Opinion
Healy & Baille, New York City, for plaintiff; John C. Koster, New York City, of counsel.
Burlingham, Underwood & Lord, New York City, for defendant; John S. Rogers, New York City, of counsel.
PALMIERI, District Judge.
Introduction
These are cross-motions for summary judgment. Fed.R.Civ.P. 56(a) and (b). Plaintiff sues to recover allegedly compulsory pilotage fees amounting to $915.60 for services tendered to defendant in New York harbor. There is no issue as to any material fact. For the reasons hereinafter set forth, judgment is entered for the defendant. As a suit for compulsory pilotage fees pursuant to state law(s), this case comes within the admiralty jurisdiction of this Court. Hobart v. Drogan, 35 U.S. (10 Pet.) 108, 119-120, 9 L.Ed. 363 (1836); Ex Parte McNiel, 80 U.S. (13 Wall.) 236, 242-243, 20 L.Ed. 624 (1872); Reardon v. Arkell, 59 F. 624, 625-626 (S.D.N.Y.1894); Fordham v. Munson S.S. Line, 6 F.Supp. 435 (S.D.N.Y.1933).
There Are No Genuine Issues of Fact
Fed.R.Civ.P. 56(c) provides that a moving party may be entitled to judgment as a matter of law only if there is no genuine issue as to any material fact. Plaintiff argues that there are no such issues. While the defendant argues that there are a number of factual issues, they are not a bar to the relief granted since the issues raised by defendant all pertain to its affirmative defenses. They might have served
Walling v. Richmond Screw Anchor Co., 154 F.2d 780, 784 (2d Cir. 1946), cert. denied, 328 U.S. 870, 66 S.Ct. 1383, 90 L.Ed. 1640 (1946); Amaya v. Stanolind Oil & Gas Co., 62 F.Supp. 181, 206 (S.D.Tex.1945), aff'd, 158 F.2d 554 (5th Cir. 1946), cert. denied, 331 U.S. 808, 67 S.Ct. 1191, 91 L.Ed. 1828, rehearing denied, 331 U.S. 867, 67 S.Ct. 1530, 91 L.Ed. 1871 (1947); 6 J. Moore, Federal Practice P56.13, at 2249 (2d ed. 1965); cf. id. P56.17(4), at 2491-94.
as a bar to summary judgment in favor of plaintiff, but clearly no such problem is presented here because defendant would prevail in any event. It follows that under these circumstances the case is in a posture appropriate for summary judgment. Cf. Scolnick v. Lefkowitz, 329 F.2d 716, 717 (2d Cir. 1964); Dressler v. MV Sandpiper, 331 F.2d 130, 132-133, 134 (2d Cir. 1964); Waldron v. British Petroleum Co., 38 F.R.D. 170, 173-174 (S.D.N.Y.1965), aff'd, 361 F.2d 671 (2d Cir. 1966), aff'd sub nom., First National Bank v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968).
The Factual Background
Plaintiff is a duly licensed New Jersey Sandy Hook pilot who tendered his services during the summer of 1971 to three vessels of which defendant is the owner or consignee. Each of the three vessels was bound from Stapleton Anchorage in New York harbor, just north of the Verranzano Narrows Bridge, to Port Mobil, New York, at Staten Island, by way of a route through the Ambrose Channel heading southeast (generally), crossing over the Sandy Hook Bar area and turning around and coming back into the harbor through the Sandy Hook channel, Raritan Bay Reach, etc., to Port Mobil (formerly Port Socony) on the west side of Staten Island at Arthur Kill. Plaintiff contends that by virtue of crossing the Sandy Hook bar area the vessels became subject to the compulsory pilotage statutes of New Jersey or New York, both states having land areas contiguous to harbor waters and consequently having concurrent jurisdiction over the harbor. Defendant's vessels had initially gone to the Stapleton Anchorage within the harbor upon arrival from international voyages in order to unload part of their cargoes onto lighters so as to lighten their loads so that the vessels could transverse the shallower channels to Port Mobil. The application of the compulsory pilotage statutes to the initial entries is not in question.
