#### M. T. CRAIG et al. v. GULF BARGE AND TOWING COMPANY.

(Filed 2 July, 1931.)

Pilots B a — Barge held liable to State pilotage under C. S., 6955.

A barge dependent entirely upon motive power furnished by a tug or other towing vessel is not a vessel “propelled in whole or part by steam” within the meaning of U. S. C. A., Title 46, section 361, and does not come within the provisions of section 215, which provides that no State shall require of such vessels a state or other license in addition to that issued by the United States, and a barge of over sixty gross tons having a United States licensed pilot on board is subject to pilotage, tender and refusal under C. S., 6955, upon entering North Carolina waters, and where State pilotage has been refused, is under the same liability as to performance. C. S., 6991.

*251Appeal by defendant from Darnels, Jat October Term, 1930, of New HaNover.

Civil action by pilots of tbe Cape Fear Eiver and Bar to recover fees, aggregating $795, alleged to be due for pilotage services tendered at different times to three barges belonging to tbe defendant, wbicb services were refused by tbe masters in charge of said barges.

Tbe facts upon wbicb it is agreed tbe rights of tbe parties depend, appear in tbe record as follows:

“1. It is admitted that tbe barges £S. D. Warriner/ Northern Light’ and £Waukersha’ were at tbe times mentioned in tbe complaint owned by, or chartered from their respective owners, and were operated, by the defendant at tbe times tbe plaintiffs’ claims arose, and at which times tbe charterer was using said barges in tbe coastwise trade of tbe United States at tbe times set forth in tbe complaint, and each of tbe said barges was enrolled as a coastwise vessel of tbe United States in conformity with tbe provisions of tbe act of tbe United States in such case provided, and neither of said barges or vessels was or is equipped with machinery, sails or appliances making her movable by and with her own equipment or power, and that other and independent means bad to be called in aid when either of said barges was navigated or moved, and that each of them, at tbe times stated in tbe complaint, was being navigated by being towed, moved, transported or propelled by a steam-tug vessel by means of a hawser or tow-line attached to said barge and thence to tbe tug — the barges being towed in tbe rear of tbe tug, tbe hawser or tow-line being about 150 feet long, tbe tug furnishing tbe motive power for tbe navigation of tbe barges, all of wbicb barges being over 60 tons gross.

“2. That each of tbe said barges was towed as aforesaid on a voyage to Wilmington at tbe time alleged in tbe complaint on its incoming trip from some state south of North Carolina, and upon tbe ocean to or at a point near Cape Fear Eiver bar, each of said tugs at tbe time having a pilot on board and in charge of tbe navigation of tbe barge who was regularly licensed by tbe United States authorities (under tbe provision of statutes, U. S. C. A., Title 46, secs. 214 and 215, E. S., 4442 and 4444), when each was timely spoken and pilotage service offered and tendered by some one of tbe plaintiffs who was at that time and is now a duly licensed pilot for tbe Cape Fear Eiver and Bar according to tbe laws of North Carolina, and such pilotage service, so tendered by tbe plaintiffs or one of them, was on each occasion refused by tbe said barges, or tbe master in charge thereof, as it was claimed that tbe said barge was not required by law to take a pilot or pay pilotage, because tbe barges and each of them were at tbe time in charge of a pilot regularly licensed under tbe laws of tbe United States, who was on *252board tbe barge and piloting it, and tbe master on tbe tug towing said barges was a duly licensed United States pilot, and tbat sucb fact exempted tbe barges from liability for compulsory pilotage under tbe laws of tbe State of North Carolina, and on each alleged voyag.e out from Soutbport over tbe Cape Fear River and Bar to sea said barges were duly spoken and pilotage services tendered by some one of tbe plaintiffs, North Carolina licensed pilots as aforesaid, on tbeir voyage on tbe Atlantic Ocean to some state south of tbe State of North Carolina, and sucb pilotage services were refused upon tbe ground aforesaid, and tbe said barges were, as alleged in tbe complaint, towed in and out by tbe tug without accepting said State pilot’s services tendered as aforesaid, which said pilotage services, if tbe barge or barges were liable for tbe same, and in tbe amounts set forth in tbe complaint.

“3. If under tbe admitted facts tbe barges were liable as a matter of law for pilotage services to those of tbe plaintiffs so tendering tbeir services as North Carolina State licensed pilots, then tbe plaintiffs are entitled to recover all of tbe sums sued for in this action, and judgment accordingly shall be entered for tbe plaintiff, but if under tbe facts and law the barges were not liable for compulsory pilotage, then judgment shall accordingly be entered for tbe defendant.”

