Article: Bar Harbor and Portland might limit cruise ships/passengers

[shipgeeks]

An article in the Portland Press Herald (Maine) stated that those towns have petitions going to limit the number of ships/passengers who can call at each port at any time, one proposed limit being 1,000 pax.

Apparently the vote will not occur until November, so our current season is not affected.

I'm sorry I don't have the ability to provide a link.

[shof515]

here is the link: https://www.pressherald.com/2022/07/27/bar-harbor-struggles-with-cruise-ship-limits-and-portland-could-be-next/

[GTJ]

Imagine if there were to be a proposal that limited the number of people who were permitted to exit the highway and visit Portland or Bar Harbor. There would, of course, be implications as to the infringement on the constitutionally-protected right to travel. That said, there have been a number of cases where local communities have tried to discriminate among persons visiting based on the mode of transportation used and prejudices associated therewith. For example, some communities have tried banning Greyhound Lines from stopping based on their perception of the "types of people" that are perceived as traveling by Greyhound Lines. This effort seems to be exactly the same: an effort to ban cruise vessels from stopping based on perceptions of the "types of people" that are perceived as traveling by cruise vessels. The plain word for this is, of course, "discrimination" . . . whether based on skin color, economic status, or otherwise. It is a sign of ugliness by the people of Portland and Bar Harbor who would support such prejudice and discrimination.

[1025cruise]

Bar Harbor has never liked the cruise stops. They get busy enough during the summer without the additional cruise ship passengers. They now make the ships anchor where they aren't necessarily visible. Plus, the town bought the ferry terminal (where the CAT docks) explicitly so that someone else wouldn't buy it to turn into a cruise ship dock.

[shipgeeks]

Didn't Key West successfully limit cruise ship visits?

[njhorseman]

45 minutes ago, shipgeeks said:

Didn't Key West successfully limit cruise ship visits?

The voters did, but the state quickly enacted a law making the limitation illegal.

[GTJ]

On 7/30/2022 at 1:50 PM, njhorseman said:

The voters did, but the state quickly enacted a law making the limitation illegal.

On June 29, 2021, the governor approved the legislation, which added section 311.25 to the Florida statutes:

 

311.25 Florida seaports; local ballot initiatives and referendums.—

(1) With respect to any port that has received or is eligible to apply for or receive state funding under this chapter, a local ballot initiative or referendum may not restrict maritime commerce in such a port, including, but not limited to, restricting such commerce based on any of the following:

(a) Vessel type, size, number, or capacity.

(b) Number, origin, nationality, embarkation, or disembarkation of passengers or crew or their entry into this state or any local jurisdiction.

(c) Source, type, loading, or unloading of cargo.

(d) Environmental or health records of a particular vessel or vessel line.

(2) Any local ballot initiative or referendum that is in conflict with subsection (1) and that was adopted before, on, or after July 1, 2021, and any local law, charter amendment, ordinance, resolution, regulation, or policy adopted in such an initiative or referendum, is prohibited, void, and expressly preempted to the state.

 

The council of Key West is composed of amateurs. It added chapter 80 to its code of ordinances, entitled "Cruise ship regulations." Its first provision, section 80-1, reads in relevant part: "'Vessel' shall mean a cruise ship holding more than five hundred (500) passengers and such cruise ship's owner(s)." This definition is backwards! The term "vessel" is well-defined in the common law and properly defined in the Florida statutes as: "'Vessel' is synonymous with boat as referenced in s. 1(b), Art. VII of the State Constitution and includes every description of watercraft, barge, and airboat, other than a seaplane on the water, used or capable of being used as a means of transportation on water." Fla. Stat. § 327.02(47). It is the term "cruise ship" that is not well-defined and in need of a specific definition within the city's code of ordinances if provisions are to be applicable only to vessels holding more than 500 passengers! Elsewhere in the same provision the city defines "Waterways of City of Key West" as meaning "the water six hundred (600) feet into the tidal waters adjacent to the City of Key West's corporate limits." In other words, certain waters that are outside the city limits. The city then attempts to regulate activity outside the city limits. Key West might as well attempt to regulate the waters surrounding New York City!

 

The council members of Key West cannot legitimately be viewed as serious local legislators.

