PORT DISTRICTS--PILOTS--Authority of a Port District to Provide Pilotage Service
Port districts are municipal corporations that have powers expressly granted by the Legislature, or necessarily or fairly in or incident to the powers expressly granted. The Legislature has not expressly granted port districts the authority to provide pilotage services, and such authority cannot be necessarily or fairly implied from the express authority granted port districts.
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March 14, 1994
State Representative, District 24
439 John L. O'Brien Building, MS 40648
Olympia, WA 98504-0648
Cite as: AGO 1994 No. 3
Dear Representative Kessler:
By letter previously acknowledged you requested our opinion on the following question:
Can a public port district of Washington which was authorized, created, and is operating according to the provisions of Title 53 RCW, and which accommodates the arrival, cargo handling, and departure of many vessels engaged in domestic and foreign commerce, provide these vessels with pilotage service?
We answer your question in the negative as set forth in our analysis.
The Board of Pilotage Commissioners (the Board) is the regulatory body for state licensed vessel pilots. The Board licenses and regulates pilots including the setting of standards and the training required to become a licensed pilot. Furthermore, it sets pilotage rates which are adjusted annually.
The Pilotage Act covers all vessels operating in Washington waters, unless an exemption is provided. RCW 88.16.070 provides in part:
Every vessel not so exempt, shall while navigating the Puget Sound and Grays Harbor and Willapa Bay pilotage districts, 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 . . . which may hereafter be established under the provisions of this chapter[.]
The act specifically exempts enrolled vessels (those generally involved in domestic trade) and "all United States and Canadian vessels engaged exclusively in the coasting trade on the west coast of the continental United States (including Alaska) and/or British Columbia". RCW 88.16.070.
RCW 88.16.120 makes it a misdemeanor for a pilot to charge or for a ship using a pilot to pay anything, directly or indirectly, other than the rates set by the Board. Those rates are set forth in regulations found at WAC 296-116-185 and -300.
Turning now to whether a port district could provide vessels with pilotage service, we note that a port district is a municipal corporation established pursuant to Title 53 RCW. The powers of a port district are set forth in RCW 53.08.020, which provides:
A port district may construct, condemn, purchase, acquire, add to, maintain, conduct, and operate sea walls, jetties, piers, wharves, docks, boat landings, and other harbor improvements, warehouses, storehouses, elevators, grain-bins, cold storage plants, terminal icing plants, bunkers, oil tanks, ferries, canals, locks, tidal basins, bridges, subways, tramways, cableways, conveyors, administration buildings, fishing terminals, together with modern appliances and buildings for the economical handling, packaging, storing, and transporting of freight and handling of passenger traffic, rail and motor vehicle transfer and terminal facilities, water transfer and terminal facilities, air transfer and terminal facilities, and any combination of such transfer and terminal facilities, commercial transportation, transfer, handling, storage and terminal facilities, and improvements relating to industrial and manufacturing activities within the district, and in connection with the operation of the facilities and improvements of the district, it may perform all customary services including the handling, weighing, measuring and reconditioning of all commodities received. A port district may also construct, condemn, purchase, acquire, add to and maintain facilities for the freezing or processing of goods, agricultural products, meats or perishable commodities. A port district may also construct, purchase and operate belt line railways, but shall not acquire the same by condemnation.
It is a well-settled principle of law that:
[A municipal corporation] is limited in its powers to those necessarily or fairly implied in or incident to the powers expressly granted, and also those essential to the declared objects and purposes of the corporation. Christie v. Port of Olympia, 27 Wn.2d 534, 179 P.2d 294 (1947). If there is a doubt as to whether the power is granted, it must be denied. Pacific First Fed. Sav. & Loan Ass'n v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947). P. Lorillard Co. v. Seattle, 8 Wn. App. 510, 507 P.2d 1212 (1973).
Port of Seattle v. Utilities & Transp. Comm'n, 92 Wn.2d 789, 794-95, 597 P.2d 383 (1979). In that case the Port of Seattle sought a declaratory judgment as to whether it could operate an airporter service and exclusively regulate the operations of a private airporter service; the Supreme Court held that the port could not, finding no express authority in the statute nor "implied in or incident to those powers expressly granted or essential to the purposes of the Port". Id. at 795.
That case is instructive to the answer of your question. The powers granted to a port district under RCW 53.08.020 do not expressly authorize the performance of pilotage services. A review of WAC 296-116-120(1) sets forth what a pilot is expected to do. A port district is concerned, in chief part, with "the economical handling, packaging, storing, and transporting of freight" between land and sea after a vessel has reached port. RCW 53.08.020. There is no language that could be interpreted as impliedly authorizing the provision of pilotage services. Nor can it be said that having such a service is an essential element in operating a port. In this state, pilotage services have been provided by and through private pilotage associations.
In an analogous case, State ex rel. Huggins v. Bridges, 97 Wash. 553, 166 P. 780 (1917), our Supreme Court held that port districts were not authorized to operate a belt line railroad despite the language in the statute referring to rail and water transfer facilities. Since there is no language mentioning pilotage services in the powers granted to port districts, it is very unlikely the court would find any express or implied authority authorizing the provision of such services.
Based upon the foregoing considerations, your question must be answered in the negative.
We trust the foregoing will be of assistance to you.
Very truly yours,
CHRISTINE O. GREGOIRE
WILLIAM B. COLLINS
Senior Assistant Attorney General
WAC 296-116-120(1) provides in part:
A Washington state licensed marine pilot, under the authority of the master, directs ships into and out of harbors, estuaries, straits, sounds, rivers, lakes, and bays using a specialized knowledge of local conditions including winds, weather, tides, and current: Orders officers and helmsman by giving course and speed changes and navigates ship to avoid conflicting marine traffic, congested fishing fleets, reefs, outlying shoals and other hazards to shipping; utilizes aids to navigation, such as lighthouses and buoys. Utilizes ship's bridge equipment, including radar, fathometer, speed log, gyro, magnetic compass, whistle or horn and other navigational equipment as needed. . . . Directs ship's officers, crewmen, and tug boat captains as necessary, when ships are transiting bridges, narrow waterways, anchoring, docking, and undocking.
RCW 53.08.020 has since been amended giving the port the statutory authority to operate belt line railways.