SSA wants Tisbury Towing to end transport of autos
By Nelson Sigelman
Published: December 31, 2008
Ralph M. Packer Jr., the owner of Tisbury Towing, has continually ignored written requests that he stop transporting rental cars on his barges, absent a licensing agreement with the Steamship Authority that would permit him to do so, according to the Steamship Authority (SSA). Frustrated, the SSA has now asked a judge to order Mr. Packer to do what the boatline says repeated letters to Mr. Packer did not do, plus reimburse the boatline for lost revenue, along with double or triple damages and court costs.
The boatline's complaint was filed on October 15 in Dukes County Superior Court by Ron Rappaport, the Edgartown lawyer and former Vineyard Steamship Authority member.
Lawyers representing the SSA and Mr. Packer appeared in the Edgartown court for a status conference on Dec. 23, before a Superior Court judge. The next status conference is scheduled for February.
The lawsuit is new, but not the issue. Last January at their first meeting of 2008, the Steamship Authority members expressed irritation with Mr. Packer for ignoring boatline requests that he stop barging rental cars.
Marc Hanover of Oak Bluffs, Vineyard SSA member, raised the issue of the continuing transportation of Hertz rental company cars to and from Martha's Vineyard by Mr. Packer, who owns the towing company, its tugboats and tank and deck barges, as well as the fuel depot on Vineyard Haven Harbor.
The SSA's enabling legislation requires companies that transport freight, passengers, or autos in vessels of a certain tonnage to be licensed by the authority.
At the 2008 January meeting, Mr. Hanover told his fellow members that he spoke to Mr. Packer, but that Mr. Packer was "not too concerned." Mr. Hanover suggested the SSA send Mr. Packer a letter.
SSA general manager Wayne Lamson told Mr. Hanover at that meeting that he had already sent two letters. "It doesn't seem to be working," he told the members at the time.
At the January board meeting, the members agreed that if Mr. Packer did not comply, the next step would be to go to court to request an injunction.
The 30-page complaint includes a request for the court to issue a preliminary injunction prohibiting Tisbury Towing from operating a barge to carry vehicles. Steve Sayers, SSA lawyer, said that request was put on hold based on an agreement with Mr. Packer's lawyer that he would not carry any rental cars pending a hearing of the case.
In a telephone conversation, Mr. Sayers told The Martha's Vineyard Times that SSA captains and pilots documented Mr. Packer's barges carrying vehicles. "The board members are not going to tolerate it," said Mr. Sayers. "He was asked again to stop carrying rental cars, and he did not respond, so we filed a complaint in mid-October."
According to Mr. Sayers, the barging of rental cars leads to a larger licensing issue. "In my legal opinion, Ralph Packer requires a license from us to operate," said Mr. Sayers. "With respect to all of his operations, he has not had one, and it is something that the authority has not pursued vigorously over the years. We have made it clear that we are willing and eager to give him a license for all of his historical operations with no licensing fees as long as he does not carry vehicles for hire."
Mr. Sayers said the exception is his transport of vehicles, which began early in this decade. "We want him to be part of the integral transportation network between the islands and the mainland," he said. "We just want to have a discussion with him about the limits of that, and we in fact hope to have those discussions and hope to resolve this whole subject without the need for further litigation."
In a brief telephone conversation yesterday, Mr. Packer said he has hired a lawyer and preferred not to say too much while the matter is before the court. He said he hopes to sit down soon with the SSA's lawyers and discuss the issues surrounding licensing.
Lawsuit history
Mr. Rappaport served as Martha's Vineyard's appointed boatline member until October 2000 when he resigned midway through a second three-year term. Mr. Packer is represented by lawyer Norman A. Peloquin of Partridge Snow and Hahn in Providence, Rhode Island.
Mr. Packer's 12-page response basically asks the SSA to prove its allegations. The response asks the court to uphold Mr. Packer's rights to continue his barging operation and award him court costs.
The SSA complaint provides a detailed history of the Authority and its claims against Mr. Packer. It begins with a reference to the legislation that created the SSA. The 1960 "Enabling Act," as it is known, prohibits any person from operating any vessel in order to transport vehicles or freight for hire or resale by water between the Massachusetts mainland and the islands without a license from the boatline.
The complaint emphasizes the basic premise that underpins the Steamship Authority's licensing power, namely that it is essential to the Authority's financial stability and core mission to serve the islands.
A history of the SSA provided in the complaint quotes from the report of a 1948 state commission that led to the creation of The New Bedford Authority, the predecessor to the SSA. It stated, " The steamship line must operate in winter, when the revenue is relatively small, as well as in summer, when profits are made. The line, as a public utility, must therefore be protected from the diversion of its trust by casual adventurers in boat operation who would skim off the cream of the summer business and leave the taxpayers and the public to bear the loss of the winter operation, and a provision for such protection has been placed in the proposed bill."
According to the complaint, in the fall of 2003 the SSA learned that Tisbury Towing transported a "fleet of rental cars" from Martha's Vineyard to New Bedford by barge. In October of that year, Fred Raskin, then SSA chief executive officer, wrote to Mr. Packer advising him that his actions were prohibited.
In the spring of 2007, the SSA became aware of similar actions by Mr. Packer. Wayne Lamson, SSA general manager, wrote on May 22, 2007, telling Mr. Packer his actions were subject to the boatline's licensing requirements. The complaint claims there was no response.
More barging that August prompted another letter from Mr. Lamson to Mr. Packer, dated Sept. 5, 2007, in which Mr. Lamson said there was no evidence Mr. Packer's vehicle barging operations were a continuance of service that existed on a daily seasonal basis on or before May 30, 1973, and therefore were not grandfathered.
Mr. Lamson wrote, "After sending a letter to you on May 22, 2007, and then personally discussing this matter with you in a meeting on August 1, 2007, I was disappointed to learn that you have apparently decided to continue to engage in such activities without a license from the Authority or the Authority's permission to do so."
Mr. Lamson asked Mr. Packer to refrain from transporting cars by barge between the mainland of Massachusetts and the islands of Martha's Vineyard and Nantucket. He wrote,
"Any continuation of such activity without being licensed or permitted to do so by the Authority will leave the Authority with no other alternative than to seek a judicial resolution of this matter."
Once again, according to the complaint, there was no response from Mr. Packer. But he did continue to transport vehicles on at least five occasions, in total seven trucks and 120 cars, as documented by the SSA.
That could end up being a tidy ferry bill, if the SSA prevails in court. According to the complaint, the SSA had the ability to carry all of the rental cars and trucks Mr. Packer transported by barge.
The SSA said, "The defendants' activities are siphoning off revenues from the Authority that are needed to defray the deficits which the Authority must incur during the winter months of the year. The more revenues that the defendants siphon off from the Authority, the more the Authority is forced to increase its rates of fare that are paid by the rest of the public to insure that there it has sufficient income to meet the cost of its service."
The complaint concludes with an argument that if Mr. Packer is allowed to continue his unlawful conduct others will follow: "The defendants' violations of Section 5 of the Authority's Enabling Act, which are not only blatant and deliberate on their part but also in complete and willful disregard of the Authority's repeated requests that the defendants stop their unlawful conduct, also send a clear signal across the open water to other vessel operators that they too can compete against the Authority in the same manner as the defendants. Such an open invitation jeopardizes all the more the Authority's protection against such competition, and would undermine an essential element of the Legislature's statutory scheme to ensure the Authority's financial stability. The Authority must be protected from this diversion of its trust by private entrepreneurs who leave the taxpayers and the public to bear the Authority's resultant losses."
