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"Whatever subjects of this power are in their nature national, or admit of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by congress. That this cannot be affirmed of laws for the regulation of pilots and pilotage is plain. The act of 1789 contains a clear and authoritative declaration by the first congress that the nature of this subject is such that until congress should find it necessary to exert its powers, it should be left to the legislation of the states; that it is local and not national; that it is likely to be the best provided for, not by one system or plan of regulations, but by as many as the legislative discretion of the several states should deem applicable to the local peculiarities of the ports within their limits. It manifests the understanding of congress at the outset of the government that the nature of this subject is not such as to require its exclusive legislation. The practice of the states and the national government has been in conformity with this declaration from the origin of the national government to this time; and the nature of the subject, when examined, is such as to leave no doubt of its superior fitness and propriety, not to say absolute necessity of different systems of regulations, drawn from local knowledge and experience, and conformed to local wants."

The question was further discussed in the case Ex parte McNeil, 13 Wall. 241, in which the doctrines of Cooley v. The Port Wardens was reaffirmed. See, also, Cribb v. State, 9 Fla. 409.

In Jones v. Clifford's Ex'r, 5 Fla. 513, the court cites the act of 1822, in which the board of port wardens had power "to establish such ordinances as they shall deem advisable, with the power to fix and alter the rates of pilotage," and apparently approve and recognize the validity of it. I am satisfied that the establishment of local boards with power to fix and determine the rates of pilotage for the several ports of the state, and to decide which vessels, if any, may pay half and which whole rates, is in no way in conflict with the provisions of any act of congress.

If further reasons were necessary upon this point, the health laws of the several states, wherein powers are delegated to local boards, might be referred to, and reasoning from analogy establish the same point. The United States statutes relating to public health are, if possible, more explicit in speaking of the health laws of any state, and by no words do they recognize the local health laws of ports or cities; yet all local health laws made in conformity with state statutes are recognized by all departments of the general government, and treated with as much respect as they could be were they enacted by the legislators, and among the many questions which have arisen upon this subject, and regarding the conflicting interests of commerce, or local health, its fees, delays, and annoyances, I have been unable to find that any objection has been made to a local or municipal law, when

in accordance with the health laws of a state, because the actual minutia of the regulations were not determined by the legislature.

The only provision of the state constitution that could have any effect upon such delegation of powers is that of section 18, art. 4, which provides that "in the several cases enumerated in the preceding section, and in all others when a general law can be made applicable, the law shall be general and uniform throughout the state."

Except "in the cases enumerated," it is a question for the legislature to decide whether a general law can be made applicable, to the best advantage, and the passing of a local one would be a declaration that in its opinion the local law would be better; and I doubt if any court would interfere unless the law was one so positively in opposition to the spirit of the constitution as to be unquestionable.

But has the legislature enacted a local law touching this matter? The law relied upon is as general in its character as any one could be; as general as the laws that permit the county commissioners to determine their compensation or the salary of the county solicitor, or the board of instruction to establish the pay of the county superintendent. There may be under each of these laws as many different results as there are counties in the state. I do not consider it so a local law as to come under the prohibition of the clause of the constitution.

Although the later act did not by actual words repeal the former one, yet there can be no question but what it was the intention of the legislature to leave the entire matter in the hands of the local boards. The spirit of the law is to be considered, and if it is found to be in conflict with the pre-existing law it virtually repeals it as fully as if it did so by a direct repealing clause, and of that in this case there can be no question.

Since the organization of the state government no less than 25 acts have been passed upon this subject, and by a large majority of these local boards have been given full and complete powers to make rules and regulations, establish rates and change the same, as deemed best; and under them full power in regard to compensation has been claimed and exercised. In no case has the right to fix rates been held to be separate from the question of compulsory pilotage, nor has either question been passed upon or treated separately.

It was not the question of the rate per foot that brought about the act of 1879, but that of compulsory pilotage, either half or whole rates. The amount which was to be paid a pilot who had rendered service has never been objected to or deemed unreasonable, but the

conflict has been between the representatives of those vessels which did not employ pilots and the pilots themselves; and leaving the entire matter to the local boards, as had been the case under three-fourths of all the previous legislation upon the subject, was, without doubt, the quickest and most satisfactory manner of determining it.

In my opinion it was the intention of the legislators that the local boards should have power, not only to determine what rates should be paid by a vessel employing a pilot, but also by one spoken that does not accept services. The question of rights of pilots under a tender and refusal of services has been settled, and it declared that there is an implied promise to pay the amount determined to be due in accordance with law. It is not a right or penalty given by a local board.

The state law has given a substantial right for an amount which may be measured and determined by such commissioners, and enforced by an admiralty court as it might enforce any other implied marine contract. That amount in this case is the half of the usual rates, and the decree will follow accordinglv. Vide Wilson v. McNamee, 102 U. S. 572.

See The Alzena, 14 FED. REP. 174, and note; The Francisco Garguilo, Id. 495; The William Law, Id. 792; The Whistler, 13 FED. REP. 295; The Clymene, 12 FED. REP. 346; The Lord Clive, 10 FED. REP. 135; The Glaramara, Id. 678.

Ross v. BOURNE.

(District Court, D. Massachusetts. January 19, 1883.)

