ASTA is threatening to sue the federal government over the CDC’s No Sail Order and the far-ranging impact it has had on the travel industry.
“The CDC’s acts and actions, or omissions, with respect to the implementation and the continuation of the No Sail Order have been both negligent and wrongful and have resulted in extreme economic injury to the travel industry,” ASTA president and CEO Zane Kerby said. “Should the CDC’s No Sail Order remain in effect, this may be our only option remaining.”
Kerby, speaking on a media call Friday, said lawsuits against the government or government officials acting in their official capacity are typically not permitted under the doctrine of sovereign immunity. However, there is a Federal Tort Claims Act waiver of sovereign immunity “to certain claims resulting from a negligent or wrongful act or omission” for any government employee acting in their official capacity.
ASTA is investigating a lawsuit with that waiver in mind.
During the call, Kerby argued that other travel businesses — airlines, hotels, rental car companies and theme parks — have been permitted to operate. But, he said, the cruise sector hasn’t been given the chance to find a balance between safety and the need to operate.
“That is an arbitrary and an unacceptable position and decision, and it proves that the pandemic is too important to be left to the scientists alone, particularly unelected scientists who have absolutely nothing at risk in making this decision which affects the life, happiness and livelihoods of hundreds of thousands Americans,” Kerby said.
A lawsuit against the CDC would be an “uphill battle,” ASTA general counsel Peter Lobasso admitted, but the Society is nonetheless undergoing “very significant research to determine whether or not it’s feasible for us to proceed.”
“That possibility is certainly under consideration right now.”
More heat on relief bill
Also on the call, ASTA called for Congress to unite and finally pass another coronavirus relief package. That process has stalled multiple times in recent months, and help is needed: An ASTA survey found that, if business conditions remain as they have been and no additional federal aid is granted, 73% of ASTA members will be out of business in six months or less.
ASTA invited several leaders in the travel agency community on the call to discuss the effects of the pandemic, and the No Sail Order, on their businesses.
Olga Ramudo, president and CEO of Express Travel, said business is down 75%, and she has had to make “numerous” layoffs of staff members. In some cases, they were longtime employees of 20-plus years.
Ramudo echoed Kerby’s point that there needs to be a balance between health and the economy. Travelers should at least be given the option to travel so they can weigh the decision based on their personal comfort levels, she said.
“It is important for our businesses, it is important for our economy, it is important for our mental health that travel begins as soon as possible,” Ramudo said.
Marc Casto, Flight Centre Travel Group’s president of leisure in the Americas, said his company laid off 1,000 employees in the U.S. earlier this week.
It was both “extraordinarily difficult” but necessary for two reasons, Casto said. First, the inability to travel because of the closure of borders and other restrictions has had a “debilitating impact” on our industry, he said. More clarity is needed with respect to what travelers can expect in the future.
Second, Casto said, was the inability to access federal funding. Flight Centre was too large to take advantage of earlier relief measures, like the Paycheck Protection Program. Instead, it applied for funding through the Department of Treasury, provided as part of a carve-out for the airline industry.
The program launched in April. Flight Centre and other TMCs applied immediately. After a month, an investment bank was brought on board to review applications, and they had to apply again. A month later, Flight Centre was again told to apply again. It wasn’t until September that Flight Centre found out it would not be eligible for the loan.
Vicky Garcia, COO and co-owner of Cruise Planners, said the entire industry was hurting. Businesses are closing and jobs are lost regularly. It’s “unfair and blatantly irresponsible,” she said, as the CDC singles out the cruise industry.
“This action that they’re taking is besmirching the reputation of the cruise lines,” Kerby said. “It’s not allowing them to have the same opportunity that other businesses have in order to safely return people to the seas. It’s completely an unacceptable position There’s nothing left to do except to put them under the microscope.”