
    Josiah Ayers versus Robert Knox.
    The penalty imposed by the statute of 1796, c. 85, § 3, does not extend to one who pilots a public vessel of war of the United States.
    
    This was an action of debt, brought upon the statute of 1796, c. 85, $ 3, to recover of the defendant the penalty of fifty dollars, for undertaking, as a pilot, to carry out of the harbor of Boston the United States frigate Chesapealc, he being commissioned as a pilot for the inward division of pilotage in said harbor, and not for the outward division.
    The cause came before the Court upon a statement of facts, m which the parties agreed, that, on the 1st of July, 1809, the plaintiff was a branch pilot for the outward division of pilotage for the harbor of Boston, duly commissioned and sworn; and the defend ant was a branch pilot for the inward division, duly commissioned and sworn, but not for the outward division ; that, on the day aforesaid, the United States frigate Chesapealc being in the harbor of Boston, and on pilotage ground, the defendant, at the request of the commander of the said frigate, who preferred the defendant to any other pilot, undertook to pilot, and did pilot, the said [*307 j frigate out of the said harbor, and * received his fees therefor; the plaintiff, an experienced pilot for the outward division of pilotage, being then ready to perform the said service.
    If, upon this statement, the Court should be of opinion that the plaintiff was entitled to recover the penalty demanded in this action, it was agreed that judgment should be rendered for him accordingly ; otherwise that he should become nonsuit, and costs adjudged to the defendant.
    
      Prescott, for the plaintiff,
    relied on the third section of the statute of 1796, c. 85, by which it is enacted that the pilotage of the harbor of Boston shall be formed into two divisions, outward and inward. And no person commissioned as a pilot, or his deputy, shall undertake to bring in or carry out of said harboi any vessel drawing nine feet of water, (coasters and fishing vessels excepted,) except in his own particular branch, under penalty of fifty dollars.
    By the statute of 1797, c. 13, it is provided that the penalties, incurred by any breach of the act of 1796, c. 85, may be recovered in an action of debt, to be brought in any court proper to try the same, by any person who shall first sue for the recovery thereof, to his own use.
    
      Sullivan, for the defendant,
    contended that the ships of war of the United States are not within the provisions of the act giving this penalty; such ships being always within the exclusive jurisdiction of the general government.
    By the constitution of the United States, power is given to the congress to provide and maintain a navy, and to make rules for the government and regulation of the naval forces. In pursuance of the powers so granted, the executive department of the navy was established, and the whole direction of the construction, armament, equipment, and employment of vessels of war, as well as of all other matters connected with the navy establishment of the United States, was committed to the secretary of the navy, subject to the orders of the president. 
    
    By the act for the better government of the navy of the United States, 
       the whole charge of each ship of war is * committed to the commanding officer thereof; [ * 308 ] and by the nineteenth article it is particularly provided, that if any officer shall, through inattention, negligence, or any other fault, suffer any vessel of the navy to be stranded, &c., he shall suffer such punishment as a court martial shall adjudge. The commander must then have a right to use his discretion in the selection of a pilot, for whose ability and conduct he is made responsible; and cannot be bound to commit his ship to the charge of one in whose talents he does not confide.
    This reasoning goes to show that the legislature did not contemplate ships of the navy, when prescribing regulations for pilotage. The same may be inferred from several parts of the act itself. The pilots are to be nominated to the governor and council by the marine society of Boston; and it is absurd to suppose that the whole navy of the United States, when in Boston harbor, must be put in charge of persons who derive their authority from a private association, unknown to the general government. These pilots are to give bond to the treasurer. of the commonwealth, for the faithful discharge of their duty; but neither the United States nor the officers of their navy can derive any benefit from such bond. In the tenth section of the act, pilots are made liable for damage to cargoes, arising from their unskilfulness or neglect, which shows that the act relates to merchant vessels only, ships belonging to the navy being prohibited to carry cargoes. By the twelfth section, the hull and appurtenances of all vessels piloted, are made liable for sixty days for the fees of pilotage—a provision which decency forbids to apply to the ships of war of the United States.
    
