless the existing statutes of the United States be so construed as to make coastwise vessels sailing under “register” subject to the compulsory pilot laws of the state, such coast-wise seagoing vessels will necessarily be exempt from the requirements of any pilot law. The authority of a state to provide for and regulate pilot charges at ports within its territorial limits, in so far as such' provisions and regulations do not conflict with the legislation of Congress, is unquestioned.

But it is just as true that to the extent of any such conflict state legislation is invalid.

In title 53 of the 'Revised Statutes of the United States, for the regulation of steam vessels, it is provided, among other things, that every vessel propelled in whole or in part by steam, shall be deemed a steam vessel within its meaning, and that all steam vessels navigating any waters of the United States which are common highways of commerce, or open to general or competitive navigation, excepting public vessels of the United States, vessels of other countries, and boats propelled in whole or in part by steam for navigating canals, shall be subject to the provisions of that title.

Specific provisions are therein made for the licensing of masters and pilots of domestic steam vessels, and against the navigation of such vessels by any one not so licensed, and a supervising general inspector, supervising inspectors, and local inspectors are provided for to see that none but competent persons are granted such licenses. “Whenever any person claiming to be a skillful pilot for steam vessels offers himself for a license.” declares

section 4442 of' the Revised Statutes (U. S. Comp. St. 1901. p. 3037), “the inspectors shall make diligent inquiry as to his character and merits,-and if satisfied from personal examination of the applicant, with the proof that he offers, that lie possesses the requisite knowledge and skill, and is trustworthy and faithful, they shall grant him a IP cense for the term of one year to pilot any such vessel within the limits prescribed in the license; but. such license shall be suspended or revolted upon satisfactory evidence of negligence, unskillfulness, inattention to the duties of his station, or intemperance, or the willful violation of any provision of this title.” And

section 4443 of the same statutes (page 3037) provides that: “Where the master or mate is also pilot of the vessel, he shall not be'required to hold two licenses to perform such duties, but, the license issued shall state on its face 1hat he is authorized to act in such double capacity.” By

section 4438 (page 3034) it is provided as follows: “Sec. 4438. The boards of local inspectors shall license and classify the masters, chief mates, engineers, and pilots of all steam vessels. It shall he unlawful to employ any person, or for any person to serve, as a master, chief mate, engineer, or pilot on any steamer, who is not licensed by the inspectors: and anyone violating this

section shall be liable to a penalty of one hundred dollars for each offense.” Merchant vessels are, under the commercial and navigation laws of the United States, divisible into two classes — -registered vessels, and vessels enrolled and licensed for the coasting trade or fisheries. But by virtue of sections 3126 and 4361 of the Revised Statutes (U. S-Comp. St. 1901, pp. 2036, 2980) registered vessels may also engage in the coastwise trade — those sections providing: “See. 3126.

Any vessel, on being duly registered in pursuance of tbe laws of tbe United States, may engage in trade between one port in tbe United States and one or more ports within the same, with the privilege of touching at one or more foreign ports during the voyage, and land and take in thereat merchandise, passengers and their baggage, and letters, and mails.

All such vessels shall be furnished by the collectors of the ports at which they shall take in their cargoes in the United States, with certified manifests, setting forth the particulars of the cargoes, the marks, number of packages, by whom shipped, to whom consigned, at what port- to be delivered, designating such merchandise as is entitled to drawback, or to the privilege of being placed in warehouse; and the masters of all such vessels shall, on their arrival at any port of the United States from any foreign port at which such vessel may have touched, as herein provided, conform to the laws providing for the delivery of manifests of cargo and passengers taken on board at such foreign port, and all other laws regulating the report and entry of vessels from foreign ports, and be subject to all the penalties therein prescribed.” “See. 4361.

Whenever any vessel of the United States, registered according to law, is employed in going from any one district in the United States to any other district, such vessel, and the master thereof, with the goods she may have on board previous to her departure from the district where she may be, and also upon her arrival in any other district, shall be subject, except as to the payment of fees, to the same regulations, provisions, penalties, and forfeitures, and the like duties are imposed on like officers, as are provided for vessels licensed for carrying on the coasting trade.

Nothing herein contained shall be construed to extend to registered vessels of the United States having on board merchandise of foreign growth or manufacture, brought into the United States, in such vessel, from a foreign port, and on which the duties have not been paid according to law.” There is in the two sections last quoted express statutory authority for engaging in the coastwise trade by registered vessels; and the agreed statement of facts in the present cases leaves no room to doubt that the steamships here in question were mainly engaged in that traffic, stopping only incidentally, and for a very brief period, at the foreign port of Victoria, at which port they take on a very small portion of their passengers and cargo.

The provisions of the United States statutes show that provision is made by the general government for proper pilots for all domestic vessels, whether registered or licensed, engaged in the coastwise trade, and that no such- vessels can engage therein without such a pilot aboard. It is, therefore, a mistake to say, as -does the proctor for the appellant, that unless registered vessels engaged in the coastwise trade be subjected to the compulsory law of the state, such vessels are not subject to any pilotage law. “By Rev. St. § 4235 [U. S. Comp. St. 1901, p. 2903],” said the Supreme Court in the case of Huus v.

