Harbormaster’s Memo Explains Some Details That Must Be Resolved
BAR HARBOR—Harbormaster Chris Wharff has sent a December 15 memo to Police Chief James Willis detailing the hurdles to actualizing the new cruise ship disembarkation limits in Bar Harbor. Those limits were enacted after the town voted in favor of a citizens petition that limited disembarkations to 1,000 or less a day. If that daily limit is exceeded, there are fines of $100 per disembarkation.
The memo came after a December 9 meeting with Town Manager Kevin Sutherland and Willis. It also comes after a December 5 letter from the Penobscot Bay & River Pilots Association to Town Manager Kevin Sutherland stressing the organization’s concerns with the impacts of the changes. The organization has obtained legal council to look into challenging the new rules and regulations.
Among the issues mentioned in Wharff’s memo are:
Who must get the permit to disembark passengers.
Town staff has interpreted it as the tender dock facility and not the ship. Those permits, they believe, are required for a specific ship, specific time, and specific date, and specific location. Wharff believes this “needs to be clarified in the rule making process.”
Who is disembarking?
The ordinance reads that it should not be more than “1,000 persons in aggregate,” but the question is the definition of persons. They are going under the assumption that this includes crew. They are also assuming that “if all 1,000 disembarkations have happened, and 200 people return to the ship for the day, meaning only 800 remain shoreside, no further disembarkations will be allowed from that ship.” That also needs to be clarified within the ordinance, he wrote.
Later in the memo, he wrote,
“We also need to define what “disembarking passenger” means in the counting process. Every ship day there are several passengers who disembark for medical reasons and do not return to the ship, there are crew members who have finished their tours and leave the area altogether, there are new crew arriving, there are crew who remain on the tender dock all day to assist guest and provide security. We must develop a strict definition here as again, we are counting down to the single individual for violation purposes.”
Who can make a ship’s reservation?
Wharff’s duties now include creating a cruise ship reservation system. They are unsure “who can make a reservation for a ship.”
“If a dock is required to obtain a permit for the above listed specific date and time, the Harbormaster cannot make a reservation until a permit is obtained. The Harbormaster could technically schedule a place for the ship to anchor but cannot give permission to come ashore until a permit has been obtained from Code Enforcement. We believe that this technically denies the Harbormaster’s ability to make any booking confirmation as the sole confirmation for a booking must be tied to a valid permit, which must come from Code Enforcement. Code Enforcement will in all actuality be making the reservations for ships based on the permits they issue. This process needs clarification prior to moving forward with a new reservation system.”
“A further question regarding reservations surrounds how many ships can anchor in the federally regulated Anchorages A and B. The Harbormaster has limited authority under federal law to “coordinate” activity of ships anchoring in the anchorages. We do not have the ability to tell a ship no unless there is a serious and legitimate safety concern involved. This decision is made by the Pilots and not the Harbormaster. There is no language in the ordinance that regulates the number of ships that can disembark passengers on a given day. Technically this means we could have a scenario where 10 cruise ships holding 100 passengers each, obtain permits and disembark passengers in one day. This needs to be clarified moving forward in the process.”
How will the system of counting work?
Wharff writes that the town must first determine how many staff members are needed to do this. He believes at least two.
“From experience we know that tender docks are busy and chaotic with numbers of up to 200 people or more disembarking a tender at one time. It is our opinion that at least two staff members would be required in order to take an accurate count. This is made more important by the fact that the ordinance requires a violation be issued if the count is even 1 person over 1,000. The importance of accuracy will be paramount when working in such small numbers.”
What kind of evidence do they need to prosecute violations?
Another piece of the puzzle, he writes, is the collection of evidence of violations.
Wharff is a lieutenant in the Bar Harbor Police Department and writes,
“We then need to determine what sort of evidence would be required in order to have a valid and defensible case in civil court for the Town of Bar Harbor to successfully prosecute violations. Speaking from a wealth of experience in the criminal justice system, all charges must be accompanied with physical evidence in addition to witness testimony. This means obtaining such evidence as photographs or video of the said violations, witness statements or ship and facility logs. Essentially there is a need to build a full criminal case file to hand to Code Enforcement for the prosecution of violations. Our current staff for cruise ship details is made up of civilians who have no law enforcement training and possess no ability to build cases for prosecution in a court of law. Moving forward we will likely need to hire and train a staff that is capable of this sort of work.”
Will there be limits on more than one tender facility operating at a time?
This would be so that the town can hire and train the appropriate amount staff.
How do they tell ships they are ‘on notice’ and have reached the 1,000 cap?
“In order to build a defensible court case, this notice should be in writing and signed for by a high-ranking member of the dock staff at the location to acknowledge receipt. Once the notice is served, staff would need to remain in place for the day to count any additional disembarking passengers, and collect evidence of violations in as much detail as possible so that the correct fine amount is assessed by Code Enforcement.”
He says an obstacle to this is that all operating tender docs are on private property, writing,
“We believe that potential issues lie in our officials accessing private property if access is denied by the property owner. We have no legal right to access private property without a search warrant or court order giving us permission to do so. This should be codified in an agreement of some sort with the owners of tender facilities prior to this process moving forward.”
How can they create procedure for violations to be reported to the Code Enforcement office?
Who makes new provisions?
While the changes that were voted in give the harbormaster the authority to create new provisions necessary to make the changes work. Wharff doesn’t believe that should come from him or any other employee, but the elected body of the Town council, his employers.
In the memo, Wharff also suggested “that the Town of Bar Harbor Cruise Ship Standard Operating Procedures should become a Town Council Policy and be voted on by the Council. This policy can house any of the specific rule changes not covered by language in this ordinance but necessary to conduct business. This procedure is also the mechanism by which cruise lines are notified of per passenger fees. The Town currently charges two separate fees to each visiting ship. A passenger service fee and a port development fee based on lower berth capacity. The town will need to consider what fees if any we choose to charge moving forward.”
In his notes to the council, Sutherland wrote,
“I do not expect Police Department staff to be at the meeting to address this at this time, as we will likely be back in front of Council several times in the New Year as we continue to work out details.
“The takeaway at this time: Implementing the recently approved Land Use Ordinance Amendment will require a significant amount of work and will require time to develop systems and protocols, to hire and train staff, and to get it right. We ask the public to bear with us as staff work through these challenges.”
The Town Council meets at 6:30 p.m. on Tuesday at Council Chambers on the top floor of the Bar Harbor Municipal Building.
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BAR HARBOR—On December 5, the Penobscot Bay & River Pilots Association sent a letter to Town Manager Kevin Sutherland stressing the organization’s concerns with the impacts of the Cruise Ship Disembarkation changes passed by voters this November. The plan limits the amount of passengers disembarking cruise ships each day to 1,000, inserts the changes in…
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