Untitled New York Attorney General Opinion

Navigation Law §§ 88, 88(3), 89-a, 89-a(3), 89-b, 89-b(3); 28 U.S.C § 1602 et seq; 46

U.S.C. §§ 8501(a), 8502(a), 8503(a), 8503(b)

A foreign public vessel not engaged in commerce is subject to New York’s compulsory

pilotage.

September 28, 2016

Frank W. Keane Formal Opinion

Executive Director & Secretary No. 2016-F2

Board of Commissioners of Pilots

17 Battery Place

New York, New York 10004

Dear Mr. Keane:

You have requested an opinion regarding whether certain ships from foreign

countries must use a New York-licensed pilot to navigate when entering or departing

New York waters. New York law provides that “[e]very foreign vessel and every

American vessel under register” entering or departing from New York ports must take

a New York-licensed pilot. Navigation Law §§ 88, 89-a, 89-b. Your question

specifically is whether foreign public vessels not engaged in commerce—for example,

foreign naval vessels attending Fleet Week—are subject to New York’s pilotage

requirement. Although not free from doubt, we are of the opinion that a foreign naval

vessel, not engaged in commerce, is subject to New York’s compulsory pilotage.

To begin, the New York State Navigation Law plainly states that “[e]very foreign

vessel” is required to have a New York-licensed pilot when entering or departing a New

York port. The law does not contain any exemptions. But this is not the end of the

analysis: interests of the federal government that subordinate New York’s authority

may be implicated because of the public status of the foreign vessel.1

Congress has provided since 1789 that “pilots in the bays, rivers, harbors, and

ports of the United States shall be regulated only in conformity with the laws of the

1 Under international law, a foreign public vessel would be subject to a receiving nation’s pilotage

requirement. See Restatement (Third) of Foreign Relations Law of the U.S. § 512 Reporters’ Note 6

(1987) (“A warship in a foreign port must comply with the laws and regulations of the coastal state

relating to navigation and safety” (internal citation omitted)); see also John T. Oliver, Legal & Policy

Factors Governing the Imposition of Conditions on Access to and Jurisdiction over Foreign-Flag Vessels in

U.S. Ports, 5 S.C. J. Int’l L. & Bus. 209, 216-17 (2009). Thus the question here is whether, in the absence

of a federal requirement for a local pilot, New York’s requirement applies to a foreign public vessel.

States,” except as Congress otherwise provides. 46 U.S.C. § 8501(a). Congress has

expressly regulated pilotage in certain circumstances. In particular, an American

merchant vessel authorized to engage in domestic commerce between American ports

(a “coastwise seagoing vessel”) must be piloted by a federally-licensed pilot if it is not

sailing under authority to engage in foreign commerce. 46 U.S.C. § 8502(a); see also

Huus v. New York & Porto Rico Steamship Co., 182 U.S. 392, 395 (1901) (under federal

law merchant vessels can be licensed for coasting trade or registered for foreign trade).

And a vessel engaged in foreign commerce may be required, by the Secretary of

Homeland Security, to use a federally-licensed pilot if it is traveling to or from a port in

a state that does not itself regulate pilots. 46 U.S.C. § 8503(a). Any such requirement

terminates, however, when the state establishes a requirement for a state-licensed

pilot and informs the Secretary. 46 U.S.C. § 8503(b).

Because New York regulates pilots, American and foreign vessels engaged in

foreign commerce are subject to New York’s pilotage requirement. Navigation Law

§§ 88, 89-a, 89-b; 46 U.S.C. § 8501(a); Interport Pilots Agency, Inc. v. Sammis, 14 F.3d

133, 136 (2nd Cir. 1994). Failure to accept a compulsory pilot renders the vessel subject

to a fine in addition to pilotage fees. Navigation Law §§ 88(3), 89-a(3), 89-b(3);

Interport Pilots, 14 F.3d at 137.

Congress has not legislated with respect to pilots on foreign public (i.e.,

noncommercial) vessels. Thus no federal enactment purports to exempt foreign public

vessels from New York’s compulsory pilotage statute. It might be argued, however,

that the federal Constitution itself prevents New York from imposing a piloting

requirement on foreign public vessels. The regulation of commercial vessels falls under

Congress’s power under the Commerce Clause, and Congress decided to divide

regulatory jurisdiction over pilotage between the federal government and the states.

