Opinion
(June Term, 1854.)
According to the several acts of Assembly, upon the subject of "pilots," where a pilot tenders his services to a vessel over one hundred and twenty tons burden, bound in over the bar at Ocracocke, before she gets to the bar, the commander is bound to pay the usual rates of pilotage, though he refuses to receive such pilot on board his vessel, and though the weather was fair, and though it was in the month of August, and though the defendant be fully competent to bring in his vessel with safety.
A plaintiff, commencing by warrant, may file a declaration, setting forth his cause of action more distinctly than is set forth in his warrant, taking care to make no departure from it.
The plaintiff, according to the ordinary practice, is entitled to the benefit of being considered as having filed his declaration, according to the facts set forth in a case agreed.
THIS was an Action, commenced by warrant, for a sum alleged by the plaintiff to be due him, as a branch pilot, and brought to the Superior Court of Craven county, by a writ of recordari, and tried before his Honor Judge ELLIS, at the Spring Term, 1854, of that Court.
Donnell, for the plaintiff.
Moore, for the defendant.
The following is the case agreed between the parties: the plaintiff, at the time of the occurrence of the facts set forth, was a branch pilot for the district of Ocracocke, duly appointed, commissioned and qualified, and the defendant was the commander of a schooner called the "Isaac W. Hughes," of the burden of one hundred and twenty-six tons, sailing between the ports of New York and New Berne in this State, and bound to the latter port, and was owned by a citizen of New Berne.
When near the bar at Ocracocke inlet, and bound in, the plaintiff went off in his pilot-boat to the vessel, when she was outside the bar, and spoke her, for the purpose of piloting her over the bar, either to Beacon Island Road, or Wallace's Channel, at the option of the commander; but the defendant refused to heave to, or stop for the plaintiff, and came in over the bar without any pilot. It was admitted that this was in August; that the weather was fair, and that the defendant was competent to, and did bring the vessel over the bar in safety.
The plaintiff claimed the same pilotage as he would have had for conducting the schooner in, under the act, Rev. Stat. chap. 88, sec. 38.
The defendant contended that he was not bound to take a pilot, if he did not need or desire one; and that the act is unconstitutional and void, and, for these and other reasons, the plaintiff was not entitled to recover.
It was agreed, that if his Honor be of opinion that the plaintiff was entitled to recover, that a judgment be entered against the defendant for $12.60 and costs; otherwise, that the plaintiff be non-suited.
Upon consideration of which case agreed, the Court being of opinion with the plaintiff, rendered judgment accordingly, from which judgment the defendant appealed to this Court. Exception was taken in this Court to the form of the warrant.
The action is under the 38th section of the 88th ch. Rev. Stat. entitled "Pilots."
It being now admitted that the provision of the section is not unconstitutional, the main question is, does the act of 1846, ch. 49, repeal this section?
We are clearly of opinion that it does not, and that it is only affected by the act of 1846, by having the rate of compensation charged according to its general terms, (the terms used being general) on purpose to meet and accommodate it to any change that might be made in the rate of pilotage — (that is, the amount to be paid by a vessel that a pilot has charge of). The object being to make the rate of compensation allowed by this section correspond at all times with rate of the pilotage. So that, if the latter was made lower or higher, or altered in any way, the former would be altered in the same way, by force of the general terms, without the necessity of any special provision. In other words, the fomer was fixed on a sliding scale, and was always to be precisely the same as the latter.
This view of the Statute is shown to be correct by examination of its several sections. The thirty-sixth section, in general terms, without saying at what bar, provides that any branch pilot, (viz., one duly commissioned) who shall refuse or neglect to go out to a vessel, shall pay a penalty of forty dollars.
The thirty-seventh section, in the same general terms, provides, "that if, after a pilot is on board, the vessel is driven off the coast, the pilot shall be entitled to one dollar a day extra."
The thirty-eighth section, in the same general terms, without saying at what bar, or fixing upon any definite terminus on the inner side, provides, "that if a branch pilot shall go off to any vessel bound in, and offer to pilot her over the bar, the master or commander of such vessel, if he refuses to take such pilot, shall pay and satisfy to such pilot, if not previously furnished with one, the same sum as is allowed by law for conducting such vessel in." The thirty-ninth section applies to pilots acting under the authority of the Commissioners of Navigation for Newbern, Edenton, Washington, and old Topsail inlet, and provides that pilotage shall not be paid by a vessel under sixty tons, unless she has made a signal for pilot, c.
