DeSantis is OK with NCL leaving Florida

[ChutChut]

32 minutes ago, Murph269 said:

I really hope they’re allowed to sail, but this article makes it sound like it’s not a done deal and that pushback is likely from the governor. It’ll be interesting to see how it plays out.

https://www.miamiherald.com/news/business/tourism-cruises/article251706998.html

It's not a done deal at all. The only saving grace is the cruise departs before the law goes into effect. If RCI sails and requires vaccine verification after 7/1, it's gonna be racking up some incredibly major fines. Each violation is $5,000 - times that by the amount of people on each cruise in violation of the law and the dollars add up very quickly.

[Stallion]

Example: RCCL Cruise Ticket Contract-I could cite 20 provisions which show federal law preempts state law but the most important is as follows:

 

f. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THIS TICKET CONTRACT AND ALL DISPUTES OR CLAIMS WHATSOEVER BY PASSENGER ARISING FROM OR RELATED TO THIS TICKET CONTRACT SHALL IN ALL RESPECTS AND WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES, BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE [Page 13 of 16] GENERAL MARITIME LAW OF THE UNITED STATES OF AMERICA, AND, WHEN APPLICABLE, THE U.S. DEATH ON THE HIGH SEAS ACT (46 U.S.C. § 30301 ET SEQ.). EXCEPT AS OTHERWISE EXPRESSLY SPECIFIED IN THIS TICKET, PASSENGER AGREES THIS CHOICE OF LAW SUPERSEDES AND PREEMPTS ANY PROVISION OF LAW OF ANY OTHER STATE OR NATION. 

 

https://www.royalcaribbean.com/content/dam/royal/resources/pdf/cruise-ticket-contract.pdf

Edited May 27, 2021 by Stallion

[Navis]

1 hour ago, skywonder said:

Spot on, he will NOT stand down to the CDC just like he will not stand down to big tech and social media getting away with banning people just because they do not agree with their opinion. We the people in Florida have rights.

That law is, on its face, a 1st Amendment violation and is unconstitutional. I’m just waiting for a social media company to file suit.
 

As I’m sure you know, the conservative SCOUTS decided in Citizens Untied that companies (or any organization of purely legal fiction) have first amendment rights. That same court then reinforced that decision in Hobby Lobby where they extended corporate “rights” to include religious liberty typically only imbued in natural persons.

 

For these reasons, a Federal court will find that the state of FL cannot force a private organization to endorse, post, publicize, or otherwise distribute speech with which the company disagrees or is in violation of its policies. The 1st Amendment works both ways .. the government cannot restrain your speech but they equally can not force a private citizen to say or endorse (directly or indirectly) anything with which they disagree.

 

 

[Navis]

14 minutes ago, ChutChut said:

It's not a done deal at all. The only saving grace is the cruise departs before the law goes into effect. If RCI sails and requires vaccine verification after 7/1, it's gonna be racking up some incredibly major fines. Each violation is $5,000 - times that by the amount of people on each cruise in violation of the law and the dollars add up very quickly.

No, they won’t .. we’ve gone over and over this ... this law is unenforceable against the cruise lines ... FL knows it and the cruise lines know it. They are just both posturing. As we’ve all said numerous times ... in addition to interstate commerce (and no, the “when it’s docked it’s only subject to state law” argument is patently wrong), foreign flagged vessels and the SCOUTS jurisprudence on this is CRYSTAL clear ... absent an express statement FROM CONGRESS to include a foreign flagged vessel as subject to a federal statute they are exempt from any and all laws that would purport to impact their operations. 
 

The cruise lines are just waiting ... right now any case would not be ripe as, technically, the cruise lines have not suffered any harm. They will either wait until (1) the Federal government adopts some rule requiring the cruise lines to track vaccination status or (2) until FL actually tries to enforce it. Then they can file suit. It won’t take long after that for a Federal Court to strike down the law as it would have applied to foreign flagged vessel.

[Navis]

I’ll also add I find all of this talk about this law just such a waste of space. Were I their general counsel my advice would be straight forward. Really 3 business options: (i) file suit in Federal Court and seek to have the law declared invalid specifically as it applies to foreign flagged ships, (ii) go the more nuclear route and ask a court to find the law broadly unconstitutional as applied to ANY business engaged in interstate commerce in FL; or (iii) do nothing vis-a-vis Florida and just make it clear to all passengers that vaccination status must be provided prior to arrival at the dock and that any passenger who does not provide that information will be denied boarding.

