08-3886-cv
Bridgeport & Port Jefferson Steamboat Co. v. Bridgeport Port Authority
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2008
Heard: December 23, 2008 Decided: May 29, 2009)
Docket No. 08-3886-cv
- - - - - - - - - - - - - - - - - - - - -
BRIDGEPORT AND PORT JEFFERSON STEAMBOAT
COMPANY, FRANK C. ZAHRADKA, and D & D
WHOLESALE FLOWERS, INC.,
Plaintiffs-Appellees,
v.
BRIDGEPORT PORT AUTHORITY,
Defendant-Appellant.
- - - - - - - - - - - - - - - - - - - - -
Before: NEWMAN and SACK, Circuit Judges.*
Appeal from the July 8, 2008, judgment of the United States
District Court for the District of Connecticut (Christopher F. Droney,
District Judge), declaring a fee imposed on ferry passengers
unconstitutional under the Commerce Clause and the Tonnage Clause, and
*
Honorable Guido Calabresi, originally a member of the panel,
recused himself before oral argument, and the appeal is being decided
by the remaining panel members, who are in agreement. See 2d Cir. R.
§ 0.14(b).
enjoining collection of the fee until revised.
Affirmed.
Timothy F. Noelker, St. Louis, Mo.,
(James W. Erwin, Ryan K. Manger,
Thompson Coburn LLP, St. Louis, Mo.;
Richard L. Rose, Everett E. Newton,
Murtha Cullina LLP, Stamford, Conn.,
on the brief), for Defendant-
Appellant.
Martin Domb, New York, N.Y. (Jeremy A.
Shure, Jordan M. Smith, Akerman
Senterfitt LLP, New York, N.Y.;
Jonathan S. Bowman, Stewart I.
Edelstein, Cohen and Wolf, P.C.,
Bridgeport, Conn., on the brief), for
Plaintiffs-Appellees.
(Steven E. Bers, Whiteford, Taylor &
Preston LLP, Baltimore, Md. for
amicus curiae Nat’l Ass’n of
Passenger Vessel Owners, Inc., in
support of Plaintiffs-Appellees.)
JON O. NEWMAN, Circuit Judge.
This appeal concerns the constitutionality of a fee imposed on
passengers traveling by ferry from Bridgeport, Connecticut, across
Long Island Sound to Port Jefferson, New York. The fee is alleged to
violate the Commerce Clause, the constitutional right to travel, and
the rarely litigated Tonnage Clause, as well as federal and state
statutes. The Defendant-Appellant Bridgeport Port Authority (“BPA”)
appeals from the July 8, 2008, judgment of the District Court for the
-2-
District of Connecticut (Christopher F. Droney, District Judge), in a
suit brought by the Plaintiffs-Appellees Bridgeport & Port Jefferson
Steamboat Company (the “Ferry Company”), D & D Wholesale Flowers, Inc.
(“D&D”), and Frank Zahradka. Greg Rose, the owner of D & D, and
Zahradka are regular ferry passengers. The judgment declared the fee
unconstitutional under both the Commerce Clause and the Tonnage
Clause, enjoined its collection, and awarded nominal damages to the
Ferry Company and modest damages to D&D. We affirm.
Background
The BPA. The BPA is a quasi-public entity created in 1993,
pursuant to a state statute that authorizes Bridgeport to establish a
port authority, see Conn. Gen. Stat. § 7-329a, and the City of
Bridgeport Municipal Code. The Municipal Code gives broad definition
to the BPA’s purposes, which include “to foster and stimulate the
shipment of freight and commerce through the ports,” “to develop and
promote port facilities with the district in order to create jobs,
increase the city’s tax base and provide special revenues to the
city,” and to work with the City “to maximize the usefulness of
available public funding.” The BPA’s independent auditors’ report
also describes the BPA’s purposes broadly, including “to develop
strategies and initiatives to promote and create port facilities
within the district, [and] participate in the economic development of
-3-
the harbor and waterfront areas.”
The BPA has jurisdiction over a geographic area known as the Port
District. The Port District extends approximately 1,000 feet inland
from the waterways of Bridgeport Harbor, Black Rock Harbor, and their
navigable waters and tributaries, excluding residential property and
park lands. The BPA also has jurisdiction over certain lands outside
the 1,000-foot limit. Located within the Port District are the Water
Street Dock (the “Dock”), the Cilco Shipping Terminal, the 50-acre
Steel Point Peninsula, and the 48-acre Bridgeport Regional Maritime
Complex (“BRMC”), which includes the Derecktor Shipyard.