Upon tbe facts agreed, judgment was entered for tbe plaintiffs, from which tbe defendant appeals, assigning errors.

Bryp,n & Campbell for plaintiffs.

Rountree & Rountree for defendant.

Stacy, C. J.

Tbe question to be determined is whether barges of over 60 gross tons, having no motive power of tbeir own, and being towed by steam tugs in and out of tbe harbor of Soutbport, are liable to compulsory pilotage dues under tbe State pilotage laws.

C. S., 6955, provides tbat “All vessels, coastwise or foreign, over 60 gross tons, shall take a State licensed pilot from sea to Soutbport, and from Soutbport to sea,” and shall pay tbe designated rates of pilotage fixed by said section, etc. Tbe statute imposes compulsory pilotage on all vessels coming within its terms. This is in tbe interest of safety to navigation. St. George v. Hardie, 141 N. C., 88, 60 S. E., 920; Cooley v. Board, 12 How., 312.

“Tbe purpose of these laws is to insure at all times a due supply of men well qualified by skill, knowledge, and experience to protect vessels entering into ports and harbors from tbe dangers of navigation. They are engaged in a perilous calling, and must be ready to brave the perils of tbeir vocation. To encourage sucb men, and to secure permanence in tbeir ranks, every nation engaged in commerce, and all tbe states in tbe *253Union having harbors, have enacted laws making it compulsory upon all vessels entering their ports, except those of very small tonnage, to employ a duly-licensed pilot for the purpose of piloting them.” Simonton, Circuit Judge, in The Carrie L. Tyler, 106 Fed., 422.

There is an exemption in C. S., 6985, of “vessels, barges, schooners, or other craft passing through the inland waterway of the State,” with the proviso that “steam vessels” not having on board a United States licensed pilot for the waters navigated shall be subject to pilotage.

It is the position of the defendant that these sections run counter to the act of Congress, U. S. C. A., Title 46 — Shipping, sec. 213, which prohibits any discrimination in the pilotage laws adopted by a State.

Similar statutes enacted in Virginia were assailed upon the same ground and upheld in the case of Thompson v. Darden, 198 U. S., 310.

But aside from the decision in the Thompson case, section 215 of the Eederal Act provides that no State shall impose upon pilots of “steam vessels” an obligation to procure a State or other license in addition to that issued by the United States, etc., with the proviso that nothing therein shall be construed to annul or affect any State regulation requiring vessels entering or leaving a port of the State, other than cost-wise steam vessels, to take a duly-licensed State pilot.

A steam vessel is defined in section 361 of the act of Congress as one that is “propelled in whole or in part by steam,” and it is conceded that barges are vessels within the meaning of the law. It is further conceded that if defendant’s barges are subject to pilotage, tender and refusal of such services, import the same liability as performance. C. S., 6991.

The case, then, narrows itself to a single point: Are the barges in question “steam vessels” within the meaning of the law? If they are, the judgment is erroneous. If they are not, it is correct. The answer depends upon whether they are propelled in whole or in part by steam within the meaning of the act of Congress.

For some purposes, especially in cases of collision, the tug and the tow are regarded as one vessel, just as a railroad engine and the cars drawn by it at a single time are regarded as one train. But in strictness, while the tug propels herself, she is said to “tow the tow,” i. e., she draws the vessel in tow either alongside or astern. And in strictness, an engine propels itself and draws or pushes the cars which go to make up the train.

Neither the industry of counsel nor our own research has resulted in the discovery of an American decision which would seem to be determinative of the exact question here presented. The case of "The Carrie L. Tyler,” 106 Fed., 422, cited by the plaintiffs, is almost in point, but not quite. Nor is the case of The “Civilla” and The “Rest*254 less,” 103 U. S., 699, cited by defendant, controlling. Anderson v. Steamship Co., 255 U. S., 187, contains a valuable opinion on tbe subject by Mr. Justice Hughes (now Chief Justice), but does not decide tbe point presently mooted.

Tbe precise question was before tbe English Privy Council in tbe case of The St. John Pilot Commissioners v. Cumberland Railway and Coal Co., Appeal Cases, 1910, Law Reports, 208. It was there held, reversing the Supreme Court of Canada, that barges moved by towage alone did not come within the meaning of “ships propelled wholly or in part by steam” as used in tbe Canadian Act, and that tbe word “propelled” bad reference to the motive power possessed by the vessel herself, “propellers nanem remis” — in Cicero’s phrase, and did not embrace tbe idea of traction.

We are content to rest our decision on tbe reasoning of this case until tbe matter is decided by tbe Supreme Court of tbe United States.

Affirmed.