# The China

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## Concurring Opinion

    Clifford
United States Supreme Court
74 U.S. 53
The China
ERROR to the Circuit Court for the Southern District of New York.
The pilot act of New York, having provided for the education and licensing of a body of pilots, enacts that all masters of foreign vessels, bound to or from the port of New York, 'shall take a licensed pilot, or, in case of refusal to take such pilot, shall pay pilotage as if one had been employed.' It enacts, further, that any person not licensed as a pilot, who shall attempt to pilot a vessel bound as aforesaid, 'shall be deemed guilty of a misdemeanor, and be punished by a fine not exceeding $100; OR, imprisonment not exceeding sixty days. And all persons employing a person to act as pilot, not holding a license, shall forfeit and pay to the board of commissioners of pilots the sum of $100.' The pilot first offering his services to a vessel inward bound is entitled to pilot her in, and when she goes out has the right, by port rules, to pilot her out.
This pilot act of New York, it may be observed-differing from certain acts of Great Britain, known as the 'General Piot Acts,' though agreeing with others, sometimes called local pilot acts, to wit, the Liverpool pilot act and the Newcastle pilot act, and also in its main features with a Pennsylvania pilot act (though this inflicts no penalty of imprisonment, and provides only for a money fine of half pilotage, in case of refusal)-does not contain any provision to the effect that the owner or master of any ship shall not be liable for any loss or damage occasioned by the neglect, incompetency, or default of any licensed pilot.
With the pilot act of New York, above set forth, in force, the steamer China, a foreign vessel bound from the port of New York, and being then in pilot waters, and in charge of a licensed pilot of that port, ran into the Kentucky, a vessel of the United States, and sunk her. The collision was occasioned by gross fault of the licensed pilot then in charge of the China. The owners of the Kentucky accordingly libelled the offending vessel in the District Court of New York. Her owners set up for defence, that at the time of the collision she was in charge of a pilot duly licensed by the State of New York; that the said pilot was taken in conformity with the laws of that State; that he directed all the manoeuvres of the steamer which preceded the collision, and that the same was not in consequence of any negligence of her officers or crew.
The case thus presented the question whether a vessel, in charge of a licensed pilot, whom the statutes of the State governing the port whence she sailed, enacted positively that the vessel should take aboard under penalties named, was liable in rem for a tort committed by her, the result wholly of this pilot's negligence.
The District Court held that she was, and the Circuit Court having affirmed the decree, the question was now here on appeal.
Mr. D. D. Lord, for the owners of the China, appellants, contended that the pilot act of New York was imperative. The China was compelled to take a licensed pilot, and had not even a right to choose from the body. If this was so, the conclusion which the appellants sought to establish followed; for nothing could be more unjust than for judicial law to hold men responsible for the consequences of acts which statute law compelled them to perform, and for the nonperformance of which, if they had not performed them, the judicial law itself would have fined or imprisoned them.
The fact that there was no 'exemption' clause in the New York statute was not important. That clause in the general pilot acts of Great Britain only gave words and form to a principle resulting already from previous requirements, the principle being, that the owners of the ship having been compelled to surrender her to an agent of the law, in whose selection they had no voice, and over whom, when put in charge, they had no power in any ordinary case, they should not be held responsible for his mismanagement; a mismanagement which it was reasonable to infer would not have occurred had they selected their own agent.
These views are supported by English cases which overrule other ones, perhaps, not consistent with our position. The American cases do not conflict with it. They all arose from the acts of pilots not taken by compulsion of law. In The Creole, decided by Mr. Justice Grier, the strongest case against us, it was held expressly that the statute (which provided only for a money fine of half pilotage in case of refusal to take a pilot), was not compulsory.
Mr. Evarts, contra:
1. The theory of the specific responsibility of the offending vessel to make good the injury which her improper navigation has inflicted upon an innocent sufferer proceeds upon reasons, both of justice and of policy, which exclude the protection against such responsibility asserted on the other side. This theory treats the faults of conduct in the vessel's navigation as imputable to the vessel itself, and discards as immaterial all considerations touching the adjustment among the navigators, or between them and the owners, of the personal fault or personal responsibility of the misgovernment of the vessel. It also gives to the sufferer the security of redress which the vessel itself, in its value and its subjection to judicial recourse, furnishes, as contrasted with the contingencies of personal sufficiency or personal accessibiity of the individuals in fault. Accordingly, in practical execution of this theory, the very blow which inflicts the culpable injury upon the innocent vessel, impresses in her favor a lien of indemnity upon the offending vessel. The proceeding in rem of the admiralty is but a judicial consummation of this lien, and requires for its support nothing but proof of such fault of the vessel as, by the rules of maritime law, raises the lien. To displace this lien, and defeat this recourse in rem, and thus reduce the sufferer to recourse against the individual in fault, is, in effect, to supplant the admiralty jurisprudence and the admiralty procedure, and overthrow the reasons of justice and policy upon which they are built up. Such consequences can be assigned only to legislation of paramount authority over the jurisprudence and the jurisdiction.
2. The collision between the Kentucky, a vessel of the United States, and the China, a foreign steamer, having occurred upon the high seas, the municipal legislation of the State of New York is inadequate to the authority imputed to it, in derogation of the admiralty jurisdiction or the principles of its administration. The foreign commerce of the United States cannot be withdrawn by State legislation from the protection of the admiratly jurisdiction conferred upon the Federal judiciary, in plenary and exclusive terms, by the Constitution.
3. The pilotage regulations of New York are simply in support of the emoluments of the pilot service, provided by the State, in aid of the commerce of its ports.
4. The British statutes have made determinate and peremptory provisions, both of compulsion upon the vessel to employ the pilot and of exemption from responsibility while directed by him.
5. But the doctrine of the British Admiralty Court, that the enjoining by statute of the taking of a pilot, and, in case of refusal, requiring the payment of pilotage dues, amounts to a compulsion to take a pilot, and exempts the ship from responsibility while navigated under his charge, has never been followed in this country. It seems never to have found favor with Sir William Scott. And the whole doctrine seems to be regarded with great distrust, notwithstanding the policy has been adopted in the statutes. The American cases are of uniform tenor, and the whole subject has been recently reviewed, and the doctrine of continued liability, notwithstanding the pilot regulations of the statutes, firmly established by Mr. Justice Grier in an important case in the Pennsylvania circuit.
Mr. Justice SWAYNE delivered the opinion of the court.