[Susan in Maine]

Oh PLEASE! What has limiting cruise ship stops has to do with discrimination? This post is purely pejorative. If it's because we want to protect our towns and our environment, we will do it! Nobody cares who is on the ship - we only care about the impact that cruise ship has.

 

Bar Harbor is a tiny little town with fewer than 6000 year round residents. Adacia already gets about 4 Million (!) visitors a year, with about 2.6M in July - September alone. Dumping 3000 - 4000 people all at once in a small downtown is tough to absorb. Moreover, the tourist season is very short - basically from July 4th to Labor Day. Additionally, cruise ships are notorious polluters, and all MDI (Mount Desert Island) has is its natural beauty. While the cruise ships add to the economy, it's incremental rather than critical. I applaud Bar Harbor for taking some control over its destiny given that it has none over Acadia.

 

As to Portland: Portland is very much a working waterfront, with several islands where people live year round. The Old Port is a delightful area right on the waterfront with delightful shops and amazing restaurants and brew pubs. But it's also very cramped with narrow streets, some of which are one way. The city needs to protect the waterfront, and too many cruise ships make that difficult. Cruise ships are a few a year - the working waterfront is a few a year.

 

Maine is a spectacularly beautiful place, and we need tourism dollars - don't get me wrong. But the above rant is exactly why we need to be careful of our lifestyle and our environment. Unlike many of the cruise ports in the Caribbean and Alaska where the entire economy is based on cruise ship passengers, they are a tiny percentage of our tourism dollars. When people "from away" start trying to dictate to us how to conduct our business, it's a problem.

 

 

[chengkp75]

On 7/29/2022 at 3:01 PM, GTJ said:

Imagine if there were to be a proposal that limited the number of people who were permitted to exit the highway and visit Portland or Bar Harbor. There would, of course, be implications as to the infringement on the constitutionally-protected right to travel.

Well, let's take this apart.  Driving on the interstate, you are already in the country, so you have cleared customs and immigration, and are undertaking "interstate" travel.  Arriving on a cruise ship is "international" travel, and the people of Bar Harbor or Portland can decide if they want to have thousands of visitors enter the country in their town, much like a city can determine whether or not they allow international flights at their airport.

 

On 7/29/2022 at 3:01 PM, GTJ said:

The plain word for this is, of course, "discrimination" . . . whether based on skin color, economic status, or otherwise. It is a sign of ugliness by the people of Portland and Bar Harbor who would support such prejudice and discrimination.

I find this very amusing.  Portland has a very large immigrant population, and when my son was in middle school in Portland, there were 65 other languages spoken as first language by the students.

 

As for the Key West situation, first off, it depends on the particular state constitution (guess what, they are not all the same) with regards to granting powers to state or local authorities.  Second, the addendum has not been challenged, since it specifically excludes the 4 or 5 largest ports in the state from this state oversight, so actually, Miami could initiate a cruise ship ban, and it would not be affected by this law.  As to whether or not the city has the right to regulate things outside the city boundaries, dives into maritime law, and the fact that the Federal government regulates navigation in US territorial waters (including the waters claimed by Florida), while the state owns the "submerged land" (the seabed) and can regulate activities relating to the seabed.  I have not read the Florida statute in over a year, and am not conversant with Florida coastal waters laws, but from what I remember, the state struck it down on the basis that it interfered with the "commerce of the state", not any particular region either within or without the city limits.

[GTJ]

On 7/31/2022 at 4:53 PM, Susan in Maine said:

What has limiting cruise ship stops has to do with discrimination?

Of course this is discrimination. The Canadian ferry company is providing interstate commerce to and from Bar Harbor, and in doing so it is serving the local market. As well, other transportation also serves the local market (e.g., Downeast Transportation). All without any effort on the part of the city to limit such transportation. On the other hand, the vessels that Bar Harbor seeks to limit or ban do not serve the local market (no itineraries originate or terminate in Bar Harbor) but instead serve interstate markets. “[W]here simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected.” Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978). And that’s what is going on here. The City is favoring commerce serving the local population, and disfavoring commerce not local in nature. True, there may be differences in the commerce involved that create distinct impacts on the city, and in that case the balancing test developed in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), might be used to analyze the commercial burdens involved, but that does not diminish the fact that this is discrimination.

