The opinion of the court was delivered March 23d 1846.
The plaintiff is a branch pilot for the harbor of Boston; and this is an action of assumpsit to recover his fees for offering his services to the defendant to pilot the brig Zephyr, under his command, into that harbor. The brig was a foreign bottom, and subject to the pilotage laws of this Commonwealth. She was bound up Weymouth River, and the plaintiff declined taking her up as far as the master wished to go, but offered to carry her to the place where she might take a river pilot. This the defendant declined, after attempting to make a bargain with the plaintiff, who refused to take the vessel up the river, or to receive less than the Boston pilotage.
In support of his action, the plaintiff contended that his offer was embraced within the provisions of the statute regulating the pilotage of vessels into the harbor of Boston; and he further offered to prove that, for the last forty years, it has
This is an important inquiry, not only as it respects the rights of a most deserving class of our citizens, but as it regards the security of our commerce, which is of increasing value, as well to the neighboring towns communicating with the harbor of Boston by the rivers which discharge into it, as to the city itself.
Although the statute does not make it incumbent on the master of a vessel, subject to pilotage, to receive a pilot, if he chooses to navigate her himself, (Rev. Sts. c. 32, § 12,) yet it does not absolve him from liability to pay the full pilotage fees, when the offer of service has been seasonably made. And the master of a vessel, who neglects or refuses to take a pilot on board his vessel, where provision is made for the receiving of pilots, exposes his owners to respond for the damage which may follow from such neglect or refusal. The law merchant acts in unison with the maritime and statute laws relating to pilotage, and, in its beneficial influence, lends its aid to the preservation of the lives and property of citizens that are exposed to the perils of the sea.
Attempts, therefore, to evade the laws securing pilotage to the regular pilots, will be looked upon with a jealous eye, as endangering interests of great value ; and the courts are bound to give such a construction to the statute as will best effectuate the intention of the makers.
The defendant contends that his vessel was not bound into the port or harbor of Boston, and that the plaintiff, in offering to pilot her into and through the waters of said harbor, she
The learned judge held, that the duty of the pilot, to enti
A strict adherence to this decision would be fatal to the plaintiff’s claim, in the present suit. But, with the greatest respect for the learning and sound judgment of that court, we are not satisfied with the entire decision ; nor do we feel that it is conclusive upon this court in the construction to be given to one of the statutes of the Commonwealth.
In the present case, therefore, it becomes important to ascertain, with some precision, what are the extent and limits of the harbor of Boston, the same not being specifically defined in the statute, and whether parol evidence may not be admitted to prove them.
The pilotage of vessels has been the subject of public interest for more than sixty years past; and the reason assigned in the first statute for its regulation was, that frequent and
The 32d chapter of the Rev. Sts. § 5, authorizes the governor, with the advice of the council, to appoint pilots for the several harbors and coasts of the State, with the exception of pilots for the harbors and ports of Boston, New Bedford and Fairhaven, for the appointment of which special provisions are made. It then proceeds, in § 8, to constitute several districts of that part of the coast which lies between the Isle of Shoals and the point of Cape Cod, and to each district it assigns pilots. These pilot districts are thus described : “ The pilots for the ports of Salem and Marblehead, from Nahant Rock on the south, to Norman’s Woe on the north; the pilots for the port of Gloucester, from said Norman’s Woe, round the Cape, to Chebacco Bar, so called; the pilots for the port of Newburyport, from Chebacco Bar on the south, to the Isle of Shoals on the north; the pilots of the port of Plymouth, from the highlands of Marshfield on the north, to the point of Cape Cod on the south; the pilots for the coast of Nantucket, to take charge of any vessels on the coasts thereof that shall be bound over the shoals.” And, in other sections, further provisions are made for the southern ports of the State.
It is very obvious, from this arrangement, that the district which includes the harbor of Boston extends from Nahant Rock on the north, to the highlands of Marshfield on the south; otherwise, no provision is made for the ports lying within those headlands. And that such is the district is certain, upon reference to the St. of 1783, c. 13, § 3, in which the several pilot districts were originally designated. That section begins thus: “ That the districts of the several pilots be, and they are hereby limited, in manner following, viz. the pilots for the port of Boston, from the highlands of Marsh-field on the south, to what is usually called Nahant Rock on
It may also be observed that the words “ port ’’ and “ harbor ” are commonly used, in both statutes, as synonymous terms ; but, in $ 4 of the old, and in § 9 of the revised statute, the word “ port ” is more expressly applied to the particular place named, and “harbor” is used in a more general sense. Those sections provide that each of the branch pilots shall keep one decked boat, and a sufficient number of suitable row boats; and that one of the said decked boats, for the port of Plymouth, shall be stationed in the harbor of Plymouth ; two for the port of Salem, in the harbor of Salem, &c. And in the first statute there is the provision, that “ one of the boats, for the port of Boston, shall be stationed at the Light House Island; ” which clause is omitted in the revised statutes.