    
      Prescott, in reply.
    Neither the constitution nor. laws of the United States restrain the respective states from regulating the pilotage within their own ports; and as they are most competent to it, it is for the general advantage that it should rest with them.
    *The commanders of merchant vessels are equally [*309] responsible to their employers for negligence, with commanders of public ships; and it is as important to the latter as to the former to have skilful pilots, who shall be responsible for their conduct. And in order to have skilful pilots, it is necessary that they be secure of their proper emoluments. The statute applies in terms to all vessels, with certain specific exceptions; but vessels of war are not among the excepted ones.
    It is conceded that the provision of the twelfth section of the act cannot apply to public ships. But the question in the present action is not whom the commander of a ship shall employ as a pilot. No charge is brought against him. The penalty demanded is imposed on a citizen, and an officer who derives his authority, and his emoluments, from the laws of the commonwealth; and it is imposed for a breach of those laws which he has voluntarily committed.
    
      
      
        U. S. Laws, 5 Cong. c. 52, vol. 4, page 300.
    
    
      
      
        U. S. Laws, 6 Cong. c. 33, vol. 4, page 108.
    
   The opinion of the Court (absente Parsons, C. J.) was after-wards delivered by

Parker, J.

The only question, which arises in this case, is whether the provisions of the statute of 1796, c. 85, are applicable to vessels of war of the United States. If they are, then the facts clearly show a violation of those provisions by the defendant, and the penalty ought to be adjudged against him; if they are not, then the defendant was not prohibited from the act of pilotage complained of in this action, and he cannot be charged with the penalty.

When it is considered that before the passing of the statute, on which this action is founded, the power to establish and regulate a navy was fully given by the. people to the congress of the United, States; and that congress has from time to time exercised that authority, without any participation by the state governments; it may well be conceived that the legislature did not contemplate affecting ships of war of the United. States, when they [-*310] passed this statute. And if they had, in express terms, subjected such ships to regulations respecting pilotage, it may well be doubted whether the commander or officers of any such ship would have been bound by such statute.

But a reasonable construction of the statute itself sufficiently proves, that the 'egislature intended to limit the operation of its provisions to merchant vessels only, and not to extend them to ships of war. By the eighth section it is enacted that the master of a vessel may refuse the assistance of a pilot, although he should come on board the vessel, and offer to pilot her; but in such case the pilot shall be entitled to half the pilotage fees, and shall have nis action of the case therefor against the master. Now, it cannot be supposed that the legislature meant to subject the commander of a frigate to such an action ; when, upon common principles of law, such commander would not be personally liable for any service ' done to his vessel; the government, and not the agent, being accountable for such service. And by the twelfth section of the statute, a remedy is given to the pilot against the hull, tackle, &c., of any ship he may have piloted, if his fees have not been paid. Now, it would be absurd to suppose that the legislature had the power, or, if it had, would have exercised it, to detain the ships of war of the United States, engaged, as they possibly might be, in expeditions of importance to the government.

It is said that these sections may not apply to public ships; and yet that the other provisions of the statute may. But, when a duty is prescribed by statute, and remedies are provided for a breach of it, which remedies cannot be applied to a particular subject, it may fairly be inferred that the subject was not within the view of the legislature, when they exacted the duty.

The inconveniences, which would result from a contrary opinion, are too manifest to need enumeration. There are many reasons why public vessels should not be subjected *to [ * 311 ] local laws respecting pilotage. Such vessels are generally furnished, in addition to commanders, with sailing-masters, who are supposed to be skilful navigators, and generally acquainted with the coast and harbors of the United States. They therefore may not need pilots; but if they should, as, by the rules and regulations of the navy, great responsibility rests on the commanders of such vessels, they ought to be at liberty to select such persons as they believe most fit to be trusted, without being obliged to submit to the judgment of others.

But it may be further remarked, that the statute, upon which this action is brought, is merely part of a system of pilotage, which was established by the act of 1783, c. 13, this additional act being confined in its operation to the harbor of Boston only. Now, the act to which this is in addition, was passed before the adoption of the present constitution of the United States; and even if the original act had respect to vessels of war belonging to the then United States, it is very clear that the power, vested in congress by the constitution, to establish and regulate the navy, would amount to a repeal of that act; and, of course, it cannot be presumed that the additional act embraced a case which was thus taken out of the jurisdiction of the state.

We are, therefore, for these reasons, all of opinion that the case agreed is not within the purview of the act, on which this action is brought; and that, according to the agreement of the parties, the plaintiff must become nonsuit.

Plaintiff nonsuit.  