The exact parameters of the 'Sandy Hook bar area,' a phrase employed here for the sake of convenience, are not strictly defined. A bar is a built up area at the mouth of a river caused by the deposit of sediment dropped from suspension when the river current slackens as it meets the sea. The location of a bar is not static. However, the exact routes taken by the three vessels are undisputed and there is no substantive question that they crossed the pertinent reference points.
The basis of the dispute turns on the construction of the applicable New Jersey and New York statutes:
N.J.S.A. § 12:8-35 (1968): Vessels required to take pilots
'All masters of foreign vessels and vessels from a foreign port, and all vessels sailing under register, bound in or over the bar of Sandy Hook, shall take a licensed pilot, or in case of refusal to take such pilot, the master, owner or consignee shall pay the pilotage as if one had been employed, and such pilotage shall be paid to the pilot first speaking or offering his services as pilot to such vessel.' N.Y. Navigation Law § 88 (McKinney's Consol.Laws, c. 37, Supp.1973): Pilotage at Sandy Hook, Sands Point or Execution Rocks
'1. Every foreign vessel and every American vessel under register entering or departing from the Port of New York by the way of Sandy Hook, or by the way of Sands Point or Execution Rocks, shall take a Sandy Hook pilot licensed under the authority of this article or of the laws of the state of New Jersey or a person heretofore licensed as a Hell Gate pilot . . ..'
Federal Statutory Background
Section 211 and 215 of Title 46 of the United States Code provide that:
§ 211. State regulation of pilots
'Until further provision is made by Congress, all pilots in the bays, inlets, 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, or with such laws as the States may respectively enact for the purpose.' § 215. State regulations as to licenses of pilots of steam vessels and pilot charges
'. . . Nothing in title 52 of the Revised Statutes shall be 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, other than coastwise steam vessels, to take a pilot duly licensed or authorized by the laws of such State, or of a State situate upon the waters of such State.'
Section 212 provides that where waterways are bound by more than one state a vessel may employ a pilot of either state.
,46 U.S.C. § 212 (1970):
The Supreme Court has held that the only area of pilotage actually preempted by federal legislation (46 U.S.C. § 215 (1970), supra) applies to coastwise steam vessels not sailing under registry, a category undisputedly inapplicable to the vessels here. Anderson v. Pacific Coast S.S. Co., 225 U.S. 187, 199, 32 S.Ct. 626, 56 L.Ed. 1047 (1912); see also Bigley v. N.Y. & P.R.S.S. Co., 105 F. 74, 75 (S.D.N.Y.1900), question certified to the Supreme Court sub nom., Huus v. N.Y. & P.R.S.S. Co., 109 F. 1058 (2d Cir.), aff'd, 182 U.S. 392, 21 S.Ct. 827, 45 L.Ed. 1146 (1901); Fordham v. Munson S.S. Line, supra, 6 F.Supp. at 436.
This federal reservation of power, and the terms of §§ 211 and 215, have been regarded as delegating to the states the authority to regulate the pilotage of all other vessels in their ports. Huus v. N.Y. & P.R.S.S. Co., 182 U.S. 392, 394, 21 S.Ct. 827, 45 L.Ed. 1146 (1901); Anderson v. Pacific Coast S.S. Line, supra, 225 U.S. at 201; Fordham v. Munson S.S. Line, supra, 6 F.Supp. at 436; see generally Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 311-321, 13 L.Ed. 996 (1851); Ex Parte McNiel, supra, 80 U.S. (13 Wall.) at 240-243. This raises a question as to whether the specific language of § 215 designating certain kinds of 'vessels entering or leaving a port' as those exempted from federal pilotage actually limits state authority to regulate port pilotage exclusively to entering or departing vessels. However, in view of our conclusion as to the proper construction of the state statutes, we do not reach this issue.