 

Option 1 would be the narrow legal course of action but would take time (even on an accelerated basis). Option 2 would not be the neighborly thing to do. So that leaves option 3 as the easiest ... let people arrive ... don’t ask them a single question ... let them get up the gangway and step foot on the vessel ... then demand vaccination status. If a passenger does not provide ... kick them off. 
 

I’d advise them to start with the first option while simultaneously employing the 3rd until the judgment is entered.

[Navis]

1 hour ago, At Sea At Peace said:

 

If everything is so clear, why are there so many 10th (and 14th) Amendment litigations by states and individuals?  There are so many variables, unanswered questions, etc. as a result of the pandemic. In arguments just months ago such were leveled against the administration for such potential federal over reach, now polar opposite of states lack of defense.  So, how can reasonably prudent people believe such proffers are EXPRESSLY and CLEARLY "settled law?"

 

 

I can certainly understand why it might appear to those not trained in the minutiae of the law that these matters seem confusing or irreconcilable, but they really are not.

 

First, the 10th and 14th Amendment are completely different animals. The 14th Amendment jurisprudence (especially the equal protection clause) is far more detailed, subtle and complex than the 10th Amendment. I always hated being assigned the 14th Amendment section of an opinion because it is, without a doubt, the most difficult provision of the Constitution to interpret, cite and draft in a way that SCOUTS would not overrule.

 

You hear the 10th thrown around a lot, but those of us that have studied it, written federal appeals court opinions on it know it’s is toothless and been stripped of all meaning for almost 100 years now. You rarely see it raised in a competent federal appellate brief or at oral argument.
 

And yes, certainly with the past administration you had .... to put it kindly .... a high water mark on attempted executive power, but objections were not based on the 10th ... in most cases it was because the purported executive action violated some other amendment (and most often the 1st and/or 14th Amendment).

 

These past few years take me back to my first ever Con Law class ... the professor started with the simple question ... so, you’ve all read the Constitution ... what article is the most important? You had a lot of “Article III because it establishes the judiciary” or “all of them are equally important.” His response still sticks with me all these years later ...

 

If Article I wasn’t the most important, why is it roughly 3x longer than articles II and III?” 
 

The lesson ... our founding fathers were highly skeptical of concentrating power in an unitary executive or a unitary or plurality judiciary. The power should come from the people in the form of Congress NOT in the form of who those people elect as President (that seems to have been lost over the years). And that awesome power should be wielded by as large and as diverse body as possible and that’s why all the real power is vested in Congress under Article I.  

[cscurlock]

1 hour ago, Navis said:

That law is, on its face, a 1st Amendment violation and is unconstitutional. I’m just waiting for a social media company to file suit.
 

As I’m sure you know, the conservative SCOUTS decided in Citizens Untied that companies (or any organization of purely legal fiction) have first amendment rights. That same court then reinforced that decision in Hobby Lobby where they extended corporate “rights” to include religious liberty typically only imbued in natural persons.

 

For these reasons, a Federal court will find that the state of FL cannot force a private organization to endorse, post, publicize, or otherwise distribute speech with which the company disagrees or is in violation of its policies. The 1st Amendment works both ways .. the government cannot restrain your speech but they equally can not force a private citizen to say or endorse (directly or indirectly) anything with which they disagree.

 

 

You are 100% correct.  They can't enforce that either.  It will be shot down very quickly in court as private companies have a right to enforce policies that are explicit when you sign up for their service.  The people have a right to not use that service if they do not like the terms.   Its been that way for a very long time.   Otherwise there would have been a lawsuit already challenging the terms as unconstitutional and it would have been shot down because the constitution and previous rulings have made that pretty clear.  

[chengkp75]

3 hours ago, ChutChut said:

Not interstate commerce when docked at a state-owned port. Once the ship departs, then fed law prevails. However, cruise lines docked in a state-owned port are governed by a combination of fed, state, and local law.

Actually, the prevailing law in most cases for a foreign flag ship in a US port is flag state law, even when docked.  The principal of maritime law regarding "overlapping jurisdictions" is traditionally that "port state" (either the federal, state, or local) law is not applied aboard the ship, unless the "safety or well being" of the port state is affected.  SCOTUS has ruled that unless Congress (note that it is Congress, not a state legislature) specifically mentions that a law applies to foreign flag ships, it does not apply to the ship's "internal policies and procedures".

