Tracking Cruising Restart: News and Updates

[OKW Lover]

There probably isn't much sympathy for the cruise lines from the non-cruising public when they find out the NCL CEO raked in $36 million in compensation last year.

https://cruiseradio.net/what-shutdown-norwegian-cruise-ceo-scores-36-million-payday-in-2020/

Difficult job keeping a business alive when you can't sell any of your product.

 

[MomOTwins]

I have had a chance to review the complaint. For those who are interested, I tried to provide a succinct summary of the facts and legal theories below. For those who are not, please ignore this post. I know there is some aversion to legal stuff on these boards, even though this is extremely relevant to cruising and DCL, and relates to cruising reopening, the subject of this thread. If it isn't your cup of tea, you have been warned.

I would love it if someone who has more experience in government litigation could give an opinion. While I have extensive litigation experience, it isn't in this area of law.

The alleged facts from the state:

The state argues that in October 2020, the CDC said that cruising should resume sailing with the right precautions, because the benefit of opening outweighed the costs, but then it effectively just extended the cruising ban through its actions. The state outlines the history of the Conditional Sailing Order, and how it was made at a time when vaccines were unavailable and conditions were different. It quotes the CDC Director's congressional testimony on March 18, 2021, where he said he could not give a timeline for phase two of the order to proceed, arguing that, at the rate the CDC is moving, it will be at least November before cruising resumes. It then attacks the April 2 guidance as only being partially complete, not accounting for fully vaccinated ships, and treating the cruise industry differently than other travel industries.

Damages

For damages, it says the Florida ports will lose $420 million by July, and in 2019, Florida received $102.8 million in tax revenue from embarkations. 6,464 cruise industry employees have filed for unemployment. Cruise lines will move abroad if the order isn't lifted.

The legal theories are a bit different than I had guessed above:

1) The CDC exceeded its authority to lock down an entire industry for 1.5 years.

• The applicable regulation doesn't give the CDC the authority to suspend operation of cruise ships, much less every cruise ship in the country.
• The CDC can only act if it first determines a state's actions are insufficient to prevent the state-to-state, and foreign to U.S., spread of disease.
• The CDC's interpretation of the regulation for preventing spread is overlay broad, because the regulations lists illustrative examples of the types of things the CDC may do, and this action isn't of a similar nature.

2) Even if the CDC has the authority, its actions are arbitrary and capricious, and violate the Administrative Procedures Act (a federal law with specific technical requirements for the generation of regulations by federal agencies).

• The CDC didn't account for vaccines when it issued it's year-long order through November 2021, and it hasn't properly considered developments since.
• The CDC is ignoring successful foreign cruises or other lessons on how businesses can operate safely.
• The CDC hasn't addressed measures taken by ships (and states) and explained how they are inadequate, which is a prerequisite to its action.
• The CDC hasn't explained different treatment for cruising vs other industries - caselaw says the CDC must provide a reasoned explanation for treating similar situations differently.
• The CDC has failed to actually provide the four-phase framework to return passengers to cruising as required by its order.
• The APA required the CDC to provide notice and receive comments, which it didn't. The CDC is improperly using the "good cause" exception to avoid that step, especially this long after the pandemic started.

3) Violation of the U.S. Constitution's legislative power

• The Conditional Sailing Order constitutes an unconstitutional exercise of lawmaking by the executive branch - giving the CDC power to determine the rights of millions of citizens and the survival of countless businesses.

What the Sate Wants
The state wants the court to hold the Conditional Sailing Order unlawful, and a preliminary and permanent injunction, preventing the CDC from enforcing it, allowing the cruising industry to open with reasonable protocols.

My 2-Cent Opinion
On its face, the complaint is well written and lays out colorable legal claims. However, I would like to have the benefit of the answer, since I only have a rudimentary understanding of the case law in this area. In any case, I still think Florida has an uphill battle, because the nature of the pandemic will make a court sympathetic to giving the CDC broad authority, and courts (even conservative ones) naturally favor government actors anyway. Getting a preliminary injunction is almost certain not to happen. On the other hand, I do think the case may have more legs than I originally thought, and the conservative Supreme Court would almost certainly favor Florida should the case proceed that far.

