ArtI.S10.C3.1.3 Determining Whether a Measure Qualifies as a Duty of Tonnage

Article I, Section 10, Clause 3:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

The Supreme Court first considered the Duty of Tonnage Clause in Cooley v. Board of Wardens of the Port of Philadelphia in 1851, and established what remain essential features of its jurisprudence. First, the Court concluded the term “duty of tonnage” was “well understood when the Constitution was formed” and thus should be interpreted as prohibiting states from imposing only such measures as would have been considered duties of tonnage at that time.1 Second, by implication, states may impose other fees and charges that do not qualify as duties of tonnage, including pilot fees, wharfage, towage, and penalties imposed to enforce certain laws.2 Thus, courts must determine whether or not a challenged measure constitutes a duty of tonnage. To make this determination, “it is the thing, and not the name, which is to be considered.” 3 In other words, courts must consider the contents, substance, and effect of the measure to determine whether it qualifies as a duty of tonnage.

In subsequent cases, the Supreme Court expanded on these principles. First, in keeping with its broad reading of the Clause, the Court clarified in In re State Tonnage Tax Cases that the prohibition on imposing duties of tonnage covers all vessels, whether traveling in interstate or intrastate commerce, reasoning that the Framers would have made any exception express.4 Second, in Clyde Mallory Lines v. Alabama, the Court stated expressly that the Duty of Tonnage Clause applies to “all taxes and duties regardless of their name or form, and even though not measured by the tonnage of the vessel, which operate to impose a charge for the privilege of entering, trading in, or lying in a port.” 5

Although the Court has consistently interpreted the Clause broadly, its precise mode of determining whether a measure qualifies as a duty of tonnage has evolved in several respects. One line of cases involves measures qualifying as taxes, while another involves other fees or charges. In a series of cases decided between 1865 and 1876, the Court indicated that any tax measure that uses the tonnage of a ship to calculate the amount to charge to a vessel is a duty of tonnage.6 By contrast, as the Court clarified in Transportation Co. v. Wheeling, taxes that treat vessels as personal property and assessed in the “same manner as other personal property” do not violate the duty of tonnage clause, although taxes not taxed in the “same manner” may violate the clause.7

In 1877, the Court clarified in Packet Co. v. Keokuk that using tonnage to calculate the amount to charge a vessel is not determinative in cases not involving taxes. Rather, the court must also consider the nature of the charge in dispute.8 Following Keokuk, the Court has applied this more holistic approach to determine whether contested charges qualify as duties of tonnage. Thus, the Court has considered not only whether the state is using a vessel’s tonnage to assess fees, but also whether the state is imposing the fees to compensate for costs incurred by the state or municipality in providing and maintaining ports or as another means to charge vessels to access a port. Applying this method of analysis, the Court has upheld the constitutionality of fees to cover services for the safety and upkeep of wharves and locks;9 fees to cover quarantine services;10 annual license fees;11 and fees imposed to cover the costs of providing harbor police services.12

Cooley v. Bd. of Wardens, 53 U.S. 299, 314 (1851). back
Id. back
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In re State Tonnage Tax Cases, 79 U.S. 204, 226 (1870). back
Clyde Mallory Lines v. Alabama, 296 U.S. 261, 265–66 (1935). back
Steamship Co. v. Portwardens, 71 U.S. 31 (1867); In re State Tonnage Tax Cases, 79 U.S. 204; Peete v. Morgan, 86 U.S. 581 (1870); Cannon v. New Orleans, 87 U.S. 577 (1874); Inman Steamship Co. v. Tinker, 94 U.S. 238 (1876). back
Transp. Co. v. Wheeling, 99 U.S. 273, 284 (1878). back
Packet Co. v. Keokuk, 95 U.S. 80 (1877); see also Wiggins Ferry Co. v. City of E. St. Louis, 107 U.S. 365, 376 (1883) (noting that whether a rate is imposed based on tonnage is “not a conclusive circumstance . . . [but] is one of the tests applied to determine whether a tax is a tax on tonnage or not” ). back
Keokuk, 95 U.S. at 87–88; Vicksburg v. Tobin, 100 U.S. 430, 432–33 (1879); Packet Co. v. St. Louis, 100 U.S. 423, 429 (1879); Packet Co. v. Catlettsburg, 105 U.S. 559, 561–62 (1881); Transp. Co. v. Parkersburg, 107 U.S. 691, 706–07 (1883); Huse v. Glover, 119 U.S. 543, 550 (1886); Ouachita Packet Co. v. Aiken, 121 U.S. 444, 448 (1887). back
Morgan’s S.S. Co. v. La. Bd. of Health, 118 U.S. 455, 463 (1886). back
Wiggins Ferry Co., 107 U.S. at 376. back
Clyde Mallory Lines, 296 U.S. at 264. back