
    THE PEOPLE a. FRANCISCO.
    
      Supreme Court, First District;
    
      General Term, November, 1858.
    Penal Statute.—Pilotage.
    The pilot of a steam-tug or steam tow-boat, who, being upon his own boat, tows a vessel through Hell Gate, and by signals made to the helmsman of the vessel in tow, directs changes at the helm, to conform to the movements of the steamer, does not pilot such vessel within the prohibition of the act of 1847 (Lam of 1847, ch. 69), relative to Hell Gate pilots.
    Of the proper terms of a charge to the jury in trial of a defendant for violation of that statute.
    Appeal from the New York General Sessions.
    The appellant was indicted in the General Sessions, and convicted of a misdemeanor in violating the provisions of chapter 69 of the Laws of 1847, relating to the Hell Gate pilots.
    That act provides that there shall be appointed by the governor and Senate fit and proper persons to act as pilots for the safe pilotage of vessels through the channel of the East River, commonly called Hell Gate. The afct provides for compensation for such service, and also provides that any pilot who shall first tender his services to any vessel passing through the Gate, and whose services shall not be accepted, shall be entitled to demand and receive half pilotage.
    The act further provides that if any person other than a Hell Gate pilot shall pilot for any other person any vessel of any description through the channel of the East River, commonly called Hell Gate, he shall forfeit and pay the su,m of $30 for each offence, or on conviction thereof shall be deemed guilty of a misdemeanor, and shall be punished as such, and the act also declares that it shall not be construed as applying to steam- ' boats.
    The defendant was the pilot of the steam-tug H. Minturn, which was used as such in the harbor of Hew York; on the 7th of May, 1857, the two schooners called the George and Humming Bird were lashed to the steam-tug Minturn, one on each side, and thus taken through Hell Gate by the defendant, he being on board the steamboat and piloting-it, and making signals to those on board the schooners to change their helms to .conform to the movements of the steamer.
    
      D. McMahon, for the appellant.
    The court should have charged, as requested, that the act of defendant was a towage service, and not a violation of the Pilot Laws. 1. Piloting is the act of intelligently guiding a vessel while on board of it. (Bouv. Law. Dict., tit. Pilots. 2. In performing the service of towage, the Minturn was the agent of the two canvasses. (Creole and Sampson, 2 Wallace Jr. R., 512.) If so, the entire mass was as one vessel, or rather the act of towage was the act of furnishing by the appellant of a breeze of wind (i. e., motive power) to the two canvasses. Then the case stood thus, viz.: That the canvasses thought fit to do their own pilotage, which they had a right to do on paying half pilotage. (1 Laws of 1847, 78, § 7.) In this case the two canvasses paid on demand the half pilotage, and the prosecutors thereby are not affected in any way. 3. The act of towage is not per se a violation of the pilot laws. (See Laws of 1857, 501, ch. 243, § 29.)
    
      John McKeon, for the people, respondents.
   By the Court.—Davies, P. J.

The duties of the pilots authorized by the act to be appointed and to act as pilots for the safe pilotage of vessels through the channel commonly called Hell Gate, are prescribed by law; and any person not such pilot, who shall pilot any vessel, is made subject to the penalties of the act. Bouvier's Law Dict., vol. 2, p. 337, defines a pilot to be, first, an officer serving on board of a ship during the course of a voyage, and having the charge of the helm and of the ship’s route; and secondly, an officer authorized by law who is taken on board at a particular place for the purpose of conducting a ship through a river, road, or channel, or from or into a port.