The BPA is directed by a five-member Board of Commissioners,
three of whom are appointed by the mayor of Bridgeport and two of whom
serve by virtue of their positions as the City’s Director of Economic
Development and Harbor Master. The BPA is managed by an executive
director and staff.
When the BPA was created in 1993, the City of Bridgeport
transferred control over the Dock to the BPA under a property
management agreement. The Dock facilities were in very poor condition
prior to the BPA’s existence. The Harbor Master at the time described
them as “deplorable”; “[t]he dock was just a [mishmash] of steel
plates over various holes, rotted timbers. . . . At night, . . . the
place was just a haven for people breaking into cars, prostitution.”
-4-
At that time, the terminal consisted of a concrete block building that
housed two poorly maintained restrooms and a small office. There were
no food facilities or other concessions and no waiting areas for
passengers.
With government grant money, the BPA built a new ferry terminal,
which was completed in 1996. The District Court found that the new
terminal building was “a dramatic improvement from the preexisting
structure.” It had two floors: the ground floor had a public waiting
area, restrooms, information counter, cafeteria, and small office; the
second floor, which was not open to the public, housed the BPA and the
offices of the Connecticut World Trade Association, a reception area,
conference room, and several other offices.
Since its inception, the BPA has obtained government grants to
fund many other development projects in the Port District that have
contributed to the revitalization of the area.
Passenger plaintiffs. Rose and Zahradka were recruited to be
plaintiffs in this case by the Ferry Company’s vice-president and
general manager Frederick Hall.1 The Ferry Company paid the legal
fees and expenses for both individuals.
1
Zahradka withdrew his claim for past damages but remains a
plaintiff for purposes of prospective relief.
-5-
The Ferry Company. The Ferry Company is a privately owned
company that has been providing vehicle and passenger ferry service
between Bridgeport and Port Jefferson since 1883. Its president,
Brian McAllister, has owned a 100 percent interest in the Ferry
Company since 1980. Currently, the Ferry Company owns and operates
three ferry boats. In 2005, the Ferry Company transported
approximately 460,000 vehicles and one million passengers.
On the Port Jefferson side, the Ferry Company owns most of the
dock and terminal facilities and provides all ferry-related services.
Neither the Ferry Company nor its passengers pay a user fee to any
government agency in Port Jefferson.
On the Bridgeport side, however, the Ferry Company does not own
the dock or terminal facilities. Until 1993, the Ferry Company leased
the use of the Dock from the City of Bridgeport. When the City
transferred control of the Dock to the BPA, the Ferry Company entered
a lease to rent the Dock from the BPA at an annual rate, which was
$100,000 for the first year and increases to $158,956 through 2011.
The lease agreement entitles the Ferry Company to “non-exclusive
preferential use” of the Dock. The BPA reserved for itself all other
uses of the Dock and the premises, except for the following: operation
of the food concession, which was the subject of another agreement
between the parties; use of office and waiting room space in the two-
-6-
story terminal building that the BPA “may from time-to-time make
available”; and use of a few parking spaces for Ferry Company
employees.
Before and after the creation of the BPA, the Ferry Company has
been responsible for running daily ferry operations at the Dock. The
Ferry Company employs a Dock Manager and a staff of 15 to 22 to handle
all docking and undocking of ferries, staging of vehicles on the
roadway to board, directing passengers and vehicles on and off the
ferries, shuttling passengers to and from the parking lots, and
removing snow on the Dock. Ferry Company employees also perform
security functions at the Dock.
The passenger fee. Since its inception in 1993, the BPA has
imposed a passenger fee on all persons and vehicles embarking on, or
disembarking from, the Ferry Company ferries at the Dock. The amount
of the fee varies depending on whether the passenger is a person, a
car, a truck, or a bus. In 1993, the fee for an adult foot passenger
was 50¢ and for a vehicle, $1.00. In 2003, the fee for an adult foot
passenger was $1.00 and for a vehicle including a driver, $2.00. In
February 2006, the BPA began assessing a one-dollar surcharge to cover
the BPA’s fees and costs in this litigation.
The fee is a relatively a small portion of the total ferry ticket
price. For example, in 2005, a one-way ferry ticket for a vehicle
-7-
with unlimited passengers was $51.25, while the corresponding
passenger fee was $2.75. The fee is added to the ticket price and
collected by the Ferry Company on behalf of the BPA at the time
passengers purchase their ferry tickets on board.2 For this service,
the BPA pays the Ferry Company an administrative fee, which was
$22,500 per year until May 2003 when it was increased to $32,500.