The New York Statutory Background
The language of the New York compulsory pilotage statute, N.Y. Navigation Law § 88(1) (McKinney Supp. 1973), clearly and unambiguously applies to certain kinds of vessels coming into or going out of the New York harbor by way of the Sandy Hook bar area.
This conclusion is supported by an examination of some of the unrelated sections of Article 6, the New York statute covering 'Pilots and Pilotage Fees.' Section 88(2) makes it unlawful for an unlicensed (state) pilot to perform the compulsory pilotage stipulation in § 88(1), and § 88(3) makes such conduct a misdemeanor. The terms of § 88(2) make its prohibition applicable to the same vessels as § 88(1) 'sailing . . . to or from the Port of New York, by the way of Sandy Hook . . ..'
N.Y. Navigation Law, Art. 6, §§ 87-98 (McKinney Supp.1973).
Similarly, § 96(1)(a), which makes pilotage fees compulsory for the types of vessels which come within the scope of the compulsory pilotage provisions, e.g.,
§ 88(1), contains language identical to § 88(1). By the same token § 96(7) imposes liability for payment of pilotage fees on certain persons 'entering or clearing the vessel at the port of New York . . ..'
Thus defendant's contention that irrespective of all else, liability cannot be imposed on them by virtue of this section because the vessels were not 'entering or clearing' at the time of the movement. The New Jersey statue contains an identical provision. N.J.S.A. 12:8-38 (1968).
The inclusion of this explicit language in all of these sections relating to compulsory pilotage hardly affords this Court the latitude to infer an intention on the part of the New York legislature to extend the coverage of these sections beyond that which is clearly indicated by their terms.
Section 89-b(1) is the analogue of § 88(1) with respect to the other main entrance to New York, the Long Island and Block Island Sounds. The first sentence of that section provides:
Every foreign vessel and every American vessel under register transiting the New York state waters of Long Island Sound or Block Island Sound east of Execution Rocks or Sands Point, and any such vessels entering or departing from any port situated on the New York state waters of Long Island Sound east of Execution Rocks or Sands Point, shall take a Long Island-Block Island Sound pilot licensed under the authority of this article or of the laws of any other state having concurrent jurisdiction over these waters.
The same language is used in § 89-b(2), prohibiting unlicensed pilots, and in§ 96(8)(a), establishing compulsory pilotage fees.
Moreover, § 96(4) and Regulation 55.1 promulgated pursuant thereto, and § 98, accommodate voluntary, non-compulsory use of pilots, presumably in contemplation of intra-harbor shifts of vessels. In fact, plaintiff here is claiming fees computed on the basis of Regulation 55.1. In view of the limited scope of the compulsory provisions and in light of the available legislative background, it seems clear that these non-compulsory provisions are applicable to intra-harbor shifts.
N.Y. Pilotage Regulation 55.1(b):
This leads to the question of whether a crossing of the Sandy Hook bar area removes a vessel from the category of intra-harbor shifts and therefore removes it from the coverage of the non-compulsory aspects of the statute. The true threshold question in this case does not lie in defining an intra-harbor shift vis-a-vis the Sandy Hook bar area, but in the definition of 'entering or departing from the Port of New York.' As to that, all of the available indicia point to a commencement or termination of a voyage.
The Proposed New York Legislation of 1972
There can be little doubt that the New York legislature was fully aware of the ramifications of the language in the statute, for in 1972 an amendment to § 88(1) was proposed which dealt directly with the problem that confronts us now. That amendment would have added a clause to the first sentence of § 88(1) which would have resulted in the following:
8962, N.Y. Legislature, 195th Sess. (February 29, 1972).
