Syllabus. Wytheville. DARDEN, PILOT V. THOMPSON, MASTER OF SCHOONER "WILLIAM NEELY." June 18, 1903. 1. PILOT LAWS-Discriminations-Code, Sections 1965 and 1969-Rerised Statutes United States, Section 4237.-By the pilot laws of this State (Code, sections 1965 and 1969) all vessels, except coastwise vessels with a pilot license, inward bound from the sea to certain enumerated points in the State, and all vessels outward bound from such points to the sea are subjected to certain regulations and rates. All such vessels are subject to the same regulations, and, under the same circumstances and conditions, are required to pay the same fees. These statutes make no such discrimination as is prohibited by section 4237 of Revised Statutes of the United States. 2. PILOTAGE-State Laws-Compulsory System for Sea-Going Vessels— Inland Vessels-Discrimination-Revised Statutes, Section 4237.-A State may establish a compulsory system of pilotage as to vessels coming from the sea to her inland ports, or going from such ports to the sea, without establishing such a system as to vessels trading between her inland ports, or between her inland ports and the ports of another State, which can be reached without going to sea, and such discrimination is not forbidden by section 4237, Revised Statutes of the United States. Local peculiarities and necessities can be best provided for by the legislation of the States respectively, and such has been the view of the Federal government. 3. PILOTAGE-Inland Vessels-Discriminations-Revised Statutes, Section 4237.-Section 1990 of the Code, exempting from pilotage all vessels bound to or from any point on the Potomac river is not in conflict with section 4237, Revised Statutes of the United States, prohibiting "any discrimination in rates of pilotage, or half pilotage, between vessels sailing between the ports of one State and vessels sailing between the ports of different States." All vessels bound Opinion. to or from any point on the Potomac river are exempted by section 1990, no matter to what points they are bound, or from what points they may come. There is no discrimination. Error to a judgment of the Court of Law and Chancery of the city of Norfolk, rendered February 12, 1903, in an action of assumpsit, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant. The opinion states the case. Reversed. R. C. Marshall, Brooke & Elliott and Daniel & Harper, for the plaintiff in error. Hughes & Little, for the defendant in error. BUCHANAN, J., delivered the opinion of the court. The plaintiff in error, who was the plaintiff in the trial court, filed his declaration, which was afterwards amended, in which he averred that he was a licensed pilot under the laws of this State; that on the 1st day of August, 1902, off Cape Henry, he offered his services as pilot to the defendant, the master of the Wm. Neely, a schooner, belonging to residents and citizens of Maine, and engaged in coastwise trade between Virginia and New England (and not holding a coastwise pilot license), which was making her way at that time from the sea near Cape Henry to Norfolk, Va., whither she was bound; that his services were declined; that demand was then and there made upon the defendant for their value, to-wit, $87.75, which demand was refused by the defendant, who refused and still refuses to pay or deposit the same as required by the statute in such case made and provided; and that by reason of the premises a right of action has accrued to the plaintiff to recover the said sum. The defendant's demurrer to the declaration was sustained, and final judgment rendered in his favor. To that judgment. this writ of error was awarded. Opinion. Whilst a number of grounds of demurrer were assigned, only one was considered by the trial court, and only one is relied on here, and that is that the pilot laws of Virginia, upon which the declaration is based, are inoperative and void, because in conflict with section 4237 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 2903), which provides that: "No regulations or provisions shall be adopted by any State which shall make any discrimination in the rates of pilotage or half pilotage between vessels sailing between the ports of one State and vessels sailing between the ports of different States, or any discrimination against vessels propelled in whole or part by steam, or against national vessels of the United States; and all existing regulations or provisions making any such discriminations are annulled and abrogated." The sections of the Virginia Code upon which this action is based are as follows: "1965. The master of every vessel (other than a coasting vessel having a pilot license), inward bound from sea, shall take the first Virginia pilot that offers his services, Cape Henry bearing west of south to Smith's Point, Yorktown, Newport News, or Norfolk, or any intermediate