engaged in domestic or coastwise trade or used for fishing are 'enrolled' . . ."
The statutory scheme, codified in the Vessel Documentation Act of 1980, 46 U.S.C. app. §§ 12101-23 (West Special Pamphlet 1993), is administered by the United States Coast Guard. The Coast Guard issues each American-flag vessel a certificate of documentation. The certificate may be "endorsed" for one or more of five categories of use: registry (for foreign trade), coastwise (for domestic trade), Great Lakes, fishery, and recreational. A certificate endorsement is, in practical effect, a license permitting the vessel to engage in the designated activity. Since a vessel may obtain one or more endorsements, she may on one voyage be sailing "on register" and on another "coastwise."
The Federal pilotage statute recites that except as otherwise provided by its terms, pilots "shall be regulated only in conformity with the laws of the States." 46 U.S.C. app. § 8501(a). But a State may not require "a coastwide
vessel" propelled by machinery and subject to Federal inspection "to take a pilot licensed or authorized by the laws of the State . . ." § 8501(b). A "coastwise seagoing vessel" is required to be under the control of a federally licensed pilot (that is, not a pilot appointed under State authority) if the vessel is "not sailing on register," is underway, and not on the high seas. § 8502(b). That is the statutory division of authority over pilotage summarized by the Supreme Court in Ray.
The State of New Jersey exercised its allotted power by providing that "all masters of foreign vessels and vessels from a foreign port, and all vessels sailing under register . . . shall take a licensed pilot." N.J. Stat. Ann. § 12:8-35. It was pursuant to this statute that plaintiff at bar offered his services to the CHERRY VALLEY.
The Merchant Marine Act of 1936 provides that a shipowner receiving a construction-differential subsidy "shall agree that the vessel shall be operated exclusively in foreign trade" or on specified voyages calling primarily at foreign ports. 46 U.S.C. § 1156. The statute also provides that no operating-differential subsidy "shall be paid for the operation of any vessel on a voyage on which it engages in coastwise or intercoastal trade . . ." § 1175(a). Comparable provisions appear in the subsidy contracts Margate signed with the Government in 1972.
Plaintiff at bar seizes upon this language in the 1936 Act relating to subsidies. He contends that the effect of § 1156 is to make any voyage by a construction-subsidized ship a voyage in foreign trade for pilotage purposes. He contends that Government payment of an operating subsidy on a particular voyage (which concededly occurred here) makes it a voyage in foreign trade, again for pilotage purposes.
I cannot accept these contentions. The statute relating to subsidies has nothing to do with that relating to pilotage. The Congressional purposes bear no meaningful relation to each other. The Merchant Marine Act of 1936 was intended "to make United States vessels competitive in foreign shipping . . ." Atlantic Richfield Co. v. United States, 249 U.S. App. D.C. 224, 774 F.2d 1193, 1196 (D.C. Cir. 1985). The readily apparent purpose of the Federal pilotage statute is to ensure safe navigation through pilotage while accommodating overlapping federal and state interests. Considerations pertinent to one purpose do not illuminate the other. That is particularly true of the maritime laws of the United States, which have been described by a House Committee as "a confusing collection of individual statutes enacted over a period of nearly two centuries . . . each enacted to solve some particular problem of the day." H.R. Rep. No. 98-338, 98th Cong., 1st Sess. (1983), reprinted in 1983 U.S.C.C.A.N. 924, at 113. The problems of foreign flag competition and safe navigation are quite different.
The case must be decided, then, by reference to the pilotage statute itself and the regulations propounded by the Coast Guard, the agency charged with the statute's enforcement. We have seen that an American-documented vessel may sail with more than one endorsement on her certificate. In point of fact, the CHERRY VALLEY was documented for both "registry" and "coastwise." Ex. D to Stipulation of Facts. The Coast Guard regulations governing vessel documentation provide: "Where a vessel possesses a certificate of documentation bearing two (2) or more endorsements, the actual use of the vessel determines the license under which it is operating." Note following 46 C.F.R. § 67.17-1.
The case for defendant at bar is that the CHERRY VALLEY's challenged voyage from New York to Norfolk in ballast constituted use of the vessel on a coastwise voyage under her coastwise endorsement. If that is conceptually sound, the Federal pilotage statute required a Federal pilot and precluded the services of a State pilot such as plaintiff.
Indeed, that is precisely the view taken by Captain J. F. McGowan of the Coast Guard in a letter dated November 2, 1992 (Ex. F) in response to a written inquiry by Captain Louis Bettinelli, the president of Interport Pilots Agency (Ex. E). Captain McGowan's letter concludes:
The facts you have presented indicate the M/T CHERRY VALLEY is a U.S. owned and operated, dual-documented vessel that did not stop at any foreign ports during its voyage from New York to Virginia, and was not carrying any foreign cargo, or any domestic cargo for delivery to a foreign port, and that the vessel had no foreign encumbrances. Therefore, this vessel would be required to sail on its coastwise endorsement for pilotage purposes. As such, the M/T CHERRY VALLEY would have been required to be under the direction and control of a Federally licensed pilot as required by 46 USC 8502.