Untitled Texas Attorney General Opinion ( 1966 )

my 13, 1966
Hon. D. Roy Barrington Opinion No, C-684
Chairman, InterstateCo-.
operatfon Committee Re: If, after a Foreign
State Senate vessel or an American ves-
Austin, Texas sel under registry has
arrived at a port of entry
a Sablne District Branch
Pilot docks or undocks the
vessel, may the Board of
Pilot Commissionersby
virtue of Vernon's Civil
Statutes, Articles 8264,
8267, 8268 and 8274 au-
thorize the Branch Pilot to
make an additional charge
for this service and re-
Dear Senator Harrington: lated question?
Your letter requesting an opinion of this offlce reads
in part as follows:
1. "If, after a Foreign vessel or an American
vessel under registry has 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's Annotated Civil Statutes, Articles
8264, 8267, 8268 and 8274) authorize the
Branch Pilot to make an additional charge
for this service?"
2. "Has a Foreign vessel or an American vessel
under registry, which is proceeding Into the
Sabine District, 'arrivedat the port of
entry' when she either (I) moors at a public
anchorage within the Corps of Engineers pro-
ject for the Sabine-NechesWaterway, or (ii)
crosses the boundary line of the Corps of
Engineers project for the Sabine-Neches
Waterway, for the purpose of ,enterlnga pri-
vately maintained channel or berth?"
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Hon. D. Roy Rarrington,page 2 (c-684)
The Congress of the Unlted States has granted to the
several States the right to regulate pilotage as set out
In 46 U.S.C.A., State Regulations as to licenses of pilot,
etc., Sec. 215.’ This part of the statute says:
"In no case shall the fees charged for
pilotage of any vessel exceed the custom-
ary or legally establishedrates 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 procedure of regulation and provide for ap-
pointing a Board for each harbor or port. This Board
licenses pilots and sets the fees to be charged by the
pilots In guiding ships to port. Article 8274 sets the
maximum fee that may be charged by the pilot, and reads,
In part as follows:
"The rate 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 ($6.00) for
each foot of water which the vessel at the
time of piloting draws, ...'
In the Sabine Pilot's Association v. Lykes Steamship
, 346 S.W.2d lb6 (Tex.Civ.App.lgbl), the Court
e language of Article 8274 was clear and unam-
biguous and that the Board of the Sabine-NechesRiver
Waterway could fix rates for bringing the ship to port as
long as same were not above the statutory limits.
In BloomfIeld Steamship Company v. Sabine Pilot's As-
m;i~tf;``~$tj2 F.2d 345 (C.A. 5th Cti.1959 cert. denied
wherein dertain steamship cohpanies 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,:thestate)-and that
no additional pllotage charge may 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$t point in Its journey a
vessel arrived at "a yort'of entry . Our research has re-
vealed that the term 'a port of entry" has been used in
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Hon. D. Roy Harrington,page 3 (c-684)
reference to the collection of customs and used synonymously
with the term "collectiondistricts". !Pheon1 cases that
we have found in reference to Itaport of entry5 are Cross v.
Harrison, 57 U.S. 164 and De Lima v. Bldwell, 182 U.S. 1.
Th United States Supreme Cour
t t case cited
thz Cross case with approval. In the g rosa case it was said:
. . . that collection districts and ports of
entry are no more than designated localities
within and at which Congress had extended the
liberty of commerce In the United States, and
that so much of Its territory as is not within
a collectiondistrict must be consideredas
havlng been withheld from that liberty. It is
very well understood to be a part of the law
of nations that each nation may designate, up-
on Its own terms, the ports and places within
its territory for foreign commerce, and that
any attempt to introduce foreign goods else-
where within Its jurlsdlctlonIs a violation
of its sovereignty."
It is beyond question that the place of dockIn and un-
docking, by necessity, Is the "collectiondistricts and
"ports of entry".
The State of Oregon created a Board of Pilot Commis-
sioners, as an administrativea ency, (Oregon Iaws 1957,
Ch. 448, codified as ORS Ch. 772 ) and empowered the Board
to:
"Provide,forefficient and competent pilotage
service ..."
to
"Fix, at reasonable and just rates, pilotage
fees ...' (Emphasissupplied)
Oregon Su reme Court In the case of Powell v. State, 355
E: 224 (1960P had before it for decision, whether the pilot-
age fees fixed by the Board of Pilot Commissionersalso
covered the services of the pilots in docking and undockin$
the vessels. The pilots contended that the word "pilotage
as used in the statutes authorizing the Board to fix rates
therefor must rece,ivea very strict constructionand that
the Board had authority only to fix rates for guiding a ves-
sel 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
definition of the word 'pilotage'there would
be no problem. As Indicated,plaintiff would
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-inclusiveand
Includes every act performed by the pilots and
those functions Incidentalthereto. A search
for some workable definitionhas been intereet-
ing but rather futile. An examinationof many
cases, textbooks and other material involving
pilots and pilotage does not disclose any at-
tempt to define the word pilotage.
"Nothingwould be added by referring to other
cases and writings on the subject. From a
reading of the cases, statutes and 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 undocklng a vessel,
as the plaintiff would ask us to do.
'When we examine the entire statute we think
the intent of the legislaturewas clear. It
does not make sense that it would enact a corn-
prehensive regulatory statute and then leave
wide gaps of authority the effect of which
would render the stat&e meaningless. If the
plaintiff were to prevail the basic power of the
commission--tofix 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 includes the power
to regulate every service performed by a pilot
as a pilot in accordance with his license and
any acts of the pilot necessary to the ulttiate
performance of that service .I'(Emphasissupplied)
As the Powell case is directly in point, and provides an
acceptable definition of the word "pilotage"we are con-
strained to agree with the holding therein. It is therefore
our opinion that pilotage includes docking and undocking and
we answer your first question In the negative, and in view
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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 undock-
ing 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
BY
Assistant
LT:ml
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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