Untitled New York Attorney General Opinion ( 2016 )

Navigation Law §§ 88, 88(3), 89-a, 89-a(3), 89-b, 89-b(3); 28 U.S.C § 1602 et seq; 46
U.S.C. §§ 8501(a), 8502(a), 8503(a), 8503(b)
A foreign public vessel not engaged in commerce is subject to New York’s compulsory
pilotage.
September 28, 2016
Frank W. Keane Formal Opinion
Executive Director & Secretary No. 2016-F2
Board of Commissioners of Pilots
17 Battery Place
New York, New York 10004
Dear Mr. Keane:
You have requested an opinion regarding whether certain ships from foreign
countries must use a New York-licensed pilot to navigate when entering or departing
New York waters. New York law provides that “[e]very foreign vessel and every
American vessel under register” entering or departing from New York ports must take
a New York-licensed pilot. Navigation Law §§ 88, 89-a, 89-b. Your question
specifically is whether foreign public vessels not engaged in commerce—for example,
foreign naval vessels attending Fleet Week—are subject to New York’s pilotage
requirement. Although not free from doubt, we are of the opinion that a foreign naval
vessel, not engaged in commerce, is subject to New York’s compulsory pilotage.
To begin, the New York State Navigation Law plainly states that “[e]very foreign
vessel” is required to have a New York-licensed pilot when entering or departing a New
York port. The law does not contain any exemptions. But this is not the end of the
analysis: interests of the federal government that subordinate New York’s authority
may be implicated because of the public status of the foreign vessel.1
Congress has provided since 1789 that “pilots in the bays, rivers, harbors, and
ports of the United States shall be regulated only in conformity with the laws of the
1 Under international law, a foreign public vessel would be subject to a receiving nation’s pilotage
requirement. See Restatement (Third) of Foreign Relations Law of the U.S. § 512 Reporters’ Note 6
(1987) (“A warship in a foreign port must comply with the laws and regulations of the coastal state
relating to navigation and safety” (internal citation omitted)); see also John T. Oliver, Legal & Policy
Factors Governing the Imposition of Conditions on Access to and Jurisdiction over Foreign-Flag Vessels in
U.S. Ports, 5 S.C. J. Int’l L. & Bus. 209, 216-17 (2009). Thus the question here is whether, in the absence
of a federal requirement for a local pilot, New York’s requirement applies to a foreign public vessel.
States,” except as Congress otherwise provides. 46 U.S.C. § 8501(a). Congress has
expressly regulated pilotage in certain circumstances. In particular, an American
merchant vessel authorized to engage in domestic commerce between American ports
(a “coastwise seagoing vessel”) must be piloted by a federally-licensed pilot if it is not
sailing under authority to engage in foreign commerce. 46 U.S.C. § 8502(a); see also
Huus v. New York & Porto Rico Steamship Co., 182 U.S. 392, 395 (1901) (under federal
law merchant vessels can be licensed for coasting trade or registered for foreign trade).
And a vessel engaged in foreign commerce may be required, by the Secretary of
Homeland Security, to use a federally-licensed pilot if it is traveling to or from a port in
a state that does not itself regulate pilots. 46 U.S.C. § 8503(a). Any such requirement
terminates, however, when the state establishes a requirement for a state-licensed
pilot and informs the Secretary. 46 U.S.C. § 8503(b).
Because New York regulates pilots, American and foreign vessels engaged in
foreign commerce are subject to New York’s pilotage requirement. Navigation Law
§§ 88, 89-a, 89-b; 46 U.S.C. § 8501(a); Interport Pilots Agency, Inc. v. Sammis, 14 F.3d
133, 136 (2nd Cir. 1994). Failure to accept a compulsory pilot renders the vessel subject
to a fine in addition to pilotage fees. Navigation Law §§ 88(3), 89-a(3), 89-b(3);
Interport Pilots, 14 F.3d at 137.
Congress has not legislated with respect to pilots on foreign public (i.e.,
noncommercial) vessels. Thus no federal enactment purports to exempt foreign public
vessels from New York’s compulsory pilotage statute. It might be argued, however,
that the federal Constitution itself prevents New York from imposing a piloting
requirement on foreign public vessels. The regulation of commercial vessels falls under
Congress’s power under the Commerce Clause, and Congress decided to divide
regulatory jurisdiction over pilotage between the federal government and the states.
