Opinion: Cruise Ships, Florida, and the CDC

Opinion: Cruise Ships, Florida, and the CDC

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Warning: This post is really just something I have to get off my chest. The lack of logic I’ve encountered on this topic has been driving me batty. Take it all with a grain of salt!

Introduction

With the imminent return of cruising in Florida, there has been a lot of chatter in the ether along the lines of “How can cruise lines require vaccinations when sailing out of Florida? Didn’t the state just pass a law preventing businesses from requiring proof of vaccination?”

In my opinion, the Florida law is irrelevant for purposes of the cruise lines’ policies with regard to vaccinated cruises. Just thinking about it from the standpoint of a business – with the concomitant risk aversion – the cruise companies have clearly decided they don’t have to worry about it.

Background

The Beginning: No Sail Order

US cruise ship sailings have been halted since March 14, 2020 when the CDC issued its No Sail Order. Despite cruising restarting in parts of Europe and Asia since then, the industry has been complete shutdown in the States.

On October 30, 2020, the CDC issued its Framework for Conditional Sailing Order, replacing the No Sail Order.

Cautious Hope: Framework for Conditional Sailing

Initially, there was a lot of excitement among cruise fans when the Framework came out. Movement at last! But all that was tempered as we started really absorbing what was in the order.

This document laid out basic steps – including those infamous test sailings – that companies would have to follow to start sailing again out of the US. The details, however, were lacking, and there was no actionable timeline provided initially.

Fast forward many months, to April 2021, and the CDC started releasing more details. The cruise lines were … less than pleased, shall we say, about some of the details, arguing that the CDC had completely ignored the vaccination factor.

From what we can tell, there continued to be a lot of discussion between the industry and the agency. Additionally, as we’ve all seen, the CDC has suddenly started relaxing its guidance for the vaccinated populace in general. And now, in late May, their requirements for the return of cruising have been undergoing a similar transformation.

The Framework is still the governing regulation at this time, but it has changed a lot, particularly since early May.

The Choice for Cruise Lines

For purposes of the discussion here, the key provisions in the Framework are related to a choice presented to the companies for how they could start sailing again. They have two options (and can choose on a ship-by-ship basis):

Option 1

Do test sailings and have the procedures and results approved by the CDC. They have to do things like simulate a COVID outbreak, and there’s all sorts of rules about who can be on the cruise.

There’s no requirements for vaccinations on either the test cruise or any revenue cruises that follow this approach while the Framework is still in place. Testing and masks, however, feature prominently.

Option 2

Ensure 98% of crew and 95% of passengers are fully vaccinated. No test cruise is required.

Based on recently-updated guidelines, passengers on these cruises would face many fewer tests and almost no masking requirements.

Which Path Forward

The general consensus among the cruise community is that family-focused brands such as Royal Caribbean and Disney would go the test sailing route since kids under 12 can’t get vaccinated yet.

But it was expected that the larger lines would probably do a few ships under Path 2 so they could get at least some revenue sailings out there as soon as possible.

Notably, the newly-announced Alaska sailings all seem to be going the vaccinated route. They’re simply trying to salvage as much of that season as possible at this point and don’t have time to lose on test sailings.

DeSantis’ Public Actions and Assertions

Florida, at least in the Before Times, happens to be the global center of cruising. It’s home to multiple ports, including Miami – the largest cruise port in the world.

But the governor of Florida, Ron DeSantis, is a noted Trumper who has severely politicized the entire fight against the pandemic, including vaccines.

He decided, for whatever reason, that he didn’t want companies to be able to ask for proof of vaccination (so much for being pro-business). This policy was initially implemented via executive order and later codified into law (SB 2006). The provisions of this law take effect July 1, 2021 and include potential fines of $5,000 per infraction.

Ever since Governor DeSantis came out in opposition to a so-called “vaccine passport,” he has asserted that the executive order and law both apply to the cruise industry. He states there is no exception.

Until either is tested in court, it’s hard to know if his claims of jurisdiction are true. But many in the cruise commentary class (e.g., vloggers and bloggers) apparently assume the governor is correct without really examining the question for themselves.

So What’s the Issue?

A lot of cruise ships sail out of Florida ports. And quite a few cruise companies have their corporate headquarters physically located in Florida, despite being legally incorporated in other countries for the most part.

So what happens when a cruise line decides to require vaccines pursuant to the CDC’s Framework and is sailing out of a Florida port?

According to the governor, they can’t ask for proof of vaccine. Which would mean the ship couldn’t meet CDC requirements under Option 2. They could only choose Option 1 if they want to sail out of Florida.

There’s quite a few other cruise ports around the country – New Orleans, Mobile, Galveston, Long Beach, Bayonne, etc., etc. – but Florida has the biggest infrastructure in place to support the industry.

So what are the companies to do?

Why Would the Cruise Lines Forge Ahead?

I’m writing this on May 28, 2021. Celebrity Cruises popped to the forefront of this potential conflict in the past couple of days when they announced vaccinated sailings (i.e., Path 2) starting June 26th out of Port Everglades in Fort Lauderdale. Florida.

The governor’s office has already put out a statement claiming the cruise line will be in violation of state law if it takes this approach. Amazingly, they even assert the CDC doesn’t have any authority over cruising. Right. That’s exactly why an entire industry has put its operations on hold for over 14 months, losing billions of dollars in the process (can you see my eyerolling?).

So why is Celebrity Cruises doing this? Don’t they know about this fearsome law?

Well.

I’m pretty sure Celebrity – and every other cruise company – has plenty of lawyers who are 1) well-versed in maritime law; and 2) know exactly who has legal authority over them and for what. They know what the CDC can tell them to do versus the State of Florida.

There is simply too much at stake in this restart for any cruise line to risk taking the vaccination approach if they were not sure they could.

If their legal teams had any doubts – any – about the advisability of doing vaccinated sailings out of Florida, they would not be happening.

The cruise lines would be going elsewhere to start their US sailings, avoiding Florida. And they’re not doing that.

In other words, the fact that the cruise lines are going ahead with this approach in Florida tells me they think they can do so legally.

DeSantis is basically engaging in political theater and blowing smoke.

Jurisdiction: Who Is Really Imposing the Vaccine Requirement?

An interesting argument I’ve heard is that Florida can prevent cruise lines from asking for vaccination proof because it’s the cruise lines imposing the requirement not the CDC.

While not-unreasonable approach – and one that at least obliquely acknowledges the issue of federal vs. state jurisdiction – it’s looking at the scenario from the wrong angle in my opinion.

Caveat: I do have a law degree, but I am NOT a lawyer. I’m just applying a basic approach to legal interpretation any 1L could manage LOL.

The CDC has given cruise lines two paths to start sailing:

  1. Do test cruises
  2. Have near-100% vaccinated crew and passengers

The cruise lines can choose which path. But once they do so, the CDC set the rules.

The CDC – a federal agency under the Department of Health and Human Services – is mandating vaccines. Given the CDC’s authority under federal law related to control and quarantine of ports, I’m pretty sure Florida will have a tough time convincing a judge the state’s law takes precedence in this case.

I’ve also seen a few people point out language in the new statute that could be used to argue an exception for cruise lines. I just happen to think the issue is moot: the CDC (aka, federal) rules apply, and the state law doesn’t come into play in the context of sailings from US ports.

Bottom Line

My prediction: Cruise lines will be able to sail out of Florida while requiring vaccinations.