Florida cruise ship fight goes to appeals court

Department of Justice attorneys asked for a stay in a lower-court ruling while the appeals court case continues.
Royal Caribbean International Freedom of the Seas cruise ship as seen from PortMiami before employee volunteers board at Terminal A for a simulated voyage at PortMiami in Miami, Florida, on Sunday, June 20, 2021.
Royal Caribbean International Freedom of the Seas cruise ship as seen from PortMiami before employee volunteers board at Terminal A for a simulated voyage at PortMiami in Miami, Florida, on Sunday, June 20, 2021. [ DANIEL A. VARELA | Miami Herald ]
Published Jul. 6, 2021

TALLAHASSEE — A battle between Florida and the Centers for Disease Control and Prevention about cruise industry restrictions during the COVID-19 pandemic went to an appeals court Tuesday, as federal government attorneys also argued that a lower-court ruling should be put on hold.

U.S. Department of Justice attorneys filed a notice of taking the case to the 11th U.S. Circuit Court of Appeals after a federal district judge last month sided with Florida and issued a preliminary injunction against the restrictions.

The Department of Justice attorneys also requested a stay of the injunction while the appeal moves forward. The injunction involves blocking a federal “conditional sailing order,” which has set requirements for cruise ship operators to meet before they can sail.

“The conditional sailing order is an important tool in ensuring that cruise ship operations do not exacerbate the spread of dangerous (COVID-19) variants during this inflection point in the pandemic,” Tuesday’s motion for a stay said. “It does not shut down the cruise industry but instead provides a sensible, flexible framework for reopening, based on the best available scientific evidence. Here, the undisputed evidence shows that unregulated cruise ship operations would exacerbate the spread of COVID-19 and that the harm to the public that would result from such operations cannot be undone. Cruise ships are uniquely situated to spread COVID-19, due in part to their close quarters for passengers and crew for prolonged periods and stops at foreign ports that risk introducing new variants of COVID-19 into the United States.”

U.S. District Judge Steven Merryday on June 18 issued a 124-page ruling that said the Centers for Disease Control overstepped its legal authority as it tried to prevent the spread of the virus. Merryday’s ruling was a victory for Gov. Ron DeSantis and Attorney General Ashley Moody, who filed the lawsuit in April.

Related: Federal judge sides with DeSantis in dispute with CDC over cruise industry

“With the advent of highly effective vaccines, with more than half of adults fully vaccinated, with infection plummeting, with death from COVID-19 asymptotically approaching zero; with the benefit of effective therapeutics for COVID-19; with masks, safe distancing, and sanitation; and with the successful and safe reopening of business, including airlines, sporting events, and other high capacity venues, COVID-19 no longer threatens the public’s health to the same extent presented at the start of the pandemic or when CDC issued the conditional sailing order,” Merryday wrote.

Merryday said the preliminary injunction would take effect July 18. The federal government’s motion for a stay Tuesday, if approved, would put off that effective date while the case is pending at the Atlanta-based appeals court.

The Centers for Disease Control last fall issued the conditional sailing order, which included a phased approach to resuming cruising, with ship operators needing to meet a series of requirements. The order came months after the industry was idled early in the pandemic following high-profile outbreaks aboard ships.

In addition to arguing that the federal government overstepped its authority, DeSantis and Moody have focused heavily on the economic impacts of cruise ships not being able to sail from Florida.

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But in the motion for a stay Tuesday, Department of Justice attorneys wrote that ships have been approved or conditionally approved to begin passenger voyages. The motion also took aim at a new state law, pushed by DeSantis, that bans what are known as COVID-19 vaccine “passports.” Under the law, businesses, including cruise ships, cannot require that customers show proof of vaccination against COVID-19.

Related: DeSantis signs bill banning vaccine ‘passports,’ suspends local pandemic restrictions

“At a time of emerging COVID-19 variants of concern, this court’s (Merryday’s) order creates a substantial risk that cruise ships will exacerbate the introduction and spread of the virus in the United States,” the motion said. “The evidence in the record shows that the risks imposed by this court’s order are not comparable to those at on-shore facilities like hotels or other places where people gather or travel together for brief periods of time. And this court’s suggestion that the availability of vaccinations alone suffices to mitigate this risk is both undermined by Florida law prohibiting cruise ship operators from requiring passengers to verify their vaccination status and contrary to the CDC’s findings.”

In his ruling last month, however, Merryday pointed to continuing economic damage to Florida from the CDC restrictions.

“In sum, Florida establishes a strong likelihood that many or almost all cruise ships will remain unable to sail for the entire summer season,” Merryday wrote. “And each day the cruise industry faces uncertainty about when cruises can resume, Florida not only suffers a concrete economic injury resulting from reduced revenue and increased unemployment spending, but Florida faces an increasingly threatening and imminent prospect that the cruise industry will depart the state. The dislocation of all or most of an entire industry subjects Florida to a protracted or permanent loss of revenue from one of Florida’s largest industries, the benefits of which insinuate themselves into the heart of Florida’s economy.”

By Jim Saunders, News Service of Florida