The public dispute over requiring vaccinations for cruise travel took a serious turn yesterday. Norwegian Cruise Line Holdings (HCLH), the parent company for NCL, Oceania and Regent Cruises, sued Florida’s surgeon general, Dr. Scott Rivkees (as head of the Florida Department of Health), alleging that the state of Florida is preventing it from resuming sailing in a “safe, sound and consistent with governing law” by prohibiting businesses in the state from requiring customers to be vaccinated against COVID-19. The lawsuit papers say the state of Florida “cannot lawfully or sensibly tie NCLH’s hands in this pivotal fight” against COVID-19.
NCL – 100% Fully Vaccinated Guests and Crew Members
On April 5, 2021, HCLH announced that it would require its crew and passengers to be vaccinated as a prerequisite to cruising. NCLH stated that it will follow its own “Sail Safe” protocols and “Healthy Sail” protocols which it developed with experts who it hired with Royal Caribbean. NCLH’s policy of “Mandatory Vaccinations on Initial Voyages” stated that:
“All guests and crew must be fully vaccinated, at least 2 weeks prior to departure, in order to board. Guest vaccination requirements are currently for all sailings embarking through October 31, 2021– we will follow the science to make determinations on requirements for all other future sailings.”
Frustrated by what the company perceived as unnecessary and inconsistent health protocols and delays by the Centers for Disease Control and Prevention (CDC), NCL also unilaterally announced last April that it would resume cruising with fully vaccinated guests and crew members in July.
The Governor Throws A Curve Ball
But, in early May, Florida Governor DeSantis threw the cruise industry a curve ball. The Republican Governor, with Trump-like presidential aspirations for 2024, signed a bill into law which prohibits businesses in Florida from asking people for proof of a COVID-19 vaccination. As Forbes explained, the legislation was passed without a carve-out for the cruise industry. Cruise lines could be fined $5,000 each time they require vaccination proof from a passenger.
Florida Has No Cruise Ship Health and Safety Protocols With a Governor With No Regard For Public Health
In my view, this is reckless, irresponsible, and utterly selfish conduct by Governor DeSantis. Florida has no health and safety protocols which apply to cruise passenger health issues, which have traditionally been overseen by the U.S. Centers for Disease Control and Prevention (CDC).
DeSantis is a politician who has demonstrated his disregard for matters of public health and the authority of the CDC. Seven months ago, I wrote this about DeSantis:
“Governor DeSantis has always been an open-the-economy-up advocate who often appears in the public without wearing a mask. Two weeks ago, he attended a political rally in Florida where he was filmed not wearing a mask, ‘high-fiving’ others without masks in the crowed and then rubbing his nose.”
DeSantis has arrived maskless at Superspreader event giving high fives before ending with nose rub-pick pic.twitter.com/g6Qnk3zG6o
— Daniel Uhlfelder (@DWUhlfelderLaw) October 12, 2020
For the past six weeks, the public sentiment of people wanting to cruise as the industry resumes operations has favored cruise lines which responsibly require the vaccination of passengers and crew members. Forbes found that “three quarters of Floridians disagree with Gov. DeSantis’ Cruise ‘vaccine passport’ ban.”
NCL CEO Frank Del Rio’s frustration quickly shifted from the CDC to the state of Florida. Other cruise lines, like Royal Caribbean, which initially joined NCL is hiring experts for its joint “healthy sail” panel, have attempted to placate Governor DeSantis while working around the unsafe Florida law. They have simultaneously praised him while adopting an “inquire-but-not-require” approach which permits unvaccinated guests to cruise on RCL ships. Unvaccinated guests are expected to be tested for COVID19 and are not permitted in certain restaurants, theaters and other locations on RCL ships. Like Royal Caribbean, Carnival Cruise Line also now requires unvaccinated guests to purchase insurance which will pay for medical treatment and travel home in the event that they become infected during the cruise.
NCL CEO Del Rio previously threatened to pull his cruise ships from ports in Florida. He suggested that he would sail his cruise ships from other ports like New York, Boston, New Orleans or Seattle. But most people viewed this as a bluff and were skeptical that he would pull his ships from Florida, where he has his corporate offices in the company’s headquarters here in Miami.
Norwegian Cruise Line Holdings is suing Florida's surgeon general over the state's law that prohibits companies from requiring customers and employees to provide documentation of Covid-19 vaccination status https://t.co/EiaZoNN5qj
— CNN (@CNN) July 14, 2021
You can read the NCL lawsuit here.
- (1) conflicts with federal statutes and regulations and is therefore preempted under 42 U.S.C. § 264 and CDC’s regulations thereunder;
- (2) blocks communications between a business and its customers, in violation of the First Amendment to the U.S. Constitution (as applicable to the State of Florida under the Fourteenth Amendment);
- (3) profoundly disrupts the proper flow of interstate and international commerce without advancing any substantial state interest, in violation of the Dormant Commerce Clause; and
- (4) inexplicably precludes this business from protecting the health and safety of its employees and customers against the extraordinary backdrop of a deadly pandemic, in violation of substantive due process as protected by the Fourteenth Amendment.”
