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Updated July 18: Stay Issued on Previous Ruling, CSO Remains - Florida Wins Case Against CDC and the Conditional Sail Order...and It Doesn't Really Matter

July 18, 2021 Update: The 11th Circuit panel voted, 2-1 to stay the ruling which was scheduled to make the Conditional Sail Order a recommendation rather than a requirement in the state of Florida.  This means the June 18 ruling noted below is currently on hold.  More information on the update at the end of this post.

On June 18, a Federal judge handed the State of Florida a victory in their challenge of the CDC's Conditional Sail Order (CSO).  The judge agreed with Florida's claims that the CDC was exceeding the authority given to the them, but offered several next steps, and stopped short of invalidating the order.  Judge Merryday said the CDC was prevented from "enforcing against a cruise ship arriving in, within, or departing from a port in Florida the conditional sailing order and the later measures (technical guidelines, manuals, and the like)."

Immediate Stay on Ruling

Immediately after releasing his decision, Judge Steven Merryday issued a stay on his ruling until July 18, 2021.  At that time, "the conditional sailing order and the measures promulgated under the 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.”  This means that at least until mid July, after multiple sailings will have already departed Florida ports, things will continue as planned under the CSO.

CDC's Opportunity to Revise Rules

The judge also gave the CDC until July 2 to modify the rules and potentially narrow the injunction.  The new rules must, however, be supported by, "current scientific evidence and fully disclose…scientific evidence, including methodology, raw data, analysis, and the like and the names and qualifications of the scientists participating in the study, modeling or the like."  If the CDC does respond by the 2nd, Florida will then have a week to file a response, and the judge may ammend the decision if the situation materially changes.

The Alaska Concern is Moot

Some in the industry worried that if the Conditional Sail Order was invalidated it would put a halt to Alaska sailings.  This was rooted in the Alaska Tourism Restoration Act, which permits sailings on ships that had Conditional Sail Certificates - something that would no longer exist without the CSO.  The judge's ruling in the Florida case though only applies to Florida, and further, still allows the CSO to exist - just not as restrictions, only guidance.

The Big Problem in Florida Remains

While initial efforts by Florida may have contributed to the CDC finally making the CSO more viable and up to date, that was months ago.  Today it seems while cruise lines may have parts of the order they'd like adjusted, they're willing to work within these restrictions; this is evident by the fact that so many lines already have cruises lined up and ready to sail from a variety of US ports starting in just a couple weeks.  In other words, the battle Florida is fighting isn't one that means as much to the cruise lines these days, though it will let them skip simulated voyages (aka test sailings) as they expand operations into the mid-summer. 

Further removing some of the impact of this ruling is the fact that the industry isn't likely to take any significant steps to move away from regulations that they're able to comply with if there is any chance a higher court could, at some point, reinstate sail rules.  

"Vaccine Passport" Ban

The thing cruise lines don't like?  Florida's Governor Ron DeSantis' executive order that fines businesses $5,000 every time they require customers provide proof of being vaccinated.  This is a problem, as the CDC's CSO allows for lines to sail without multiple other steps and restrictions so long as 95% of guests are vaccinated.  Of course, in this way, DeSantis has managed to create a problem for the cruise industry, and then solve it...at least after the July 18 stay when the CDC's rules don't matter in Florida.  How cruise lines navigate the waters between the governor's July 1 executive order and the end of the CDC's stay, remains to be seen.

Further, cruise lines have to appeal to cruisers' desire for sailings uninterrupted by COVID 19 issues.  Just last week Celebrity Millennium sailed fully vaccinated (except for a few children) from St Maarten, and had two breakthrough cases, but the cruise continued without interruption to the guest experience for most.  This would have been a very different situation if a significant number of unvaccinated guests were sailing, which is one reason many are keen on sailing on voyages where all guests prove they're vaccinated.  

July 18 2021 Update

As mentioned at the top, the 11th circuit has voted to stay the ruling that would have, as of July 18, made the Conditional Sail Order a recommendation rather than a requirement for sailings leaving from Florida.  This means that the Conditional Sail Order must be followed today, just as it was yesterday, in all states.  As of this update, the court has not yet issued it's opinions yet.  It doesn't appear any cruise lines had plans to significantly change the ways in which they were operating based on the June ruling - perhaps in part because of the possibility of it being overturned, but also because several lines have been successfully operating while abiding by the CSO, with the most burdensom matters in flux righ tnow being the Florida governor's "vaccine passport" ban, which is being challenged in court by Norwegian Cruise Line Holdings.