Friday afternoon, the Centers for Disease Control and Prevention (CDC) lifted the “no-sail” order and entered a “conditional sail” order, as I expected on Friday morning.

The CDC Gives a Thumbs-Up to Cruising During a Deadly Pandemic

The order starts off by mentioning that COVID-19 continues to spread rapidly around the world with no FDA approved vaccine. As of the date of the order, over 44,000,000 people have been reported infected with coronavirus and around 1,200,000 people have died around the world. In the U.S., there have been 8,800,000 COVID-19 related cases and over 227,000 deaths. The CDC concluded that based on the evidence explained in the first four “no-sail” orders, there is “ample evidence” that cruise ship travel has the potential to exacerbate and amplify the spread of coronavirus. In fact, the CDC explains that cruise ships pose a “greater risk” of COVID-9 transmission that other settings.

Cruise Ships Exacerbate the Global Spread of the Virus

The CDC cited a study in a travel medical journal that the basic reproduction rate (R0) for COVID-19 on the Diamond Princess cruise ship was an astronomically high 14.8, meaning that each person infected with COVID-19 on the Princess Cruises ship transmitted the disease to almost 15 other people. This rate was over four times higher than the rate of transmission of people in the epicenter of the outbreak in Wuhan, China. The CDC stresses that absent mitigation efforts, coronavirus transmission from one guest/crew to another on a cruise would greatly exceed transmissions in other locations.

Studies show that one reason for the heightened rate of transmission on a cruise ship is the high population density. However, drastically decreasing the number of guests and crew alone will not eliminate transmission. Other facts contributing to transmission are the crew members living and working in close quarters in a partially closed environment where social distancing is difficult.

The CDC Continues to Abdicate its Role to Washington

A federal health agency focused squarely on protecting the public’s health and safety would have easily concluded that the ban on cruising from the U.S.  should have been extended indefinitely into 2021. But it’s clear that outside political influences and an emphasis on restarting cruises at all cost undermined the agency’s ability to be guided by scientific principles and the empirical evidence itemized in the four prior no-sail orders.

In its 40 page order, the CDC set forth certain mitigation measures designed to prevent further transmission of the virus on cruise ship. You can review the details of the order here.

A couple of points about the details of the order deserve mentioning now:

The CDC envisions a “phased” approach. The CDC informed USA TODAY that the “first cruises to leave U.S. ports will be simulation sailings designed to show that ships and crews are in compliance with CDC standards and able to mitigate the spread of COVID-19 onboard.” Initially, cruise ships must “demonstrate adherence to testing, quarantine and isolation, and social distancing requirements to protect crew members while they build the laboratory capacity needed to test crew and future passengers.”

Crew Members and “Volunteer” Passengers Will be Used as Guinea Pigs

Cruise ships will be required to sail on a “simulated” or series of “simulated” voyages where “volunteer” passengers participate in “unproven and untested health and safety protocols.” The CDC is essentially requiring cruise ship employees and volunteer passengers to be used as guinea pigs to test whether the untested protocols will actually work.

Volunteers Will Not Be Representative of the Demographics of Normal Passengers

The “volunteer” passengers must obtain a written certification from a healthcare provider that he or she has “no pre-existing medical conditions that would place that individuals at high risk for COVID-19.” This is a bizarre and self-defeating requirement. A substantial portion of the typical cruise passenger demographic is elderly travelers (in excess of 70 years old). Many have underlying conditions such as heart disease, chronic lung disease and diabetes such that they are at heightened risk of severe illness if they contract COVID-19. Such individuals probably will not be able to obtain the necessary written certificate that they are not at high risk. What doctors would sign such a certificate? This would cause all of the simulated cruises to involve volunteer passengers who are not representative of the heath of many people who cruise.

Will Consent Forms Contain Illegal Waivers of Liability?

Volunteers, who must be at least 18 years old, are required to sign a “consent” form acknowledging that “sailing during a pandemic is an inherently risky activity.” Health agencies rarely require consent forms which are primarily a mechanism for corporations to attempt to limit their liability from consumer claims of negligence. The question arises whether these so-called consent forms contain language exculpating the cruise line from liability. If the forms contain any type of waiver of liability which the volunteer passengers are required to acknowledge, the U.S. federal statutes prohibit the enforcement of such an agreement.