After retaining its administrative fees, the Ferry Company remits the
proceeds of the passenger fee to the BPA on a monthly basis, along
with a written report of the number of tickets sold and the amounts
collected from each type of passenger.
The BPA’s revenue and expenses. From 1993 to 2004, the BPA
collected a total of approximately $9.5 million in passenger fees and
more than $1 million in rental revenues from the lease agreements with
the Ferry Company and its food concession subsidiary. The passenger
fee and ferry leases are almost the sole source of operating revenue
for the BPA. Until 2002, the passenger fee and lease revenue exceeded
the total operating expenses of the BPA. As the District Court noted,
2
The Ferry Company has refused to collect the $1 litigation
surcharge on the BPA’s behalf, and the BPA has hired a firm to collect
the surcharge directly from passengers embarking or disembarking from
the ferry.
-8-
“[T]he total amount of Passenger Fees collected alone from 1993 to
2004 correlates very closely with the Port Authority’s total operating
expenses during the same period.” The BPA’s executive director
admitted that the BPA has used the revenue from the passenger fee and
the Dock lease to pay for essentially all of its operating expenses,
including all salaries, health benefits, pension payments, payroll
taxes, telephone, utilities, office equipment, travel, charitable
contributions, and automobile and lease expenses.
The District Court’s decision. The District Court, relying on
the Supreme Court’s so-called “dormant” Commerce Clause jurisprudence,
see United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste
Management Authority, 550 U.S. 330, 338 (2007), endeavored to apply
the test the Supreme Court has set forth for determining the
constitutionality of fees imposed by governmental entities to defray
the costs of facilities used by those engaged in interstate commerce.
The test was first announced in Evansville-Vanderburgh Airport
Authority District v. Delta Airlines, Inc., 405 U.S. 707 (1972),
involving an airport user fee imposed on commercial airlines. The
Supreme Court stated that
a charge designed only to make the user of state-provided
facilities pay a reasonable fee to help defray the costs of
their construction and maintenance may constitutionally be
imposed . . . so long as the toll is based on some fair
approximation of use or privilege for use . . . and is
-9-
neither discriminatory against interstate commerce nor
excessive in comparison with the governmental benefit
conferred.
Id. at 714, 716-17.
In Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355
(1994), the Supreme Court reformulated its Evansville standard into a
three-pronged test. “[A] levy is reasonable under Evansville if it
(1) is based on some fair approximation of use of the facilities, (2)
is not excessive in relation to the benefits conferred, and (3) does
not discriminate against interstate commerce.” Id. at 369.
In the pending case, the District Court ruled that the third
criterion was satisfied because the passenger fee did not distinguish
between intrastate and interstate travel. However, the Court ruled
that the fee did not meet either the first or second Evansville
criteria.
The Court stated that the fee was not based on a fair
approximation of the ferry passengers’ use of the port facilities
because it was “calculated according to a method which ensures the
Passenger Fee revenue will cover all of the Port Authority’s operating
costs and development projects throughout the Port District,” and
“many” of the “Port District activities funded by the fee are not even
available to the ferry passengers (such as Derecktor, BRMC, harbor
dredging, the barge feeder service, and the foreign trade zone).”
-10-
The Court also ruled “that the Passenger Fee is excessive in
comparison with the government benefit conferred and in relation to
the costs incurred by the taxing authority.” Distinguishing the
airport user fee upheld in Evansville, the Court stated that “the vast
majority of airport development is intended to benefit the passengers
traveling on airplanes leaving the airport, or to facilitate their air
travel; the Port District, however, includes many projects beyond the
Dock that are not functionally related to the ferry operation, and are
not intended to benefit the travelers on ferries, or to facilitate
their boat travel from Connecticut to Long Island.”
To determine whether the revenue from the Passenger Fee was
unreasonably high compared to the benefits that the BPA provided to
the ferry passengers, the District Court examined separately each
activity of the BPA. The Court concluded that the following BPA
activities benefitted ferry passengers: (1) construction and
maintenance of a new ferry terminal building, (2) repair of the
bulkhead of the Dock, (3) construction of the access road, (4)
planning of the parking facility for ferry passengers, (5) security
for the Dock, and (6) daily operations related to the ferry.
