Hobart v. Drogan

ON appeal from the district court of the United States for the southern district of Alabama.

The ship Hope was bound to Mobile from Havana, in January, 1832, with a cargo of fruit, sugar, coffee, segars, and tobacco. She arrived off the port of Mobile on the 24th January, 1832, took a pilot, and was carried safely within Mobile Point, to a place at which the pilots are usually discharged; the pilot then left her, and she proceeded some distance up the bay, and came to anchor about six miles within Mobile Point.

In the night, the wind rose to a powerful gale; in the course of which the brig parted her cables, and was driven by the force of the winds and waves below Mobile Point, where she grounded. The master and crew, in order to save their lives, took to the boat, and left the brig and cargo.

The vessel remained grounded for some time in great peril, having bilged, and having four feet water in her hold. The libellants, who were pilots of the outer harbor of Mobile, after having, without success, made previous efforts to board her, at length succeeded; and less than half an hour afterwards, the wind having changed, the vessel and cargo floated off; and the libellants took her in charge. Had not the libellants been on board the Hope at the time the wind changed, she would have been driven on the opposite shore, and would, with her cargo, in the opinion of the witnesses examined in the district court, have been totally lost. She was towed by the boats of the libellants into the port of Mobile.

The libellants proceeded for salvage against the Hope and cargo, and the district court awarded to them, as salvage, one-third of the value of the ship and cargo. The total value of the property saved was $15,299 58.

The owners appealed to this Court.

The case was argued by Mr. Ogden, for the appellants, and by Mr. Southard, for the appellees.

The facts of the case are stated more at large in the opinion of the court.

Mr. Ogden contended, that as the libellants were pilots of the outer bay of Mobile, they could not be considered as salvors; and could not claim salvage for such services as those which had been rendered to the Hope. The proceedings in the district court were for salvage, as appears by the bill; and the decree of that court, made on the 18th January, 1833, is for one-third of the amount of the appraised value of the property saved, 'as salvage.'

Having claimed as salvors, and the law not authorizing such a claim, they cannot now, by an amendment of the libel, state such a claim as this court will ratify. The amendment would alter the whole nature of the case; and although amendments are, in many cases, allowed in an appellate court, this is not such a case. Cited 9 Cranch, 244, 284. The Edward 1 Wheat. 261; 7 Cranch, 570; Divina Pastora, 4 Wheat. 52.

The following points were presented for the consideration of the court:

1. That it was the duty of the libellants, as pilots, to give     any assistance in their power, to vessels in distress, within      the limits of their pilot ground; and this being a service      rendered in discharge of their duty, forms no case for a      claim of salvage.

2. That the act of congress leaves the regulations of pilots to the state laws; and by the law of Alabama, any extra allowance claimed by pilots, must be fixed by the wardens of the port.

3. That the district court of Alabama had no jurisdiction in this case.

By the libel it appears that the libellants were pilots of the port of Mobile, in Alabama; and the first question for the consideration of the court is, whether pilots can claim salvage under the circumstance of this case.

The principles of law which regulate such claims, claims for compensation and reward for services which are performed in the ordinary course of the duties of the sitation of the person who performs them, virtute officii, are reported in the case of Le Tigre, 3 Wash. C. C. R. 570, 71. A pilot is not entitled to salvage unless he goes beyond his ordinary duties. A person who is bound to render assistance in saving a ship, cannot be considered a salvor. The Neptune, 1 Hog. Ad. Rep. 266; The Joseph, 1 Rob. Ad. Rep. 257. A pilot is not to claim as a salvor. Bees. Ad. Rep. 212. A case has been decided by Mr. Justice Thompson, in the circuit court of the southern district of New York, in which pilots who had rescued the ship from great danger, were not admitted to be salvors. The case of the Wave, Mss. Rep. The danger in which the vessel may be, does not lessen the duty of a pilot to rescue and save her. When a vessel is in distress, and is found in that situation by pilots on their cruising ground, it is their duty as pilots to bring her into port. If the services have been great, they are entitled to extra pilotage, to be decided according to the laws of the state of which the port out of which the pilots cruise is a part. The regulations of pilots of the port of Mobile, make provision for extra compensation in such cases; and in conformity with these regulations, and under them, the libellants were bound to present their claims.

It was contended that the case of the Wave was in all important particulars the same as the case before the court. The Wave was outside of the port of New York, was in great peril, and was boarded off Sandy Hook by the pilots. The court would allow no salvage.

On the second point, it was argued that if the libellants cannot claim as salvors, they cannot claim extra compensation by proceeding in the district court by a libel. The compensation or extra allowance must be fixed, according to the laws of Alabama, by the wardens of the port of Mobile.