[GTJ]

On 7/31/2022 at 6:25 PM, chengkp75 said:

Arriving on a cruise ship is "international" travel, and the people of Bar Harbor or Portland can decide if they want to have thousands of visitors enter the country in their town, much like a city can determine whether or not they allow international flights at their airport.

Decisions on where to have ports of entry are decided by the federal government, as part of its exclusive right to regulate immigration. The airport situation is not analogous. While the owner of an airport may have control over the flights allowed to land and depart, navigating waters is a public right, over which control is exercised by the federal government.

 

On 7/31/2022 at 6:25 PM, chengkp75 said:

Portland has a very large immigrant population, and when my son was in middle school in Portland, there were 65 other languages spoken as first language by the students.

What relevance is immigrant population to discrimination against interstate commerce?

 

On 7/31/2022 at 6:25 PM, chengkp75 said:

[F]rom what I remember, the state struck it down [the local ordinance] on the basis that it interfered with the "commerce of the state", not any particular region either within or without the city limits.

That certainly motivated the state (at least in part . . . almost certainly politics were also involved). The Florida constitution provides home rule authority for municipalities to enact local legislation. Article VIII, section 2(b), provides: "Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law." While the provision does not explicitly limit municipalities to legislating within their corporate limits, it is counterintuitive to think that extraterritorial legislation--an ordinance regulating activity outside the city limits--is legitimate. It would be informative for any legal authorities on this point to be identified.

[sippican]

As a New England resident who visits Bar Harbor beach year, I read this with interest. 

One comment has me laughing, claiming the cruise ships help create a "schlocky" tourist trap atmosphere. As one who has. visited for over 50 years, I can guarantee that Bar Harbor has been filled with tourist traps since I was a girl!

The number of signatures on the petition is hardly a representation of the full-time island residents.

The claim that Bar Harbor cruise calls can be considered international travel is stretching it a bit - most cruises actually originate in Boston, and yes, do call on Canada.

The port calls are mostly in the fall, dumping no more passengers than would be in town on any  busy summer day. Saying the ship passengers plan a strain on the town is puzzling, they do not need lodging, they might eat lunch there, and they provide a boost to the economy in an otherwise slower season.

 

To my knowledge, the CAT is once again running from Bar Harbor to Nova Scotia. Strange that there has been little said about the daily ferry from NS dumping tourists, vehicles, RVs, tour buses, etc, into the town.  Struggling to understand the rationale of it all.

 

[JulieAF]

I was just doing some excursion planning for a cruise I just booked for next month. I went to the site: https://crew-center.com/cruise-ship-ports-schedules to see if any other ships would be in port on 9/19 when my ship arrives in Portland. I was shocked that my ship, the NCL Joy, will be joined by RCCL's Voyager of the Seas AND RCCL's Adventure of the Seas!! The capacity of each ship is close to 4,000! All 3 ships will be arriving around the same time and leaving around the same time in the evening. This makes me feel very sorry for the locals, and it is forcing me to book a cruise line's shore excursion so I will be able to see at least some sites.

[njhorseman]

1 hour ago, JulieAF said:

I was just doing some excursion planning for a cruise I just booked for next month. I went to the site: https://crew-center.com/cruise-ship-ports-schedules to see if any other ships would be in port on 9/19 when my ship arrives in Portland. I was shocked that my ship, the NCL Joy, will be joined by RCCL's Voyager of the Seas AND RCCL's Adventure of the Seas!! The capacity of each ship is close to 4,000! All 3 ships will be arriving around the same time and leaving around the same time in the evening. This makes me feel very sorry for the locals, and it is forcing me to book a cruise line's shore excursion so I will be able to see at least some sites.

The schedule on that site is incorrect. Norwegian Joy and Voyager of the Seas will be in Portland that day but Adventure of the Seas will be in Portland on the 18th.

[chengkp75]

1 hour ago, JulieAF said:

forcing me to book a cruise line's shore excursion so I will be able to see at least some sites.

What "sites" are you hoping to see?  There is a whole lot to do in Portland without taking an excursion.

[JulieAF]

39 minutes ago, njhorseman said:

The schedule on that site is incorrect. Norwegian Joy and Voyager of the Seas will be in Portland that day but Adventure of the Seas will be in Portland on the 18th.

Great! Thanks for letting me know! Nice to know it may be quieter than I thought.

[JulieAF]

30 minutes ago, chengkp75 said:

What "sites" are you hoping to see?  There is a whole lot to do in Portland without taking an excursion.