 

And, if it is not international commerce when a ship is docked in a US port, how is it that CBP has jurisdiction to search cargo and passengers?  A transaction between a US business or citizen, and a company incorporated in a foreign country (as all the cruise lines are) is by definition international commerce, and therefore under federal jurisdiction.

[KennyFla]

5 hours ago, cscurlock said:

You are 100% correct.  They can't enforce that either.  It will be shot down very quickly in court as private companies have a right to enforce policies that are explicit when you sign up for their service.  The people have a right to not use that service if they do not like the terms.   Its been that way for a very long time.   Otherwise there would have been a lawsuit already challenging the terms as unconstitutional and it would have been shot down because the constitution and previous rulings have made that pretty clear.  

These "private" companies have been given platform status, which prevents them for being sued because of things posted on their site.  Because of that, they agreed not to censor posts, except for universally accepted vulgarity, etc.

 

They have certainly broken that agreement, especially towards one side of the political aisle.  If they want to operate that way, they get their platform status removed and they take their chances like everybody else.

 

[KennyFla]

8 hours ago, skywonder said:

He will not back down, he is letting people have options and choices which is a good thing. He already talked about this more then once on the local news, and many of us that live in Florida appreciate it and agree with his decision, not all the people of course but most I have spoken too do agree. The more choices the better for everyone to feel safe in their personal decision.

Now we shall see.  I think a compromise will be reached.  Both sides want the same thing.  I did not realize that the law had not taken effect.  Interesting.

Edited May 27, 2021 by KennyFla

[At Sea At Peace]

8 hours ago, Navis said:

I’ll also add I find all of this talk about this law just such a waste of space.

 

 

Yep, good example.

 

7 hours ago, Navis said:

I can certainly understand why it might appear to those not trained in the minutiae of the law that these matters seem confusing or irreconcilable, but they really are not.

 

 

Please.  🤣

 

These matters (especially those pertaining to the 10th Amendment claimed to have been useless for 100 years) are engaged often with counsel on "both sides" and it would appear that those are "trained in the minutiae of law."  LOL.  

[Junonia]

11 hours ago, Stallion said:

But the Constitution does EXPRESSLY delegate to the federal government the power to regulate interstate commerce-so the 10th Amendment CLEARLY under your own citation does not apply. There is absolutely no reasonable argument that international cruising is not governed by the interstate commerce clause

 

See citation to the US Constitution that completely disposes of your "novel" argument

 

Commerce clause, provision of the U.S. Constitution (Article I, Section   8 that authorizes Congress “to regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.” 

There is no Constitutional guarantee to take a vacation. There are ports in other states that would gladly pick up the slack.

[richstowe]

12 minutes ago, Junonia said:

There is no Constitutional guarantee to take a vacation.

Well there should be ! 😉

[Jamesatgsu]

12 hours ago, skywonder said:

He will not back down, he is letting people have options and choices which is a good thing. He already talked about this more then once on the local news, and many of us that live in Florida appreciate it and agree with his decision, not all the people of course but most I have spoken too do agree. The more choices the better for everyone to feel safe in their personal decision.

This is the opposite of options. This is big government controlling private companies. 

[texasaggies]

16 hours ago, Von & John said:

@texasaggies

Definitely sounds like the Mid-West 🤣

 

 

Actually, it was the Miami, Fla area (Miami Lakes). That's where I went to HS.

[coffeebean]

13 hours ago, oteixeira said:

Celebrity just got permission to go full vaccinated out of....  wait for it....  Florida in June.   So explain that one away for those of you thinking the Governor wont back down.

Happy Dance happening right now!

[Navis]

2 hours ago, At Sea At Peace said:

 

Yep, good example.

 

 

Please.  🤣

 

These matters (especially those pertaining to the 10th Amendment claimed to have been useless for 100 years) are engaged often with counsel on "both sides" and it would appear that those are "trained in the minutiae of law."  LOL.  

I have personally drafted over 100 appellate decisions in my time as clerk on 2 separate Federal Circuit Courts of Appeals. In my 3 years, we heard over 500 oral arguments, motions hearings, en banc hearings, and post judgment motion hearings. In all those cases, we actually had to opine on the application of the 10th Amendment exactly ONE time. 
 

