W. E. Jackson et al., D/b/a Port Everglades Pilotsassociation, Plaintiffs-appellees, Robert L. Shevin, As Attorney General of Thestate of Florida, and Florida State Pilots Assoc.,inc., Intervenors-appellees, v. Marine Exploration Company, Incorporated and Greyhoundleasing & Financial Corporation, Defendants-appellants, 583 F.2d 1336 (5th Cir. 1978)

This case involves a challenge to the Florida version of one of the country's oldest monopolistic regulatory systems the institution of state compulsory pilotage. For years, Marine Exploration Company, Inc. (MECI) has operated tugs and barges under registry in and out of Port Laudania, Florida, without using or paying for the services tendered by the state-licensed local pilots as required by Florida law. The various local pilots, who had joined together as the Port Everglades Pilots Association (PILOTS), brought suit in the Southern District of Florida to recover the pilotage fees and charges to which they were entitled under Florida law.¹  MECI interposed a number of constitutional and statutory defenses.²  None were found availing by the District Court, which, after a bench trial, entered judgment for PILOTS in the amount of $27,807.69, covering the pilotage fees the defendants had incurred through September 30, 1975. We affirm this judgment, as both history and the law stand in firm opposition to MECI's attempt to escape from one of the incidents of its maritime business.

To attempt an evaluation of the smokescreen of legal arguments raised here before us on appeal without first fixing our compass upon the system of compulsory pilotage would only invite confusion. Accordingly, we defer further discussion of the facts and our analysis of MECI's claims until after a brief review of the institution of pilotage and those aspects of the concurrent federal-state system for regulating pilotage that are relevant to this case.

Pilotage And Its Regulation In The United States

As a profession, pilotage owes its existence to the infinite variety of navigation hazards currents, tides, sand bars, submerged objects, weather conditions, and the like that mark the harbors and rivers open to commercial vessels. No matter how competent the master of a ship is at open sea, he cannot be expected to be familiar with the local navigation hazards of each harbor and river that he encounters as he conducts his ship in the course of a maritime trade. See The Framlington Court, 5 Cir., 1934, 69 F.2d 300, 304, 1934 A.M.C. 272. Accordingly, it has long been the practice of vessels to employ, for each port they enter and leave, a local pilot intimately familiar with the waters of that port to board and guide them through those waters in from or back to the open sea.

As the Supreme Court has remarked, "(p)ilots are * * * indispensable cogs in the transportation system of every maritime economy. Their work prevents traffic congestion and accidents which would impair navigation in and to the ports. It affects the safety of lives and cargo, the cost and time expended in port calls, and in some measure, the competitive attractiveness of particular ports." Kotch v. Board of River Port Pilot Commissioners, 1947, 330 U.S. 552, 558, 67 S. Ct. 910, 913, 91 L. Ed. 1093.

Indeed, local pilotage has been regarded so important to the conduct of maritime affairs that for centuries commercial states with substantial shipping trades have required vessels entering or departing their ports to take on board a local pilot or to pay some sort of penalty.³  In this country, compulsory pilotage laws date back to the time of the Revolution⁴  and today, at least 23 states have such laws as part of a comprehensive pilotage regulatory system.⁵ 

Those states with pilotage laws typically establish some sort of licensing system for local harbor and river pilots. While vessels subject to the pilotage laws usually are not compelled to employ a state-licensed local pilot, they are required to pay some form of pilotage fees to the first state-licensed pilot who tenders his services to them whether they avail themselves of those services or not.⁶  The actual pilotage fees are either specified by the state statute or fixed by an administrative agency.

The power of the states to engage in such regulation of pilotage was at center stage in the Supreme Court's decision in Cooley v. Board of Wardens, 1851, 53 U.S. (12 How.) 299, 13 L. Ed. 996, which remains the landmark case construing the interrelationship of state and federal regulatory power under the Commerce Clause. In Cooley a penalty equal to half the pilotage had been imposed pursuant to state statute upon a shipmaster who had failed to engage a local pilot while entering the port of Philadelphia. The shipmaster challenged the Pennsylvania compulsory pilotage law as an unconstitutional state regulation of interstate commerce. The Supreme Court acknowledged that state laws concerning pilotage are regulations of commerce within the scope of Congress's Commerce Clause power, but held that pilotage was among those peculiarly local concerns that could constitutionally be regulated by the states in the absence of any conflicting federal legislation, Id. at 319. In reaching this determination, which it has subsequently reaffirmed on numerous occasions,⁷  the Court relied heavily on the Act of Aug. 7, 1789, c. 9, § 4, in which Congress provided that state pilotage regulations would remain in effect until "further legislative provisions shall be made by Congress."⁸ 

In 1837 Congress began to enact "further legislative provisions" and to shape a system of concurrent federal-state regulation of pilotage. By 1871, the broad outline of this system as relevant to this case had been completed.⁹  Central to this concurrent system of pilotage regulation is the distinction between enrolled vessels and registered vessels, a classification scheme that has existed since the early days of the Republic.