I am not sure, but I just started researching after I booked my cruise this morning. I thought I might take a boat to the little nearby island. From reading these types of suggestion boards, I may need to wake up before Dawn and look for the Head Light before we dock. Then, in port, maybe try a Holy Donut, visit Becky's Diner and High Roller Lobster. LOL!

Edited August 9, 2022 by JulieAF

[GTJ]

8 hours ago, sippican said:

The port calls are mostly in the fall, dumping no more passengers than would be in town on any  busy summer day. Saying the ship passengers plan a strain on the town is puzzling, they do not need lodging, they might eat lunch there, and they provide a boost to the economy in an otherwise slower season.

 

To my knowledge, the CAT is once again running from Bar Harbor to Nova Scotia. Strange that there has been little said about the daily ferry from NS dumping tourists, vehicles, RVs, tour buses, etc, into the town. Struggling to understand the rationale of it all.

I think that you are properly viewing the situation with dispassion. Stepping onto a limb, what I think is going on is a segment of the population that dislikes the tourism industry generally. Picking on cruise vessels is easy to do for that segment because the entirety of the passengers on the visiting vessel constitutes a "them," with an eye to exclude "them." On the other hand, the motor vehicles are harder to exclude because, I suspect, the tourism critics themselves rely on motor vehicles. As a result, it is harder to exclude "them" without risking these critics within the ambit of any exclusionary policies they might try to impose.

 

Sensibly, however, the passengers carried by cruise vessels--and also by buses--have the least impact on the environment than any of the others traveling by private automobile . . . including the very critics who are trying to exclude the tourists. These tourists arriving by cruise vessel add zero to motor vehicle traffic, and consume few government-provided resources. Their choice of transportation is the least intrusive choice that could be made.

 

I see the issue as that being local residents who want this region reserved for themselves, and to exclude others. Targeting cruise line vessels is low-hanging fruit for them. Because the Cat ferry is transporting private automobiles, many of which are driven by local residents, that there seems to be a silence on its operations and a desire to treat it differently than the cruise line vessels. But I think that, if there were a way to do so, these people would seek a means by which they could exclude motorists who were not local residents.

 

There's a variant of this near where I reside. People who live in the suburbs of New York City all desire to take advantage of the many benefits of the city, including its commerce, culture, and natural resources. Yet, these same suburbanites, when retreating to their cloistered residences, then do all they can to exclude city residents from their communities, imposing resident-only requirements for various activities.

 

It comes down to selfishness by local residents. A desire to discriminate against outsiders who desire to travel to Maine. An attitude that is at variance with the constitutionally-protected right to interstate travel.

[chengkp75]

6 hours ago, GTJ said:

An attitude that is at variance with the constitutionally-protected right to interstate travel.

If one were discussing interstate travel, you would have a point.  That would require transportation on a US flag vessel (domestic).  Once you set foot on a foreign flag vessel, you fall under the jurisdiction of international maritime law, and you are no longer on "interstate" travel, but international travel, and this is established in law and precedent both in the US and the world for decades.   This is the point that most US cruise passengers fail to understand, that just because a cruise starts and ends in the US, the cruise and the ship do not fall under US jurisdiction when outside territorial waters.   International law says that coastal states (meaning nations) have the right to restrict access to foreign ships, and this has also been established for decades.  When you throw in the US states' rights to jurisdiction over their territory unless specifically reserved to the Federal government by the Constitution, then you find that the states do have the right to regulate international traffic into seaports.  Barring any treaty between the US and the flag states of the cruise ships granting specific access to ports, and barring any contract between the cruise line and the town/city port authority, the cruise ship doe not have any presumtive right to access to the port.

Edited August 9, 2022 by chengkp75

[GTJ]

12 hours ago, chengkp75 said:

If one were discussing interstate travel, you would have a point.

