PILOTS ‑- APPLICABILITY OF PUGET SOUND PILOTAGE ACT

PILOTS ‑- APPLICABILITY OF PUGET SOUND PILOTAGE ACT

A vessel which is being propelled by a tug, towing barge, or tug separately, is being navigated and is subject to the provisions of the; Puget Sound Pilotage Act requiring the services of a State pilot on Puget Sound and adjacent inland waters.

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                                                                   March 5, 1957

Mr. P. M. O'Brien
Acting Ex-Officio Chairman
Board of Pilotage Commissioners
Department of Labor and Industries
General Administration Building
Olympia, Washington                                                                                                                Cite as:  AGO 57-58 No. 28

Dear Sir:

            This is to acknowledge your letter of February 18, 1957, requesting the opinion of this office on the following question:

            Are tugs, towing barges, or tugs separately, when returning from foreign countries (excluding British Columbia) subject to the Puget Sound Pilotage Act, when in Puget Sound and adjacent inland waters?

            Your question is answered in the affirmative.

                                                                     ANALYSIS

            It is provided by § 4, chapter 18, Laws of 1935, (RCW 88.16.070) as follows:

             [[Orig. Op. Page 2]]

            "All vessels under enrollment and all vessels engaged exclusively in the coasting trade on the west coast of the continental United States (including Alaska) and British Columbia, or either, shall be exempt from the provisions hereof unless a pilot licensed hereunder is actually employed, in which case the pilotage dues provided for herein shall apply.  Every vessel not so exempt, shall while navigating Puget Sound and adjacent inland waters employ a pilot licensed hereunder and shall pay pilotage dues as herein provided in accordance with the pilotage rates then in effect."

            In § 8, chapter 18, Laws of 1935, (RCW 88.16.090) it is provided in part as follows:

            "No person shall pilot a vessel subject to the provisions hereof on Puget Sound or adjacent inland waters unless he is licensed hereunder so to do.  * * *"

            In the case ofState v. Ames, 47 Wash. 328, it was contended, inter alia, that Congress has exclusive jurisdiction to regulate pilotage within the public waters of the United States.  In answer to this question, the court on page 330, said:

            "* * * Congress undoubtedly has paramount jurisdiction to regulate pilotage in the public waters, and in so far as it has sought to exercise that jurisdiction, its acts upon the subject are supreme and supersede all state laws.  But Congress has not attempted to regulate the entire subject of pilotage.  So far it has confined itself to the regulation of pilotage as to vessels engaged in the coastwise or interior commerce of the country, making no provision at all as to pilotage of vessels engaged in strictly foreign commerce.  The states, therefore, are free to enact laws regulating the pilotage of vessels engaged in foreign commerce, and the statute in question, in so far as it does this, conflicts with no Federal statute and is to that extent valid.  It may be that it purports also to regulate pilotage on coastwise vessels.  If it does, it is only inoperative to that extent.  It is a valid law as to all its other provisions.  Huus v. New York etc. Steamship Co., 182 U.S. 392, 21 S.Ct. 827, 45 L.Ed. 1147.  As the vessel mentioned in the information  [[Orig. Op. Page 3]] was engaged in foreign commerce the statute was applicable to her condition, and the respondent violated its provisions when he acted as her pilot without procuring the required license."

            In an opinion by this office to the director of the department of labor and industries, dated January 28, 1947, the question considered was whether the "S.S. Tristan" of Philippine Flag and registry, by leaving for B.C. [[British Columbia]]ports, assisted by a tug because her engines were undergoing repairs, without obtaining the services of a state pilot, was in violation of the provisions of the statute in question.

            We there held:

            "Manifestly, the precise question to be answered is whether the S.S. Tristan was 'navigating Puget Sound' while being towed by a tug.  The word 'navigate' is said to be derived from the Latin 'navis' (ship) and 'agare' (to move), hence whenever a ship is moved it may be said to be navigating.  See Webster's New International Dictionary, 2nd Edition.  That authority also says that in the transitive, as used in the aforementioned statute, it means 'to pass over in vessels; to sail over or on'.

            "The New York Supreme Court has said that the means of traction furnished by a tug is a neutral factor on the question of whether a vessel under way is navigating.  Ryan v. Hook, 34 Hun. 185.  And in The Kate Tremain, 5 Benedict 60, (1871) Judge Benedict, the eminent admiralty scholar said, 'The canal boat * * * when she avails herself of the power of a tug * * * as really and truly navigates as does the ship, and becomes liable to many of the peculiar vicissitudes which attend a ship.'  This language has been subscribed to in subsequent cases.  See alsoU. S. v. Monstad, 134 F. (2d) 986 (1943) wherein it was held that a vessel although anchored, was being navigated."

            A copy of this opinion is enclosed.

             [[Orig. Op. Page 4]]

            We therefore conclude that a vessel which is being propelled by a tug, towing barge, or tug separately, is being navigated and is subject to the provisions of the Puget Sound Pilotage Act requiring the services of a state pilot on Puget Sound and adjacent inland waters.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

BERNARD A. JOHNSON
Assistant Attorney General