Cooley v. Bd. of Wardens, 53 U.S. 299, 315-16 (1852); see also Gibbons v. Ogden, 22

U.S. 1, 189-91 (1824). By contrast, regulation of a foreign public vessel arguably

implicates federal powers relating to foreign affairs and international relations, over

which the federal government has supreme power, instead of or in addition to

Congress’s powers under the Commerce Clause. United States v. Pink, 315 U.S. 203,

233-34 (1942); cf. Schooner Exchange v. McFaddon, 11 U.S. 116, 144 (1812) (differing

concerns of sovereign country with respect to its citizens’ merchant vessels and its

public military ships entering port of foreign country).

State legislation, or its operation in a particular instance, cannot interfere with

the federal government’s power to conduct foreign affairs. For example, in Zschernig v.

Miller, the Supreme Court held that a state law that resulted in probate courts

inquiring into the administration of foreign law and the credibility of foreign

diplomatic statements constituted impermissible state involvement in international

relations. 389 U.S. 429 (1968). And in National Foreign Trade Council v. Natsios, a

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state law that restricted the ability of state agencies to purchase goods or services from

companies that did business with Burma was held to encroach on the federal

government’s power over foreign affairs. 181 F.3d 38, 52-53 (1st Cir. 1999).

But state legislation that only indirectly and insignificantly impacts foreign

relations does not impermissibly encroach on the federal power. Ray v. Atlantic

Richfield Co., 435 U.S. 151, 180 (1978) (requirement that tugboat escort vessels in

Puget Sound that do not comply with state safety standards, having only insignificant

international consequences, valid). Moreover, such a law applies to nationals of a

foreign country. For example, in Mukaddam v. Permanent Mission of Saudi Arabia to

the United Nations, in holding that New York’s Human Rights Law applied to a foreign

diplomatic mission, the court rejected the mission’s argument that allowing a claim

against the mission would unconstitutionally intrude upon the federal government’s

supreme power over foreign affairs. 111 F. Supp. 2d 457, 472-73 (S.D.N.Y. 2000). The

court recognized that the Human Rights Law “would have to have a more significant

and direct effect in foreign countries than it does” to be found prohibitively intrusive in

the field of foreign affairs. 11 F. Supp. 2d at 473.

In our view, New York’s pilotage law, a statute of general applicability, does not

have the significant and direct effect on foreign countries that would render it an

impermissible intrusion in foreign affairs. Consequently, we are of the opinion that

New York’s compulsory pilotage requirement applies not only to commercial vessels

but also to foreign public vessels not engaged in commerce.2

That said, as a practical matter, enforcement of this requirement may be

difficult. If a foreign state owning a naval vessel refuses a New York-licensed pilot, the

foreign state likely will be immune from enforcement of the requirement through

American courts. See Foreign Sovereign Immunity Act (FSIA), 28 U.S.C. § 1602 et seq.

We do not address the use of diplomatic means to enforce compliance.3 See 767 Third

Ave. Assocs. v. Permanent Mission of Republic of Zaire, 988 F.2d 295, 303 (2d Cir.

1993). Nor do we consider whether the foreign state could be sued for any damage

caused by its naval ship after refusing a New York-licensed pilot. See USAA Cas. Ins.

Co. v. Permanent Mission of Republic of Namibia, 681 F.3d 103 (2d Cir. 2012) (foreign

mission held liable under FSIA’s “tortious activity” exception to immunity for failure to

comply with mandatory provision of city building code).

2 A treaty between the United States and a foreign country that required a federally-licensed pilot or

specifically exempted a foreign nation’s public vessels from pilotage requirements would render New

York’s pilotage requirement null with respect to those vessels. See Clark v. Allen, 331 U.S. 503, 517

(1947). We are not aware of any such treaties.

3We understand that a foreign public vessel intending to enter United States territory must obtain a

diplomatic clearance from the United States Department of State.

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In summary, while not free from doubt, we are of the opinion that New York’s

compulsory pilot statute applies to foreign naval vessels not engaged in commerce.

Very truly yours,

ERIC T. SCHNEIDERMAN

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