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Judge sides with Norwegian Cruise Line Holdings against Florida vaccine passport ban

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A US District judge sided with Norwegian Cruise Line Holdings, granting its request for a preliminary injunction to stop Florida from enforcing the state's vaccine passport ban.

This means NCLH brands — including Norwegian Cruise Line, whose Norwegian Gem is scheduled to sail Aug. 15 from PortMiami — can sail with assurance that 100% of passengers are vaccinated against COVID-19.

'The health and safety of our guests, crew and the communities we visit is our No. 1 priority, today, tomorrow and forever,' NCLH President and CEO Frank Del Rio said after Judge Kathleen Williams issued her order on Sunday, following Friday's 2.5-hour hearing.

'It’s not a slogan or a tagline, we fiercely mean it and our commitment to these principles is demonstrated by the lengths our company has gone through to provide the safest possible cruise experience from Florida,' Del Rio continued. 'We want nothing more than to sail from Miami, the Cruise Capital of the World, and from the other fabulous Florida ports and we welcome today’s ruling that allows us to sail with 100% fully vaccinated guests and crew, which we believe is the safest and most prudent way to resume cruise operations amid this global  pandemic.'

Litigation a 'tool of last resort'

Dan Farkas, EVP and general counsel for NCLH, added: 'We are pleased that Judge Williams saw the facts, the law and the science as we did and granted the company’s motion for preliminary injunction allowing us to operate cruises from Florida with 100% vaccinated  guests and crew. While litigation is a strategic tool of last resort, our company has fought to do what we believe is right and in the best interest of the welfare of our guests, crew and communities we visit in an effort to do our part as responsible corporate citizens to minimize, to the greatest extent possible, further spread of COVID-19 as we gradually relaunch our vessels.'

Judge says NCLH has 'substantial likelihod of success' in its claims

In her 59-page ruling, Judge Williams said NCLH showed a substantial likelihood of success on the merits of its First Amendment and Commerce Clause claims.

No evidence Florida is responding to 'real problems residents are actually facing'

The state, she found, does not have a substantial interest in restricting NCLH's speech because it  'presented no evidence to demonstrate that [its] asserted interests are in response to real problems that Florida residents are actually facing. There is no evidentiary support that residents have experienced intrusions on their medical privacy or discrimination because some businesses, including cruise lines, have required COVID-19 vaccination documentation.'

The judge noted Florida doesn't prohibit other cruise lines from subjecting unvaccinated customers — and those who decline to verify their vaccination status — to restrictions, requirements and expenses that do not apply to vaccinated patrons.

Other cruise lines, she said, require additional testing and insurance at the passenger's expense and limit their access to events, activities and venues.

'Furthermore, the statute does not prevent cruises from continuing to offer adult-only cruises that exclude children, who are a significant cohort of the unvaccinated population,' Williams said.

Also, because the statute does not regulate employers, it does not prohibit employers from requiring COVID-19 vaccination documentation for continued employment or adopting policies that favor vaccinated over unvaccinated employees, such as disallowing unvaccinated employees to return to the worksite or assigning them different work.

'In sum, if combatting discrimination were the goal, merely banning the exchange of COVID-19 vaccination documentation is an ineffective way to accomplish this objective because the statute does not directly prohibit the treating of unvaccinated persons or those who decline to verify their vaccination status by businesses and employers differently,' Williams said.

Medical privacy

Concerning medical privacy, 'Businesses and employers are free to require COVID-19 test results, hospital records, other vaccination records, as well as information regarding exposure to third parties with COVID-19. Defendant fails to explain why COVID-19 vaccination documents are more medically sensitive or need more protection than these other documents.'

Commerce Clause

Turning to the Commerce Clause, Williams noted that NCLH demonstrated how ports outside Florida may require proof of vaccination for entry. Not having this could disrupt sailing schedules, impacting interstate commerce.

Florida, in its three-paragraph filing addressing the Commerce Clause for this case, reserved the right to challenge Commerce Clause doctrine in the Supreme Court. 

Monetary losses and irreparable injury

The judge also found that absent a preliminary injunction, NCLH demonstrated it would suffer monetary losses and 'irreparable injury from the loss of reputation, trust and goodwill among customers who were promised a vaccination requirement before October 31, 2021, as well as the 20,000 people who have already booked tickets for voyages on ships departing from or arriving to Florida between now and January 2022.'

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