With the state of Florida victorious in its battle over the U.S. Centers for Disease Control & Prevention, at least where the agency's Conditional Sail Order is concerned, where does that leave cruisers looking to set sail from the Sunshine State this summer?
While things aren't completely clear yet, here's what Cruise Critic knows so far:
After suing the CDC on April 8, 2021 over the agency's Conditional Sail Order that has halted the majority of U.S-based cruise activity since March 2020, the State of Florida prevailed last week, winning an injunction that suspends the regulation as of July 18, 2021.
Judge Steven Merryday, of the United States District Court, Middle District of Florida, Tampa Division, ruled in favor of the state on June 17, declaring that the agency's order does "exceed the authority delegated to CDC under Section 264(a)."
Merryday also said that the CDC's efforts to regulate cruise constituted "an unconstitutional delegation of legislative power to the CDC. " He concluded that the CDC relied on "stale data" to justify their continued No-Sail Order. He further likened the CDC's Conditional Sail Order to a prohibition of all sexual activities across the United States in order to prevent the spread of AIDS.
As a result, when the clock turns on July 18, the CDC's Conditional Sailing Order "will persist as only a non-binding 'consideration,' 'recommendation' or 'guideline,' the same tools used by CDC when addressing the practices in other similarly situated industries, such as airlines, railroads, hotels, casinos, sports venues, buses, subways, and others."
In other words: cruise lines can adopt best practices to prevent the spread of COVID-19, but shall not be bound by them as a condition of operating, lawyers told Cruise Critic.
"The ruling by Judge Merryday means the CDC cannot enforce its order regarding vaccination requirements (and the Conditional Sail Order) against a ship from a Florida port," David Reischer, Attorney and CEO of LegalAdvice.com, said in an email.
"Allowing the CDC to regulate health concerns in Florida would mean that politicians in Washington D.C. have more power to control the rights and liberties of local citizens than permitted under the Constitution."
No. The injunction is granted only for sailings from, to, or calling on ports in Florida. On those cruises, the CDC will not be able to control when or how a line operates, beginning July 18.
Not quite. The CDC is allowed to submit plans for a narrower injunction that lets cruise ships sail while still respecting the CDC's guidance on cruise. That has to be submitted by July 2, and the State of Florida will have seven days to respond after that.
Still, given the language in the 124-page ruling, the CDC's existing Conditional Sail Order is unlikely to be reinstated in full within Florida's ports.
Not necessarily. Cruise lines have poured millions of dollars into following the CDC's guidance on vaccinations and other measures like physical distancing and masking. Research conducted by cruise lines -- and Cruise Critic -- show that the vast majority of travelers feel most comfortable on ships with vaccination mandates.
All that has changed is that the CDC cannot mandate rules around this. Right now, cruise ships have been required to go through a lengthy process to restart, which includes either having a test cruise or putting a 95 percent vaccination rate minimum for passengers and crew.
But on the cruise line level, little has changed, other than cruises from Florida will no longer be required to conduct expensive test cruises -- though most likely will do at least a limited shakedown sailing, anyhow, to test their own internal protocols and procedures.
"All of us have invested heavily in our medical facilities, onboard testing capabilities, enhancing our HVAC systems, etc.", Roger Frizzell, Senior Vice President & Chief Communications Officer for Carnival Corporation tells Cruise Critic.
"Those investments will continue to be important in our sailings going forward. All along, the cruise industry has asked that it be treated no differently than other businesses in the U.S.
"At the same time, we are continuing to see greater numbers of people who have taken the vaccinations, so they continue to be an important factor as well."
Because of that, requirements that passengers be fully vaccinated are likely here to stay -- at least for summer 2021 sailings. It is likely cruise lines will encourage passengers to be vaccinated while at the same time introducing additional restrictions, like masking requirements and additional-cost testing for passengers who are considered unvaccinated.
Ships also sail from Florida to any number of Caribbean island nations, many of which mandate their own vaccination policies. It is likely that ports of call will play a large role in keeping vaccination requirements for Florida departures in place.
The CDC had previously warned that if the judge ruled in the State of Florida's favor, and the Conditional Sail Order was overturned, it would nullify the exemption to the Passenger Vessel Services Act passed by Congress that allows, temporarily, ships to bypass foreign (Canadian) ports of call on voyages from Seattle to Alaska, as previously required by U.S. law.
With the scope of the order being restricted to Florida itself, and not the broader United States, the CDC's Conditional Sail Order is, for the time being, still in effect until November 1, 2021 when it would original expire.
Alaska cruises from Seattle are not affected at this time, and still require proof of vaccination.
But that doesn't mean this ruling will be exclusive to Florida. As Reischer tells Cruise Critic, other states could decide to follow suit and challenge the CDC's Conditional Sail Order.
"It is certainly possible that the case could easily be referenced as precedent under the principle of 'stare decisis', if any other state wanted to extend the holding to their jurisdiction," said Reischer.
If the vessel stays within Florida's homeports and the Caribbean, the test or simulated voyages that were previously mandated by the CDC would no longer be required, as the CDC's Conditional Sail Order no longer applies.
Ships intending to sail from other U.S. ports of call where the Conditional Sail Order remains in effect -- Galveston, San Diego, Seattle -- would still need to complete simulated voyages and receive CDC approval prior to entering revenue service once again.
In the meantime, ships -- like Freedom of the Seas-- are still completing their required test cruises on-schedule for the CDC so they can begin sailing as soon as possible.
So, considering all the facts, what happens now? Where do the main players in this saga -- the CDC, the State of Florida and the cruise industry -- go from here?
"That’s a hard question to answer," Bob Jarvis, Professor of Law at Nova Southeastern University in Fort Lauderdale, told Cruise Critic.
"Judge Merryday did grant the CDC permission until July 2, 2021, to propose a narrower injunction. And he stayed his order until July 18, 2021, to give the CDC time to appeal to the U.S. Court of Appeals for the Eleventh Circuit in Atlanta (coincidentally, the home of the CDC)."
With Florida existing as the undisputed heavyweight cruise capital of the world and the industry keen to restart, it is likely the two will probably carry on as they have been -- with the State maintaining it is against the law to ask someone for proof of vaccination, and the cruise lines rewarding passengers who do provide proof of vaccination at check-in with a more "normal" onboard experience.
Those travelers who decline to show proof of vaccination will likely still be required to undergo for-fee COVID-19 testing and adhere to masking and social distancing requirements onboard, among other conditions, as cruise lines -- not the State of Florida -- can mandate this for the safety of all onboard.
Florida's victory over the CDC could also have lasting effects that will linger beyond the scope of the current health pandemic.
"If his ruling stands, I think other courts will take notice of it," Jarvis told Cruise Critic. "It’s a long and well-reasoned opinion."
"Of course, there also is a good chance that Congress will take notice of it and beef up the CDC’s authority so that it can win future challenges."
Updated July 07, 2021