Appeals Court Suspends CDC Cruise Ship Order

In another reversal for the U.S. Centers for Disease Control and Prevention, a federal appeals court ruled Friday that the CDC's "conditional sailing order" (CSO) will not be enforceable during the course of litigation in a suit brought by Florida. It is the latest twist in a series of rulings that temoporarily blocked the CSO, then reinstated it, then blocked it again.

The CDC imposed the CSO in March 2020 in order to prevent COVID-19 outbreaks on board cruise ships. The CDC was concerned by a rash of COVID outbreaks on board cruise ships and a number of COVID clusters on shore that were traced back to former cruise passengers. CDC effectively shut down commercial cruising, citing the risk that the close confines of a cruise voyage increase the probability that guests obtain the disease on board, then distribute it to their home communities when they disembark.  With the advent of vaccination, that calculus has changed, and the CDC has created a dual path for cruise ships to gain permission to sail

In June, a U.S. District Court judge ruled in favor of Florida in the state's effort to win a temporary injunction that would prevent the CDC from enforcing the CSO on cruise ships operating from Florida’s ports. Because of Florida’s probability of success on the merits of its case and the imminent threat of irreparable injury to Florida, Judge Steven Merryday enjoined the CDC from enforcing the CSO in Florida, effective July 18.

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.

Shortly before the injunction was set to take hold, 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 the CSO. However, the ruling lasted less than a week: on Friday, the same Court of Appeals ruled that CDC had not established an entitlement to lift the stay pending appeal. The decision means that the injunction is in force and the CSO is an unenforceable advisory paper, at least until the litigation is concluded.

"I'm glad to see the 11th Circuit Court of Appeals reverse its prior decision and free the cruise lines from unlawful CDC mandates, which effectively mothballed the industry for more than a year," said Florida Governor Ron DeSantis in a statement. "The importance of this case extends beyond the cruise industry. From here on out a federal bureau will be on thin legal and constitutional ice if and when it attempts to exercise such sweeping authority that is not explicitly delineated by law."

In a statement Friday, the CDC said that if cruise lines opt to disregard the rules laid out in the CSO, it will enforce its mask requirements for public transit on board their cruise ships. CDC previously issued an order that requires face masks to be worn by all travelers while on public transportation, including all passengers and crew on vessels transiting in or out of the United States. Masks are also required while indoors at U.S. transportation hubs, including seaports and ferry terminals. The agency has previously said that it will waive enforcement of its mask rule for vessels that participate in the CSO return-to-sailing plan.