Ships engaged in trade with foreign lands are "registered," a documentation procedure set up * * * in the Act of Dec. 31, 1792, 1 Stat. 287, and now codified in 46 U.S.C. c. 2. * * * Vessels engaged in domestic or coastwise trade or used for fishing are "enrolled" under procedures established by the Enrollment and Licensing Act of Feb. 18, 1793, 1 Stat. 305, codified in 46 U.S.C. c. 12.

Douglas v. Seacoast Prods., Inc., 1977, 431 U.S. 265, 272-73, 97 S. Ct. 1740, 1745, 52 L. Ed. 2d 304, 1977 A.M.C. 566 (Emphasis added).¹⁰ 

The federal government has assumed exclusive authority over the regulation of pilots on Enrolled vessels. 46 U.S.C.A. § 364 provides that all coastwise seagoing vessels Not sailing under register shall be "under the control and direction of pilots licensed by the Coast Guard."¹¹  In addition, by virtue of 46 U.S.C.A. § 215, the states are specifically precluded either from requiring the pilots of such coastwise seagoing vessels to obtain a license in addition to the Coast Guard license or from imposing pilotage fees upon such vessels.¹² 

But § 215 also underscores the fact that federal preemption of pilotage does not extend to Registered vessels. The last sentence of that section stipulates that nothing in the federal pilotage law "shall be construed to annul or affect any regulation established by the laws of any State, requiring vessels entering or leaving a port in any such State, Other than coastwise steam vessels, to take a pilot duly licensed or authorized by the laws of such States * * *." (Emphasis added).

The combined effect of sections 364 and 215 was summarized succinctly by the Supreme Court only Last Term. "(J)ust as it is clear that States may not regulate the pilots of enrolled vessels, it is equally clear that they are free to impose pilotage requirements on registered vessels entering and leaving their ports." Ray v. Atlantic Richfield Co., 1978, 435 U.S. 151, 159-60, 98 S. Ct. 988, 995, 55 L. Ed. 2d 179, --- A.M.C. ---; See also Anderson v. Pacific Coast S.S. Co., supra, 225 U.S. at 201, 32 S. Ct. 626.

Pilotage Regulation In Florida

The history of pilotage regulation in Florida, although not as long as in most Eastern coastal states, is still a venerable one. Florida first enacted a pilotage statute in 1868 and the provision at issue in this case, Florida Statute § 310.11 (1973), is a direct descendant of an 1872 enactment. Set out in full below,¹³  § 310.11 requires all vessels not exempted from its provisions that enter or leave a Florida port to pay pilotage fees either (a) to the state-licensed pilot who actually serves on board the vessel upon entering or leaving the port, or (b) to the first state-licensed pilot to contact the vessel and tender his services for the journey in or out of port. The pilotage fees are to be fixed by the board of pilot commissioners for each port, but the statute specifies a minimum rate. The statute also exempts certain vessels from its scope namely, "all steamers or vessels drawing less than six feet of water and having a coastwise license." Although this exemption is framed in the conjunctive, federal pilotage laws specifically 46 U.S.C.A. §§ 215, 364¹⁴  preclude Florida from regulating any vessels with a coastwise license (I. e., any vessels under enrollment) regardless of their draft. The exemption of § 310.11 must therefore be read in the disjunctive, leaving the statute applicable to all vessels entering or departing Florida ports except those under enrollment or drawing less than six feet of water.¹⁵ 

In Florida, as in most other states, pilotage is regulated primarily through local administrative boards. There is a board of pilot commissioners, appointed by the governor with the advice and consent of the state senate, for each county in which a port is located.¹⁶  Among other responsibilities, these commissioners examine and license pilots,¹⁷  as well as set pilotage rates¹⁸  and promulgate regulations,¹⁹  for the ports within their jurisdiction.

