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Norwegian Cruise Line Holdings sues Florida over vaccine passport ban

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Norwegian Cruise Line Holdings is suing Florida's surgeon general over the state's law banning private businesses from requiring documentation of COVID-19 vaccination.

The company has a 100% vaccination mandate for crew and passengers.

'One anomalous, misguided intrusion'

According to the complaint, 'After months of Herculean efforts, NCLH is at last set to resume sailing Aug. 15 ... in a way that will be safe, sound and consistent with governing law, particularly the conditional sailing order administered by the Centers for Disease Control and Prevention ... Yet one anomalous, misguided intrusion threatens to spoil NCLH’s careful planning and force it to cancel or hobble upcoming cruises, thereby imperiling and impairing passengers’ experiences and inflicting irreparable harm of vast dimensions.

'While NCLH would require documentation confirming that its passengers have been vaccinated (per the consensus of experts, the desires of passengers and NCLH’s commitments to CDC), the state of Florida has recently enacted a law — Florida Statute § 381.00316 — that expressly prohibits NCLH from requiring such documentation as a matter of Florida law.

'The upshot places NCLH in an impossible dilemma as it prepares to set sail from Florida: NCLH will find itself either on the wrong side of health and safety and the operative federal legal framework, or else on the wrong side of Florida law.'

Fine of up to $5,000 per passenger

The company would expose itself to prosecution and face a fine of $5,000 per passenger by requiring vaccine documentation.

'Unfortunately, despite our best efforts we have been unable to reach a reasonable and mutually agreeable solution with the state of Florida that would allow us to require documentation confirming guests’ vaccination status prior to boarding,' NCLH said in a statement. 'Despite the ongoing global pandemic and the accelerating spread of the Delta variant, Florida continues to prohibit us from requiring vaccine documentation which we believe would enable us to resume sailing in the safest way possible.

'Reluctantly turned to the courts for relief'

'We believe Florida’s prohibition is on the wrong side of federal law, public health, science and is not in the best interest of the welfare of our guests, crew and the communities we visit,' the statement continued. 'Therefore, we have reluctantly turned to the courts for relief.'

Months ago, NCLH President and CEO Frank Del Rio said he hoped Gov. Ron DeSantis's anti vaccine passport stance would not become a legal or poiltical football

'Only by verifying ... can we best guard against the introduction of COVID-19 aboard our ships'

In a declaration as part of the complaint, Del Rio stated: 'Only by verifying the vaccination status of cruise passengers can we best guard against the introduction of COVID-19 aboard our ships and the potential spread thereof. This approach follows from NCLH’s commitment to the health and safety of passengers, crew and the local populations at the destinations we visit. I consider it irresponsible, counterproductive and damaging to our brand to deviate from that approach in order to make homeports in Florida viable.'

Legal arguments

NCLH argues that Florida’s ban is preempted by federal law, violates the First Amendment right to free speech in that it 'blocks communication between a business and its customers,' and violates the Commerce Clause in disrupting the flow of interstate and international commerce without advancing any substantial state interest. The complaint also alleges the ban violates due process under the Fourteenth Amendment, which provides 'no state may deprive any person of life, liberty or property, without due process of law.' 

Preliminary injunction requested by Aug. 6

NCLH filed with the District Court for the Southern District of Florida to invalidate Florida’s prohibition and requested a preliminary injunction by Aug. 6 to enable it to resume sailing 'with stringent health and safety protocols to minimize, to the greatest extent possible, further spread of COVID-19.'

An expert legal view

'NCLH’s arguments under the Commerce Clause and federal preemption seem to be reasonable positions,' said Robert Kritzman, a partner at Lewis Brisbois with extensive experience in maritime law and, specifically, the cruise industry. 'The First Amendment argument and due process arguments seem less likely to prevail. The Commerce Clause does reserve regulation of interstate and foreign commerce to Congress. It does not preclude states from taking any action that may affect interstate commerce but limits state regulation to laws that do not place unreasonable burdens on interstate commerce, do not require uniformity among the states and are not discriminatory among citizens of the various states. 

'The availability of an injunction will depend on various factors,' Kritzman continued. 'NCLH may not have helped their case by delaying the filing of its complaint approximately 100 days from the governor’s executive order and 70 days from passage of the law.

'The resumption of other cruise lines in compliance with the Florida law may also weaken NCLH's argument for an injunction,' he said. 

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