Appeals Court Allows CDC to Keep Restricting Cruise Ship Sailings

On Saturday evening, an appeals court in the U.S. 11th Circuit ruled that the CDC will still be able to impose COVID-19 health and safety restrictions on the cruise industry, at least for now.

In June, District Judge Steven Merryday ruled against the CDC in a suit brought by the state of Florida, finding that the state was likely to succeed in its claim that the CDC cannot lawfully limit cruise vessel operations for the purpose of controlling COVID-19.

In his ruling, Merryday issued a temporary injunction that would prevent the CDC from enforcing its "conditional sailing order," or CSO. He gave the CDC until July 18 to revise its rules; if the agency did not make revisions, after July 18 the rules would "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," Merryday wrote.

The CDC appealed Merryday's ruling, arguing that the CSO is helping to ensure an orderly restart to cruising and addressing the potential for a resurgence of the virus. The CDC noted the need to manage risk due to the confined spaces aboard cruise ships and the potential exposure to new variants of the virus during port calls.

In a 2-1 ruling issued Saturday, the United States Court of Appeals for the Eleventh Circuit issued a temporary stay, blocking Judge Merryday's injunction and permitting the CDC to continue enforcing its conditional sailing order. The ruling means that the CSO will remain in effect while the CDC appeals Merryday's decision.

The CSO permits cruise ships to sail on commercial revenue voyages if they satisfy one of two different certification options. The first is to ensure that 95 percent of the passengers and 98 percent of the crew on board are vaccinated. The second option is to undertake a "trial cruise" test run to demonstrate each vessel's COVID-control protocols.

Cruise lines' efforts to comply with the first, vaccination-mandatory option have encountered one challenge. The state of Florida has decided to ban all businesses from requiring proof of vaccination for service, including cruise lines, with a potential penalty of $5,000 per customer.

Two large cruise lines have found a viable workaround: they require passengers to disclose vaccination status, and while the unvaccinated may book, they are subject to extra fees, paperwork, testing requirements and onboard restrictions relative to their vaccinated shipmates. In practice, this offer appears to attract a proportion of vaccinated guests meeting the 95 percent threshold - at least for Carnival Cruise Line's first post-pandemic Florida voyage, which left the pier on July 4.