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Bay Ferries, Ltd. v. Board of Commissioners for Port of Portland

Superior Court of Maine, Cumberland

March 12, 2018

BAY FERRIES, LTD., Plaintiff
v.
BOARD OF COMMISSIONERS FOR THE PORT OF PORTLAND and PORTLAND PILOTS, INC., Defendants.

          ORDER ON DEFENDANTS' MOTIONS TO DISMISS

          Lance E. Walker, Justice.

         Before the Court are Defendants Board of Commissioners for the Port of Portland ("Board") and Portland Pilots' ("Pilots") motions to dismiss Plaintiffs Rule 80B appeal. A hearing was held on these motions on February 5, 2018. For the following reasons, Defendants' motions to dismiss are granted in part and denied in part.

         I. Background

         The following facts are primarily drawn from Plaintiffs complaint. Disputed facts are noted where relevant to the Court's decision. Plaintiff operates a roundtrip ferry service between Yarmouth, Nova Scotia and Portland, Maine aboard a vessel named HSV Alakai, commonly referred to as "The CAT." The CAT operates seasonally five days a week. Each time The CAT enters and departs from Portland Harbor, Plaintiff is required by state law to use a pilot approved by Defendant Board. For its pilotage services, Plaintiff must pay to Defendant Pilots a minimum pilotage fee, which is set by Defendant Board. During the 2016 season, this fee was $709.

         In a March 23, 2017 letter, Pilots asked the Board to approve an increase in the minimum pilotage fee from $709 to $1200 per voyage.[1] Pilots also requested a 1.2% increase of the Consumer Price Index rate and an adjustment to the fuel surcharge. The Board scheduled Pilots' request to be heard at a public hearing on April 13, 2017. On April 7, 2017, the Board emailed to Plaintiffs controller an agenda for the April 13 hearing. The items listed on the agenda were:

ITEM ONE: CITGO dredging project at their dock in the Fore River
ITEM TWO: Marine Event Application (Teens to Trails) Aug 26th in the upper Fore River (1 to 5 pm)
ITEM THREE: Portland Pilot Cost of Living rate increase proposal

         The agenda did not include a reference to the proposed minimum pilotage fee increase. The April 13 hearing was cancelled.

         On May 4, 2017, the Board emailed Plaintiffs controller with an agenda for a May 11, 2017 public hearing. This agenda contained the same items as the agenda for the April 13 hearing, with a fourth item added for "58 Fore Street Marina Project." The May 11 hearing occurred as scheduled. Plaintiff was not in attendance. At this hearing, after brief discussion, the Board orally voted to increase the minimum pilotage fee to $1200. The Board never issued a written decision containing findings of fact and conclusions of law concerning the pilotage fee increase. Plaintiff alleges the Board never sent notice of the pilotage fee increase to the Maine Department of Transportation or to the city councils of Portland or South Portland.

         Ten days after the May 11 hearing, Pilots sent notice to Plaintiff that the Board had approved a pilotage fee increase to $1200 effective June 1, 2017. On June 1, Pilots began charging the increased fee and threatened to arrest The CAT if Plaintiff did not pay the new fee. The parties expressed uncertainty at the hearing before this Court as to whether Plaintiff had actually paid the increased fee during the summer of 2017, but Plaintiffs complaint alleges it did pay the increased fee and reserved the right to recoup the difference between the original $1418 fee and the increased $2400 fee per voyage.

         Plaintiff filed its complaint for 80B appeal in this Court on August 24, 2017. Counts I and II allege the Board did not provide proper notice to necessary parties or the public of the hearing to increase the minimum pilotage fee. Count III alleges the Board did not follow required rulemaking procedures in establishing pilot compensation, which must be done by rule. Counts IV and V allege the fee increase is not supported by record evidence or findings and the Board did not make written findings of fact and conclusions of law. Count VI asserts an independent claim for relief pursuant to 42 U.S.C. § 1983 alleging the Board's procedure for approving the increased pilotage fee deprived Plaintiff of due process. Counts VII and VIII allege breach of contract and unjust enrichment by Defendant Pilots.[2]

         II. Discussion

         A. ...


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