New York & Porto Rico Steamship Company, 182 U. S. 392, 393, 394, 21 Sup. Ct. 827, 828 (45 L.

Ed. 1146), “it is expressly enacted that ‘until further provision is made by Congress, all pilots in the bays, in-.l.ets, rivers, harbors, and ports of the United States shall continue to be regulated in-conformity with the existing laws of the states respectively wherein such pilots may be,’ subject, however, to a prohibition (section 4237 [page 2903]) against ‘any discrimination in the rate of pilotage or half-pilotage between vessels sailing between the ports of one state and vessels sailing between the ports of different states, or any discrimination against vessels propelled in whole or in part by steam,’ and to a further restriction (section 4101 [pago 30.16]) that ‘all coastwise seagoing vessels * * * shall be subject to The navigation laws of the United States, * * * and that every coastwise seagoing steam vessel subject to the navigation laws of! the United States, and to the rules and regulations aforesaid, not sailing under register. shall, when under way, except on the high seas, he under the control and direction of pilots licensed by the inspectors of steamboats.’ To further effectuate its control over coastwise seagoing vessels, it is provided by

section 4444 [page 3037] that ‘no state or municipal government shall impose upon pilots of steam vessels any obligation to procure a state or other license in addition to that issued by the United States, * * * nor shall any pilot charges be levied by any sneli authority upon any steamer piloted as provided by this title,’- * * * although ‘nothing in this title shall he construed to annul or affect any regulation established by the laws of any state requiring vessels entering or leaving a port in any such state, oilier than coastici-sa steam vessels, to take a pilot duly licensed or authorized by the laws of such state, or of a state situated upon the waters of such state.’ The general object of these provisions seems to bo to license pilots upon steam vessels engaged In the coastwise or Interior commerce ol' the country, and at the same time to leave to the states the regulation of pilots upon all vessels engaged in foreipn commerce.” See, also, Olsen v.

Smith, 195 U. S. 332, 25 Sup. Ct. 52, 49 L. Ed. 224: Spraigue v. Thompson, 118 U. S. 95, 6 Sup. Ct. 988, 30 L. Ed. 115. Since tlie foregoing opinion was prepared, our attention has been called by the appellants’ proctors to three rulings of the Treasury Department, the first made October 24, 1879, the second February 12. 1884, and the third November 39, 1884, which, it is claimed, sustain the appellants’ contention.

The first was in response to a letter from a pilot holding a license from the United States local inspectors asking whether his right to pilot certain steamers in and out of Narragansett Ray could be interfered with by state pilots — such steamers plying between Boston and Philadelphia, and touching at Providence, a purely coastwise service, so far as appears from the inquiry.

The answer was that no state pilot could interfere with the pilot holding a United States license, “if said steamers are exclusively confined to the coast-wise trade and are not sailing under register.” The second letter of the Department referred to was evidently in answer to an inquiry of one holding a license under the general government, and reads: “You are informed that a United States pilot’s license gives you aulhority to pilot any river or coastwise steamer upon the waters for which it is granted, but it does not confer any rights to pilot a sail vessel or registered steamer, namely, ‘one bound to or from a foreign port’; the pilotage of the latter class of vessels being regulated by the state laws, if there are any.” The third and last letter of the Department referred to announces the same ruling, and in these words: “A United States license gives you authority to pilot any river or coastwise steamer upon the waters for which it is granted, but it does not, confer any rights to pilot a sail vessel, or registered steamer, namely, one bound to or from a foreign port; the pilotage of the latter class of vessels being regulated by the state laws, if there be any.” The meaning of “registered” vessels, as used by the Department, was expressly stated in its last two letters mentioned to be “one bound to or from a foreign port.” It is hardly to be supposed that it meant anything else in the first' letter referred to by the use of the samé word “register.” Now it is obvious that a vessel sailing from one American port on the Pacific Coast to another American port on the same coast is not “bound to or from a foreign port,” although it makes an incidental stop en route at a foreign port.

The agreed statement of facts in the present cases shows that each of the vessels in question was, at the several times in the several libels and schedules referred to, either on a voyage from the port of San Francisco, in the state of California, to a United States port on Puget Sound, or from a United States port on Puget Sound bound to the port of San Francisco. In each case the voyage was between those domestic ports, with an incidental brief stop en route at the British port of Victoria, such incidental touching being expressly authorized by

section 3126 of the Revised Statutes of the United States, referred to in the foregoing opinion, and which we repeat, so far as pertinent; “Any vessel, on being duly registered in pursuance of tlie laws of the United States, may engage in trade between one port in the United States and one or more ports within the same, with the privilege of touching at one or more foreign ports during the voyage. * * * ” In each of the cases above entitled the judgment is affirmed.