WILSON V. MCNAMEE, 102 U. S. 572 (1880)

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U.S. Supreme Court

Wilson v. McNamee, 102 U.S. 572 (1880)

Wilson v. McNamee

102 U.S. 572


1. An objection not taken in the court below cannot be considered here.

2. The pilot laws of the State of New York are not in conflict with the Constitution of the United States. Ex Parte McNiel, 13 Wall. 236, and Cooley v. Board of Wardens of Port of Philadelphia, 12 How. 299, cited and reaffirmed.

3. The pilot may recover pilotage although his services were tendered to and refused by the master of the vessel when she was without the jurisdiction of the State.

McNamee tendered his services as a licensed Sandy Hook pilot to conduct the schooner E. E. Racket by way of Sandy Hook to the port of New York. He was the first that offered his services. The tender was made at sea, about fifty miles from that port. The vessel was from a foreign port, sailing under register, and drew nine feet of water. The master refused to accept the services, and came into port without a pilot. McNamee demanded the compensation allowed by the local State law, and, payment having been refused, brought this suit and recovered judgment in the District Court of the City of New York for the First Judicial Circuit against Wilson, the consignee of the schooner. The case was thereupon removed by appeal to the proper Court of Common Pleas, and subsequently to the Court of Appeals of the State. Those courts successively affirmed the judgment. Wilson sued out this writ.

The laws of New York on the subject of pilotage contain, among other provisions, the following:

"All masters of foreign vessels, and vessels from a foreign port, and all vessels sailing under register, bound to or from the port of New York, by the way of Sandy Hook, shall take a licensed pilot; or, in case of refusal to take such pilot, shall himself, owners or consignees, pay the said pilotage, as if one had been employed; and such pilotage shall be paid to the pilot first speaking or offering his services as pilot to such vessel."

The fourth section of the Act of Congress approved Aug. 7, 1789, 1 Stat. 54, declares that

Page 102 U. S. 573

"All pilots in the bays, inlets, rivers, harbors, and ports of the United States shall continue to be regulated in conformity with the existing laws of the States respectively wherein such pilots may be, or with such laws as the States may respectively hereafter enact for the purpose, until further legislative provision shall be made by Congress."

This enactment will also be found in sec. 4235 of the Revised Statutes.

The proviso to the second section of an act of Congress of Feb. 2, 1867, 14 Stat. 412, is in these words:

"Nothing in this act contained, or in the act of which it is amendatory, shall be construed to annul or affect any regulations established by the existing laws of any state requiring vessels entering or leaving a port in such state to take a pilot duly authorized by the laws of such state, or of a state situate upon the waters of the same port."

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