Hunt v. Mickey

Shaw, C. J.

This was an action to recover fees due to the plaintiff for pilotage; it appearing that the vessel was a British vessel, and that the plaintiff offered his services, beyond the line fixed by the Rev. Sts. c. 32, § 24, for that purpose. By law, such offer entitled the pilot to his fees, (Rev. Sts. c. 32. <§, 12;) and the chief question in this case is, whether the action is rightly brought against the owner, and whether 4 should not have been brought against the master.

It was in evidence that the suit was at first commenced against the master; but the defendant, being present when the writ was about to be served, stated that he was owner of the vessel; that if any body was liable, it was he; that the suit ought to be brought against him; and that the writ was accordingly altered. Whether, if the owner was not otherwise liable, he would be estopped, upon these facts, to deny his liability, we give no opinion.

It was contended, on the part of the defendant, that the owner is made liable for the fees of pilotage only by force of the rules and regulations adopted by the commissioners of pilots, and approved by the trustees of the Boston Marine Society, in April 1835, and that these regulations were not in force, because they were not reenacted after the adoption of the revised statutes, and the concurrent repeal of the act (St. 1835, c. 149) under which those regulations were made. Some evidence was offered to show that these regulations had been renewed in due form, after the revised statutes went into operation; and it was in proof that they were so renewed, for greater caution, in due form, after the commencement of this action; but we lay no stress upon this proof.

1. In the first place, it is obvious that if this were a good defence by the owner, it would be equally good in an action against the master; for it is by these rules and regulations that either the one or the other is made expressly liable for fees, where service is offered, but not actually performed. And further; if the law simply declared a right of the pilot to fees, without also declaring who should be liable for them, leaving that to implication, we should incline to believe that, by analogy to other maritime employments and services, both the owner and master would be respectively liable ,• the owner as the party benefited by the service, and the master as the party making the contract.

2. But we think it is not left to implication. It is provided in terms, by the rules and regulations of the commissioners for pilots, and duly approved by the trustees of the Boston Marine Society, and recorded and published, not only what the rate of fees shall be, but it is further provided (art. 5) that in case of a seasonable offer of a pilot to an inward bound vessel, and a refusal, the master and owners of said vessel, or either of them, shall be liable. It is objected, however, that the rules and regulations, which, by St. 1835, c. 149, were declared to have the force of law, are not in force, because they were not reenacted by the commissioners, after the revised statutes went into operation. But we do not so understand the revised statutes. It is true that the former pilotage act was repealed, together with all the former statutes; but it was with many saving provisions. The repealing act (c. 146, <§> 5) provided that no such repeal should affect “ any act done.” The establishment of the regulations was an act done, and therefore not affected. But the whole tenor and effect of these acts was to revise and modify subsisting laws, substituting the new for the old, and preserving every thing as it was before, except where it was specially altered. All officers were to continue, and all things to remain statu quo ; although the acts providing for their appointment were in terms repealed. So, all acts and parts of acts were to remain in force, until the corresponding provisions of the revised statutes took effect. The act establishing this court, and all other courts in the Commonwealth, was in like manner repealed; but it has never been supposed, we believe, that all the rules made by courts for the regulation of their practice, became inoperative and void. Such an opinion would lead to alarming consequences, the extent of which it is not easy to see.

But we think the true view of the case is this ; that taking the provisions all together, although, in terms, the former statutes were repealed, it was, in legal effect, only a repeal of sucli parts of the preexisting acts as were repugnant to the acts substituted for them; upon the principle that when a second statute, in the affirmative, is made in the same terms with a former one, both constitute but one law, taking effect from the earlier statute.

The repealing act was passed February 20th 1836, before the revised statutes went into operation, and to take effect at the same time. Section 3 provides that the repeal shall take effect from and after April 30th 1836, but with all the exceptions and limitations in that behalf expressed in the Rev. Sts. c. 146. Referring to § 3 of that chapter, we find it is provided that “ all acts and parts of acts, the subjects whereof are revised and reenacted in the revised statutes, or which are repugnant to the provisions therein contained, shall be repealed,” <fcc. The result is, that where the new law is repugnant, so far, and no farther, it repeals the old; if the new law is the same, the old remains in force, until the new comes into operation, and eo instanti the new law replaces the old, to the same effect as if there had been no formal change of the one for the other.

The court are therefore of opinion that the rules and regulations of the commissioners of pilots remained in force after the adoption of the revised statutes, and notwithstanding the formal repeal of the St. of 1835, until altered, modified or repealed by some subsequent act of the legislature or of the commissioners; that the owner was liable to the plaintiff for the pilotage fees; and that the directions of the court below, in these respects, were right.

Exceptions overruled