CDC says if court rules for Florida in cruise lawsuit, Alaska sailing could be threatened

New filings in the federal lawsuit between Florida and the Centers for Disease Control and Prevention over the restart of the cruise industry have raised the specter that a ruling in Florida’s favor could essentially end any chance for Alaska to welcome cruises this year.

In the suit filed by Florida Attorney General Ashley Moody back on April 8 against the CDC, Biden Administration and the U.S. Department of Health & Human Services, the state claims the CDC has overstepped its authority amid the COVID-19 pandemic to regulate the cruise industry, which was shut down under a no-sail order from the CDC in March 2020, and has since fall been under a conditional sail order.

The conditional sail order requires ships to make arrangements with ports for medical services in the event of a coronavirus outbreak as well as enact a long list of COVID-19 protections on board. The industry did not receive guidance on how to move forward to prove out ships’ safety protocols until May, and the CDC has made adjustments to its guidance on a near-weekly basis since then. That includes simulated sailings unless a ship sails with mostly vaccinated crew and passengers.

A federal judge ordered the parties into mediation, which began last week, but in a new motion last week, the CDC asked it be allowed to file a memorandum outlining how the recent passage of a federal law signed by President Joe Biden that would allow cruise ships to sail from Alaska would come undone if the court granted Florida’s request for an injunction against the CDC and its conditional sail order.

The Alaska Tourism Recovery Act was passed in an effort to get at least a short season of Alaska cruising in. It allows for foreign-flagged ships to be able to sail from U.S. port to U.S. port without stopping in another country. This gets around a Canadian law that prohibits ships with more than 100 passengers at any of its ports until February 2022.

Several cruise lines including Norwegian, Royal Caribbean, Princess, Holland America and Carnival, have announced plans to sail in Alaska with fully vaccinated crew and passengers between July and September to take advantage of the law.

The law, though, states that ships have to have a conditional sailing certificate from the CDC.

If Florida wins its lawsuit, and the court provides an injunction against the CDC and its conditional sail order, then the ships in Alaska would not be allowed to sail under the provisions of the federal law.

That’s the argument the CDC makes in its briefing, while also noting that by passing the law, Congress has in essence ratified the conditional sail order.

Both Florida and Alaska filed motions in response, disagreeing with the stance, without objecting to its filing.

“Florida is, however, concerned that further briefing will only serve to delay a ruling on Florida’s motion for preliminary injunction. With each passing day that cruises — a singled-out industry — cannot operate, Florida suffers irreparable harm,” reads a filing from Moody. “As Florida’s cruise lines and ports address the CDC’s constantly changing labyrinth of requirements for safety plans and simulations, and businesses and employees suffer, time is of the essence.”

The CDC, in its filing also noted that so far, it had granted as of June 1, port agreements that covered 22 vessels at five ports of call. This includes at least PortMiami, Port Canaveral, Port Everglades and Galveston. So far, no Alaska port agreements have been made public. The CDC is also reviewing agreements for six more vessels.

It also has provisionally approved four requests for simulated voyages. That would include the Disney Dream on June 29 from Port Canaveral and Royal Caribbean’s Freedom of the Seas from PortMiami on June 20, and has six more requests under review.

In addition, the CDC has approved two conditional sailing certificates for ships using the CDC’s alternative of ensuring at least 98% of crew and 95% of passengers will be vaccinated when sailing. That includes Celebrity Edge, which on June 26 from Port Everglades, will become the first major cruise ship to sail on a revenue cruise from a U.S. port since March 2020.

Although the Celebrity cruise still faces the hurdle of dealing with Florida Gov. Ron DeSantis and his executive order as well as a law he signed that goes into effect July 1 that bans so-called vaccine passports. Businesses that require vaccines, such as what Celebrity Cruises would be doing, would face a $5,000 fine per instance under the law.

The CDC, in arguing against the state’s request for an injunction, points out Florida’s back-and-forth with the cruise industry over its vaccine law, and that business is already getting back to speed under its conditional sail order requirements.

“In short, cruising is set to resume as planned, and Florida cannot establish an irreparable injury that would occur in the absence of an injunction,” reads the CDC’s filing. “The speculative nature of the State’s ‘injury’ is therefore further underlined by the fact that an injunction would (a) end cruising in Alaska for the season (because ATRA only benefits ships operating with a Conditional Sailing Certificate under the CSO); (b) cast considerable doubt on public confidence in the industry, particularly in the State of Florida, which is publicly battling with the industry over its own laws; and (c) otherwise undermine the carefully laid plans for safe resumption of passenger operations.”