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Bar Harbor voters approve 1,000/day cruise passenger cap but is it constitutional?

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A Princess ship anchored off Bar Harbor
Voters in Bar Harbor, Maine approved a measure to cap cruise passengers at 1,000 per day.

This is a dramatic reduction from the 3,500 per day currently in July and August and 5,500 per day in May, June, September and October.

The vote was 1,780 to 1,273, according to the Mount Desert Islander.

Exemption, execution and fines

Under the voter-approved Article 3, passengers who made their cruise reservations prior to March 17, 2022, would be exempt. The harbor master is to create a cruise ship disembarkation reservation system, a daily counting and tracking system and a violation reporting system. There will be a minimum $100 fine for each person over the limit.

Seatrade Cruise News reached out to Cruise Lines International Association to ask if the industry plans to challenge the decision and did not immediately hear back.

Commerce Clause concerns

In a pre-referendum analysis, the town of Bar Harbor discussed concerns about potential conflicts with the US Commerce Clause, which gives Congress primary authority to regulate interstate and international commerce and limits a state's ability to interfere in such activity.

Town Manager Kevin Sutherland wrote: ' ... specifically, the Balance Test of the Commerce Clause, which means the benefits of a ban (or a severe limitation as proposed by the petitioner) to the Town of Bar Harbor would have to be greater than the loss from the industry and the other ports that the industry visits.' He added that a working group found the appeal of Acadia National Park is a selling point for cruises so a limitation in Bar Harbor may affect other ports in the Canada/New England itinerary.

He also cited the Supremacy Clause, which gives federal law precedence in conflicts between federal and state or local law, opining: 'There is significant risk that a measure banning or limiting cruise ships could be deemed unconstitutional, but will require a lot of time and money to address.'

Two legal opinions

Pre-referendum, Bar Harbor hired two attorneys to look at the matter. One cited 'some risk' that restricting or banning cruise ships 'would be deemed impliedly preempted as interfering with the uniformity of maritime commerce.' The other stated: 'We do believe that there is significant risk that a measure banning or limiting cruise ships could be deemed unconstitutional.'

Economic impact

Big ship cruises returned to Maine in April after a two-year hiatus. According to CLIA, pre-pandemic, the cruise industry contributed $68m in direct spending and created more than 1,000 jobs in Maine, amounting to $36m in wages.

Some 360 calls were scheduled statewide this year.