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Appeals Court Vacates FMC Decision on Cruise Parking
by Garrett Bryce
Sunday, May 13, 2018

The United States Court of Appeals for the District of Columbia Circuit on Friday issued a judgment vacating the Federal Maritime Commission's decision regarding a case involving higher charges for shuttle buses to access the Port of Galveston's parking terminal.

The judgment vacated the ruling in favor of the Federal Maritime Commission and remanded the case for further proceedings. Judgment

The case involved EZ Cruise Parking and 81st Dolphin Parking, two cruise parking operators, against the Federal Maritime Commission and the United States of America, with the Board of Trustees of the Galveston Wharves and the Galveston Port Facilities Corporation as intervenors.

Circuit Judge Brett Michael Kavanaugh filed the opinion for the case. Opinion

"This is not a complicated case," Kavanaugh wrote in the opinion. "The Galveston Port charges commercial passenger vehicles such as taxis, limos and shuttle buses for access to the Port's parking terminal. Petitioners operate shuttle buses. The Port charged Petitioners' shuttle buses more than the Port charged taxis and limos. Petitioners challenge that treatment."

Kavanaugh noted that the cruise parking companies argued that they were similarly situated to or in in a competitive relationship with taxis and limos, and treated differently. The companies argued that the burden is on the Galveston Port to justify the differential treatment based on legitimate transportation factors. When argued before the Federal Maritime Commission, the commission accepted that the buses were treated differently.

"But the Commission then strangely concluded that Petitioners were not injured by being charged more," Kavanaugh wrote. "The Commission's conclusion is not sustainable."

The opinion concluded that the Petitioners were injured by the higher charge than the other commercial passenger vehicles. The Galveston Port may be able to show that the differential treatment is justified by legitimate transportation factors, Kavanaugh stated.

"But the Commission never reached that step of the analysis," he wrote. "On remand, the Commission may consider the Port's argument to that effect."






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