The Queen

WOUVFRTON, District Judge.

I concur in the opinion of Judge ROSS, rendered herein, and will state briefly my reasons therefor. The question in the case is one purely of construction, and relates to the federal statutes regulating pilotage; the controversy being whether pilotage upon libelee’s steamships in entering and departing from the Bay of San Francisco, is controlled bjr federal or state regulations.

The statute of California (section 2468, Pol. Code) provides that all foreign vessels and all vessels from a foreign port or bound thereto, and all vessels sailing under a register between the port of San Francisco and. any other port of the United States, shall be liable for pilotage as provided in section 2466 of the Code. Section 4401 of the Revised Statutes of the United States, after setting forth that all coastwise seagoing vessels shall be subject to the navigation laws of the United States, when navigating within the jurisdiction thereof, and all vessels, propelled in whole or in part by steam, and navigating as aforesaid, shall be subject to all the rules and regulations established in pursuance of law for the government of steam vessels in passing, provides that:

“Every coastwise seagoing steam vessel subject to the navigation laws of the United States, and to the rules and regulations aforesaid, not sailing under register, shall, when under way, except on the high seas, be under the control and direction of pilots licensed by the inspectors of steamboats.”

Section 4444 provides that:

“No state or municipal government shall impose upon pilots of steam vessels any obligation to procure a state or other license in addition to that issued by the United States, or any other regulation which will impede such pilots in the performance of the duties required by this title; nor shall any pilot charges be levied by any such authorit3r upon any steamer piloted as provided by this title; and in no case shall the fees charged for the pilotage of any steam vessel exceed the customary or legally established rates in the *733state where the same is performed. Nothing in this title shall he construed to annul or effect any regulation established by the laws of any state requiring Vessels entering or leaving a port in any such state, other than coastwise steam vessels, to take a pilot duly licensed or authorized by the laws of such state, or of a state situate upon the waters of such state.”

The controversy depends upon the meaning and signification to be given the words “not sailing under register,” as employed in section 4401. Preliminarily, it may be' stated that Congress, having the power to regulate commerce between the states, is vested with authority as an instrument of that power to regulate the pilotage service upon the rivers and harbors and bays wherever the jurisdiction of Congress extends ; but the state was originally possessed of authority to regulate pilotage service, and may lawfully do so until Congress has assumed to legislate upon the subject, and to inaugurate its own regulations pertaining thereto. Prior, therefore, to the enactment of any federal statutes upon the subject, pilotage upon the bays and harbors and inland waters of the country was regulated solely by state authority, and it is only as the federal statutes have encroached upon state authority that the latter has been curtailed or superseded. Furthermore, it is a canon of statutory interpretation that every word and phrase of a statute shall be given a meaning, if it can be done in reason, that where different regulations are imposed by the same act, the entire statute shall be construed in pari materia, and that, where apparently inconsistent provisions are found, they must be harmonized if possible.

Under this rule, we must give a meaning to the clause in question, and that meaning must be determined by the intendment of Congress in adopting the law if it can be ascertained. It is my firm impression that the words “not sailing under register” were not intended to modify or qualify the words “every coastwise seagoing steam vessel,” but that they were employed rather as descriptive of such vessel; their purpose being to distinguish such coastwise seagoing steam vessel from one that is engaged in foreign trade. This idea is borne out when we take into consideration the provision of section 4444 whereby the intendment is shown not to annul any regulation established by the laws of the state requiring vessels entering or leaving a port in any such state, other than coastwise steam vessels, to take a pilot duly licensed by the laws of the state. The words “not sailing under register” are wholly omitted from this section; whereas, if it was intended that such vessels sailing under register should be subject to state regulation, it is more than probable that Congress would have reiterated the words. This section, it will be observed, deals directly with a restriction upon state legislation; the former (section 4401) is for the regulation of the navigation of certain craft or vessels.

It is difficult to harmonize these two sections upon any other basis than the one which I have suggested, and the meaning o f section 4401 is simply this: That all coastwise steam vessels not engaged in foreign commerce and trade shall be subject to the pilotage laws and regulations enacted by Congress. Other vessels engaged in foreign trade would still be subject to the local laws and regulations pertaining thereto. This idea is borne out by the opinion of Air. Justice Brown *734in Huus v. New York & Porto Rico Steamship Company, 182 U. S. 392, 21 Sup. Ct. 827, 45 F. Ed. 1146. This was the case of the pavi-gation of a steamship, enrolled and licensed, plying between the port of New York and that of San Juan in the island of Porto Rico. Prior, however, to a discussion of that case, it should be further observed that vessels registered in pursuance of the laws of the United States “may engage in trade between one port in the United States and one or more ports within the same, with the privilege of touching at one or more foreign ports during the voyage, and land and take in thereat merchandise, passengers and their baggage, and letters, and mails.” Section 3126, Rev. St. So that a registered vessel, it would appear, is entitled to engage in the coastwise trade.

