Does a foreign naval ship visiting New York (for example, a vessel attending Fleet Week) have to take a New York-licensed pilot to enter or leave port?

Plain-English summary

The Board of Commissioners of Pilots, which regulates pilotage in the New York harbor, asked whether foreign naval ships (and other foreign public, non-commercial vessels, like those visiting for Fleet Week) had to use a New York-licensed pilot to enter or leave port. New York Navigation Law §§ 88, 89-a, and 89-b on their face require "every foreign vessel" to take a state-licensed pilot, with no carve-out for naval ships.

The AG concluded that the state law applies. Two factors had to be checked: (1) federal preemption, and (2) the federal foreign-affairs power. Neither displaced the state requirement.

• No federal preemption. Congress, since 1789, has explicitly left pilotage in U.S. ports to state regulation except where a federal statute says otherwise (46 U.S.C. § 8501(a)). Federal pilotage statutes regulate domestic coastwise vessels and certain foreign-commerce situations, but Congress has not legislated about pilots on foreign public vessels. So nothing in federal pilotage law exempts a foreign warship.
• No constitutional displacement. The state law is one of general applicability. Under cases like Ray v. Atlantic Richfield and Mukaddam v. Permanent Mission of Saudi Arabia, only state laws with a "significant and direct effect" on foreign relations are preempted by the foreign-affairs doctrine. Generic harbor safety regulation does not meet that bar.

So the rule applies. But the AG flagged the practical limit: if a foreign sovereign refuses to comply, the Foreign Sovereign Immunities Act (FSIA) will likely block New York from enforcing the requirement against the foreign state through U.S. courts. The opinion expressly does not opine on diplomatic enforcement (handled through the State Department) or tort suits for damage caused by a non-compliant foreign vessel under FSIA's "tortious activity" exception.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical context

What the opinion meant for the Board of Pilots at the time

The Board, which licenses pilots and assesses pilotage fees, had textual authority to require a foreign warship in New York harbor to take a New York pilot. The bar to enforcement was not state law or federal preemption but the practical reality of sovereign immunity. The Board's use in 2016 was diplomatic, not judicial: the U.S. Department of State must clear foreign public vessels for entry, and pilotage compliance could be raised through that channel.

Why the analysis is "not free from doubt"

Twice in the opinion, the AG flags uncertainty. The competing pull is the federal foreign-affairs doctrine: foreign warships invoke special status in U.S. ports, and a state regulation applied to them could be characterized as a state intrusion into foreign relations. Schooner Exchange v. McFaddon (1812) is the seminal case treating foreign public vessels as different from foreign merchant ships. The AG's resolution was that a generic safety statute, applied without targeting any particular foreign state, does not impermissibly intrude. But the analysis acknowledges this is a contestable position.

The treaty wildcard

Footnote 2 of the opinion notes that a treaty between the United States and a foreign country, either requiring a federally-licensed pilot or expressly exempting that country's public vessels from local pilotage requirements, would override the New York rule (citing Clark v. Allen, 331 U.S. 503 (1947)). The AG was unaware of any such treaties at the time but flagged the possibility.

Common questions

Q: What's the difference between a foreign merchant vessel and a foreign public vessel?
A: A merchant vessel is engaged in commerce; a public vessel is owned and operated by a foreign government for non-commercial purposes (typically a naval ship). Under U.S. and international law, public vessels enjoy a degree of sovereign immunity in foreign ports that merchant vessels do not.

Q: How does U.S. law usually handle pilotage in New York harbor?
A: 46 U.S.C. § 8501(a) defers to state pilotage rules in U.S. bays, harbors, and ports except where a federal statute provides otherwise. Federal statutes specifically regulate domestic coastwise vessels (§ 8502(a)) and impose federal-pilot requirements on foreign-commerce vessels in states that lack their own pilot-licensing scheme (§ 8503). New York has its own pilotage scheme, so the state rule generally controls.

Q: What happens if a foreign warship refuses the New York pilot?
A: The FSIA, 28 U.S.C. § 1602 et seq., gives foreign states broad immunity from suit in U.S. courts. Direct judicial enforcement of the pilotage requirement against the foreign state is unlikely to succeed. The opinion notes but does not resolve whether tort suits (for example, after a collision) might fall within FSIA exceptions.

Q: What is the "significant and direct effect" test for foreign-affairs preemption?
A: It comes from cases like Ray v. Atlantic Richfield Co. and Mukaddam. A state law of general applicability survives constitutional scrutiny in the foreign-affairs context unless it has more than an indirect or insignificant effect on foreign relations. A pilotage rule that applies equally to all foreign vessels, with no diplomatic-credibility findings or country-specific carve-outs, generally meets the test.

Q: Why does Congress's deferral to states (§ 8501(a)) matter?
A: It frames the federal preemption question. Pilotage is not a field Congress has occupied; instead, Congress has chosen to let states regulate, with limited federal carve-outs. So when a New York rule applies to foreign vessels in New York harbor, it is doing exactly what Congress invited.

Background and statutory framework

New York's pilotage statute, Navigation Law §§ 88, 89-a, and 89-b, requires state-licensed pilots for "every foreign vessel and every American vessel under register" entering or departing New York ports, with no exemption on the face of the statute. Penalties for non-compliance include pilotage fees plus a fine.

The federal framework, 46 U.S.C. §§ 8501-8503, leaves pilotage primarily to the states. The Supreme Court approved that division in Cooley v. Bd. of Wardens, 53 U.S. 299 (1852), and the modern Second Circuit applies it to New York pilotage in Interport Pilots Agency, Inc. v. Sammis, 14 F.3d 133 (2d Cir. 1994).

International law, summarized at Restatement (Third) of Foreign Relations § 512 cmt. 6 (1987), also recognizes that foreign warships in foreign ports must comply with the coastal state's navigation and safety rules. The opinion cites this as confirming, not displacing, the state-law analysis.

Citations and references

Statutes:
- N.Y. Navigation Law §§ 88, 88(3), 89-a, 89-a(3), 89-b, 89-b(3)
- 46 U.S.C. § 8501(a), § 8502(a), § 8503(a), (b)
- Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq.

Cases:
- Huus v. New York & Porto Rico Steamship Co., 182 U.S. 392 (1901)
- Interport Pilots Agency, Inc. v. Sammis, 14 F.3d 133 (2d Cir. 1994)
- Cooley v. Bd. of Wardens, 53 U.S. 299 (1852)
- Gibbons v. Ogden, 22 U.S. 1 (1824)
- United States v. Pink, 315 U.S. 203 (1942)
- Schooner Exchange v. McFaddon, 11 U.S. 116 (1812)
- Zschernig v. Miller, 389 U.S. 429 (1968)
- National Foreign Trade Council v. Natsios, 181 F.3d 38 (1st Cir. 1999)
- Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978)
- Mukaddam v. Permanent Mission of Saudi Arabia to the United Nations, 111 F. Supp. 2d 457 (S.D.N.Y. 2000)
- 767 Third Ave. Assocs. v. Permanent Mission of Republic of Zaire, 988 F.2d 295 (2d Cir. 1993)
- USAA Cas. Ins. Co. v. Permanent Mission of Republic of Namibia, 681 F.3d 103 (2d Cir. 2012)
- Clark v. Allen, 331 U.S. 503 (1947)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2016-f2_pw_0.pdf

Original opinion text

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
Executive Director & Secretary
Board of Commissioners of Pilots
17 Battery Place
New York, New York 10004

Formal Opinion
No. 2016-F2

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.

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 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 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. 111 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.

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. 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).

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
Attorney General