The Stage Set, The Players Reappear

PILOTS, plaintiffs in the instant litigation, are licensed by the Broward County Pilot Commission for both Port Everglades and Port Laudania.²⁰  Those two ports are contiguous areas served by the Port Everglades channel, and all seagoing vessels must use the Port Everglades channel to enter or exit either port.

MECI, according to evidence introduced at trial, has operated oceangoing tugs and barges, flying the American flag under registry, in and out of Port Everglades channel since 1964. Testimony of a MECI vice-president also revealed that it was company policy not to take on board local pilots, either for Port Everglades or Port Laudania or for any of the many other ports which MECI frequented, unless the company felt that its own Coast Guard-licensed captains were not fully competent to guide a vessel in or out of a particular port. Although PILOTS had billed MECI for pilotage fees as early as 1970, the fees that PILOTS seek to recover in this case are for MECI operations between June 1973²¹  and September 1975.²²  During this period, MECI was making up to three trips a week between Port Laudania and Freeport in the Bahamas. Most trips involved one tug with an unmanned barge on hawser carrying truck trailers. For each and every instance in which PILOTS made a claim for fees, the trial court found that PILOTS communicated by radio or voice with MECI tugs and the tugs refused the offered pilotage services. For those trips in which MECI tugs towed a barge on hawser, PILOTS billed MECI for pilotage for both the tug and the barge, but the trial court awarded PILOTS fees amounting to 11/2 times the pilotage due for the deeper draft vessel of the two, as authorized under the tariffs established by the Broward County Pilots Commission.

Several other factual issues are relevant to this appeal. At trial PILOTS admitted that they did not offer pilotage services to fishing boats, research vessels, and pleasure boats sailing under registry, even though such vessels, if they drew more than six feet of water, were within the scope of § 310.11. The reason for this omission according to PILOTS's testimony was that they thought (erroneously) that the Florida compulsory pilotage statute was applicable only to commercial vessels such as MECI's tugs and barges. There also was trial testimony to the effect that PILOTS offered discounts of varying amounts to some of the commercial vessels that sailed regularly in and out of Port Everglades and Port Laudania. PILOTS admitted offering a 20% Discount to several "customers" if they would pay their bills promptly, but claimed that the practice had been discontinued as of June 1973. Although MECI was never offered this 20% Discount, a MECI vice-president testified that it had been offered a 50% Reduction in pilotage charges if it would begin to pay for the pilotage it was not using. PILOTS denied this latter allegation. In any event, with respect to both issues of alleged disparate treatment, the trial court found (1) that it was the policy and practice of PILOTS to speak to all vessels that appeared to be commercial and that PILOTS thought were required to accept a pilot or pay pilotage fees, and (2) that MECI failed to show "a pattern of discrimination" by PILOTS.

The Onslaught

The District Court entered judgment for PILOTS on the basis of 221 separate trips through the Port Everglades channel. MECI has at least spared us the chore of reviewing the District Court's findings as to the particular instances for which it has been assessed pilotage fees. Nor does MECI contest the monetary dimensions of the judgment entered below.²³  Instead, with the objective of avoiding Any payment of pilotage fees, it launches a broad legal attack on the very concept of compulsory state pilotage as it exists in Florida and as it operated in this case. MECI apparently recognizes the futility of challenging this imposition of state compulsory pilotage fees under the Commerce Clause. See Cooley v. Board of Wardens, supra. But both at trial and here on appeal it has assailed Florida Statute § 310.11 on its face and as applied by PILOTS on virtually every other conceivable ground as well as a few inconceivable ones. We will first review its various constitutional challenges, under both the United States and Florida Constitutions,²⁴  and then its assorted statutory arguments.²⁵ Due Process On Its Face

Among the arguments that MECI has fished out of the waters and dressed up for our consideration is that § 310.11 on its face violates the Due Process Clause of the federal and state constitutions. MECI concedes that Florida has a valid police power interest in protecting life and property from haphazard navigation of vessels upon its waters, but it contends that for several reasons the statute does not bear a rational relation to the legitimate police power goals of the State of Florida. Specifically, it objects to (a) the required payment of pilotage fees when pilotage services are neither desired nor used; (b) the fact that it is required to take on board state-licensed pilots whose only formal certification of competence is a Coast Guard Pilot's License, see note 20, Supra, when the captains of their vessels are also licensed by the Coast Guard; and (c) the fact that its vessels are subject to compulsory pilotage while similarly registered vessels drawing less than six feet are not.