It is admitted that claims for services rendered by pilots which may entitle them to extra allowances, may be entertained in the admiralty; but the admiralty jurisdiction of the courts of the United States in such cases is concurrent with that of the courts of the States-It is not exclusive. In the same manner, actions for seamen's wages may be maintained in the courts of common law, although they are more properly of admiralty proceedings. It is for convenience, as all the seamen of a ship may be joined in a libel for wages, that such claims are generally persented in the admiralty; and not because the admiralty has exclusive cognizance of them. The jurisdiction of the courts of common law and of courts of admiralty being concurrent, the recovery in both courts should be the same, and should be regulated and limited by the provisions of a law applicable to the case. To suppose that proceedings in one court would produce a different result, a higher or a lower rate of compensation, would not be proper. The principles of the law in both courts should be alike, as would be the evidence; and the application of these principles should be the same.

If then a compensation is fixed by law for the services of a pilot, he cannot, by coming into the admiralty, ask a greater compensation than is allowed him by a law applicable to the case. If, by the provisions of a law, extra compensation is to be given, and the manner in which the amount of such compensation is to be determined is fixed; no recovery can be had in the admiralty until after a proceeding under the provisions of the law shall have determined the amount of the allowances; and that alone can be recovered in the admiralty. Has the law fixed any compensation for the services of pilots who perform ordinary or extraordinary duties?

The constitution of the United States gives to congress the power to regulate commerce. Under this power it may be that congress might regulate the pilots in all the ports of the United States; but it is not admitted that they could do this to the full extent: they could not regulate the compensation to pilots, for, if they could, they might regulate the wharves and fix the rate of wharfage in all the seaports. The duties of pilots, their regulation, their compensation, are properly left to the legislatures of the states of the Union. Congress, whatever may be their powers, have, by an act passed on the 7th of August, 1794, (2 Laws U.S. chap. 9, sec. 4,) declared that pilots in the ports of the United States shall be regulated by state laws. By this provision, the laws of the states are to govern in all the claims made by pilots, until congress shall interfere.

Alabama has passed laws for the government and regulation of pilots and pilotage; the fare for the ordinary services of pilots is fixed, and provision is made for determining the compensation for extraordinary services. This is to be determined by the wardens of the port. Their law is in all respects the same as the law relative to pilots in New York.

It has been decided by Mr. Justice Thompson, in the case of the Wave, that congress has, by their act of 1794, adopted all the laws of the states in relation to pilots. If so, then the libellants could not proceed in the district court of Alabama, as that court had no jurisdiction of the case.

Mr. Southard, for the appellees.

The libellants are pilots of the outer harbor of Mobile; and their duty is to conduct vessels from the gulf of Mexico into the bay of Mobile. They performed services by which the brig Hope and cargo were saved from a total loss and entire destruction; and by the district court of the United States for the district of Alabama, they have been allowed one-third of the value of the property saved, as salvage. They presented themselves before that court as salvors, and their claim here is purely a question of salvage. This claim is distinctly made in the libel as a claim for salvage; and it will be treated as such in the argument now addressed to the court.

It is not denied that the services of the libellants were meritorious. They boarded the vessel when she was in extreme peril, while she was yet aground, before she floated off by the change of wind; she was saved from being driven to the opposite shoal, where she would have been totally wrecked. All the duty required from pilots had been done when the Hope had been conducted up to the inner harbor of Mobile. For twenty-seven hours the pilot who had navigated her up to Mobile had been on board of the Hope, and he was properly discharged: and that could be required of a pilot of the outer harbor had been done, and his connexion with the vessel was at an end. If, after a vessel arrives in the inner bay, a pilot is wanted, a pilot of that bay is called upon. Thus one of the libellants who had piloted the vessel up the bay, had ceased to have any connexion with her; and the other libellants never had any thing to de with her, until they went on board of her after the disasters had occurred which had driven her on shore. For two hours after the pilot had left her she had remained at anchor. If, within that time, her situation had become such as to require a pilot, if she had become dismasted, cast away, sunk, no duties could have been called for from the pilot of the outer harbor. Pilots are not general conservators of shipping. They are not to be called upon more than any other persons to save vessels.

The Hope had been driven out to sea; she was on shore half a mile out of Mobile Point; she was in no 'port,' no 'harbor,' no 'bay,' which are the places mentioned in the act of congress of 1794. The place where she lay was on 'the high seas,' beyond the local jurisdiction of the state of Alabama, or of any state; in no county. All the authorities make the place the 'high seas.' It was where 'the winds and waves prevail without check or control:' beyond the fauces terrae. She was a wreck on the ocean.

Other facts are proper to be considered. The ship and cargo were in situation of imminent periol; her masts and spars were cut away. She had no cable, no anchor; all were lost. She was striking on the ground, amidst the breakers; had sprung aleak, and had two feet of water in her hold before she struck on the bank, and upwards of three feet when she floated, with the libellants on board; her pumps were choked; she had a signal of distress at the stump of the mast; the captain and crew had deserted her to save their lives, and there was no living man on board.