Sailing During a Deadly Pandemic is Dangerous – A Fully Vaccinated Cruise Ship is the Best and Only Reasonable Approach
NCLH states that it is filing the lawsuit “as a last resort.” The legal case is premised on the fundamental proposition that only a fully vaccinated cruise ship “will be best for all concerned —with the benefit of documentation confirming that all of its passengers and crew have been fully vaccinated against COVID-19.”
NCLH states that its first cruise from a U.S. port since it suspended operations in March 2020 is scheduled for August 13, 2021. But Florida Statute Sec. 381,00316, which prohibits cruise lines from requiring proof of vaccination, places the cruse line in an impossible situation. The lawsuit alleges that “NCLH will find itself either on the wrong side of health and safety and the operative federal legal framework, or else on the wrong side of Florida law . . . The fight that should occupy us at present is the fight against COVID-19—and we should all be working together to win that fight. NCLH’s respectful submission here is that Florida cannot lawfully or sensibly tie NCLH’s hands in this pivotal fight, at this sensitive time.”
The lawsuit alleges that Governor DeSantis’ “es misguided intrusion threatens to spoil NCLH’s careful planning and force it to cancel or hobble upcoming cruises, thereby imperiling and impairing passengers’ experiences and inflicting irreparable harm of vast dimensions.”
Who Would Voluntarily Cruise On A Ship With Unvaccinated Guests and Crew Members?
The lawsuit makes a compelling point which I have repeatedly observed in postings by cruise fans on a regular basis, that is – most people who are now thinking of cruising have been vaccinated and want to make certain that everyone else on the cruise ship is also vaccinated. Anything less is dangerous and unnecessarily increases the potential for exposure to a deadly virus. At paragraphs 70, the complain alleges:.
“Surveys of likely NCLH cruise passengers indicate that the vast majority of likely passengers want to sail with others who have been completely vaccinated and can prove it.”
At paragraph 86, the complaint alleges:
“A recent survey of more than 5,000 readers of Cruise Critic found that 80% of respondents preferred to sail on a ship with a vaccine requirement, and the industry is dealing with significant uncertainty as the summer sailing season proceeds.”
Florida Is Needlessly Increasing the Potential for Cruise Travelers and Crew Members to Become Infected
By prohibiting cruise lines from requiring vaccinations, Florida is now causing cruise ships to sail with unvaccinated guests (as well as some unvaccinated crew). This increases the potential for the continued spread of the virus and the continuation of the pandemic. Most importantly, it also creates an environment where the virus can mutate and more infectious and dangerous variants, like the Delta variant, can develop. This, of course, is not merely a theoretical argument as COVID-19 cases in Florida has risen substantially in the last month as the new Delta variant continues to emerge.
NCLH is acutely aware of these facts and makes it clear in its pleadings that Florida’s anti-vaccine passport law is dangerous and will increase the potential harm to passengers cruising from this state. Paragraphs 83, 84, and 95 allege that:
“Risk of exposure to COVID-19 will invariably tick up if NCLH is denied the ability to verify through documentation that all passengers have been fully vaccinated.
The inability to verify vaccination status will hobble NCLH’s ability to attract, assure and protect passengers.
If the Florida Ban is enforced against NCLH, however, these voyages will be placed at risk of cancellation, disruption, and possible COVID-19 outbreak, resulting in a substantial loss of revenue, losses of wages for NCLH’s crew, harm to NCLH’s brand, goodwill, and reputation with past and potential passengers, as well as substantial, adverse impacts on interstate and foreign commerce. Worst of all, human life and safety would be placed at undue risk.”
A Matter of Life and Death
Perhaps most compelling allegations are located in paragraph 135 of the complaint:
“The risk of transmission of COVID-19 among the unvaccinated in the close quarters of cruise ships coupled with the effectiveness of COVID-19 vaccines in preventing the spread of COVID-19 and in reducing the deaths caused by COVID-19 makes transmission of information about COVID-19 vaccines a matter of life and death. Precisely for that reason, CDC has embraced vaccination—and verification of vaccine status—as essential for cruise ships to operate safely. NCLH has followed those recommendations and prepared to resume sailing by verifying—through documentation—that 100% of its crew and passengers are fully vaccinated. Florida has no valid interest in banning NCLH from requiring that willing, desirous passengers provide it with potentially life-saving information about their vaccination status.”
The cruise line is seeking a preliminary injunction preventing the State of Florida from enforcing Florida Statute Sec. 381,00316 and ultimately holding it unconstitutional and unlawful.
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