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Cruise Ships

Preparations for suit against Carnival Lines underway
HANA to join Coastal Conservation League as plaintiff
Warwick Jones

Threats of law suits to restrain the City, the State Port Authority and cruise ship lines have been commonplace for a year or so. But the threat is likely to be soon turned into a reality. The South Environmental Law Center (SELC) is preparing a complaint to be filed in a State court with Carnival Lines as the defendant. The Coastal Conservation League is the original plaintiff and last night the Historic Ansonborough Neighborhood Association (HANA) voted to join it. And the SELC expects that the Charleston Neighborhood Association will also vote to join it when it meets next month. It also hoped The Preservation Society would join.

Below is the summary that was sent to HANA members and on which they voted.-

Cruise Complaint Summary

A complaint would be filed in South Carolina state court seeking a legal declaration that cruise operations in Charleston are being undertaken in violation of certain local and state laws. The complaint includes the following claims:

First, cruise operations are not a permitted use in areas classified for “light industrial” use.

Second, cruise operations include accommodations, which are not permitted at the Union Pier Terminal.

Third, cruise operations occur within the City’s Old City Height District and regularly involve structures (attached ships) in excess of the maximum 60-foot height limitation.

Fourth, cruise operations violate the Old City Height Ordinance’s view corridor protection by blocking the vista toward the Cooper River.

Fifth, the decorative Carnival funnel violates the Charleston Sign Ordinance, which prohibits any sign erected above a roof or that emits sound, odor or visible matter. The Carnival registered trademark “Funnel” does both.

Sixth, amplified sounds from cruise ships violate the Noise Ordinance.

Seventh, the noise, soot, and traffic that result from the cruise ships’ presence create a nuisance to neighbors who suffer a loss of enjoyment of and value in property.

Eighth, the pollutants being released by Carnival into the Charleston harbor violate the South Carolina Pollution Control Act and do not have required permits.

The complaint seeks a declaration that these activities are unlawful; seeks to enjoin unlawful acts; and seeks to abate the nuisance.

Of the approximate 200 members of HANA, 30 turned up for the meeting. Of the total, 23 voted to join the suit, and 7 were opposed.

Mr. Blan Holman of the SELC made a short presentation and told members that preparation for a suit had been underway for some months. There was no guarantee that the suit would be successful. But there would be no cost to HANA. The President of HANA, Mr. Kirk Grant assured members that there would be no liability on the part of HANA or its members if the suit failed and Carnival Line decided to countersue. Mr. Grant is a law professor and his opinion was based on his interpretation of State law that applied to non profit organizations. Mr. Holman also opined that Carnival Lines was also unlikely to countersue because he thought there were no ground for a countersuit in his opinion, and because of the opprobrium of suing a neighborhood group.

Mr. Holman said that the suit split into three broad categories. He stated the first related to City ordinances and their application. The zoning at Union Pier was light industrial and this did not include cruise ships. Cruise ships accommodated large numbers of passengers, sometimes amounting to double that which can be accommodated by the City’s largest hotel. The cruise ships should fall under the Accommodation Overlay of the City and thereby be subject to regulation.

The second related to nuisance issues and related to noise, pollution and traffic. These created hardships for surrounding communities. Its remedy lay essentially in common law.

The third related to environmental issues. The cruise ships discharge pollutants in state waters and therefore should need state permits to do so.

Mr. Holman stated that there was no precedent for the suit that was being prepared. Also, he noted that the suit was looking to the courts for guidance on some of these issues. The decision as to how to proceed beyond the planned suit would depend on the courts’ decisions. Presumably, if for example, the courts decided that cruise ships did indeed fall under the Accommodation Overlay, the City would be sued if it did not move to enforce the Overlay. He also said that he hoped that more information would come to light in the “discovery” process as the SELC seeks information from Carnival, specifically relating to cruise ship discharges.

It was likely that the SPA would also become a defendant with Carnival Lines as a defendant, Mr. Holman said. But he did not expect the City to become one.

Generally, the HANA meeting was quiet with probably no more than about 10 or so questions asked. There were a few about the liability of HANA and how the suit would proceed. Asked about the environmental issues, Mr. Holman spoke of the copper pollution in the harbor waters caused by cruise ships. One HANA member noted that the hull coating of all ships probably contained copper. Did he plan to move against cargo vessels as well? “No”.

The vote to join the suit was no surprise. HANA last year voted to request the City to regulate cruise ship visits and the size. Although HANA supported the agreement between the City and the SPA to limit visits to about 2 a week average and a vessel size to a 3500-passenger complement, it wanted a legally enforceable document. Earlier this year, it voted to support the CNA petition which amongst other things, sought to have the cruise ship terminal located somewhere other than Union Pier. The petition also sought the sale of the Union Pier property to a private developer.

It was interesting that a senior member of one of Charleston’s large law firms stated at the meeting that, in his opinion, the suit had no chance of success. He also noted that he was not happy about Carnival Lines but thought the Union Pier development plan was a good thing for the City. But he had a fear that the SPA will abandon the plans for the Union Pier terminal if it is confronted with a law suit. He also said that the whole process with appeals, could take three years or more.

Other members had a similar view. We attach the comments of Ms. Anne Rounds, a retired lawyer. The comments state her reasons for having low expectations of the lawsuit. Download file

We too think that the arguments employed by the SELC are tenuous and share Ms. Round’s conclusion.

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