Florida Cruise Line Dispute Over Which Court To Hear A “Pass” Appeal

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TALLAHASSEE – Norwegian Cruise Line Holdings and the state argue over which court should challenge the state’s ban on so-called “vaccine passports,” with the cruise operator fighting an attempt to move the case out of South Florida.

Miami-based U.S. District Judge Kathleen Williams is due to hear arguments on Friday over Norwegian’s motion for an injunction against the vaccination pass ban, which would prevent the cruise line from requiring customers to provide proof of vaccination against COVID-19.

But Governor Ron DeSantis’s administration filed a motion last month to relocate the case to Florida’s Middle District, where Tampa-based US District Judge Steven Merryday supported the state in yet another lawsuit over the centers’ restrictions for disease control and prevention related to the cruise ship industry.

Related: Florida fires back at Norwegian Cruise’s call for the vaccine to be banned

Norwegian attorneys fired back on Friday, partially pointing out that the company is headquartered in Miami and plans to launch cruises from Miami on August 15. In a 26-page document, Norwegian said it had “confirmed” to the CDC that at least 95 percent of passengers and crew leaving Miami would be fully vaccinated – a promise that the vaccination card ban could jeopardize.

“It is evident that Miami (i.e., the southern district of Florida) is the appropriate forum to judge the violations and violations this defendant (the state) has committed on the ships and operations of NCLH (Norwegian Cruise Line Holdings) commits in Miami. Said the document. “Even if this case had been filed elsewhere, the reasons for the move to Miami would not be objectionable.”

The cruise line’s attorneys went further by claiming Florida was “forum shopping” – essentially trying to find a cheap court – by filing the earlier trial against the CDC in Tampa and trying to get out of the Norwegian case Relocate Miami.

“(If) a particular venue should be classified as suspicious, it would be the Central District,” wrote the cruise line’s lawyers. “While this court (Miami) is, for irrefutable and impeccable reasons, a natural choice to resolve this case, Florida’s decision to sue CDC in the Middle District strongly suggests (to say the least) cynical forum shopping. Any notion that Equity is now recommending a transfer from this court to the Middle District is turned on its head. “

But in a July 16 motion for a move to the Middle District, lawyers with the DeSantis administration said the case in the state’s lawsuit against the CDC is “the same subject that it is about.” This issue revolves around what is known as a “conditional sailing order,” where the CDC required cruise lines to meet a number of requirements before they could resume cruises after the pandemic closed early.

Merryday issued an injunction against the restrictions in June, agreeing with the state that the CDC had exceeded its legal powers. The CDC has challenged the injunction in the 11th US Court of Appeals in Atlanta.

Related: Court of Appeal reverses course and repeals COVID-19 safety rules for CDC cruises

“Plaintiffs’ main argument is that this order (the CDC’s Conditional Sailing Order) anticipates Florida law that prohibits companies from requiring customers to produce a COVID-19 vaccination card,” prosecutors wrote. “One of the defendant’s (state’s) main defenses will be that the order cannot anticipate Florida law because the order is unlawful.”

DeSantis is committed to preventing companies, including the cruise industry, from requesting proof of vaccination from customers. It passed an executive order in April banning the use of vaccine passports, and the Republican-controlled legislature later passed a bill that put the ban into effect.

According to Friday’s document, Norwegian filed a lawsuit against the ban on July 13, “after extensive efforts to reach an agreement had failed.” The cruise line has raised a number of constitutional issues in the case listing State Surgeon General Scott Rivkees as a named defendant.

Florida’s ban by banning NCLH from obtaining vaccination records from its passengers makes it impossible or unduly difficult for NCLH to fulfill the CDC-created option to return to sailing in US waters if NCLH can demonstrate 95 percent its crew and 95 percent of its passengers will be fully vaccinated before sailing, ”the lawsuit said.

But state lawyers wrote in a document last week that other cruise lines met CDC requirements through an option known as “simulated” voyages, which test preparation for COVID-19. The state claimed that Norwegian could have used this option but did not do so for competitive reasons.

“Norwegian’s case is therefore not about public health, but rather a business decision it made in an obvious attempt to cut costs and differentiate the company from its competitors, including through the promise of its passengers that it would be fully to sail vaccinated ships (not even suggested by a CDC guide), ”the prosecutors wrote.

From Jim Saunders, Florida Intelligence Agency


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