The opinion of the court was delivered by: PALMIERI
PALMIERI, District Judge.
These are cross-motions for summary judgment. Fed. R. Civ. P. 56(a) and (b). Plaintiff sues to recover allegedly compulsory pilotage fees amounting to $915.60 for services tendered to defendant in New York harbor. There is no issue as to any material fact. For the reasons hereinafter set forth, judgment is entered for the defendant. As a suit for compulsory pilotage fees pursuant to state (laws), this case comes within the admiralty jurisdiction of this Court. Hobart v. Drogan, 35 U.S. (10 Pet.) 108, 119-120, 9 L. Ed. 363 (1836); Ex Parte McNiel, 80 U.S. (13 Wall.) 236, 242-243, 20 L. Ed. 624 (1872); Reardon v. Arkell, 59 F. 624, 625-626 (S.D.N.Y. 1894); Fordham v. Munson S. S. Line, 6 F. Supp. 435 (S.D.N.Y. 1933).
There Are No Genuine Issues of Fact
Fed. R. Civ. P. 56(c) provides that a moving party may be entitled to judgment as a matter of law only if there is no genuine issue as to any material fact. Plaintiff argues that there are no such issues. While the defendant argues that there are a number of factual issues, they are not a bar to the relief granted since the issues raised by defendant all pertain to its affirmative defenses.
They might have served as a bar to summary judgment in favor of plaintiff, but clearly no such problem is presented here because defendant would prevail in any event. It follows that under these circumstances the case is in a posture appropriate for summary judgment. Cf. Scolnick v. Lefkowitz, 329 F.2d 716, 717 (2d Cir. 1964); Dressler v. MV Sandpiper, 331 F.2d 130, 132-133, 134 (2d Cir. 1964); Waldron v. British Petroleum Co., 38 F.R.D. 170, 173-174 (S.D.N.Y. 1965), aff'd, 361 F.2d 671 (2d Cir. 1966), aff'd sub nom., First National Bank v. Cities Service Co., 391 U.S. 253, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968).
Plaintiff is a duly licensed New Jersey Sandy Hook pilot who tendered his services during the summer of 1971 to three vessels of which defendant is the owner or consignee. Each of the three vessels was bound from Stapleton Anchorage in New York harbor, just north of the Verranzano Narrows Bridge, to Port Mobil, New York, at Staten Island, by way of a route through the Ambrose Channel heading southeast (generally), crossing over the Sandy Hook Bar area
and turning around and coming back into the harbor through the Sandy Hook channel, Raritan Bay Reach, etc., to Port Mobil (formerly Port Socony) on the west side of Staten Island at Arthur Kill. Plaintiff contends that by virtue of crossing the Sandy Hook bar area the vessels became subject to the compulsory pilotage statutes of New Jersey or New York, both states having land areas contiguous to harbor waters and consequently having concurrent jurisdiction over the harbor. Defendant's vessels had initially gone to the Stapleton Anchorage within the harbor upon arrival from international voyages in order to unload part of their cargoes onto lighters so as to lighten their loads so that the vessels could transverse the shallower channels to Port Mobil. The application of the compulsory pilotage statutes to the initial entries is not in question.
The basis of the dispute turns on the construction of the applicable New Jersey and New York statutes:
N.J.S.A. § 12:8-35 (1968): Vessels required to take pilots
"All masters of foreign vessels and vessels from a foreign port, and all vessels sailing under register, bound in or over the bar of Sandy Hook, shall take a licensed pilot, or in case of refusal to take such pilot, the master, owner or consignee shall pay the 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."
N.Y. Navigation Law § 88 (McKinney's Consol. Laws, c. 37, Supp. 1973): Pilotage at Sandy Hook, Sands Point or Execution Rocks
"1. Every foreign vessel and every American vessel under register entering or departing from the Port of New York by the way of Sandy Hook, or by the way of Sands Point or Execution Rocks, shall take a Sandy Hook pilot licensed under the authority of this article or of the laws of the state of New Jersey or a person heretofore licensed as a Hell Gate pilot. . . ."
Federal Statutory Background
Sections 211 and 215 of Title 46 of the United States Code provide that:
§ 211. State regulation of pilots "Until further provision is made by Congress, 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 enact for the purpose."
§ 215. State regulations as to licenses of pilots of steam vessels and pilot charges
". . . Nothing in title 52 of the Revised Statutes shall be construed to annul or affect any regulation established by the laws of any State, requiring vessels entering or leaving a port in any such State, other than coastwise steam vessels, to take a pilot duly licensed or authorized by the laws of such State, or of a State situate upon the waters of such State."
Section 212 provides that where waterways are bound by more than one state a vessel may employ a pilot of either state.
The Supreme Court has held that the only area of pilotage actually preempted by federal legislation (46 U.S.C. § 215 (1970), supra) applies to coastwise steam vessels not sailing under registry, a category undisputedly inapplicable to the vessels here. Anderson v. Pacific Coast S.S. Co., 225 U.S. 187, 199, 32 S. Ct. 626, 56 L. Ed. 1047 (1912); see also Bigley v. N.Y. & P.R.S.S. Co., 105 F. 74, 75 (S.D.N.Y. 1900), question certified to the Supreme Court sub nom., Huus v. N.Y. & P.R.S.S. Co., 109 F. ...