Hunt v. Carlisle , 67 Mass. 257 ( 1854 )

Bigelow, J.

The defendant rests his defence to the claim of the plaintiff for pilotage on two grounds.

The first is, that the tender of service by the plaintiff was not seasonably made. By Rev. Sts. c. 32, § 24, a pilot is required, in order to entitle himself to his fees, to offer his services to an inward bound vessel “ before such vessel shall have passed a line drawn from Harding’s Rocks to the Outer Graves, and from thence to Nahant Head.” Upon the facts proved in this case, the defendant contends, that although at the moment of the offer by the plaintiff to pilot the vessel he was outside of said line, yet he is not liable for the pilot’s fees, because, before he was hailed by the pilot, he had, in beating into the harbor against the wind through Broad Sound, gone inside of the line, and in running upon another tack northerly towards Nahant, had again gone outside of the line, so that the offer of the plaintiff was not made, in compliance with the statute, before he had passed the line. But we think this objection rests on too narrow a construction of the provision of the statute. The requisition that the tender of the pilot’s services shall be made before the vessel has passed said line, refers to a final passing of the line by the vessel, on her inward bound course, and not to a mere temporary and accidental passing of it, followed by a retrogression outside the line. The object of the law was to secure inward bound vessels the services of a pilot in navigating the outer and more difficult approaches of the harbor. When therefore a vessel is outside the prescribed line from any cause, and is inward bound, she is in that position where the law supposes a vessel to need a pilot, and where the pilot is required to tender his services, in order to entitle himself to his legal compensation. It is of no importance that the vessel has previously passed the line. Suppose a vessel on her voyage inward to have passed the line without being hailed by a pilot, and before her arrival, by an adverse gale, to be driven back into the outer harbor. Can there be any doubt, that on her return she would be liable for pilotage, if the services of a pilot were seasonably tendered, notwithstanding she had previously passed the line without a pilot ? We are unable to distinguish the case at bar from the case we have supposed.

The practical construction of this provision of the statute by the commissioners of pilots for the harbor of Boston is in accordance with this view. The regulations passed by them only require a pilot to offer his services outside the prescribed line.

The remaining ground of defence is, that the defendant is not liable for pilotage, because the plaintiff refused to pilot the defendant’s vessel above one of the bridges leading from Boston across the mouth of Charles River. But the facts agreed show an unbroken usage of the pilots in Boston harbor, ever since the erection of said bridges, to pilot vessels, destined to places or wharves above the bridges, either to the lower pier of the draw of the bridge, or to a place of anchorage in the stream near the draw, and there leave them in charge of their masters. It was decided in Martin v. Hilton, 9 Met. 371, that evidence was admissible to show the actual limits of the pilotage grounds in the harbor of Boston, and that pilots were not bound to take charge of vessels beyond the limits thus established by long continued usage. In the present case, the facts abundantly prove a uniform usage, by which the pilot is discharged of his duty, and entitled to his fees, without piloting vessels above the bridges. This usage has existed, under regulations of the commissioners of pilots, similar to those now in force, for many years. Hunt v. Mickey, 12 Met. 347. This objection therefore cannot prevail, and there must be Judgment for the plaintiff.