The fortieth section fixes the rates that branch pilots authorized by the Commissioners of Navigation, for Edenton, Washington, Newbern or Ocracocke shall be entitled to demand of any vessel they may have charge of, from the other side of the bar to Beacon Island Roads or Wallace's Channel; and also fixes the pilotage through the swashes.
The forty-first section applies to pilots for old Topsail inlet, and fixes the rates they are entitled to for such vessel as they have charge of, from the other side of the inlet into Bogue Road, or Shacklesford Road.
The forty second section applies to pilots for Bogue inlet, and fixes the pilotage they are entitled to for bringing a vessel into said inlet.
The act of 1846 changes the rates of pilotage that was allowed by the fortieth section to pilots authorized by the Commissioners of Navigation for Edenton, c., from outside of the bar to Beacon Island Road or Wallace Channel, leaving the rates through the swashes the same.
This act has no reference to the pilotage allowed by the forty-first and forty-second sections, and expressly confines itself to the fortieth section, by quoting and reciting so much of that section as the act is intended to apply to.
This makes the whole subject plain. The thirty-eighth section allows the same compensation as is allowed by law for pilotage. The rates of pilotage at one inlet are changed by the act of 1846; the rates at the others remain the same; the effect is, that the rate of compensation is changed at one inlet, and remains the same at the other — and this by force of the general terms, i. e., the compensation is to be the same as is allowed by law for pilotage.
It is said, in the second place, that the 30th section of the Pilot Act conflicts with the thirty-eighth section, and compensation is not allowed between April and October.
The thirtieth section is an amendment made in 1836, and it must be admitted, as it gives no explanation of itself, that its insertion does throw some confusion on the construction of the chapter taken as a whole. In such cases, the rule of construction is to reconcile the different parts, if it can be done. It is suggested, that the thirtieth section applies only to vessels bound out, and is entirely consistent with the thirty-eighth section, which is confined to those bound in. It is probable this is the true solution of the apparent conflict; but whether it be so or not, the thirtieth section must give way to the thirty-eighth; for the latter, in positive and express terms, entitles the pilot to compensation. The former can only be made by inference to exclude the right to compensation during a certain time of the year, from the fact it allowed compensation during the other part of the year. In other words, the conflict can only be made by an inference drawn from the fact that the thirtieth section may be treated as an affirmative pregnant. There can be no sort of doubt, that an inference of this kind must give way to an express and positive enactment; in fact, such an enactment excludes the inference, and prevents it from being made.
Again, it is insisted, a single justice had no jurisdiction. It is not a debt due on special contract, or for goods sold and delivered, or for work and labor done, or a contract express or implied; it was only a tender to do work.
We think it clear, that the plaintiff is entitled to the compensation for work and labor done, under a contract created by law, in the same way that the right to pilotage is under a contract, created by law. In the one case, the pilot takes charge of the vessel; in the other, he goes out to sea, and is at the trouble of coming back. This is work and labor which he is required by law to do, and for doing it, the law entitles him to the same sum as is allowed by law for conducting the vessel in. Both are put on the same footing.
Again, it is said, the cause of action is not stated with certainty. Plaintiff does not allege he was a pilot, or that he crossed the bar and tendered his services, c., and he refers to but one statute.
Warrants issued by a single justice are usually treated as the plaintiff's declarations, as well as the leading process; but the plaintiff may, if he chooses, file a declaration in addition to the warrant, and set out more at large and in detail his cause of action, (taking care, of course, to make no departure;) just as he can in his declaration set out his cause of action more at large than it is in the writ. It would be strange, if a plaintiff is bound more strictly by a warrant issued by a single justice for a debt, or is required to be more particular in the specifications, than he is by a writ issued for a debt from a Court of record.
In this case, according to the practice of the members of the bar, by which declarations are, in most cases, waived, the plaintiff is entitled to the benefit of being considered as having filed a declaration according to the facts set out in the case agreed. If so, these difficulties for the want of particularity, c., are all removed.
Judgment affirmed.