## Notes

* ↑ The Argo, Swabey, 462; The Fama, 2 W. Robinson, 184; The Batavia, Ib. 407; The Agricola, Ib. 10; The Maria, 1 Id. 95; The Protector, Ib. 45; The Christiana, 2 Haggard, 183; Ritchie v. Bowsfield, 7 Taunton, 309; Carruthers v. Sidebotham, 4 Maule & Selwyn, 77.
* ↑ Wallace, Jr., 485.
* ↑ The Neptune the Second, 1 Dodson, 467.
* ↑ The General de Caen, Swabey, 10; The Mobile, Ib. 69, 129; The Diana, 1 W. Robinson, 135; The Protector, Ib. 45, 57; The Massachusetts, Ib. 373; The Christiana, 7 Moore, Privy Council, 160; The Schwable, 14 Id. 241; The Halley, 2 Admiralty and Ecclesiastical Law Report Series, 3; The Mina, Ib. 97; The Lion, Ib. 102.
* ↑ Bussy v. Donaldson, 4 Dallas, 206; Williamson v. Price, 4 Martin, N. S. 399; Yates v. Brown, 8 Pickering, 23; Denison v. Seymour, 9 Wendell, 1; Smith v. Condry, 1 Howard, 28; The Lotty, Olcott, 329.
* ↑ The Creole, 2 Wallace, Jr., 485.
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