MECI demands a much higher rationality a much closer fit between the state's police power objectives and the statute enacted to secure those objectives than federal or state due process jurisprudence requires of regulatory, "economic" legislation. It is clear that a "law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it." Williamson v. Lee Optical Co., 1955, 348 U.S. 483, 487-88, 75 S. Ct. 461, 464, 99 L. Ed. 563; See also Burnsed v. Seaboard Coastline R. R., Fla., 1974, 290 So. 2d 13, 18 ("Legislative action exercised under the state's police power is valid if such exercise is confined to those acts which may reasonably be construed as expedient at least for the protection of public safety, public welfare, public morals or public health"); Dutton Phosphate Co. v. Priest, 1914, 67 Fla. 370, 65 So. 282, 284.

Section 310.11 is undoubtedly "more rational" than was the Oklahoma eyeglass law upheld by the Supreme Court in Williamson, supra, especially in light of the long history and widespread existence of compulsory pilotage laws. On several occasions, including its historic Cooley decision, the Supreme Court has detailed the rationale underlying a requirement that registered vessels pay for pilotage services whether used or not. See note 6, Supra.

As to the second contention of MECI, it is true that to the extent the captains of its tugs satisfied the same formal standards of competence as did PILOTS § 310.11 imposed a supernumerary requirement upon MECI. Nonetheless, it is not unreasonable to assume that PILOTS, by virtue of operating under their Coast Guard licenses solely and continuously in the Port Everglades-Port Laudania area, are more familiar as a practical matter with the Port Everglades channel and therefore better equipped to serve the state's police power interests than are MECI's tug captains. Moreover, PILOTS must stand ready to pilot foreign flag vessels whose captains normally would not possess overlapping licenses, and the exaction of pilotage fees from registered American vessels is not an arbitrary method for underwriting that additional important service. See also Anderson Pacific Coast S.S. Co., supra, 225 U.S. at 201, 32 S. Ct. 626 (rejecting a similar argument that if vessels sailing under register, although not required to employ a federally licensed pilot, did in fact have on board such a pilot, they could avoid state liability for pilotage fees).

Finally, with respect to MECI's third contention, the state of Florida was certainly justified in exempting from compulsory pilotage vessels of less than six feet draft on the theory that deeper draft vessels pose more of a hazard to life and property along the state's waterways.

In the event that MECI remains unsatisfied by our explanation, we can only remind it although in most cases we presume it unnecessary to do so that "(t) he day is gone when (federal courts use) the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought." Williamson v. Lee Optical Co., supra, 348 U.S. at 488, 75 S. Ct. at 464; See also Ferguson v. Skrupa, 1963, 372 U.S. 726, 83 S. Ct. 1028, 10 L. Ed. 2d 93. The courts of Florida are no less respectful of legislative judgments concerning economic regulation than are the federal courts. See, E. g., Newman v. Carson, Fla., 1973, 280 So. 2d 426, 428; Dutton Phosphate Co. v. Priest, supra, 65 So. at 285 ("The wisdom and necessity, as well as the policy, of a statute are authoritatively determined by the Legislature."). The sanctity of pilotage regulations from judicial secondguessing is even more firmly engrained than that of other forms of economic regulation. Indeed, the Supreme Court, less than one month after it rendered its ill-fated decision in Lochner v. New York, 1905, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937, unanimously rejected an attempt to evade the terms of a Virginia compulsory pilotage statute, remarking that the challenge presupposed "that courts are vested with authority to avoid the pilotage regulations adopted by the states, which do not discriminate as to commerce to which they apply, simply because it is deemed they are unwise or unjust." Thompson v. Darden, 1905, 198 U.S. 310, 316-17, 25 S. Ct. 660, 662, 49 L. Ed. 1064. Thus, even if we believed § 310.11 to be improvident, it is indisputable that it would be beyond our province to relieve MECI from its terms in the name of the Due Process Clause.

Equal Protection On Its Face

But MECI, undaunted, also claims that § 310.11 Does discriminate, Cf. Thompson v. Darden, supra, and therefore violates on its face the Equal Protection Clause of the federal and state constitutions. Again it points to the exemption for vessels drawing less than six feet of water. In addition, it points to the exemption for enrolled vessels. Both distinctions, it claims, by excepting some vessels from compulsory pilotage but not its tugs and barges or other registered vessels with a draft of six feet or more, unconstitutionally discriminate against it.