Cruise ship liability waivers violate 46 U.S.C. § 30509 which prohibits contractual provisions which attempt to limit the liability of the owner of ships for “personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents.” We handled a case around nine years ago where the Eleventh Circuit Court of Appeal held that a Royal Caribbean waiver of liability was invalid and unenforceable. Yet, since then, Royal Caribbean still requires passengers to sign such agreements in the hope that their guests will not understand that the forms are illegal and unenforceable. We expect that all of the cruise lines will insert such unenforceable language in the “consent” forms.

Who Will Pay for Evacuation, Hospital, Medical and Travel Costs When Passengers Become Infected?

The CDC requires the cruise lines to make arrangements with “health care entities” addressing the evacuation of guests and/or crew with COVID-19 to onshore hospitals for medical care. Cruise lines must also make “housing agreements” with “shoreside facilities for isolation and quarantine of COVID-19 cases and close contacts.” But the order is silent regarding who must pay for the cost of evacuation, hospitalization, and medical treatment of those passengers and crew members infected with the virus. The CDC also does not explain who will bear the costs of the housing, food and living expenses of those required to be isolated and quarantined.  If there is not a clear requirement that the cruise lines pay for these costs, then these costs will be the obligation of the consumer. Most health insurance policies typically do not cover shipboard medical problems, particularly during a pandemic.

Guests who find themselves infected during a cruise, or even those passengers who have to return to port early and be quarantined, will find themselves with uninsured medical, housing, and travel expenses and unable to exercise their legal rights if the anticipated liability waivers are upheld.

There is language in the “Royal Promise” drafted by Royal Caribbean for sailing from Singapore that the cruise line will “cover COVID-19-related costs up to $25,000 SGD ($20,000 USD) per person in your travel party, for onboard medical costs, cost of any required quarantine, and travel home. Royal Caribbean claims that “We’ll Never Stop Taking Care of You.” But by the very terms of the “Royal Promise,” Royal Caribbean promises that it will absolutely stop caring for those guests who become infected and require onboard medical expenses, evacuation and quarantine which exceed $20,000 USD, which is arguably not sufficient to cover such emergency expenses. The “promise” relates to only “onboard” medical expenses and does not appear to cover any “shore-side” medical expenses or hospital costs. Moreover, there is no cruise line financial obligations in the CDC conditional sail order in the first place.

Royal Caribbean misleadingly promises that “We’ll Never Stop Taking Care of You.” But it truth the cruise line will stop paying for any medical expenses the moment you leave the cruise ship where you were infected.

The CDC also requires the cruise line to notify their guests before they purchase their cruises that when a “threshold of COVID-19 is detected.” the cruise will immediately end and return the cruise ship to the U.S. port of embarkation. The cruise line must also disclose to the guests that “their their homes, may be restricted or delayed.” The CDC’s order does not define what constitutes a “threshold” level of the disease. And the CDC order does not specify who is responsible for the airfare, transportation and hotel expenses to be incurred by literally thousands of guests due to a cruise cut short due to COVID-19. It is safe to assume that the CDC envisions that consumers will also bear all costs associated with evacuation, quarantine, and travel due to a COVID-19 aborted cruise.

Foreshadowing of Things to Come – Another Cruise Ship In Europe Has a COVID-19 Outbreak

Shortly before the conditional sail order was announced on Friday afternoon, news broke that yet another cruise ships sailing from Italy experienced a COVID-19 outbreak. The French newspaper LeMonde reported that 13 people have tested positive for Covid-19 on the Le Jacques Cartier luxury cruise ship. The outbreak was covered by few travel publications or cruise bloggers which, instead, focused on the CDC’s conditional sail order. So far, there have been over 180 passengers and crew members infected on cruise ships sailing in Europe since cruising resumed in that continent.

More to Come

I’ll be discussing additional details of the CDC’s mitigation measures in more detail in the next few days. I am particularly interested in the public’s reaction to the CDC essentially requiring cruise ship employees and volunteer passengers to act as guinea pigs to determine whether unproven and untested health and safety protocols will actually work.

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Photo credits: CDC Logo – Centers for Disease Control and Prevention – Public Domain, commons / wikimedia; Port of Miami (top) –  Marc Averette – CC BY 3.0, commons / wikimedia; CDC Building – James Gathany, – Public Domain, commons / wikimedia; Port of Miami (middle) – Florida Politics; Vice President Pence, Governor DeSantis and Senator Rick Scott – AP photo / Gaston De Santis via Palm Beach Post; Medical evacuation for cruise passengers at port of Miami – CHARLES TRAINOR JR/ Miami HeraldCosta Diadema – Z thomas – CC BY-SA 4.0  commons / wikimedia; Jacques Cartier – via LeMonde.