I remember it because when I was circulating the draft opinion among the judges I tried to give the argument as much credence as possible by “beefing up” the draft to at least give the topic 1 page of the 120+ page opinion. The reaction I got from the other two judges was “cut it down to two or three sentences. The 10th Amendment deserves no more attention than that.” So, I went with a very simple statement of the fact, cited the 3 major SCOUTS precedent and left it at 3 sentences.”

 

Our decision was ultimately upheld 12-3 en banc hearing and 7-2 by SCOUTS. In fact, neither subsequent opinion even addressed the 10th Amendment.

 

So, yes, I like to think I know at least a little bit more about these things than most. Also, what attorneys may “argue” in the public realm and in TV often times vary drastically from what they ultimately file with a court... for obvious reasons, as attorneys we are held to a certain standard with respect to court filings. 
 

In fact, in my state I am part of our state Bar Ethics Oversight Committee. We are in the process of drafting new provisions to our Code of Professional Responsibility to apply those same standards to all communications from an attorney to the general public when opining in a legal capacity. It is our hope that will avoid public confusion and stop the negligent showboating that has become all to prevalent in our profession. If legal filings can have consequences so should any other form

of communication that is legal

in nature and my reasons my be given credibility by a layperson. 

[Sopwith]

The insanity continues.

[Waquoit]

Why do the rights of the selfish take priority?

[texasaggies]

test

Edited May 27, 2021 by texasaggies

[Junonia]

6 hours ago, Navis said:

I have personally drafted over 100 appellate decisions in my time as clerk on 2 separate Federal Circuit Courts of Appeals. In my 3 years, we heard over 500 oral arguments, motions hearings, en banc hearings, and post judgment motion hearings. In all those cases, we actually had to opine on the application of the 10th Amendment exactly ONE time. 
 

I remember it because when I was circulating the draft opinion among the judges I tried to give the argument as much credence as possible by “beefing up” the draft to at least give the topic 1 page of the 120+ page opinion. The reaction I got from the other two judges was “cut it down to two or three sentences. The 10th Amendment deserves no more attention than that.” So, I went with a very simple statement of the fact, cited the 3 major SCOUTS precedent and left it at 3 sentences.”

 

Our decision was ultimately upheld 12-3 en banc hearing and 7-2 by SCOUTS. In fact, neither subsequent opinion even addressed the 10th Amendment.

 

So, yes, I like to think I know at least a little bit more about these things than most. Also, what attorneys may “argue” in the public realm and in TV often times vary drastically from what they ultimately file with a court... for obvious reasons, as attorneys we are held to a certain standard with respect to court filings. 
 

In fact, in my state I am part of our state Bar Ethics Oversight Committee. We are in the process of drafting new provisions to our Code of Professional Responsibility to apply those same standards to all communications from an attorney to the general public when opining in a legal capacity. It is our hope that will avoid public confusion and stop the negligent showboating that has become all to prevalent in our profession. If legal filings can have consequences so should any other form

of communication that is legal

in nature and my reasons my be given credibility by a layperson. 

Can you please summarize for the less legally informed? Thanks!

[Junonia]

Everyone is a legal and medical authority these days! 🙄 Why don't we just wait and see what the courts hammer out? I am certain both sides have tricks up their sleeves that none of the maritime legal experts opining here have considered yet. 😄 Haven't you all wondered why the cruise industry gets picked on by the CDC and not the airlines?  Considering most will travel on the plane to arrive in Florida, don't you find the dichotomy stunning?

[richstowe]

2 hours ago, Junonia said:

Why don't we just wait and see what the courts hammer out? I am certain both sides have tricks up their sleeves that none of the maritime legal experts opining here have considered yet.

I'm betting the courts will never rule as most if not all of these issues will have been already resolved . So I'd say , " Why don't we just wait and see what gets hammer out?"

[beerman2]

35 minutes ago, richstowe said:

I'm betting the courts will never rule as most if not all of these issues will have been already resolved . So I'd say , " Why don't we just wait and see what gets hammer out?"

Because that isn't how the CC experts roll.😂😂 

[oteixeira]

Seems like this expert can be trusted....

 

https://www.seatrade-cruise.com/legal-regulatory/floridas-vaccine-passport-ban-cruises-likely-unconstitutional-attorney-says