To respond to this argument with more than a few perfunctory cites to decisions such as Railway Express Agency v. New York, 336 U.S. 106, 69 S. Ct. 463, 93 L. Ed. 533, and Williamson v. Lee Optical Co., supra, gives it a stature it scarcely deserves. We nonetheless point out that the legislative classifications MECI challenges are not based upon any "suspect" criteria. Nor do those classifications affect any fundamental interests. MECI does not claim, nor could it plausibly claim, that the statute was drafted with an intent to discriminate invidiously against it. The statute treats all vessels similarly circumstanced I. e., all vessels under registry that draw at least six feet of water equally. In the absence of any suspect classification, invasion of fundamental interests, or invidious intent, all that the United States Constitution demands is that the classifications be rationally related to a legitimate state interest. See City of New Orleans v. Dukes, 1976, 427 U.S. 297, 303-04, 96 S. Ct. 2513, 49 L. Ed. 2d 511; See generally San Antonio Indep. School Dist. v. Rodriguez, 1973, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16. Florida law is no different. See Lasky v. State Farm Ins. Co., Fla., 1974, 296 So. 2d 9, 18; Finlayson v. Conner, Fla.1964, 167 So. 2d 569, 571 ("If there is a reasonable and practical ground of classification for legislative regulations under the police power, it should be upheld even though another classification or no classification would appear more reasonable.")

Our preceding discussion of the "rationality" of § 310.11 for purposes of due process analysis amply supports the statute's rationality for purposes of the Equal Protection Clause. This is especially clear if one bears in mind that "(s)tates are accorded wide latitude in the regulation of their local economies under their police powers, and (that) rational distinctions may be made with substantially less than mathematical exactitude," City of New Orleans v. Dukes, supra, 427 U.S. at 297, 96 S. Ct. at 2517. We observe further that MECI, in attacking the six-foot threshold for compulsory pilotage fee liability, ignores the logical fact that if Florida is to be permitted to exercise a legislative judgment that vessels of shallow draft pose little danger to the state's waterways and therefore need not be piloted by state-licensed pilots, it must be able to draw the line delineating "shallow draft vessels" somewhere. To do so at six feet, rather than five or seven, is not unreasonable.

Nor can Florida be faulted for exempting vessels sailing under enrollment from compulsory pilotage, since (1) Congress has already established an elaborate system for regulating the pilotage of such vessels, and, more to the point, (2) in establishing that system, Congress has preempted the states from engaging in similar regulation. In challenging the enrollment/registry distinction embodied by § 310.11, MECI in effect challenges the rationality of the long-established concurrent state-federal system for regulating pilotage. The Equal Protection Clause does not command us to disregard history and dismantle that system. In a similar context, in a case involving an attack upon the pilotage laws of Texas, the Supreme Court concluded that "the remedy is in Congress, in whom the ultimate authority on the subject is vested." Olsen v. Smith, 1904, 195 U.S. 332, 345, 25 S. Ct. 52, 55, 49 L. Ed. 224.

Due Process And Equal Protection As Applied

Having held that § 310.11 does not, on its face, violate Due Process or Equal Protection, we confront MECI's second line of constitutional attack that the statute As applied by PILOTS in this case violated its rights to equal protection and due process under the federal and state constitutions. It bases its as-applied argument on three separate grounds: (1) the fact that PILOTS charged it for pilotage fees even though its tug captains possessed Coast Guard licenses; (2) the fact that PILOTS did not offer pilotage services and charge pilotage fees to all vessels within the scope of § 310.11, but only to commercial vessels such as MECI's tugs and barges; and (3) the testimony concerning the various discounts PILOTS purportedly offered both MECI and other commercial shippers.

The first asserted ground of unconstitutional application of § 310.11 is merely a variation on one of MECI's facial challenges to the statute which we resolved against MECI. See p. 1345, Supra. If, as we have held, the statutory authorization for collecting pilotage fees from registered vessels captained by Coast Guard-licensed personnel is rationally related to the state's legitimate police power interest, then application of the statute to the same vessels also passes the constitutional rational relationship standard.