In the case alluded to it is stated that, under the commercial and navigation laws of the United States, merchant vessels are divided into two classes: First, vessels registered pursuant to Rev. St. § 4131 (U. S. Comp. St. 1901, p. 2803), being those wholly owned, commanded, and officered by citizens of the United States, which are alone entitled to engage in foreign trade; and, second, vessels enrolled and licensed for the coasting trade or fisheries. The látter may not engage in foreign trade upon penalty of forfeiture. Section 4337 (page 2969). After referring to the several sections of the Revised Statutes, namely, 4235, 4237, 4401, and 4444, the distinguished justice makes this significant deduction, namely:

“The general object of these provisions seems to be to license pilots upon steam vessels engaged in the coastwise or interior commerce of the country, and at the same time to leave to the states the regulation of pilots upon all vessels engaged in foreign commerce.”

It is significant, also, that in quoting from section 4444 the words “other than coastwise steani vessels” are italicized, thus emphasizing the deductions that the jurist has- drawn from these statutes.

Following this case is another, bearing the title of Olsen v. Smith, 195 U. S. 332, 25 Sup. Ct. 52, 49 L. Ed. 224, in which it was determined that:

“The effect of Rev. St. §§ 4287, 4444, is not to interfere with or abrogate state laws regulating pilotage, but to withdraw coastwise steam vessels from the pilotage charges imposed by such state laws.”

I have quóted from the headnote in this decision.

In a previous case, Spraigue v. Thompson, 118 U. S. 90, 6 Sup. Ct. 988, 30 L. Ed. 115, which it should be stated-involves the question of a licensed steamship plying between the ports of Philadelphia, Pa., and Savannah, Ga., it was held that she was not subject to the local pilotage regulations. The court, in discussing the case, says, among other things, that:

“The section [being section 4444] expressly excepts coastwise steam vessels from the regulations established by the laws of any state requiring vessels entering or leaving a port in any such state to take a pilot duly licensed or authorized by the laws of any such state, or of a state situate upon the waters of such state.”

While these cases do not expressly decide the question in issue, and while it might be said that in the first case what the court observed was *735obiter, as not necessary for the decision of that case, yet the observation of the learned justice was made in view of a consideration of the very statutes in question here, and is entitled to very great weight. In the case of Bigley v. New York & P. R. S. S. Co. (D. C.) 105 Fed. 74, after quoting the last clause of section 4444, the court says:

“The effect of the above acts of Congress is to exempt all steam vessels sailing under a license and employed in the coastwise trade from the pilotage laws of the states, while other vessels remain subject to the state laws.”

This case is one of three, including the case of Huus against the same party, which was appealed to the Supreme Court of the United States, being first cited herein. While the language used does not include coastwise vessels not sailing under register, yet it seems to be general in its import, as comprising all coastwise steam vessels, and is not in conflict with the observations of the Supreme Court on the same subject.

In the case of Joslyn v. Nickerson (C. C.) 1 Fed. 133, the steamship was registered, but was plying between Boston and Havana, being thus engaged in foreign trade, and it was held that the state regulations of Massachusetts as to pilotage applied. The case is not inconsistent, therefore, with the views herein entertained.

The case of Murray v. Clark, 4 Daly (N. Y.) 468, affirmed by the Court of Appeals of New York, 58 N. Y. 684, supports the opposite doctrine; but it does not appeal to me as controlling.

Sections 4401 and 4444 of the Revised Statutes were enacted into law in 1871, and it does not seem to have occurred to any one in the port of San Francisco to contest the right of the United States authorities to regulate the pilotage as it respects steam vessels plying in the coastwise trade until a recent statute was enacted by the state of California in 1905 (St. 1905, c. 611). In all the time preceding that we must assume that the pilots upon such vessels were such as were licensed by United States authority, and not by state authority. And where a statute has continued so long under one construction, it is persuasive of its rightful interpretation.

For these reasons, I am of the opinion that the cause should be affirmed.