On the other hand, the Court found that the following activities
did not benefit ferry passengers: (1) development projects on Steel
Point Peninsula; (2) development projects on the BRMC and the leasing
-11-
of a portion of the BRMC to Derecktor Shipyards; (3) establishing a
high-speed ferry from Bridgeport to Stamford and New York City; (4)
developing a barge-feeder service that would ship containers by barge
from the Port of New York and New Jersey to Bridgeport; (5) operating
a foreign trade zone in Bridgeport; (6) activities at the Cilco
commercial shipping terminal located on land near the BRMC; (7)
dredging the Bridgeport harbor; (8) operating a complimentary pump-out
service for pleasure boats; (9) BPA review of other projects within
the Port District; and (10) some miscellaneous activities, including
payment of attorneys to register a new trademark for the BPA and
purchasing season tickets to local minor league teams.
Having made this analysis of the BPA’s expenditures, the Court
determined that the passenger fee revenue collected by the BPA
substantially exceeded the amount of money spent by the BPA for those
activities that benefitted the ferry passengers. That determination
led the Court to conclude that the fee violated the Commerce Clause
and the constitutional right to travel, which the parties agreed was
subject to the same standards applicable to the Commerce Clause.
The Court also concluded that the excessive nature of the fee, in
relation to benefits conferred, rendered the fee in violation of the
Tonnage Clause, which provides that “[n]o State shall . . . lay any
Duty of Tonnage.” U.S. Const. art. I, § 10, cl. 3. The Court noted
-12-
that the Supreme Court in Clyde Mallory Lines v. Alabama, 296 U.S.
261, 265-66 (1935), held that the prohibition on all “charge[s] for
the privilege of entering, trading in, or lying in a port” did not
extend to “charges . . . for services rendered to and enjoyed by the
vessel.” The District Court concluded that the passenger fee violated
the Tonnage Clause of the Constitution because it was “used for the
impermissible purpose of raising general revenues and for projects
which do not and could not benefit the ferry passengers.” The
passenger fee revenue “fund[ed] projects completely unrelated and
unavailable to the fee payers, such as negotiations, legal fees, and
development proposals for the BRMC, Derecktor, the foreign trade zone,
the barge feeder service, harbor dredging, and the high-speed ferry.”
As such, it was an impermissible fee of tonnage.3
Turning to the appropriate remedy, the District Court first
determined that, although the Ferry Company could have suffered an
economic loss quantifiable in damages, the Ferry Company had failed to
provide any non-speculative evidence of its damages. The Court then
found that the passenger plaintiff D & D was entitled to $494.63,
based on the extent to which the passenger fee revenue was excessive
3
The District Court rejected the plaintiffs’ claims under federal
and state statutes, and those claims are not pursued on this appeal.
-13-
compared to the benefits to ferry passengers. Finally, the Court
ruled that the plaintiffs were entitled to an injunction prohibiting
the BPA from collecting a passenger fee in an amount that exceeded
what was necessary to pay for benefits to the ferry passengers.
Discussion
I. Standing
Initially, we consider the BPA’s contention that the Ferry
Company lacks standing because it failed to show injury-in-fact.
Incorrectly assuming that injury-in-fact requires quantifiable
damages, the BPA argues that because the district court did not award
the Ferry Company any compensatory damages, it suffered no injury.
But as this Court explained in Ross v. Bank of America, 524 F.3d 217
(2d Cir. 2008), lack of compensatory damages “does not negate
standing.” Id. at 222 (internal quotation marks omitted).
As the Ferry Company argued, it sustained injuries in the
following respects:
(1) The added cost to its passengers reduces both demand for
ferry services and the Ferry Company’s revenue. Although the District
Court found that the Ferry Company failed to present sufficient
evidence to establish quantifiable damages, the Court noted that “[i]t
is undisputed that the price elasticity for the ferry service is
greater than zero but less than one, indicating on a theoretical level
-14-
that a change in price at a given point in time would lead to slightly
decreased demand.”
(2) The fee requirement obliges the Ferry Company, as a practical
matter, to collect the passenger fee and remit the proceeds to the
BPA.
(3) The Ferry Company adequately pleaded that its individual
rights under the Commerce Clause are being violated. See Dennis v.
Higgins, 498 U.S. 439, 449 (1991) (noting that the Commerce Clause
creates an individual right); see also Boston Stock Exchange v. State
Tax Commission, 429 U.S. 318, 320 n.3 (1977).
(4) The Ferry Company adequately alleged that it is exposed to
future injury, which would entitle it to injunctive relief.