point; and any such vessel outward bound, shall take the first pilot that offers his services at Smith's Point, Yorktown, Newport News, or Norfolk, or any intermediate point, to sea; and a master, refusing to do so, shall immediately pay to the said pilot full pilotage from the sea to Newport News, Smith's Point, Yorktown, or Norfolk, or from said ports to sea, as the case may be; but no master of a vessel coming from sea shall be compelled to take a pilot after arriving within the line at which Cape Henry bears west of south; provided, however, that any registered vessel arriving within the line of Cape Henry, bearing west of south, without having taken a pilot, bound for Norfolk, Newport News, or Richmond, shall not be liable for pilotage; but the master may pilot his own vessel to Hampton Roads, and there Opinion. employ any steamboat or towboat to tow his vessel to her port of destination; provided, that in no instance shall any master be allowed to employ any steamboat or towboat below Hampton Roads without paying full pilotage to the first regular pilot that offers his services to said vessel; and any master so employing a steamboat or towboat below Hampton Roads without a pilot on board of such vessel, when one shall have offered his services, shall be liable to the penalty prescribed in section nineteen hundred and sixty-three. This provision shall apply only to inward bound vessels." "1969. Pilots shall have pilotage at the following rates: For every vessel owned by a citizen of the United States, and for every vessel owned by a citizen or subject of any foreign State, whose vessels are by treaty placed on the same footing as vessels of the United States, if the vessel be spoken or boarded to the eastward of Cape Henry, there shall be paid for each foot the vessel draws, as follows: From sea to Smith's Point, West Point, Newport News, Norfolk or any place between Smith's Point, West Point, Newport News, or Norfolk, vessels drawing ten feet or under, two dollars and fifty cents; ressels drawing thirteen feet and over ten feet, three dollars; vessels drawing fourteen feet and over thirteen feet, three dollars and fifty cents; vessels drawing sixteen feet and over fourteen feet, four dollars; vessels drawing over sixteen feet, four dollars and fifty cents. If the vessel be boarded or spoken. twenty miles or more eastward of Cape Henry, twenty-five cents per foot shall be added to the foregoing rates. There shall be paid the same pilotage from Smith's Point, West Point, Newport News, or Norfolk, or any intermediate point to sea, as from sea to those places; and from Newport News to Jamestown, or any place between Newport News and Jamestown, one dollar and thirty-five cents per foot; from Newport News to Richmond, or any place between Jamestown and Richmond, two dollars and fifty cents per foot; and the same rates of Opinion. pilotage shall be paid from said places, respectively, down. Vessels coming from sea to Hampton Roads and thence to any port in Maryland shall be subject to the same rate of pilotage as vessels bound from Newport News to sea. All vessels coming to Hampton Roads, seeking, in ballast, shall only pay onehalf pilotage in and one-half out; provided, however, that if such vessel coming to Hampton Roads, seeking, is afterwards chartered to load in any port or place in this State, she shall pay the usual pilotage in and out as though she had come to a direct port. All steamers calling in any port or place in this State for the sole purpose of coaling shall only pay one-half pilotage in and one-half pilotage out. All vessels that go from Norfolk to Newport News to load or finish loading, and all vessels that go from Newport News to Norfolk to load or finish loading, shall, if they take a pilot (which shall be optional with the master), pay a fee of ten dollars to the pilot for transporting any such vessel to or from either place." By the provisions of the sections of the Code quoted all vessels (except coast wise vessels with a pilot license) inward bound from the sea to Smith's Point, Yorktown, Newport News, or Norfolk, or any intermediate point, and all such vessels outward bound to the sea from Smith's Point, Yorktown, Newport News, or Norfolk, or any intermediate point, are subject to the compulsory regulations and rates therein provided. All vessels are subject to the same regulations, and, under the same circumstances and conditions, are required to pay the same fees. There is clearly nothing in those statutes which expressly makes any discrimination between such vessels. But the contention of the defendant is that our pilotage system violates section 4237 of the Revised Statutes (U. S. Comp. St. 1901, p. 2903), since it imposes no pilotage rates between Virginia ports, nor between Virginia ports and Maryland ports which can be reached without going to sea, nor upon vessels bound to |