my 13, 1966

Hon. D. Roy Barrington Chairman, InterstateCo-. operatfonCommittee State Senate Austin, Texas

Dear Senator Harrington: Your letter requesting in part as follows:
1.

2. an opinion of this offlce reads OpinionNo, C-684
Re: If, after a Foreign vessel or an American vessel under registryhas arrived at a port of entry a Sablne DistrictBranch Pilot docks or undocks the vessel,may the Board of Pilot Commissioners by virtue of Vernon'sCivil Statutes,Articles 8264, 8267, 8268 and 8274 authorize the Branch Pilot to make an additionalcharge for this serviceand related question?

"If, after a Foreign vessel or an American vessel under registryhas arrived at Ia port of entry', a Sabine District Branch Pilot docks or undocks the vessel,may the Board of Pilot Commissioners (by virtue of Vernon'sAnnotatedCivil Statutes,Articles 8264, 8267, 8268 and 8274) authorize the Branch Pilot to make an additionalcharge for this service?"
"Has a Foreign vessel or an American vessel under registry,which is proceeding Into the Sabine District, 'arrived at the port of entry' when she either (I) moors at a public anchoragewithin the Corps of Engineersproject for the Sabine-Neches Waterway, or (ii) crosses the boundary line of the Corps of Engineers project for the Sabine-Neches Waterway, for the purpose of ,enterlng a privatelymaintained channel or berth?"

-3286-Hon. D. Roy Rarrington,page 2 (c-684)

The Congress of the Unlted States has granted to the several States the right to regulate pilotageas set out In 46 U.S.C.A.,State Regulationsas to licensesof pilot, etc., Sec. 215. ’ This part of the statute says:

"In no case shall the fees charged for pilotage of any vessel exceed the customary or legally established rates in the State where the same is performed." The Legislatureof the State of Texas has regulated the pilots, harbors and ports in Articles 8264 through 8280, Vernon's Civil Statutes. These statutes set forth the form and procedureof regulationand provide for appointinga Board for each harbor or port. This Board licensespilots and sets the fees to be charged by the pilots In guiding ships to port. Article 8274 sets the maximum fee that may be chargedby the pilot, and reads, In part as follows:

"Therate of pilotage,which may be fixed under Articles 8267 and 8269, on any class of vessels shall not, In any part of this state
. .. exceed six dollars ($6.00)for each foot of water which the vessel at the time of pilotingdraws,

...' In the Sabine Pilot'sAssociationv. Lykes Steamship

, 346 S.W.2d lb6 (Tex.Civ.App.lgbl), the Court e languageof Article 8274 was clear and unambiguous and that the Board of the Sabine-Neches River Waterway could fix rates for bringing the ship to port as long as same were not above the statutory limits.
In BloomfIeldSteamshipCompany v. Sabine Pilot'sAsm;i~tf;~~~$tj2 F.2d 345 (C.A. 5th Cti.1959 cert. denied

wherein dertain steamshipcohpanies sued tg recover overdarges by pilots above the maximum fixed by Article 8274, the Court said:

"We hold that the statutorymaxlmum applies from sea to,any port in,:the state)-andthat no additionalpllotage chargemay be legally assessed,except for moving a vessel further after she has arrived at a port of entry.n The Court did not state at wh$t point in Its journeya vessel arrived at "a yort'of entry
. Our research has revealed that the term 'aport of entry" has been used in -3287-Hon. D. Roy Harrington,page 3 (c-684)

reference to the collectionof customsand used synonymously with the term "collection districts". !Phe

on1 we have found in reference to Ita port of entry

5 cases that are Cross v. Harrison, 57 U.S. 164 and De Lima v. Bldwell, 182 U.S. 1. Th United States Supreme Cour t thz Cross case with approval. In the g t case cited rosa case it was said:

. . . that collectiondistrictsand ports of entry are no more than designated localities within and at which Congresshad extended the liberty of commerce In the United States, and that so much of Its territoryas is not within a collectiondistrictmust be consideredas havlng been withheld from that liberty. It is very well understoodto be a part of the law of nations that each nation may designate,upon Its own terms, the ports and places within its territory for foreign commerce,and that any attempt to introduceforeign goods elsewhere within Its jurlsdlctlonIs a violation of its sovereignty."
It is beyond question that the place of dockIn and undocking,by necessity, Is the "collection districts and "ports of entry". The sioners, Ch. 448, to:

to State of Oregon created a Board of Pilot Commisas an administrative a ency, codifiedas ORS Ch. 772 (Oregon Iaws 1957, ) and empowered the Board
"Provide,for

efficientand competentpilotage service

..."
"Fix,at reasonable fees

. ..' (Emphasis and just rates, pilotage supplied)


### E: age Oregon Su reme Court In the case of Powell v. State, 355 224 (1960

P had before it for decision,whether the pilotfees fixed by the Board of Pilot Commissioners also covered the services of the pilots in docking and undockin$ the vessels. The pilots contendedthat the word "pilotage as used in the statutesauthorizingthe Board to fix rates thereformust rece,ive a very strict construction and that the Board had authority only to fix rates for guiding a vessel up or down a river and nothing else. The Court stated:

-3288-Hon. D. Roy Barrington,page 4 (C-684)

"If It were possible to find some acceptable definitionof the word 'pilotage' there would be no problem. As Indicated,plaintiffwould have us define it as limited to the act of zUidinQ a vessel from one oort on the Columbia giver Eo another port. The shipownersand the board argue that the word is all-inclusive and Includesevery act performedby the pilots and those functions Incidentalthereto. A search for some workabledefinitionhas been intereeting but rather futile. An examinationof many cases, textbooksand other material involving pilots and pilotagedoes not discloseany attempt to define the word pilotage. "Nothing

would be added by referring to other cases and writings on the subject. From a reading of the cases, statutesand the reports we have mentioned, one thing is clear. The word pilotage Is used in an all-inclusivesense. Nowhere do we find the term limited in scope to such details as docking or undocklnga vessel, as the plaintiffwould ask us to do. 'Whenwe examine the entire statutewe think the intent of the legislature was clear. It does not make sense that it would enact a cornprehensiveregulatory statuteand then leave wide gaps of authority the effect of which would render the stat&e meaningless. If the plaintiffwere to prevail the basic power of the commission--to

fix rates--wouldbe of no avail. The pilots could circumventany limitationon the rates fixed by the board by devlces such as that proposed in this case. "We hold that the full scope of the legislative grant of power to the board includesthe power to regulate every serviceperformedby a pilot as a pilot in accordancewith his licenseand any acts of the pilot necessary to the ulttiate performanceof that service .I'(Emphasissupplied)
As the Powell case is directly in point, and providesan acceptabledefinitionof the word "pilotage" we are constrained to agree with the holding therein. It is therefore our opinion that pilotage includesdocking and undockingand we answer your first question In the negative,and in view
-3289-Hon. D. Roy Harrington, page 5 (c-684)

of our answer to your first question, an answer to your second question is not necessary.

SUMMARY

The word pllotage as contained in Article 8274, V.C.S., Is used In an all-inclusive sense and includes the docking and undocking of vessels and therefore the Board of Pilot Commissioners may not authorize the Branch Pilots to make an additional charge for such service,

Yours very truly,
WAGGONER CARR Attorney Qeneral of Texas

LT:ml BY Assistant

APPROVED: OPINION COMMITTEE
W.V. Geppert, Chairman Linward Shivers Roger Tyler Harold Kennedy John Banks
APPROVED FOR TRE ATTORNEY GENERAL By: T. B. Wright

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