The Ferry Company also satisfies the requirements of prudential
standing because (a) it sustained its own injury and thus asserts its
own rights, not those of the passengers, (b) it does not assert a
general grievance, in view of its special relationship with its
customers, and (c) it operates an interstate ferry service and thus
falls within the zone of interest protected by the Commerce Clause.
The BPA’s challenge to the Ferry Company’s standing is without
merit.
II. Commerce Clause
The parties do not dispute that the passenger fee satisfies the
-15-
first prong of the Evansville test; the fee does not discriminate
against interstate commerce. The BPA contends, however, that the fee
is based on a fair approximation of the ferry passengers’ use and that
it is not excessive in relation to the benefits conferred on them. In
this case, the “fair approximation” and the “excessiveness” criteria
substantially overlap. The reason is that the passenger fee supports
virtually the entirety of the BPA’s operating budget. If, as the
District Court ruled, some of the BPA’s expenses confer no benefit on
the ferry passengers, either enjoyed or available to be enjoyed, then
to that extent the fee, imposed solely on ferry passengers, is not a
fair approximation of the use of the facilities supported by the fee
and is also excessive in relation to the benefits enjoyed or available
to be enjoyed by the passengers.
The BPA correctly argues that there need not be a perfect fit
between the use of the facilities and the support of those facilities
by the fee, see United States v. Sperry Corp., 493 U.S. 52, 60 (1989)
(“This Court has never held that the amount of a user fee must be
precisely calibrated to the use that a party makes of Government
services.”), but the discrepancy here exceeds permissible bounds. The
point emerges from a comparison of the airport cases with this case.
In Evansville, embarking commercial airline passengers were the only
payers of the user fees at issue–other classes of passengers (and non-
-16-
passengers) were exempt. The Court concluded that those commercial
airline passengers reasonably bore that share of airport costs because
it was they who enjoyed the principal benefit of “facilities built
primarily to meet [their] needs.” 405 U.S. at 718-19. Furthermore,
although the airlines did not use every facility located anywhere in
the airport (for example, the lounges for v.i.p. airlines passengers),
the benefit derived from having the entire airport operating made a
fee based on airline traffic into the airport reasonable. Similarly,
in Alamo Rent-a-Car, Inc. v. Sarasota-Manatee-Airport Authority, 906
F.2d 516 (11th Cir. 1990), the operation of the airport provided a
benefit to the car rental company located near, but unlike some of its
competitors, not at, the airport, and the Eleventh Circuit therefore
rejected the company’s claim that it should be charged only for use of
the road leading from its location to the airport. See id. at 519.
By contrast, in the pending case, the Port District is not a
facility whose existence and entire operation benefit the ferry
passengers. The BPA is a governmental unit created to accomplish a
variety of tasks, only some of which afford actual or potential
benefits to ferry passengers. Had the Dock and some of the related
activities been operated directly by the City of Bridgeport, it could
not be seriously maintained that a passenger fee could be used to pay
a portion of Bridgeport’s school or welfare expenses. The limits of
-17-
both a fair approximation of use and excessiveness are plainly
exceeded when the fees support a BPA budget that includes, for
example, a development project for reducing traffic on I-95, the
interstate highway running generally along the Connecticut shore. No
doubt those ferry passengers who drive to or from the Dock along I-95
are grateful for any reduction in traffic, but they would be equally
grateful for whatever steps the BPA or the City of Bridgeport might
take to reduce air pollution or otherwise improve the environment
along I-95. Such quality-of-life improvements cannot be said to
confer an actual or potential benefit to the ferry passengers as users
of the ferries and thus exceed the bounds of what may reasonably serve
as the basis for the BPA’s fee.
A user fee, however, may reasonably support the budget of a
governmental unit that operates facilities that bear at least a
“functional relationship” to facilities used by the fee payers. See
Automobile Club of New York, Inc. v. Port Authority, 887 F.2d 417, 421
(2d Cir. 1989). In that case, this Court held that a “functional
relationship” existed between the Port Authority’s cross-river PATH
train and its bridges and tunnels (Lincoln Tunnel and Holland Tunnel),
justifying inclusion of the PATH in the rate base of the tolls that
the Port Authority charged on its bridges and tunnels, and rendering
the tolls “just and reasonable” under the Federal-Aid Highway Act.
-18-
In the pending case, once it appeared that the passenger fees
were supporting the entirety of the BPA’s operating budget and that
this budget was supporting some BPA activities of no benefit to the
ferry passengers (at least, not in their capacity as ferry
passengers), the District Court had no choice but to make
particularized inquiries as to the various BPA expenditures.