Cooley v. Bd. of Wardens, 53 U.S. 299, 315-16 (1852); see also Gibbons v. Ogden, 22
U.S. 1, 189-91 (1824). By contrast, regulation of a foreign public vessel arguably
implicates federal powers relating to foreign affairs and international relations, over
which the federal government has supreme power, instead of or in addition to
Congress’s powers under the Commerce Clause. United States v. Pink, 315 U.S. 203,
233-34 (1942); cf. Schooner Exchange v. McFaddon, 11 U.S. 116, 144 (1812) (differing
concerns of sovereign country with respect to its citizens’ merchant vessels and its
public military ships entering port of foreign country).
State legislation, or its operation in a particular instance, cannot interfere with
the federal government’s power to conduct foreign affairs. For example, in Zschernig v.
Miller, the Supreme Court held that a state law that resulted in probate courts
inquiring into the administration of foreign law and the credibility of foreign
diplomatic statements constituted impermissible state involvement in international
relations. 389 U.S. 429 (1968). And in National Foreign Trade Council v. Natsios, a
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state law that restricted the ability of state agencies to purchase goods or services from
companies that did business with Burma was held to encroach on the federal
government’s power over foreign affairs. 181 F.3d 38, 52-53 (1st Cir. 1999).
But state legislation that only indirectly and insignificantly impacts foreign
relations does not impermissibly encroach on the federal power. Ray v. Atlantic
Richfield Co., 435 U.S. 151, 180 (1978) (requirement that tugboat escort vessels in
Puget Sound that do not comply with state safety standards, having only insignificant
international consequences, valid). Moreover, such a law applies to nationals of a
foreign country. For example, in Mukaddam v. Permanent Mission of Saudi Arabia to
the United Nations, in holding that New York’s Human Rights Law applied to a foreign
diplomatic mission, the court rejected the mission’s argument that allowing a claim
against the mission would unconstitutionally intrude upon the federal government’s
supreme power over foreign affairs. 111 F. Supp. 2d 457, 472-73 (S.D.N.Y. 2000). The
court recognized that the Human Rights Law “would have to have a more significant
and direct effect in foreign countries than it does” to be found prohibitively intrusive in
the field of foreign affairs. 11 F. Supp. 2d at 473.
In our view, New York’s pilotage law, a statute of general applicability, does not
have the significant and direct effect on foreign countries that would render it an
impermissible intrusion in foreign affairs. Consequently, we are of the opinion that
New York’s compulsory pilotage requirement applies not only to commercial vessels
but also to foreign public vessels not engaged in commerce.2
That said, as a practical matter, enforcement of this requirement may be
difficult. If a foreign state owning a naval vessel refuses a New York-licensed pilot, the
foreign state likely will be immune from enforcement of the requirement through
American courts. See Foreign Sovereign Immunity Act (FSIA), 28 U.S.C. § 1602 et seq.
We do not address the use of diplomatic means to enforce compliance.3 See 767 Third
Ave. Assocs. v. Permanent Mission of Republic of Zaire, 988 F.2d 295, 303 (2d Cir.
1993). Nor do we consider whether the foreign state could be sued for any damage
caused by its naval ship after refusing a New York-licensed pilot. See USAA Cas. Ins.
Co. v. Permanent Mission of Republic of Namibia, 681 F.3d 103 (2d Cir. 2012) (foreign
mission held liable under FSIA’s “tortious activity” exception to immunity for failure to
comply with mandatory provision of city building code).
2 A treaty between the United States and a foreign country that required a federally-licensed pilot or
specifically exempted a foreign nation’s public vessels from pilotage requirements would render New
York’s pilotage requirement null with respect to those vessels. See Clark v. Allen, 331 U.S. 503, 517
(1947). We are not aware of any such treaties.
3We understand that a foreign public vessel intending to enter United States territory must obtain a
diplomatic clearance from the United States Department of State.
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In summary, while not free from doubt, we are of the opinion that New York’s
compulsory pilot statute applies to foreign naval vessels not engaged in commerce.
Very truly yours,
ERIC T. SCHNEIDERMAN
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