The second and third grounds advanced by MECI bottom on not irrational, but discriminatory application of § 310.11 by PILOTS. It is beyond doubt that the constitutional mandate of equal protection extends to discriminatory executive or administrative conduct as well as to discriminatory legislation. See, e. g., Yick Wo v. Hopkins, 1886, 118 U.S. 356, 373-74, 6 S. Ct. 1064, 30 L. Ed. 220; Richey v. Wells, 1936, 123 Fla. 284, 166 So. 817, 818. But it is also clear that "(t)he unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination." Snowden v. Hughes, 1943, 321 U.S. 1, 8-9, 64 S. Ct. 397, 401, 88 L. Ed. 497; Cf. Washington v. Davis, 1976, 426 U.S. 229, 239-44, 96 S. Ct. 2040, 48 L. Ed. 2d 597. An analogy can be drawn to the selective prosecution cases, in which it has been held that a defendant, in order to establish a prima facie case of discriminatory prosecution, must show that others similarly situated have not generally been proceeded against and that "the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i. e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights." See United States v. Johnson, 1978, 5 Cir., 577 F.2d 1304, 1308 (quoting United States v. Berrios, 1974, 2 Cir., 501 F.2d 1207, 1211); See also Oyler v. Boles, 1962, 368 U.S. 448, 456, 82 S. Ct. 501, 7 L. Ed. 2d 446.

MECI has fallen far short in its effort to establish itself as a victim of unconstitutional discrimination under these principles.²⁶  The District Court found, and there is no evidence in the record to cast doubt on this finding, that it was the policy and practice of PILOTS to offer their services to all vessels that appeared to be commercial and that PILOTS thought were required to accept a pilot or pay pilotage fees. The fact that PILOTS were mistaken about the scope of § 310.11, and did not offer their services to fishing boats, research vessels, or pleasure boats, does not color their actions with the taint of unconstitutional discrimination. See Sunday Lake Iron Co. v. Township of Wakefield, 1918, 247 U.S. 350, 353, 38 S. Ct. 495, 62 L. Ed. 1154. Without a shred of evidence that PILOTS proceeded against MECI with an invidious intent, the presumption of good faith that attends all actions by public officials remains undisturbed. The testimony as to various discounts offered by PILOTS was inconclusive at best and in addition was only marginally relevant since it did not relate to the period encompassed by this litigation. But even if we were to accept all of it as true and as relevant, we would be left with the conclusion that MECI had been offered a 50% discount while some other shippers had been given a 20% discount hardly the sort of fact pattern upon which to base a finding of discrimination Against MECI. In sum, MECI has failed, miserably, in its second line of constitutional attack.

Delegation Of Legislative Authority

But MECI trots out yet another constitutional claim that § 310.11 is constitutionally infirm under the Florida Constitution because it improperly delegates legislative authority to PILOTS. An identical challenge to a predecessor version of § 310.11 was made, and rejected, in The Chase, S.D. Fla., 1882, 14 F. 845. And notwithstanding the metamorphosis of the law on delegations of legislative authority since 1882, the instant challenge to § 310.11 must also be rejected.

The fact that some authority, discretion or judgment is necessarily required to be exercised in carrying out a purely administrative or ministerial duty imposed by statute does not invalidate the statute. * * * (T)he true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to What the law shall be, and the conferring of authority or discretion in executing the law pursuant to and within the confines of the law itself.

Conner v. Joe Hatton, Inc., Fla., 1968, 216 So. 2d 209, 211 (quoting, in part, Hampton & Co. v. United States, 1928, 276 U.S. 394, 407, 48 S. Ct. 348, 72 L. Ed. 624). All that is needed to sustain such a delegation of authority to execute the laws of Florida is "an intelligible principle * * * for the guidance of an administrative official in the performance of his duties." Phillips Petroleum Co. v. Anderson, Fla., 1954, 74 So. 2d 544, 547. See also State v. Griffin, Fla., 1970, 239 So. 2d 577; Bailey v. Van Pelt, 1919, 78 Fla. 353, 82 So. 789, 793. Section 310.11 satisfies these precepts.

Statutory Hodgepodge

MECI has also concocted a melange of statutory arguments in its endeavor to escape the imposition of pilotage fees. We will start with the best (the word is used, most decidedly, in a relative sense) and save the worst for last.