The Hope was not in a situation to require a pilot. No pilotage services would have been useful to her: and the evidence shows that such was the opinion of the master, for he did not call on the libellants, as pilots, to go to the rescue of the vessel.

While she was in this situation, some persons, other than the libellants, went on board of her and saved some articles. They could not remain with her, and she was again abandoned and deserted. Twenty-four hours afterwards the libellantstook charge of her. The articles saved from the vessel, before the libellants boarded her, were the subject of salvage. These circumstances, and others of equal importance, of the same character, exhibit a case of property actually rescued by the libellants from entire loss, at great hazard to them, and with great labor and difficulty. If they are considered as salvors by this court, the allowance of the district court must be ratified. Salvage is the reward for efficient services; and it is a premium which is given to induce like efforts, when, by the casualties of the ocean, they are required. The proposition of the counsel for the appellants is, that the libellants were pilots, and not salvors. If this is the case pilots can never be salvors. To show that this is not the law, the following cases were cited: The Helen, 3 Rob. Rep. 183; the Apollo, 3 Rob. 249; the Two Catharines, 2 Mason's Rep. 335, 338; 2 Cranch, 268.

To carry the principle contended for by the counsel of the appellants into effect, would produce the highest injustice. An officer performing acts within the sphere of his duty, is not to ask for more than his regular compenation; but beyond it, and out of the line of his duty, there is no reason why services so extensive, if meritorious, shall not be rewarded. 3 Kent's Commentaries, 197, 198. To say that pilots shall not have salvage, in any case, is a dangerous position; dangerous to humanity, dangerous to commercial property, and ought not to be admitted.

As to the appellant's second point, it is submitted that to maintain it, counsel must show that, by law and regulation, it was the duty of the pilots to save the Hope in the situation in which she was.

As she was not in any of the places mentioned in the act of congress of 1794; in no 'port,' no 'harbor,' no 'bay,' no 'haven,' the act does not apply: the law, on a doubtful point, should not receive a severe construction.

But the constitutionality of that law, if correctly construed by the counsel for the appellants, may be doubted. If there can be power in the states to regulate pilots in the days, harbors, and havens of the United States; if congress can give such powers; the whole jurisdiction of the admiralty may be surrendered and no longer exist in the courts of the United States. If congress can authorize the regulation of pilots in harbors, by the states, no power exists in congress to give to the states the regulation of pilots on the high seas.

It may be doubted if congress can say to a party who has a case of admiralty and maritime jurisdiction, your case shall be decided by the wardens of a port in one of the states. The act of 1794 was but temporary, as it provides for the regulation of pilots in the states until otherwise regulated. Pilotage is a subject, from its very nature, of admiralty jurisdiction; and it is also of common law jurisdiction. But it is denied that congress can prevent its being cognizable in courts of admiralty, encumbered by state laws; although it shall be allowed to be within the concurrent jurisdiction of the courts of common law.

The argument that pilotage cannot be the subject of jurisdiction in two courts is not sound. Such concurrent jurisdiction frequently exists. Cases are sustained in courts of common law, which are also cognizable in courts of chancery. A larger relief is often sought and obtained in chancery, than is afforded at common law.

If the case of the Wave shall be considered as influencing the claim of the libellants, it is submitted that, us the pilot laws of New York were passed before the act of congress of 1794, that act might be considered as having adopted those laws: but Alabama was not a state in 1794; and it will not be claimed that by prospective legislation congress could adopt state laws to be enacted at a future period.

The case of the Wave was, in all its material features, different from that of the Hope. The Wave was within the fauces terrae; within the pilot ground; within a bay, a haven, and subject to the laws regulating pilots: and, in that case, it was said by the judge that pilotage is of admiralty jurisdiction; and he also says that there may be cases in which pilots may be salvors. This is stated after a full examination of all the decided cases.

Mr. Ogden, in reply, argued that in the situation the Hope was when boarded by the libellants, nearly afloat, she should have been brought by the libellants into Mobile, in their capacity of pilots. Had she been found at sea, and in a state of wreck, deserted, the pilots, as pilots, should have taken charge of her.

Until congress shall pass laws regulating pilots they are necessarily of State regulation. They reside in the particular states, and their transactions are essentially connected with the safety and welfare of the citizens, and with the business of the states where they reside. Unless prohibited by congress, the establishment of a system for their government seems of essential importance and necessity.

When congress declared that pilots should be regulated by state laws, they did not take away the admiralty jurisdiction. They oblige the pilot to submit to the regulations of the states as to the amount of pilotage; but this ascertained, he may enforce its payment in an admiralty proceeding

Mr. Justice STORY delivered the opinion of the Court.