342 PILOTAGE SUBSTANTIALLY REGULATED BY THE STATES.

compulsory pilotage, while in charge of their own vessels, and where they must have been competent to pilot themselves: and

Third, by reviving their suspended power, to abrogate existing unjust and unfair discriminations, as to the different descriptions and specific character of sea-going vessels; parting with its rightful authority originally for a temporary purpose; and then recalling it, at its pleasure, in case of necessity, in order to perpetually vindicate its peculiar province, privilege, or prerogative.

The whole system of pilotage is now substantially regulated by local State legislation; not exactly by a Trinity House Society or Corporation as in England; but by general acts, administered by the governor of a State or by commissioners appointed by him.

In the State of Massachusetts, for reasons of policy, the law generally has given, to the local licensed or branch pilots, the same fees for proffered services refused as for accepted services rendered. But, by the Revised Statutes of 1836, there was no provision that a pilot should have a lien on the vessel, to secure his pilotage fees, either in terms or by necessary implication; and therefore it was, that Judge Sprague, in 1855, when a Salem pilot libelled the R. J. Mercer for services tendered but not rendered, dismissed the pilot's libel with costs.

But in 1860 the General Statutes were passed; and this want of a lien by State law is supplied by § 7, ch. 52, which reads as follows:

"Section 7. Every pilot shall have a lien for his pilotage fees, for the space of sixty days, upon the hull and appurtenances of any vessel liable to him therefor."

PILOTAGE, A NECESSARY EXPENDITURE.

343

In 1806, Judge Peters, in Gardner et al. v. The Ship New Jersey (1 Pet. Adm. 227) said: "Pilotage is a necessary expenditure on a voyage. As to pilotage, the master is bound, by the laws of Oleron, and other maritime laws, to pay it, for the safety of the ship and goods."

In 1805, Sir W. Scott, in the Nelson (6 Ch. Rob. 231), referring to an objection on the general exorbitancy of a pilotage demand, and the power of the court of admiralty to supersede such extortionate contracts, to which parties had been compelled to submit under a pressing necessity, then declared, "I admit that, by the ancient maritime law, the court of admiralty would have an equity to moderate contracts made under the pressure of necessity, arising out of the situation of a vessel at sea; and it might embrace cases of this description."

Pilots, however, may render extraordinary services, for which they should be duly remunerated. Thus, as has been elsewhere stated, a pilotage may be exalted into a salvage service. In the Frederick, (1 W. Rob. 17, the second of Dr. Lushington's reported decisions), it being a cause of salvage, that distinguished judge said, "It has been urged in argument for the owners, that pilots are not to convert their duties into salvage services. This may be a correct position under ordinary circumstances; at the same time, it is to be observed, that it is a settled doctrine of this court, that no pilot is bound to go on board a vessel in distress to render pilot service for mere pilotage reward. If a pilot, being told he would receive pilotage only, refused to take charge of a vessel in that condition, he would be subjected to no censure; and, if he did take charge of her,

344

PILOTS TO BE OBEYED AND ENCOURAGED,

he would be entitled to salvage remuneration." See also S. P. The Pilorgis, Bee, 212; The Elvira, Gilp. 60; Hobart et al. v. Drogan et al., 10 Pet. 108; The Joseph Harvey, 1 Ch. Rob. 306; The Gen. Palmer, 2 Hagg. 176; The Brig Susan, 1 Spr. 502; where Judge Sprague observes, "Pilots are not bound, unless by statute, to take the hazards or subject themselves to the labor of going on board such a vessel, for mere pilotage compensation.

"I hold with Dr. Lushington, that a signal made by a vessel in actual distress, and needing other assistance than pilotage, although it be the usual signal for a pilot, shall be deemed a signal for assistance."

As to the control of the master while a pilot is in charge of the vessel, further reference ought to be made to the useful note appended to the report of the case of the Brig Susan (1 Spr. 505); and, as to the responsibility of pilots, also to the very elaborate note at the end of the case of the Julia M. Hallock. Ibid. pp. 542-3 and 4.

All the State legislation, in behalf of pilots, is designed to encourage them, as a class, to devote themselves to their adopted and hazardous employment, and also to qualify and educate for the occupation enough of suitable persons to perform the duties requisite to secure the commerce and shipping of the State or district, from needless damage or danger. To this end, the acts adopted contemplate that the pilot shall not be interfered with, in his chosen pursuit, by competition; but that, within his own district, his right shall be exclusive; and there, at least, the pilot shall have and enjoy a monopoly of patronage and pilotage. This policy has proved to be salutary for all concerned; ship-owners,

BUT NOT TO DISPLACE MASTER FROM FULL COMMAND. 345

underwriters, merchants, mariners, and all persons who have property or life at risk upon the seas. Pilotage should be uniformly recoverable in the Federal courts, sitting in admiralty. It is otherwise in New York, or has been so. But in the Steamship Co. v. Joliffe (2 Wall. 450), the United States Supreme Court (1864) upheld the claim of a licensed pilot to half pilotage for services tendered but not accepted, though the State law, providing for it, had been subsequently repealed; the repeal not being deemed to affect either the claim, or a suit to enforce it.

As to the relative authority of the master and pilot, when the latter is on board, and in charge, it has been seen what the English court held, in the Duke of Manchester.1 Several American cases may here be cited. Reeves v. The Constitution, Gilp. 579; The Lotty, Olc. 329; and Smith v. The Creole, 2 Wall. Jr. 485; from which it may be fairly deduced (qualifying somewhat a former portion of the text) that a pilot (though for the time being master) has not an authority paramount to that of the master, in securing the vessel in her berth; but the master, theoretically, is in full command, and the acts of the pilot are regarded as done with the master's direction and approval.

1 Page 339, ante.

346

RECOUPMENT, NOT PRECISELY SET-OFF.

CHAPTER XIII.

RECOUPMENT.

SET-OFF at common law and recoupment in admiralty, though, as doctrines, they may be similar, are not precisely the same or equivalent as remedies. To a certain extent they resemble each other, and furnish to parties correspondent remedial protection. The one is the creation of statute legislation; the other is the product and legacy of the general maritime law and admiralty practice. Special legislation may render the remedy of set-off complete to a respondent; for by it he may not only recover, by way of defense, the whole amount of the claim for which any plaintiff may have sued, but also the excess, over and above such claim, if the proof clearly indicates it to be his due.

But in recoupment, no such beneficial result is practicable. There are two elements inherent in it as a remedy, rendering it, as such, imperfect and defective. The first is, that if a respondent, in his defense, plead a recoup of damage for breach of contract, non-performance or other delinquency, and should succeed in establishing his right to damages greatly in excess of the claim for which the plaintiff or libellant may have promoted his suit, he will not be permitted to recover judgment for the excess.

The second is, that though he has proved clearly that