With all due respect, I think that you’re confusing the right of individuals to travel freely among the several states with the regulation of transportation by carriers. The U.S. Supreme Court explained that “[t]he ‘right to travel’ . . . embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State,” and the Court provided the constitutional bases for the protection of the right. See Saenz v. Roe, 526 U.S. 489 (1999). Other cases expand upon this and related ideas. Now this right does not mean that a person has a right to travel by any particular form of transportation. See e.g., Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006). Thus, there are legitimate restraints on freedom of movement by certain means of transportation for compelling government interests, such as, for example, a license being required for travel by driving a motor vehicle, and security inspection being required for travel by commercial airliner. Restricting interstate travel by commercial vessel might be legitimate for some compelling government interest. Here, however, the interest of Bar Harbor in restricting travel by commercial vessel is not only illegitimate, but directly contrary to the second component of the right as described by the U.S. Supreme Court, “to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State.” The real reason for the Bar Harbor residents is to exclude visitors. Maritime law here is irrelevant because this is not a matter of law relating to navigable waters: this is not a matter of regulating cabotage or establishing civil liability among parties. There is no relevance to a particular carrier’s flag as to constitutionally-protected rights of American citizens who may happen to be aboard that carrier’s vessel. This larger concern relates to the Constitution, to interstate travel, and the efforts of a few selfish residents of a small town in Maine trying to keep other American citizens away.

[chengkp75]

You may want to brush up on maritime law, even though you say it doesn't apply, as there are many precedents of closing ports to foreign flag ships.  And, just as during covid, US citizens were denied re-entry into the US, as they were not on US soil.  Once a citizen reaches US soil, they cannot be denied entry from a foreign country (and that is what the cruise ship is), but until they reach US soil, they can be denied entry.  You have the common misconception that US law protects you everywhere, when in fact it does not, and a foreign flag cruise ship is one of those places.  

[chengkp75]

Further, under the Submerged Land Act, while the Federal government controls the navigable waters of the US, the states regulate the "submerged land" (ocean bottom) under those waters, and can determine whether or not ships anchoring in places disrupts the ecology, and commerce of the waters, and could just as easily close the anchorages to all but small fishing boats, and pleasure craft.

[GTJ]

2 hours ago, chengkp75 said:

You may want to brush up on maritime law, even though you say it doesn't apply, as there are many precedents of closing ports to foreign flag ships.

Again, you're wrongly focused on the details of maritime law, not the general principles of constitutional law. I am certain that the U.S. Merchant Marine Academy does a fine job generally in training mariners, and in particular it delves into matters of law relative to the sea. I looked at the current curriculum, and see that it includes 6 quarter credits of navigation law, 2 quarter credits of admiralty and international law, and 3 quarter credits of business law. This is not even enough education for a minor; it is in the community college range. Nonetheless, as is also the case for many degrees in various majors, and for technical education, it is likely that the academy's curriculum of maritime law--including specific statutes and administrative regulations, perhaps even a handful of cases--provides a deep practical understanding of a narrow are of law, and in most cases likely exceeding the knowledge of many lawyers as to those specifics. As noted, the academy is a fine institution. I reside on the north shore of Long Island, and it is a valued institution here, turning out many capable and valued graduates. But it is an institution that is largely oriented to following established law, not challenging the law; it does not teach constitutional law or legal methods, nor does it teach students how to think and reason as lawyers. In short, the academy does not train its cadets to be lawyers, nor does it graduate lawyers; it is not a law school. That's why I think you're so focused on the narrow area of maritime regulation, for this is what was taught there. But here, the argument is much more broad. This is not an argument about maritime activity, but rather migration activity. Engaging in interstate travel. It is not mode specific, nor can any mode "opt out" of the Constitution.

 

My practice mostly revolves on representing clients in matters relating to passenger transportation law. I know the subject very well. Not necessarily all the specific details without reference to the statutes, regulations, and cases (e.g., whether a particular bus operator qualifies as a small mixed-service operator for ADA purposes, whether a particular foreign qualifies as distant or is nearby), but important is the ability to be able to see larger pictures and frame the issues accordingly. In order to do this effectively, one needs to understand law and its application more generally than just knowing a number of specific statutes, regulations, and cases only in a narrow field. And that is especially true in cases like this, where constitutional issues are involved. The larger picture here is that a number of selfish individuals in Maine do not want others to be welcome. (And in that regard, I get involved in the same type of issue in NYC: residents of particular neighborhoods only want "their" buses being assigned bus stops, but buses serving the entire city being denied bus stops, as a means to exclude others.) Thus, I think that arguing constitutional issues is fine, but getting bogged down in largely irrelevant details of maritime law is really not the issue . . . at least not without a more effective argument that is tied into the larger picture.