
    HENDERSON against SPOFFORD.
    
      New York Common Pleas;
    
    
      General Term, January, 1871.
    Pilotage.—Act of Congress.
    Hotwithstanding the United States pilotage act (Act of Congress of July 35, 1866), sea-going vessels in the harbor of Hew York are subject to pilotage under the State law.
    The amendment to the act of 1866, passed February 35,1867, is a re-concession, to the States, of the powers as exercised by them through laws existing at the time of the passage of the original act.
    Appeal from a judgment.
    The facts appear in the opinion.
    
      Thomas H. Hubbard, for the plaintiff, respondent.
    
      E. Cooke, for the defendant, appellant.
   Robinson, J.

This is an appeal from a judgment rendered in favor of Joseph Henderson, the respondent, in the first district court of the city of New York, on February 16, 1870, for thirty-eight dollars and eighteen cents, besides costs, for fees for pilotage out of the port of New York, in December, 1869, of a seagoing vessel owned by the appellants, Paul N. Spofford, Joseph L. Spofford, Gardner Spofford, and Clinton Hunter.

The plaintiff was a pilot by way of Sandy Hook, duly licensed by the board of commissioners of the State, and as the vessel was leaving for San Domingo, offered his services to the master and owners to pilot her to sea, but they refused to take or employ him in that capacity, and the vessel proceeded to sea without having on board any pilot of the port.

The right to this recovery is only contested upon the ground that the State legislation, “to provide for the licensing and government of the pilots and regulating pilotage of the port of New York” (Laws of 1853, ch. 467, p. 921, with the amending acts of 1854, ch. 196, p. 459, of 1857, ch. 243, p. 500, of 1863, ch. 412, p. 705, of 1865, ch. 137, p. 244), so far as it related to sea-going steam vessels (including the Tybee), was superseded and repealed by the act of Congress passed July 25, 1866, which provided that “every sea-going steam vessel, now subject or hereby made subject to the navigation laws of the United States, and to the rules and regulations aforesaid, (of which the Tybee was one), shall, when under way, except upon the high seas, be under the control and direction of a pilot licensed by the inspector of steam vessels,” and having thus become functus, and made inoperative, was not resuscitated or brought into effect by the amendment to the act of 1866 by the act of Congress passed Feb. 25, 1867, which contained a proviso in these words, “provided, however, that nothing in this act (that of 1866), or in the act of which it is amendatory, shall be construed to annul or affect any regulation established by the existing laws of any State requiring vessels entering or leaving a port in such State to take a pilot duly licensed or authorized by the law of such State, or of a StSe'" situate upon the waters of the same port.” Such a specific requirement was contained in the act of this State (Laws of 1853, ch. 467, § 39, as amended by Laws of 1857, ch. 343), which provided that “all vessels sailing under register, bound to or from the port of Hew York, by way of Sandy Hook, shall take a licensed pilot; or, in case of refusal, the master himself, or the owner or consignee, shall pay the said pilotage, as if one had been employed.”

The point taken by the appellants cannot be sustained. If such a construction should be given to the amendment and proviso contained' in the act of 1867, it will readily be perceived that it would be entirely inoperative ; for, if the act of 1866 abolished or wholly repealed all State laws, and absolutely superseded any State legislation which required vessels entering or leaving a port of the State to take a pilot licensed by the law of such State, no State law could either be passed or remain operative as against the laws of Congress while the act of 1866 remained in force, and at the time of the passage of the amendment of 1867 there could be no such “existing law of any State,” and the proviso would be of no effect. But “ benigne faciendae sunt inter pretationes cTiartarum ut res magis raleat guam pereatf and the amendment of 1867 is to be read and construed as if it had been originally incorporated in the act when passed in 1866, except so far as it might' be- construed to act retrospectively so as to affect acts already done, or rights acquired under the original act; and such an amendment would not only relieve against penalties or forfeitures incurred under the original act, but give effect to contracts made in contravention of the provisions so amended.

Considering the relation of the State and Federal governments, and the rights of the State government to pass laws on the subject of pilotage which are to prevail until the general government has, under its constitutional powers, occupied the particular subject of legislation, or has assumed exclusive control of the subject, the amendment of 1867 is but a relaxation of the stringency of the act of 1866, and a re-concession to the States of this particular power as exercised by them through laws existing at the time of the passage of that act.

Such is the spirit of the law, and its intent seems clearly demonstrated. Were this less manifest, by the rule of construction contained in the above quoted maxim, effect is to be given to it rather than that it should be held impotent to any purpose, and, construing it as if passed as a portion of the act of 1866; the recovery in this action should be sustained.

The judgment should be affirmed.

Charles P. Daly, Ch. J., and Larbemore, J., concurred.

Judgment affirmed.  