I think there is a decent shot of a court taking this up. Lack of notice/comment and failure to account at all for vaccination when CDC has simultaneously relaxed air travel guidance for vaccinated people for vacations in other states or the same foreign places that cruise ships go to are both things that would likely to trouble the court. I bet thousands more people fly to the US daily from caribbean/mexico than cruise back.

It's worth noting that unless the trajectory of the pandemic changes significantly, ships will likely be sailing mostly free and clear by the time it makes its way up to the Supreme Court, and the current SC seems to have a habit of dismissing cases as moot even when they present novel legal questions.

I think the problem here is that the CDC’s order does not actually take account the trajectory of the pandemic and seems like it was written in April 2020 instead of 2021. Doubt the CDC will suddenly have a change of heart and when they have been singling out cruises for a federal ban for over a yeah while letting states decide state by state whether to allow music concerts, theme parks, and full capacity indoor dining.

 

[brentm77]

I think there is a decent shot of a court taking this up. Lack of notice/comment and failure to account at all for vaccination when CDC has simultaneously relaxed air travel guidance for vaccinated people for vacations in other states or the same foreign places that cruise ships go to are both things that would likely to trouble the court. I bet thousands more people fly to the US daily from caribbean/mexico than cruise back.


I think the problem here is that the CDC’s order does not actually take account the trajectory of the pandemic and seems like it was written in April 2020 instead of 2021. Doubt the CDC will suddenly have a change of heart and when they have been singling out cruises for a federal ban for over a yeah while letting states decide state by state whether to allow music concerts, theme parks, and full capacity indoor dining.

I was hoping to get your take. I appreciate your comments. It will be interesting to see the first CDC filing. I would be surprised if it isn't a motion to dismiss instead of an answer, but I think Florida has put together sufficient claims to survive it.

I think the end result if this lawsuit is looking more likely to be a compromise, allowing limited cruising this summer with less heavy handed onshore requirements.

 

[Sykes]

I think the problem here is that the CDC’s order does not actually take account the trajectory of the pandemic and seems like it was written in April 2020 instead of 2021. Doubt the CDC will suddenly have a change of heart and when they have been singling out cruises for a federal ban for over a yeah while letting states decide state by state whether to allow music concerts, theme parks, and full capacity indoor dining.

It's more of a timing issue. At this point, barring emergency action (which is extraordinarily unlikely) by the time the Supreme Court would get to the case the pandemic will hopefully be a non-issue.

 

[MomOTwins]

It's more of a timing issue. At this point, barring emergency action (which is extraordinarily unlikely) by the time the Supreme Court would get to the case the pandemic will hopefully be a non-issue.

Well, with kids not able to be vaccinated at all this year, and variants potentially evading vaccines, I just don’t see the CDC letting up on restrictions for a looooong time. So I agree the lawsuit will take a long time, I just think the CDC will too. It also does not necessarily have to go to SCOTUS—if a lower court rules against CDC, especially if it temporarily enjoins them, they may compromise and voluntarily moot the case rather than appealing.

 

[sethschroeder]

I didn't see a thread on this but I think this will push forward the ability to reopen cruising. Not sure the chances of success or the timelines of when things would occur.

https://www.businessinsider.com/florida-sue-cdc-cruise-industry-pause-2021-4

 

[lanejudy]

I think it's in this thread: https://www.disboards.com/threads/tracking-cruising-restart-news-and-updates.3809664/page-16

 

[PrincessShmoo]

I didn't see a thread on this but I think this will push forward the ability to reopen cruising. Not sure the chances of success or the timelines of when things would occur.

https://www.businessinsider.com/florida-sue-cdc-cruise-industry-pause-2021-4

IMO, the chances of success are pretty small.

 

[Intr3pid]

Disney has cancelled all Magic cruises until Oct 9, which means our Oct Bermuda cruise as well. It also suggests they might keep the Magic in the UK for longer.

 

[mmouse37]

I don't know what to think is going to happen to our NYC to Canada cruise in late October. Will they cancel because Canada is closed or will they change the itinerary to go South or just eliminate the Canadian ports. So confusing. Don't know if I should pay in full or just wait it out.

