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AGLO 1975 No. 95 - December 17, 1975
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Slade Gorton | 1969-1980 | Attorney General of Washington

VESSELS ‑- PILOTS ‑- EMPLOYMENT OF PILOTS FOR VESSELS EN ROUTE TO OR FROM CANADIAN PORTS

Vessels entering "Puget Sound and adjacent inland waters "en route to or from ports in British Columbia are required to employ a pilot licensed under the provisions of chapter 88.16 RCW, unless exempted by reason of RCW 88.16.070.

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                                                               December 17, 1975

Honorable Don L. Talley
State Senator, 18th District
Room 235 House Office Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1975 No. 95

Dear Senator Talley:

            By letter previously acknowledged you requested our opinion on a question which we paraphrase as follows:

            Are vessels entering "Puget Sound and adjacent inland waters" en route to or from ports in British Columbia required to employ a pilot licensed under the provisions of chapter 88.16 RCW, unless exempted by reason of RCW 88.16.070?

            We answer this question in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Chapter 88.16 RCW contains what is referred to in RCW 88.16.160 as the state "Pilotage Act."  Basically, the thrust of this act is to require certain vessels entering designated Washington waters to employ a pilot licensed by the state through an agency known as the board of pilotage commissioners.  In addition, this board has the function of fixing the rates to be paid for such pilotage.

            Your question involves, particularly, the scope and effect of RCW 88.16.070 which reads as follows:

            "All vessels under enrollment and all vessels engaged exclusively in the coasting trade on the west coast of the continental United States (including Alaska) and/or British Columbia shall be exempt from the provisions of this chapter unless a pilot licensed under this chapter be actually employed, in which case the pilotage  [[Orig. Op. Page 2]] rates provided for in this chapter shall apply.  Every vessel not so exempt, shall while navigating Puget Sound and adjacent inland waters, Grays Harbor and Willapa Bay, employ a pilot licensed under the provisions of this chapter and shall be liable for and pay pilotage rates in accordance with the pilotage rates herein established or which may hereafter be established under the provisions of this chapter:  Provided, That the Washington pilotage commission, immediately after May 21, 1971, shall conduct a study of the need to require employment of pilots licensed under the provisions of this chapter on all vessels entering into Puget Sound and adjacent inland waters, together with an assessment of the legality and feasibility of such requirement.  The commission shall report the results of such study together with recommended legislative action to the next session of the legislature."  (Emphasis supplied.)

            The term "Puget Sound and adjacent waters," as used in this statute, is defined in RCW 88.16.050(1),

            ". . . to mean and include all the inland waters of the state of Washington inside the international boundary line between the state of Washington and British Columbia but excluding that portion of the Straits of Juan de Fuca west of Port Angeles."

            Also involved in your question is RCW 88.16.090, which reads as follows:

            "No person shall pilot any vessel subject to the provisions of this chapter on waters covered by this chapter unless he be appointed and licensed to pilot such vessels on said waters under and pursuant to the provisions of this chapter.  No person shall be eligible to be appointed a pilot unless he is a citizen of the United States, over the age of twenty-five years and has been a resident of the state of Washington for at least three years immediately prior to the time of his appointment, has a practical knowledge of the navigation of  [[Orig. Op. Page 3]] vessels and of the conditions of navigation in the waters for which he desires to be licensed, is of good moral character, temperate in his habits, possesses the skill and ability necessary to discharge the duties of pilot, nor unless he holds a first class United States government license to pilot on Puget Sound and adjacent inland waters, or Grays Harbor and Willapa Bay, whichever of these waters for which he desires to be licensed.  Pilots shall be licensed hereunder for a term of five years from and after the date of the issuance of their respective licenses.  Such licenses shall thereafter be renewed as of course, unless the board shall withhold same for good cause.  Each pilot shall pay to the state treasurer an annual license fee of one hundred dollars to be placed in the state treasury to the credit of the pilotage account."

            In AGO 61-62 No. 181 [[to Jerry Hagan, Director, Department of Labor and Industries on December 12, 1962]], copy enclosed, we concluded that pilots of Canadian citizenship who may not be licensed as pilots in this state because of RCW 88.16.090,

            ". . . may not engage in the piloting of vessels between British Columbia and Puget Sound ports through those portions of the Haro Straits lying within the boundaries of the state of Washington."