For reasons which are not readily ascertainable, the proposed amendment was not passed. Nevertheless, it does not seem unreasonable to regard the proposal as an acknowledgment of the explicit limitations of the language of § 88(1) and, in addition, it seems equally reasonable to view the failure of the amendment as a manifestation of a legislative desire not to expand its coverage. This inference is buttressed by the accompanying 'Memorandum in Support' of the amendment written by its sponsors. The initial statement in the Memorandum leaves no doubt about the relevancy of the proposed amendment to the case at bar:
Memorandum in Support of S. 8962, N.Y. Legislature, 195th Sess. (February 29, 1972) (unpublished).
Moreover, the Memorandum provides a lucid insight into the sponsors' appraisal of the scope of the current provision:
Thus the New York statutory scheme, as well as the current legislative understanding of the statute, militates in favor of a literal construction of the unambiguous 'entering or departing' language of § 88(1).
The Federal Scheme as Applied to New York
This conclusion also reconciles the New York statutory scheme with the apparent motivation of Congress in leaving this area of regulation to the states. Congress determined that it was infeasible for it to establish a network of pilots and boats sufficient to effectuate the boarding and transfer of federal pilots from vessels prior to their entering a port and subsequent to their departure. However, it did retain jurisdiction over certain kinds of vessels on kinds of voyages where the logistics could as a practical matter be accommodated, i.e., 'coastwise steam vessels.' 46 U.S.C. § 215 (1970). Consequently, the primary justification for the Sandy Hook pilots can be regarded as their logistic ability to accommodate incoming and outgoing vessels. Clearly a strict interpretation of the statutory language of 'entering or departing from the Port of New York' comports with this rationale.
Anderson v. Pacific Coast S.S. Co., 225 U.S. 187, 200, 32 S.Ct. 626, 56 L.Ed. 1047 (1912). See the discussion accompanying note 13 infra.
The New Jersey Statutory Background
The term 'bound in' as it appears in the New Jersey compulsory pilotage statute, N.J.S.A. § 12:8-35 (1968), supra, is clear and unequivocal and leaves little doubt as to its proper construction and application. Conversely, the phrase 'bound . . . over' is subject to a broad spectrum of interpretations ranging
from plaintiff's contention that it applies to any crossing of the bar area to defendant's position that it refers solely to vessels sailing out 'over' the bar.
When the phrase is taken in its entirety, i.e., 'bound in or over the bar of Sandy Hook,' the ambiguity of the latter phrase can be resolved by reconciling it with the initial phrase, 'bound in.' Since the first part clearly refers to vessels entering the New York harbor by crossing over the Sandy Hook bar area, plaintiff's contention that the latter phrase refers to any crossing of that area would render that phrase repetitious insofar as it would refer to entering vessels. But the construction of this section on the basis that associated words explain and limit each other (noscitur a sociis) and on the further basis that specific words limit and restrain general terms would appear to suggest a contrary conclusion. If the general term 'bound . . . over' is interpreted as incorporating all of the possibilities not included in the specific words 'bound in,' then the latter would be rendered nugatory in effect since it would in fact impose no limitation on the former, which, on the broadest possible interpretation could include vessels crossing the bar area for any purpose, including vessels bound into as well as those bound out of the harbor. Therefore, in order to attribute meaningful effect to the specific words, they must be regarded as imposing some limitation on the general terms. It would hardly make sense to apply that limitation to outward bound vessels because that would lead to the duplicative construction of the phrase as a reference to any crossing of the bar area, including inward bound vessels. Thus we must conclude that the limitation is imposed on the very broad interpretation of 'bound . . . over' as any crossing and consequently the only remaining construction is that the term 'bound . . . over' is limited to outward bound vessels.
This construction gains substantial corroboration from the terms employed in other sections of the pilotage statute.