This definition would seem to carry the idea that the pilot is to be on board the ship piloted—that he is not in the legal sense a pilot unless on board the ship which he is conducting through a river or channel. Could he be said to be a pilot*if he stood on the shore and directed the course of the vessel by signals, or ran along the banks of the stream and by words or signs controlled • and directed the course of the vessel navigating the stream ? We think not, and that the intendment of the act was to apply to pilots on board, piloting and directing the ship or vessel while on board of it. The defendant was conducting the steam-tug through the channel of the East Biver, as he ■ lawfully might do. The two schooners which it is claimed he piloted were lashed to the "steamboat, and must necessarily obey its every motion. As a consequence, they were piloted through the channel, and so they would have been if placed on the deck of the steamer. It is true the persons on the schooners had to obey and did obey signals given to them by the defendant while on board the steamer. He might have given the same if on the land, but we do not see that this circumstance determines that he was piloting the schooners.

We have not seen any decision of our courts upon the proper construction to be given to this statute, upon the point now presented for consideration. But a case has been decided by the English Court of Exchequer, upon a similar statute, which seems to us of high authority and quite controlling. The language of the English statute is (6 Geo. IV., ch. 125, §70): “ Every person assuming or continuing to act in the charge or conduct of any ship or vessel, without being a licensed pilot, after any licensed pilot shall have offered to take charge of such -ship or vessel, shall forfeit,” &c.

It will be seen that the language of this statute is more comprehensive than ours, and is not so technical in the terms used. Ours is “ to pilot,” or “ piloting;” theirs, “ to act in the charge or conduct of any ship or vessel.” Reily a. Scott (7 Wilson & Welsby's R., 93) was an action to recover a penalty incurred under this statute, for doing an act like that for which the defendant in this case has been convicted of a misdemeanor.

Baron Parke, in delivering the opinion of the court, says: “ The first question arising in this case is, whether the defendant had charge of the ship within the meaning of the pilot act. We are of the opinion that he had not. These words are to be understood in the sense ascribed to them in other parts of the act; that is, they mean the taking charge and direction as a pilot, whose appropriate and, indeed, sole duty, is to select the course and take the management and conduct of the vessel for the purpose of directing her in that course. The master of a coasting vessel may,- if he pleases, perform that duty himself,/but if he chooses to employ another for that purpose he must employ a licensed pilot, and an unlicensed person taking that duty on himself by command of the master, when a licensed pilot offers his services, would be liable to the penalty in section 70.

But the master is not precluded from employing any moving power which he may please; he may make use of another vessel or boat, or steam-tug for that purpose, and if that cannot be done without necessarily devolving upon those who may apply the power, the selection of the course and a certain position, or, indeed, all the charge and conduct of the vessel in that course, still, if the bona-fide object of the employment be the moving power, the person so employed is not a pilot, and has not the conduct and charge of the vessel as such within the meaning of the act. If, indeed, the real object in any case should appear to be to obtain the assistance of the skill of a pilot, and to give him the charge and conduct of the vessel under some colorable duty then assigned to him, the case would be within the act; but in the present instance it is expressly found that the steam-tug was bona-fide hired for the purpose of conducting the vessel into the river, and the court in that case hold that no penalty was incurred.

It was assumed on the trial of the defendant that he was engaged in the business of towage. If not, the fifth and sixth requests of the defendant to the judge raised the question, and. brought the case within that in the English Exchequer. The fifth request was that if the jury believed that the act done by the defendant on this ■ occasion was of towage only, the defendant must be acquitted, for that offence was not contemplated by the act, and the judge charged, with this qualification, that if the defendant directed and controlled the movements of the steamer, and was the controlling spirit, then his act is one of pilotage. To this the defendant excepted; and in holding that the defendant while controlling the movements of the tug, and its master-spirit, was committing an act of pilotage, we think the learned recorder erred. »So also we think he erred in refusing to charge that the steam-tug Minturn, being a steamboat propelled by steam, had a right to tow vessels through Hell Gate, without being subject to the laws relating to pilotage, and that by section 10 of the act of 18í7, steamboats were excepted from its operation. We think that upon the facts proved, the defendant has not been guilty of any offence under the act of 18í7, and that there was error in refusing to charge in the particulars mentioned as requested, and that consequently the .conviction must be reversed.

Judgment against the people. 
      
       Present, Davies, P. J., Sutherland and Hogeboom, JJ.
     