New Bedford SSA Suit Goes to Trial

By JULIA WELLS

A federal judge ruled last week that a lawsuit between the city of New Bedford and the Steamship Authority can go to trial, although the judge imposed a set of strict limits that will block any plan by the Whaling City to turn the case into a giant legal fishing expedition.

U.S. District Court Judge Douglas P. Woodlock said he will allow six months for discovery in the case, plus he will allow the city to look at the last six years of records at the public boat line. Each side in the case will be allowed 12 depositions.

The city had wanted a much broader scope for discovery, including access to some 50 years' worth of records at the SSA.

Judge Woodlock made the ruling from the bench at a hearing in U.S. District Court in Boston last Wednesday.

The complaint against the SSA was filed last year in federal court by New Bedford city officials amid their aggressive campaign to open up ferry service between the city and the two Islands.

The complaint charges that the SSA violates interstate commerce laws by restricting ferry service between the mainland and the two Islands. Under the state statute that created the SSA in 1960, the boat line has the power to license its competitors. The core mission of the boat line is to provide dependable year-round ferry service to the residents of the two Islands.

Attorneys for the SSA had filed a motion to dismiss the complaint, among other things questioning whether the city has standing to bring the claim against the state-chartered boat line in federal court. Attorneys also questioned whether the lawsuit violates state sovereignty because both the SSA and the city are considered subdivisions of the commonwealth.

Federal courts are expected to respect state sovereignty and the decisions of the state legislature. There is little case law in this area. Both in an earlier hearing and again last week, Judge Woodlock appeared to show an interest in this legal issue.

The purpose of the hearing last week was to address the pending jurisdictional motion and also scheduling issues.

Judge Woodlock decided that a complete record in the case should be developed first.

The legal discovery portion of the case will now begin and will run through the winter months. It is expected that both sides in the case will file motions for summary judgment in April.

If summary judgment is not allowed on either side, the case will then go to trial.

John Montgomery, a partner at Ropes & Gray in Boston who represents the SSA in the case, said the ruling by Judge Woodlock is not a setback.

"We had an obligation at the beginning of the case to raise the jurisdictional issue, and it's going to remain a live issue in the case as it proceeds," he said.

New Bedford city solicitor George Leontire could not be reached for comment.

Mr. Leontire has repeatedly said in public statements that the city will drop the lawsuit if it is allowed to have a full seat on the SSA board of governors. He repeated this assertion in a story in The New Bedford Standard Times last week about Judge Woodlock's ruling.

Mr. Montgomery called the city's position incongruous - he said on the one hand the city is claiming that the boat line runs a system that is unconstitutional, while on the other hand the city is offering to withdraw its lawsuit if it is allowed a seat on the board for the very same boat line.

"It's unseemly," Mr. Montgomery said.

The case has seen some unusual turns. In a ruling late this winter, Judge Woodlock ordered the city to find a private carrier to submit a license application to the boat line. The order was intended to force a real-life test of the city's claim that there were numerous private carriers who wanted to run freight service to the Islands - but had been somehow restrained by the boat line.

"Put it to the test," the judge said at the time.

In the end, only one carrier submitted a license application - Seabulk International Inc., the same carrier that the SSA is now paying to operate a pilot freight program between New Bedford and the Vineyard. The Seabulk application was later rejected by the SSA, in part because the application included a long list of conditional demands, including the demand that the boat line force some 8,000 trucks to use the private service.

The application was framed in language that read like a legal challenge to the boat line licensing authority.

The unanimous decision to reject the application was accompanied by a detailed, 50-page staff report from SSA general counsel Steven Sayers.

Mr. Montgomery said yesterday that the burden of proof now lies with the city to prove its allegations against the boat line.

Among other things, the city claims that the freight reservation system is flawed and discriminating.

"If they think there is discrimination in the reservation system they're going to have to prove it - and as to the licensing policy, I don't know what more can possibly be said about that," Mr. Montgomery said.

He also said: "The judge has decided that he wants a more complete factual record - and now it will become plain to the court that the city's goal here is to obtain open, unfettered access to the authority's terminal facilities for all comers, and that is not an option that is dictated by the constitution of the United States."

He continued:

"The city has already told the court that there are numerous carriers who wish to operate freight and passenger service, and it turns out that is not true. Similarly, they have told the court just last week that the reservation system is rife with discrimination and they will now be put to the burden of proving that - and they will fail."

Mr. Montgomery concluded: "Once the record is fully developed, we expect the case will be resolved in favor of the authority - either because the court lacks jurisdiction or on the merits.

"It will be resolved on the merits if that is necessary; however the authority intends to demonstrate to the court that this case is a substantial interference in the sovereign interests of the commonwealth. It violates the fundamental principles of our federal system for the city of New Bedford to be threatening the legislature and the Steamship Authority with this litigation."