Since the particular section in issue here is a compulsory pilotage provision which imposes a pilotage fee regardless of whether a pilot is actually employed or not, it is especially pertinent to look to those sections which set out the fee structure. The two main provisions in this regard are N.J.S.A. § 12:8-24 (1968), entitled 'Pilotage rates on inward-bound vessels' and § 12:8-27, entitled 'Pilotage rates on outward-bound vessels.' Both begin with the same proviso: 'The fees for pilotage for vessels, inward (outward) bound, and not exempted from pilotage by any law of this state or any regulation thereunder, shall be . . ..' Similarly, § 12:8-28 provides for additional fees between November and April to be 'added to the full pilotage of every vessel coming into or going out of the ports of (New Jersey) or New York.' The use of the terms 'inward' and 'outward' and 'coming in' or 'going out' leave no doubt as to the movements contemplated by these sections. Notably, § 12:8-29 entitled 'Fees for moving vessels in (the) harbor of New York,' is, by its explicit terms, clearly inapplicable to the movement in question here.
Thus, plaintiff is claiming fees pursuant to § 12:8-30, entitled 'Rates for intermediate distances.' That section provides:
'The rates of pilotage for any intermediate distances shall be determined by the commissioners and promulgated in their rules and regulations for the government of pilots.'
Since § 12:8-33 keys New Jersey's rates to New York's, the operative schedule is established by N.Y. Pilotage Regulation 55.1(b) quoted in footnote 6 supra. Because § 12:8-30 gives no intimation of the kinds of movements it is intended to cover, it is of no assistance in determining whether or not it may, under given circumstances, be applicable to the compulsory
pilotage provision of § 12:8-35. It is therefore the scope of the latter which will determine this question, rather than vice versa. However, in this regard defendant argues quite persuasively that N.Y. Pilotage Regulation 55.1(b) explicitly keys its rates to compulsory pilotage rates, and therefore, by negative inference, distinguishes the kinds of movements that it covers from those subject to compulsory pilotage, i.e., in New York, 'vessels entering or departing from the Port of New York by the way of Sandy Hook.' Because § 12:8-33 does incorporate this New York regulation this argument pertains equally to the New Jersey statutory scheme as well.
The regulation also alternatively provides for a $75 minimum, but plaintiff's claims exceed this in each of the three instances.
It is also noteworthy that liability for the pilotage fees is imposed on the 'master, owner, agent or consignee entering or clearing the vessel.' § 12:8-38.
Other sections of the statute also lend support to the conclusion that compulsory pilotage applies only to vessels entering or leaving the port. Section 12:8-16 contains the 'oath of pilots' which includes the phrases 'I will at all times use by best endeavors to repair on board all ships and vessels that I shall see and conceive to be bound for, or coming into, or going out of the harbor (of Jersey City, Newark, Perth Amboy and Sandy Hood) . . . I will . . . make that best dispatch in my power to bring safely over the bar at Sandy Hook every vessel committed to my care in coming in or going out . . . ..'
Both sections pertaining to duties of pilots make explicit references to the path of the voyage. Section 12:8-22 provides that 'every pilot . . . upon taking charge of a vessel either outward or inward bound, shall cause the lead to be regularly hove . . . ..' Similarly, § 12:8-23 provides that 'New Jersey and Sandy Hook pilots may arrange with the New York pilots to regulate the stationing of pilot boats to receive pilots from outwardbound vessels.'
Section 12:8-36 exempts New Jersey masters of coasting vessels from compulsory pilotage 'whose vessel is bound either in or out of any of the waters of this state or over which it has concurrent jurisdiction with other states . . . whether the same be . . . in or over the bar of Sandy Hook . . ..'
Finally, § 12:8-47, the penal section with respect to piloting without a license, makes it a misdemeanor for an unlicensed person to 'pilot or offer to pilot a vessel, not exempted by the laws of this state from pilotage, to or from the ports of (New Jersey), by way of Sandy Hook . . ..'
Taken together, these various sections of the statute manifest a discernible pattern of references to vessels entering or departing the New York harbor by crossing the Sandy Hook bar area. Thus, in order to ascribe a consistent, harmonious and effective construction to the compulsory pilotage provision (§ 12:8-35) the phrase 'bound . . . over the bar' must be regarded as an allusion to outward bound vessels. This construction not only reconciles this section with the others of the statute, but also avoids the direct inconsistencies that would result from a broader interpretation, e.g., vis-a-vis the liability provision, § 12:8-38, and moreover, it avoids what would be an extremely unfortunate, as well as untenable conflict with the in pari materia New York statute.
