Cruises remain in limbo as feds and Florida continue court fight

South Florida Sun Sentinel - 6/2/2021

A court fight apparently will continue over Florida’s claim that the federal government can’t decide when, how and if cruises can resume.

A day after mediation ended in a federal court case, no settlement has been announced by either side, and no new hearing had been scheduled as of Wednesday afternoon, according to the court’s online docket system. The case docket also shows no request for more time for mediation.

Instead, the federal government said it plans to submit new information opposing the state’s bid to prevent the Centers for Disease Control and Prevention from regulating the cruise industry.

Whether a prolonged fight will threaten cruise lines’ plans to resume sailing from Florida’s ports with CDC approval this summer remains to be seen.

Reached by email, attorneys for the two sides declined to comment, citing confidentiality orders.

Attorneys following the case said a new court filing Wednesday by a lawyer for the CDC indicates — though it doesn’t prove — that the sides have no settlement to present to U.S. District Judge Steven Merryday, who ordered the mediation. Mediation sessions began on May 27 and were scheduled to end on Tuesday

Typically, the mediator files a report indicating that the case was settled or the parties reached an impasse, said Jim Walker, a Miami-based maritime attorney. He added that sometimes the report is delayed for various reasons.

While it’s possible the sides have reached some common ground, the latest filing by the federal government “is clearly an indication that the mediation was not successful in resolving the case,” Walker said.

The filing “certainly makes it appear that the mediation failed as we expected it would,” said Robert Jarvis, a law professor at Nova Southeastern University whose areas of interest include maritime law. “The parties’ positions are just too far apart and (Gov. Ron) DeSantis isn’t really interested in finding a reasonable solution to the problem he has created.”

DeSantis is caught in a conundrum. In March, he stood with cruise industry leaders to demand that the CDC provide clear guidance for cruise lines to resume sailing from Florida’s ports this summer. Several days later, he announced that the state filed a federal suit challenging the CDC’s authority to set conditions for cruise ships to operate.

Then the CDC began working with cruise lines and revised its guidelines for their return to operations. Among them was new guidance allowing cruise lines to avoid staging simulated or test cruises if they required at least 95% of their passengers to be vaccinated.

But that guidance directly conflicted with DeSantis’ executive order, later enacted into state law, barring businesses from requiring customers to provide proof of vaccination. The law extended to cruise lines, he later said, raising questions of whether he would use his power to stop cruise ships from sailing if they required vaccinations.

Asked about the conflicting positions last week, spokespersons for DeSantis asserted that cruise lines could be fined $5,000 for each passenger asked to show proof of vaccination. However, DeSantis also held out the possibility of some sort of resolution emerging from mediation, the News Service of Florida reported last week.

Wednesday’s filing by the federal government asserts that recent developments undermine Florida’s argument — that failure to revoke the CDC’s authority would create an “irreparable injury” to the state by preventing collection of millions of dollars in tax revenue and blocking thousands of industry-related employees from returning to work, among other losses.

“The CDC has continued to update its guidance in accordance with public health judgments and to provide technical assistance to the industry,” the filing states. As of June 1, 2021, the CDC has approved port agreements covering 22 vessels at five ports and is reviewing agreements for six additional vessels, it states.

The CDC has also approved or “provisionally approved” four requests for simulated voyages and is reviewing six other requests. In addition, two approvals have been issued for “highly vaccinated” cruises, the filing states.

Those two cruises include a planned voyage by Celebrity Cruises’ ship Celebrity Edge from Port Everglades on June 26 that the CDC has approved. Last week, a DeSantis aide warned that Celebrity Cruises could be heavily fined under the vaccine passport ban if the company adheres to CDC guidance and requires proof of vaccination.