The rights of a Boston branch pilot, in demanding the pilot-age of vessels into the harbor of Boston, are marked by a line drawn from Harding’s Rocks to the Outer Graves, and from thence to Nahant Head, to the eastward of which pilots must offer their services, to entitle themselves, as of right, to their fees. Rev. Sts. c. 32, § 24. This line, however, is not, that we are aware, coincident with the eastern bounds of the harbor ; it being laid down with another intent than to define that bound. The object of the legislature, in drawing it, was to provide for the protection of the shipping, by compelling the pilots to cruise at such a distance from the land as to afford the greatest security to vessels within the bay and inward-bound, and, in describing the line, to select such monuments in the course of it as to prevent disputes between the ship-masters and pilots. This line was prescribed by St. 1819, c. 45, § 1, which gave full rates of pilotage to branch pilots'offering their services before vessels should be to the westward of the said line; and if the pilot offered his services after the
The term “ port ” of Bostón, or “harbor ” of Boston, as thus used in the several acts for the regulation of pilotage, in our judgment, is not satisfied, by restricting its meaning and application to the city of Boston, and to vessels entering its docks and lying at its wharves, or in the stream, between them and the inner islands of the harbor. It is, we think, a term or designation which clearly includes all those ports which use the several channels leading to the city of Boston itself; and this embraces the mouths of the various rivers which empty into the harbor. That it does not extend further, and include other towns on the seaboard, not using these channels, we do not decide ; it not being required by the case at bar.
We differ from the restricted construction given to the term “port,” or “harbor,” of Boston, in the decision relied upon; and we think the error, in that respect, lies in adopting the rule of the commissioners of pilots as giving-the true meaning of the term.
The rule or regulation referred to is, in our judgment, drawn with another object, having no design to describe the extent of the harbor of Boston, as intended by the statute, and as understood by those navigating the waters of the bay ; but as defining the duties and the rights of pilots, in respect to those vessels bound into, and coming within the limits of, the waters of the city of Boston, with intent there to unlade or to take in cargo. And this, we think, is obvious from all the provisions of the regulation. As to such vessels, we think its terms must be complied with, when not waived, to entitle the,pilot to his fees ; but that as to vessels bound to ports in the harbor
As to the argument used, that, upon the enlarged construction contended for in the case of the schooner Thebes, a vessel bound to Lynn might be compelled to take not only a Lynn pilot, but a Boston pilot also, and that a Lynn pilot would be exposed, in conducting a vessel to sea, to the penalty of § 23 of c. 32 of the Rev. Sts,., we say that we are not aware that any pilots for the port of Lynn have ever been commissioned by the governor, and therefore the case supposed cannot arise. If such pilots should hereafter be appointed, there will probably be such provisions, in relation to their prescribed duties, as will prevent an interference between them and the branch pilots of Boston harbor.
In regard to' the evidence which was offered on the trial, and rejected, we think it is competent for the parties to prove, by the testimony of witnesses, what are, the limits of the pilot-age ground in the harbor of Boston, and whether there exists a custom or usage of the commissioned or branch pilots of that harbor, in piloting vessels to Weymouth and other towns situate on rivers emptying into the harbor, to take them as far as the mouths of the rivers, and there leave them in the care of the masters, or in the custody of the river pilots; or whether it is the usage to take them up the rivers, to the several wharves where they are ultimately to unlade. And it will then appear whether there is suitable anchorage for vessels at the mouths, or in the neighborhood, of the rivers.
The ports within Boston bay are important places. They are within the purview, and entitled to the benefit, of the law providing pilotage for our extended and often dangerous coast. There are no pilots assigned to any of the ports within this bay, besides those commissioned by the trustees of the Boston Marine Society. Rev. Sts. c. 32, § 16. And, in our present view of the case, (which may be affected or altered by evidence that may be introduced,) it is as much the duty of these pilots to take the charge of a vessel, subject to the pilotage aws outside the defined line, when bound to Weymouth or
In enumerating these ports, that of Lynn has been designedly omitted, as being a port that may be reached without using the channels leading directly to the city of Boston.
For the reasons stated, we are of opinion that the ruling was erroneous, and that the evidence should have been admitted.
New trial granted.