In addition to the constitutional issues that might be raised, see 46 U.S.C. § 213 (1970) prohibiting discriminatory pilotage rates.
The Federal Scheme as Applied to New Jersey
Section 12:8-35 was first enacted in 1869 and, apparently, reenacted in 1877. L. 1869, ch. 399, § 2 N.J.Stat. 1049
(1869) , suppl. to N.J.Rev.Stat. 819 (1877). Neither counsel nor the Court have been able to unearth any scintilla of legislative background of this statute. We do, however, have some indication of one contemporaneous event which bears directly on the New Jersey statute. The savings clause in 46 U.S.C. § 215 (1970) was originally passed in 1867 and Mr. Justice Hughes sheds some light on the purview of that enactment in Anderson v. Pacific Coast S.S. Co., supra, 225 U.S. at 200:
As to the relevancy of such matters, see 1 Blackstone, Commentaries *61.
Act of February 25, 1867, ch. 83, 14 Stat. 411 (1868), re-enacted, Act of February 28, 1871, ch. 100, § 51, 16 Stat. 455 (1871), codified in R.S. § 4444.
Since the New Jersey statute was reenacted in 1877, and clearly was designed to cover only those vessels not preempted by the Federal legislation, the legislature must be deemed to have been cognizant of this rationale. Thus, as in the case of the New York statute, the underlying logistic difficulties that served as the basis for leaving the regulation of 'port pilotage' of certain kinds of vessels to the states hardly seem to be applicable to the kinds of intra-harbor shifts involved in this case
Moreover, Justice Hughes' Review of the statutory history of the federal provision reveals a consistent pattern of references to vessels 'entering or leaving' a port when referring to state regulation. This, of course, ties in closely with the concept of vessels engaged in lengthy, presumably international, voyages touching at numerous ports. That pattern adds substantial support to a construction of the federal statute which would give operative effect to those terms in the current statute. Thus the reconciliation of the New Jersey statute with the federal statutory scheme seems to foreclose the plaintiff's broad interpretation and militates in favor of a construction of the phrase 'bound . . . over' as meaning 'bound (out) over' the bar area.
Montclair v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 27 L.Ed. 431 (1882); United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955); Queensboro Farms Products, Inc. v. Wickard, 137 F.2d 969, 976 (2d Cir. 1943).
This conclusion as to the New Jersey stature, and the similar conclusion as to the New York statute, may give rise to the unfortunate circumstance of creating a hiatus in the overall regulation of compulsory port pilotage in the New York harbor for it appears that as a result of this decision the kinds of vessels in question here making the moves that were made here may not be subject to either federal or state regulation. We have been mindful of the prospect of this eventuality throughout our deliberations. Nevertheless, we feel that the conclusion reached here is correct and the question of the desirable scope of the network of interrelated compulsory pilotage statutes is properly one for Congress and the state legislatures. Cf. Anderson v. Pacific Coast S.S. Co., 225 U.S. 187, 205, 32 S.Ct. 626, 56 L.Ed. 1047 (1912).
Conclusion
Since both the New York and New Jersey compulsory pilotage provisions apply exclusively to vessels entering or departing the New York harbor by way of Sandy Hook, plaintiff is not entitled to compulsory pilotage fees with respect to the harbor movements here in question. Judgment is entered for the defendant. Each party is to bear its own costs.
It is so ordered.
'For transporting a vessel from one to the other of any two of the following areas, or within any one of the following areas, the fee shall be one-half of the rate established by the Navigation Law for the pilotage of vessels entering or departing from the Port of New York by the way of Sandy Hook, or a minimum of $75: Leonardo, Perth Amboy, Raritan River, Arthur Kill, Kill Van Kull, Newark Bay and tributaries.'