Activities properly deemed of no actual or potential benefit to the
ferry passengers are (1) development projects on Steel Point
Peninsula, (2) development projects on the BRMC and the leasing of a
portion of the BRMC to Derecktor Shipyards, (3) establishing a high-
speed ferry from Bridgeport to Stamford and New York City, (4)
developing a barge-feeder service that would ship containers by barge
from the Port of New York and New Jersey to Bridgeport, (5) operating
a foreign trade zone in Bridgeport, (6) activities at the Cilco
commercial shipping terminal located on land near the BRMC, and (7)
some miscellaneous activities, including payment of attorneys to
register a new trademark for the BPA and purchasing season tickets to
local minor league teams.
Slightly closer questions are presented by the District Court’s
disallowance of the portion of the fees that supported dredging the
Bridgeport harbor and operating a complimentary pump-out service for
pleasure boats. Since the harbor was already sufficiently deep to
-19-
accommodate the ferries, the Appellees contend that they derive no
benefit from additional dredging. However, they do benefit from
minimizing the risk that larger vessels will run aground for lack of
additional dredging and block use of the harbor by the ferries.
Similarly, the appellees contend that they derive no benefit from
complimentary pump-out services for pleasure boats, but the resulting
reduction of pollution in the harbor is a benefit to the ferry
passengers.
Although using a portion of the passenger fees to pay for these
two services, which provide some benefit to ferry boat passengers,
does not render the passenger fees excessive, it does fail to satisfy
the fair approximation test. There is nothing in the record to
indicate how the portion of dredging costs borne by the ferry
passengers compares to the costs, if any, borne by large vessels
docking at Bridgeport. And because the pump-out service is available
to and benefits only the pleasure boats and only minimally benefits
the ferry passengers, imposing the total cost on them through the
passenger fee with no charge on the pleasure boats is not a fair
approximation of use.
In sum, the District Court properly concluded that the existing
fee violated the Commerce Clause and required an adjustment.
III. Tonnage Clause
-20-
The Tonnage Clause provides that “[n]o State shall . . . lay any
Duty of Tonnage.” U.S. Const. art. 1, § 10, cl. 3. As interpreted by
the case law, the Tonnage Clause “prohibits . . . duties to raise
general revenues.” New Orleans Steamship Association v. Plaquemines
Port, Harbor & Terminal District, 874 F.2d 1018, 1023 (5th Cir. 1989).
Moreover, it requires that benefits and fees be “apportioned as
closely as is practicable,” Plaquemines Port, Harbor & Terminal
District v. Federal Maritime Commission, 838 F.2d 536, 545 n.8 (D.C.
Cir. 1988), and that the service be available to all fee payers, Clyde
Mallory Lines, 296 U.S. at 266.
The District Court correctly applied the law to the facts in
holding that “[t]he Passenger Fee imposed by the Port Authority is
used for the impermissible purpose of raising general revenues and for
projects which do not and could not benefit the ferry passengers.”
The testimony of the BPA’s own expert and officials supports the
Court’s conclusion. John Arnold, the BPA’s expert, testified that the
BPA “act[s] as an incubator for growth of economic activity that
supports the city itself”; the BPA’s accountant testified that non-
ferry projects benefit the City and “the entire community”; a
commissioner of the BPA testified that the purpose of passenger fee
has always been “to create a source of revenue to support the
operations of the Port Authority.” Finally, the BPA’s executive
-21-
director Riccio testified, “I think anything that helps business and
commerce in the State of Connecticut is going to indirectly benefit
the ferry passengers.” When asked whether it is fair to fund his
travel expenses related to the BPA’s non--ferry activities, Riccio
testified “We don’t work for the Port Jefferson Ferry Company or the
Port Jefferson ferry passengers. We’re a Port Authority and this is
what we do. We’re developing the port as our mission, bringing other
maritime interest and businesses to the Port of Bridgeport.” Based on
these facts, the district court did not err in its legal conclusion.
In addition, the passenger fee offends the Tonnage Clause because
the BPA’s non-ferry services are not available to ferry passengers;
they were “completely unrelated and unavailable to the fee payers.”
Charging the fee-payers for services that are not available to them is
impermissible under the Tonnage Clause, even if not all fee payers
actually use them. See Plaquemines, 838 F.2d at 545.
Conclusion
The judgment of the District Court is affirmed.
-22-