Board appeals after judge throws out rate increase for Maine pilotsAug 31, 2018 04:14 PM
Rich Miller photo
The Cat passes Fort Gorges in Portland Harbor as the ferry heads for Yarmouth, Nova Scotia, in early July. A judge ruled in favor of Bay Ferries in June in a dispute over pilot fees, but the case is now going to the Maine Supreme Court.
A lawsuit filed over fees charged for pilots to guide ships in and out of Portland Harbor is heading to Maine’s highest court.
In a June 1 ruling against the Board of Harbor Commissioners for the Port of Portland and Portland Pilots Inc., Superior Court Justice Lance Walker threw out an increase in the minimum fees charged to ships, calling the sudden hike in May 2017 “highly irregular.”
Bay Ferries Ltd., a Canadian company that operates The Cat ferry from June to October between Portland and Yarmouth, Nova Scotia, claimed in its lawsuit that due diligence wasn’t done before pilotage fees were raised from $709 (each way) to $1,200. Commissioners reduced them to $1,077 in November.
Harold Pachios, the Portland lawyer representing Bay Ferries, said the increase would amount to another $100,000 in fees, meaning the operator would pay about $300,000 annually to have pilots on board for every leg.
Bay Ferries, along with the Icelandic shipping company Eimskip and other companies that operate similar-sized ships, is required by state law to have a pilot on board during trips in and out of port. Pilots are picked up and dropped off at stations near Portland Head Light and Two Lights in Cape Elizabeth.
In the Superior Court suit, Bay Ferries contended that the commission refused to present revenue data to justify the rate increase and sufficiently explain the reasons for it. Walker wrote about that concern.
“A 50 percent increase in the minimum fee implemented in a single year strikes the court as questionable at best, particularly without the benefit of a record that includes an analysis of revenues,” he wrote. “The court concludes that for the board to properly discharge its duty of setting a just and reasonable ‘compensation for the services of the pilots,’ it must know the extent to which the pilots are actually compensated.”
But Commissioner Tom Dobbins said the board went to exhaustive lengths to research and provide information that supports the new rate.
“We looked at other places that had comparable elements, and our minimum rates fell well within other ports from Bar Harbor to Rhode Island,” he said, adding that income has gone down as operating expenses have increased.
As for revealing revenues or salaries for Portland Harbor’s four pilots and one apprentice, Dobbins said, “We feel that this is a private operation and we didn’t want to get into that.” In his decision, Walker wrote that the pilots “insisted that information about the pilots’ income was irrelevant to the proceedings.”
Contending that “some errors were made” in Walker’s decision, commissioners decided to appeal the case to the Maine Supreme Court, Dobbins said.
Pachios said Bay Ferries has repeatedly asked commissioners to provide records of both income and expenses.
“They say the pilots need more money, but you need to know how much they get now to know if an increase is in order,” he said. “We sued on that basis. It comes down to transparency, and the pilots have refused to disclose these figures.”
There has been ferry service between Nova Scotia and Portland since 1970 with some gaps, said Pachios, a former U.S. Navy officer. For the first 11 years, companies weren’t required to have a pilot on board because, after numerous trips, captains thoroughly knew the harbors.
In 1981, ships started being charged to have pilots aboard to oversee navigation in and out of port until captains had 15 trips under their belt. That regimen continued for about 30 years. In 2012, state legislators voted to start requiring pilots on each leg of every trip.
Pachios estimated that the state Supreme Court would hear oral arguments in the case in late summer or early fall.