Norwegian Cruise Line Holdings, Ltd. v. Rivkees

Decision Date08 August 2021
Docket NumberCase No. 21-22492-CIV-WILLIAMS
Citation553 F.Supp.3d 1143
Parties NORWEGIAN CRUISE LINE HOLDINGS, LTD., et al., Plaintiffs, v. Scott RIVKEES, M.D., Defendant.
CourtU.S. District Court — Southern District of Florida

Olga M. Vieira, Quinn Emanuel Urquhart & Sullivan, LLP, Coral Gables, FL, Derek L. Shaffer, Pro Hac Vice, Jonathan G. Cooper, Pro Hac Vice, William A. Burck, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan, LLP, Washington, DC, John F. O'Sullivan, Quinn Emanuel, Miami, FL, for Plaintiffs.

Charles J. Cooper, Pro Hac Vice, Nicholas A. Varone, Pro Hac Vice, Peter A. Patterson, Pro Hac Vice, William V. Bergstrom, Pro Hac Vice, Joseph O'Meara Masterman, Cooper & Kirk, PLLC, Washington, DC, Raymond Frederick Treadwell, Executive Office of the Governor Office of the General Counsel, Tallahassee, FL, for Defendant.

ORDER ON PRELIMINARY INJUNCTION

KATHLEEN M. WILLIAMS, UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court on PlaintiffsMotion for Preliminary Injunction. (DE 3.) Defendant filed a response (DE 32) and Plaintiffs filed a reply (DE 35). On August 6, 2021, the Parties appeared before the Court for oral argument on the Motion. For the reasons below, the Motion (DE 3) is GRANTED .

I. BACKGROUND

On July 13, 2021, Plaintiffs—Norwegian Cruise Line Holdings Ltd.; NCL (Bahamas) Ltd., d/b/a Norwegian Cruise Line; Seven Seas Cruises S. De R.L., d/b/a Regent Seven Seas Cruises; and Oceania Cruises S. De R.L., d/b/a/ Oceania Cruises (collectively, "Plaintiffs " or "NCLH ")—initiated this action against Dr. Scott Rivkees, the Surgeon General of Florida and the head of the Florida Department of Health ("Defendant "). (DE 1.) After 15 months of suspended operations, NCLH plans to resume passenger cruises from Florida on August 15, 2021 on the Norwegian Gem. (Id. at ¶ 1.) NCLH has adopted a policy requiring all passengers on its vessels to be fully vaccinated against COVID-19 and to provide documentation confirming their vaccination status before boarding. (Id. at ¶¶ 4, 35.)

Plaintiffs assert that a recently-enacted Florida law, codified at Fla. Stat. § 381.00316 (" Section 381.00316 " or "the Statute "), prevents them from implementing the vaccination policy for vessels departing from Florida. (Id. at ¶ 122.) Under the Statute, Plaintiffs are prohibited from requiring passengers to provide "any documentation certifying COVID-19 vaccination or post-infection recovery" prior to boarding. Fla. Stat. § 381.00316. NCLH explains that if it cannot maintain its vaccination policy in Florida, it would be forced to either cancel all voyages leaving from the state or allow unvaccinated passengers to sail, and both options would cause significant financial and reputational harms. (DE 3 at 17–19.)

NCLH brings this as-applied constitutional challenge, arguing that the Statute violates its rights under the First Amendment, the dormant Commerce Clause, and Substantive Due Process. (DE 1.) It also claims that the Statute is preempted by the CDC's Conditional Sailing Order ("CSO ") and subsequent instructions. Plaintiffs have asked the Court to enjoin the enforcement of Section 381.00316 pending resolution on the merits of their claims. Upon a review of the record, and with the benefit of oral argument, the Court finds that Plaintiffs are entitled to a preliminary injunction.

A. The COVID-19 Pandemic

The COVID-19 pandemic has had a devastating global impact. In the United States, people quarantined and avoided social gatherings for many months, public life essentially shut down, and businesses closed. Now, nearly a year and a half into the pandemic, businesses have resumed operations. However, as society endeavors to "reopen," these businesses face unprecedented challenges, including the understandably difficult tasks of restoring consumer confidence and minimizing the spread of COVID-19. In addition, the nation is now threatened by new virus variants that are more transmissible than the initial strain.

Preventing the spread of COVID-19—a highly contagious infectious disease caused by the novel coronavirus (SARS-Cov-2)—has been an extraordinarily difficult and complex undertaking that is now complicated by the advent of lineage B.1.617 of SARS-CoV-2 ("the Delta Variant "). The principal mode by which COVID-19 spreads is through exposure to respiratory fluids carrying infectious virus, which can occur through direct inhalation; depositing fluids on exposed mucous membranes in the mouth, nose, or eye through sprays; and touching mucous membranes with contaminated hands.1 Since its onset, COVID-19 has infected almost 200 million people and caused over 4.2 million deaths globally. 2

Domestically, over 35.67 million people have been infected and over 614,200 individuals have died.3 Those who are immunocompromised, have certain medical conditions, suffer from longstanding systemic and social inequities, or who are older are more likely to become severely ill or die from the virus.4 Individuals infected with COVID-19 experience a range of symptoms from none at all (asymptomatic) to severe illness and death.5 While the majority of those afflicted have been able to recover fully, even after recovery, various long-term health problems may linger.6