First, MECI argues that § 310.11 does not authorize PILOTS to impose and collect pilotage fees, either in whole or in part, for unmanned barges. It points to the statutory language "performing duty on board" or "speak(ing)" to vessels, see note 13, Supra, and asks, rhetorically, how can one perform duty on or speak to a dumb barge?

It would be a perversion of legislative intent to read § 310.11 so literally that shippers could evade pilotage regulations by leaving vessels on tow unmanned so that they could not be spoken to in the first place nor subsequently boarded having never been spoken to. In actuality, the phrase "speak to" is a term of art, commonly understood in the maritime and pilotage context to mean "offer or tender services."²⁷  PILOTS certainly offered pilotage services for MECI's barges through the MECI personnel who were aboard the MECI tugs towing the barges on hawser. The District Court did not err in awarding pilotage fees based in part upon MECI's barges.

MECI also contends that PILOTS may not recover any fees because they failed to show that the rates set by the Broward County Pilot Commission were valid under § 310.11 and the Florida Administrative Procedure Act. The District Court, however, found that PILOTS's charges and fees were fixed by the Pilot Commission according to state law. We need not even test this finding against the clearly erroneous standard since MECI stipulated prior to trial that "PILOTS's charges and fees for Port Laudania and Port Everglades are fixed by the Broward County Pilot Commission pursuant to State Statute." That stipulation has not been modified and MECI is not entitled to be relieved of its import at this juncture.

Second, MECI contends that PILOTS are without any authority to receive pilotage fees from MECI by virtue of Florida Statute § 215.31, which provides that various forms of revenue collected under the authority of Florida law by various state agencies, including "boards," must be deposited in the state treasury.²⁸  MECI contends that PILOTS act under the authority of a "board" (presumably the Broward County Pilot Commissioners) and that they are attempting to collect specific statutory "fees." This brings PILOTS within the terms of § 215.31, according to MECI's reading of the Florida Statutes, with the result that the pilotage fees must be deposited in the state treasury rather than received by PILOTS.

The short answer to this specious argument is that § 215.31 clearly is a state revenue statute and that pilotage fees have never been regarded as among the public revenues of a state. Historically, pilotage fees have always been imposed and collected for the benefit of the pilots and not to augment the public fisc. This is also the case in Florida. Section 310.11 expressly provides that ships subject to its terms shall "pay to any licensed pilot" who performs pilotage duties or first speaks to the ship at least $66. See note 13, Supra. Moreover, Florida Statute § 310.031, which MECI overlooks altogether, requires the county boards of pilot commissioners to collect from each state-licensed pilot a small percentage of the "pilotage earned by said pilot during each year."²⁹  Unmistakably, the Florida legislature contemplated that state-licensed pilots would retain the balance of those pilotage fees they "earned."

MECI fastens upon a Florida appropriations statute as authority for the proposition that § 310.11 is invalid to the extent that it permits PILOTS to collect and disburse public funds that accrue to their pecuniary benefit as private citizens. Aside from the problems noted above concerning the application of general public revenue and appropriations statutes to pilotage fees, MECI's argument must fall as utterly without merit because the statute upon which it relies, Florida Statute § 282.041, was repealed in 1969 prior to the period for which PILOTS has been awarded pilotage fees.

Last and least (to conform the hackneyed expression to the situation) is MECI's argument that the practices of PILOTS in charging only commercial vessels and in giving discounts constitute discrimination prohibited by 46 U.S.C.A. § 213.³⁰  There is nothing arcane about that statute. It means what any law student and most laymen would conclude that it means: state pilotage laws may not discriminate against steam vessels or national vessels of the United States nor may they discriminate in the pilotage rates they set according to the state from which a vessel has sailed. See Thompson v. Darden, supra; Olsen v. Smith, supra ; Spraigue v. Thompson, 1886, 118 U.S. 90, 6 S. Ct. 988, 30 L. Ed. 115. The statute has no application to the practices of PILOTS with respect to vessels sailing under registry in the foreign trade.

Postscript

To be sure, state compulsory pilotage is not a body of law familiar to most legal practitioners, much less one at the forefront of public attention. Yet it is not a particularly difficult body of law. Indeed, unlike the state of flux that characterizes many areas of contemporary law, pilotage law is remarkably straightforward and firmly established. We are somewhat dismayed that so much time and so many resources have been consumed in depositions and interrogatories, in trial, and in appellate litigation before PILOTS can recover the pilotage fees they clearly are entitled to under Florida law.

AFFIRMED.