SEAMEN'S WAGES-RIGHTS TO SUE IN ADMIRALTY.

In the absence of express legislation on the subject by congress, the right of a seaman to sue in the admiralty in personam for his wages is not taken away or suspended by an attachment of his wages by trustee process in an action at law.

. In Admiralty.

C. T. Bonney and T. A. Codd, for libelant.

E. L. Barney, for respondent and the attaching creditor. NELSON, D. J. This is a libel in personam for seamen's wages. The libelant alleges that on the sixteenth of June, 1882, he shipped as boat-steerer in the whaling bark Helen and Mary, of New Bedford, of which the respondent is owner, then lying at Marble island, in Hudson's bay, in the prosecution of a whaling voyage, at the one

sixty-fifth lay in the subsequent catchings of the voyage; that the bark continued her voyage with the libelant on board, and took a large quantity of oil and bone, and finally returned home to New Bedford, where she arrived October 3, 1882, and the voyage then ended; that by his shipping agreement his lay was to be paid him at the termination of the voyage; and that he had demanded payment of his lay and it had been refused. The respondent, in his answer, admits the allegations of the libel, and avers that his only reason for not paying the libelant is that on the third of October, 1882, after the voyage had terminated and before the filing of this libel, the wages were attached by a trustee process against the libelant at the suit of Simeon Doane and another, returnable to the superior court for the county of Bristol on the first Monday of December, 1882, and that the trustee process has been entered in that court and is still pending. It is agreed that the amount due the libelant as wages is $132.12.

Section 61 of the shipping commissioners' act of June 7, 1872, (17 St. 276; Rev. St. § 4536,) enacts "that no wages due or accruing to any seaman or apprentice shall be subject to attachment or arrestment from any court; and every payment of wages to any seaman or apprentice shall be valid in law, nothwithstanding any previous sale or assignment of such wages, or of any attachment, incumbrance, or arrestment thereon." This provision is general in its terms, and is applicable to all wages earned by seamen, whatever the nature of the voyage. But by the act of June 9, 1874, (18 St. 64,) it was enacted "that none of the provisions" of the act of June 7, 1872, "shall apply to sail or steam vessels engaged in the coastwise trade, except the coastwise trade between the Atlantic and Pacific coasts, or in the lake-going trade touching at foreign ports or otherwise, or in the trade between the United States and the British North American possessions, or in any case where the seamen are by custom or agreement entitled to participate in the profits or result of a cruise or voyage." The effect of this act is undoubtedly to take fishing and whaling voyages, where the seamen receive as their compensation a share or lay in the catchings, wholly out of the operation of the act of 1872. This has been frequently so ruled in this district. It has also been so ruled as to coastwise voyages between ports on the Atlantic. Scott v. Rose, 2 Low. 381; U. S. v. Bain, 5 FED. REP. 192; Eddy v. O'Hara, 132 Mass. 56.

The question in the case, then, is whether, in the absence of express legislation on the subject by congress, the right of a mariner to sue

in the admiralty for his wages is taken away or suspended by an attachment of his wages by trustee process in an action at law.

The thirteenth admiralty rule provides that "in all suits for mariner's wages, the libelant may proceed against the ship, freight, and master, or against the ship and freight, or against the owner or the master alone, in personam." No one would for a moment contend that the attachment suit should have the effect to deprive the seaman of his lien on the vessel and freight. But to avail himself of that privilege he must necessarily resort to a court of admiralty, where alone the lien can be enforced. The Caroline, 1 Low. 173. In Winthrop v. Carleton, 8 Mass. 456, it was held that it was no cause to abate a writ that the defendant had been sued as the trustee of the plaintiff, and the trustee process was still pending, but was ground for a continuance only. The court say: "Non constat that judgment will be rendered against the defendant in the other suit." I shall not err if, following the decision in that case, I hold that the seaman's right to sue the owner in personam in the admiralty is not taken away by the trustee suit.

Is a court of admiralty under obligation to suspend its decree while the trustee suit is pending? The right of the seaman to sue in the admiralty for his wages is as old as the admiralty itself. Prior to 1872 there was no act of congress prohibiting the attachment of wages earned on foreign voyages, and it was for a period less than two years that the prohibition extended to coastwise and to fishing and whaling voyages. Yet the recent case of McCarty v. The City of New Bedford, 4 FED. REP. 818, decided by Judge BENEDICT, is the first reported instance of an attempt to delay a seaman in pursuit of his wages in the admiralty by an attachment by trustee process. In that case the learned judge held that seamen's wages were not attachable under the general maritime law, and he pronounced for the seaman, notwithstanding an attachment of the libelant's wages by trustee process was pending in a state court. That such a debt is not exempt from attachment at common law seems to be the law of Massachusetts, though the point has never been directly adjudged. Wentworth v. Whittemore, 1 Mass. 471; Taber v. Nye, 12 Pick. 105; Eddy v. O'Hara, ubi supra; 2 Dane, Abr. 463; Cush. Trust. Proc. 38. At least it would seem to be clear that a judgment of a court of competent jurisdiction charging the trustee, and a payment by him under the judg ment, would be a defense pro tanto in a court of admiralty, as in any other court, to a suit by a seaman for his wages, whether against the ship and freight, or the owner or master in personam. But it is a very

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