In January 2020, the first case of COVID-19 was detected in the nation.7 Since then, the number of confirmed cases have multiplied exponentially in this country, which has now already experienced four waves of new cases.8 This past winter was particularly harsh: on January 8, 2021, the Centers for Disease Control and Prevention ("CDC ") reported 312,325 new cases, the highest number in a single day since the start of the pandemic.9

Since then, vaccines have played a vital role in slowing the spread. COVID-19 vaccines first became available in the United States in December 2020 and became widely available to the public by spring 2021.10 As of the date of this Order, the U.S. Food and Drug Administration has authorized three COVID-19 vaccines for emergency use: Pfizer-BioNTech, Moderna, and Johnson & Johnson's Janssen.11 The Pfizer and Moderna vaccines are 95 percent effective against the original version of COVID-19 and 90 percent against the Delta Variant. (DE 3-4 at ¶ 14). They have also been shown to reduce the risk of transmission from a fully vaccinated person by 80 to 90 percent. (Id. at ¶ 14.) Likewise, Johnson & Johnson's Janssen vaccine provides strong protection against severe illness against all known variants. (Id. ) With the vaccine rollout, the number of new infections per day dropped significantly. On June 21, 2021, there were only 8,420 new reported cases.12

Despite those recorded improvements, the United States is currently experiencing yet another wave of infection surge. The number of new infections per day has been on the rise since late June, with 124,928 new cases reported on August 6, 2021.13 One cause of this surge is the rapid spread of the Delta Variant, a highly-transmissible variant that is 50 percent more contagious than the initial strain.14 The Delta Variant is now the predominant strain of COVID-19 threatening public health, comprising approximately 83.2 percent of recent U.S. cases.15 Although the vaccination rate increased rapidly from January to May 2021, it has remained relatively stagnant for several months.16 As of the date of this Order, 50.1 percent of the total U.S. population are fully vaccinated.17 Unfortunately, "[n]ew COVID-19 cases often originate in unvaccinated individuals." Klaassen v. Trustees of Indiana Univ. , 549 F.Supp.3d 836, 846, (N.D. Ind. July 18, 2021).

Since the end of June, the number of new COVID-19 cases has increased dramatically in Florida, which now accounts for 20 percent of all new cases in the United States. (DE 35-2 at ¶ 5.) On August 7, 2021, the CDC reported 23,903 new daily COVID-19 cases in Florida, "the highest single-day case count in [the State] since the pandemic began last year."18 The rate of new cases increased 780 percent in Florida from late June to late July 2021. (DE 35-2 at ¶ 5.) In contrast, the national rate increased 480 percent during the same period. (Id. )

B. The Cruise Industry During the Pandemic
1. Risks of COVID-19 onboard a Cruise Ship

From its onset, the pandemic has had a ruinous economic impact on the U.S. cruise industry, which was shut down from March 2020 until recently, when cruise lines embarked on a few "simulated" and "restricted" revenue voyages pursuant to CDC guidelines. See infra at 1155–56. During the early days of the pandemic, major COVID-19 outbreaks occurred on the cruise ships Diamond Princess and Grand Princess. 85 Fed. Reg. at 70155. Among the 3,711 Diamond Princess passengers and crew, 712 (19.2 percent) were infected with COVID-19: 37 persons required intensive care and nine died. Id. Outbreaks on two voyages of the Grand Princess caused 159 infections and eight deaths. Id.

Even with precautions, cruising raises unique risks of COVID-19 outbreaks, concerns that are now heightened due to the Delta Variant. Cruise ships involve the movement of a large volume of individuals in close quarters for days and weeks and present many opportunities for person-to-person contact in crowded or indoor settings, such as group and buffet dining, entertainment events, and excursions. Id. at 16629–16630. Ship cabins are small, increasing the risk of transmission between cabinmates. Id. Similarly, the crew typically live and eat in small congregate places. Id. In addition, once a cruise concludes, passengers may engage in air transportation or other types of common transports to return home. Id. Consequently, infected passengers who disembark and return to their communities could occasion further widespread transmission and possibly "super spreader" events. Id.

2. The CDC's No Sail Order and Conditional Sailing Order

In light of these risks, on March 13, 2020, NCLH and other members of the Cruise Line International Association ("CLIA ") voluntarily suspended all cruise ship operations for thirty days. (DE...

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2 cases
  • Norwegian Cruise Line Holdings LTD v. State Surgeon Gen.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 6 Octubre 2022
    ...lines operating in Florida have voluntarily complied.Norwegian planned to resume sailing from Florida for the first time "aboard the Norwegian Gem ." On July 9, 2021, the Centers approved Norwegian's application for a conditional sailing certificate. Norwegian "attested to [the Centers] .........
  • Norwegian Cruise Line Holdings LTD v. State Surgeon Gen.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 22 Diciembre 2022
    ...Section 381.00316 against [Norwegian] pending the resolution of the merits of this case." Norwegian Cruise Line Holdings, Ltd. v. Rivkees , 553 F. Supp. 3d 1143, 1180 (S.D. Fla. 2021). Florida then appealed.On October 3, 2022, NCL "remov[ed] all COVID-19 testing, masking and vaccination req......

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