            In addition, we concluded that neither the state of Washington nor any agency thereof is authorized to enter into an agreement with officials of the Canadian government providing for the distribution of responsibility for pilotage in such waters between American and Canadian pilots.  In so advising on this second question we observed, significantly, at page 5 of our prior opinion, as follows:

            "We find no treaty, compact or agreement presently in effect entered into by the governments of the United States and Canada regulating pilotage, except as it relates to the Great Lakes following opening of the St. Lawrence Seaway.  See,United States Treaties and Other International Agreements, Vol. 12, Part 1, page 1033 (1961).  Further,  [[Orig. Op. Page 4]] we find no grant of authority by the Congress of the United States that would permit the state of Washington or any agency thereof to enter into a compact or agreement with Canadian authorities on this particular subject.  Consequently, we must conclude that the power does not exist, and your second question is also answered in the negative."

            Your present question, as we understand it, deals with much this same situation.  Notwithstanding AGO 61-62 No. 181, supra, Canadian pilots have apparently continued to handle some nonexempt1/ vessels passing through portions of "Puget Sound and adjacent inland waters" under the theory, at least in some minds, that the provisions of RCW 88.16.070 and 88.16.090, supra, are unenforceable in such cases because of the terms of an early treaty between the United States and either Canada or Great Britain.  On the other hand, although its effective date has since been suspended, the board of pilotage commissioners has recently passed a resolution calling for the strict enforcement of RCW 88.16.070 and 88.16.090 in all cases ‑ without exception other than as provided for by the first sentence of RCW 88.16.070,supra.

            In our opinion, RCW 88.16.070 and 88.16.090 must be read as meaning precisely what they say until and unless they are either amended by the state legislature or declared to be unenforceable in a given case by a court of competent jurisdiction.  And what these statutes say in simplest terms, as applied to your question, is that all vessels  [[Orig. Op. Page 5]] passing through Puget Sound and adjacent inland waters, including those en route to or from Canadian ports, are required (regardless of how much or little time is involved) to employ pilots licensed and regulated under chapter 88.16 RCW unless they are either "under enrollment"2/ or,

            ". . . engaged exclusively in the coasting trade on the west coast of the continental United States (including Alaska) and/or British Columbia. . ."

            We have found no international treaty which in any way militates against this requirement.  Furthermore, even if such treaty were to exist, our long-standing policy of presuming the validity of all duly enacted state statutes until ruled otherwise by a court of competent jurisdiction would preclude us from purporting to qualify or limit the scope of RCW 88.16.070 and 88.16.090, supra, by the issuance of an attorney general's opinion.3/

             [[Orig. Op. Page 6]]   We trust that the foregoing will be of some assistance to you.  We would, of course, be happy to assist you in drafting such amendments to those statutes as you may feel appropriate in the light of our opinion.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/See, RCW 88.16.070, supra, insofar as this statute provides:

            "All vessels under enrollment and all vessels engaged exclusively in the coasting trade on the west coast of the continental United States (including Alaska) and/or British Columbia shall be exempt from the provisions of this chapter unless a pilot licensed under this chapter be actually employed, in which case the pilotage rates provided for in this chapter shall apply. . . ."

2/In addition, even some vessels under enrollment are now statutorily required to employ such licensed pilots; i.e., enrolled oil tankers of over 50,000 deadweight tons under chapter 125, Laws of 1975, 1st Ex. Sess.   See AGLO 1975 No. 75 [[to Dan L. Talley, State Senator on August 26, 1975 an Informal Opinion, AIR-75575]].

3/Similarly, this policy also precludes us from purporting to pass upon the constitutionality under the commerce clause of Article I, § 9 of the United States Constitution, of RCW 88.16.070 to the extent that it applies to vessels en route to or from Canadian ports.  As stated in AGO 1945-46 [[to John T. Welsh, Prosecuting Attorney, Pacific County on July 17, 1945]], page 269:

            ". . .  The power to declare an act constitutional or unconstitutional is vested solely in the courts.  Consequently, nothing can be gained by this office expressing an opinion as to the constitutionality of a statute.  A pronouncement of unconstitutionality would merely cause confusion and disorder among the administrative officers whose duty it is to give effect to the presumption of constitutionality which attaches to all laws until declared otherwise by a court of competent jurisdiction."

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