MJ

 

[Intr3pid]

CDC, the White House, and the cruise line CEOs had a virtual meeting today.

https://www.cnbc.com/2021/04/15/cru...-house-covid-team-on-us-sailings-sources.html
NCL came out with a reiteration of its request later.

 

[gatordoc]

I don't know what to think is going to happen to our NYC to Canada cruise in late October. Will they cancel because Canada is closed or will they change the itinerary to go South or just eliminate the Canadian ports. So confusing. Don't know if I should pay in full or just wait it out.

MJ

Waiting on this as well. Can’t imagine Canada is possible, but would love another New England port or two. But we’re not interested in Bermuda (spent two weeks there a few years ago, enjoyed but no real desire to go back), and we live in Florida, so it would be silly to fly to NYC just to take a cruise back here or to the Caribbean.

 

[Intr3pid]

A few updates to start this week...

RCL Chairman Fain has posted a new video message and thinks that he is optimistic in his discussions with the CDC for a restart this summer. He is even hinting at the possibility of summer 2021 cruises to Alaska.

Have a listen:

 

[Intr3pid]

NCL's CEO, Frank del Rio, on the other hand, is getting anxious. He has sent in a follow-up letter:

"It is frustrating, that to date, we have yet to receive even an acknowledgment of this proposal. I do recognize that you have many important public health issues to tend to and was reticent to even write, however, we strongly believe our proposal should be the model for how the travel and hospitality industry operates in a COVID-19 environment. Our industry supports hundreds of thousands of jobs and contributes billions of dollars to this country’s economy and is certainly deserving of your time and attention.”

...

"Accordingly, I respectfully request a prompt response to my written proposal. Americans look forward to cruising once again and we look forward to relaunching our ships on as timely a basis as possible and restoring American jobs.”

https://cruisefever.net/cdc-fails-to-acknowledge-cruise-lines-proposal-to-resume-cruises-in-july/

 

[Intr3pid]

Simultaneously, the public health emergency at the core of the CSO has been extended again by 90 days to mid-July.

It means that even with the changes to the CSO and some fully staffed ships, there won't be any sailings happening from the US ports before then.

https://www.cruisehive.com/another-setback-for-resuming-cruises-in-the-u-s/49874
Cue the next round of cancellations this week.

 

[Intr3pid]

Finally, the US House Reps are joining their senate counterparts with their own bill to legislate a withdrawal of the CSO, among other things.

https://www.royalcaribbeanblog.com/...bill-introduced-override-cdcs-cruise-ship-ban
Key measures:

------------------
The new act:

- Requires the CDC to issue recommendations for how to mitigate the risks of COVID-19 to passengers and crew onboard cruise ships.

- Establishes an interagency “Working Group” that will develop recommendations to facilitate the resumption of passenger cruise ship operations in the United States. The recommendations will facilitate the resumption of passenger cruise ship operations in the United States no later than July 1, 2021.

- No later than July 1, 2021, the CDC must revoke the order entitled “Framework for Conditional Sailing and Initial Phase COVID-19 Testing Requirements for Protection of Crew.”

- Ensures that HHS and CDC retain all appropriate authorities to make and enforce regulations necessary to prevent the introduction, transmission, or spread of communicable diseases on any individual cruise ship.
------------------

A bit more dramatic spin:

https://twitter.com/x/status/1382788266659880960

 

[bcwife76]

Still wondering why he thinks cruises to Alaska will happen. Guess he's hoping they can overturn the PVSA for this summer.

 

[starry_solo]

i just want to know if my November cruise will go!

 

[zeferjen]

Waiting on this as well. Can’t imagine Canada is possible, but would love another New England port or two. But we’re not interested in Bermuda (spent two weeks there a few years ago, enjoyed but no real desire to go back), and we live in Florida, so it would be silly to fly to NYC just to take a cruise back here or to the Caribbean.

Which cruise are you all on? When I go to Disneycruise.com the only NYC cruises I see right now are the one way to PR and the two that go to Bahamas?

 

[DCLDVC1]

------------------

A bit more dramatic spin:

https://twitter.com/x/status/1382788266659880960

"Our ships"? Aren't they the Bahamas' ships?