The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The US government has urged that Resorts World Bimini’s attempt to save its night-time cruises be dismissed, at it is asking the courts for permission “to violate [US] law to maximise profit and reduce losses from bad business decisions”.

US Customs and Border Protection (CBP) has branded as “hyperbole and histrionics” Resorts World’s claim that its entire project, including the cruise voyages to Bimini and the creation of 500 new jobs via the Bimini Bay expansion, is “in peril”.

Its December 20 court filings in the Washington D. C. court, which have been obtained by Tribune Business, paint a slightly different picture to the one given by Resorts World and its Bimini SuperFast cruise ship when they launched their initial Judicial Review-style action.

US CBP alleges that it is the delays in constructing the proposed 4.5 acre Bimini cruise ship terminal, and complementary 1,000 foot jetty, that caused Resorts World to turn to night-time cruises on this high seas.

Documents filed to support CBP’s case allege that the Bimini docking facilities - the subject of a Judicial Review action in this nation - were supposed to have been completed by October 2013, some two months ago.

And, with rough seas and bad weather preventing the transfer of SuperFast passengers to and from Bimini, the US government agency alleged that Resorts World had turned to night-time cruises on the high seas to fill the revenue gap.

This runs contrary to the impression given by Resorts World’s own court filings, which suggested that the entire business model upon which its $275 million investment is based - day-time cruises to Bimini, night-time cruises and the Bimini Bay expansion - could collapse if the second aspect is permanently banned.

Tribune Business revealed exclusively last week how CBP had banned the Bimini SuperFast’s night-time voyages on the high seas since November 28, citing the US Immigration and Naturalisation (INA) Act.

It did so on the grounds that ‘cruises to nowhere’, meaning the vessel does not call on a foreign port, have to be 100 per cent crewed by US citizens or permanent residents. The Bimini SuperFast does not meet these criteria.

Resorts World had sought a US court injunction to lift the ban until its appeal against the CBP’s decision was heard, but nothing has been forthcoming yet from the US District Court for Columbia.

And, calling for Resorts World Bimini’s action to be dismissed, CBP alleged the developer was seeking permission “to violate federal immigration law so [it] can attempt to make more money by illegally paying lower wages to non-US citizens on ‘cruises to nowhere’”.

“Plaintiffs are free to continue operating foreign cruises and/or ‘cruises to nowhere’ with individuals authorised to work in the United States, such as US citizens or lawful permanent residents, but plaintiffs insist they be allowed to violate the law to maximise their profit and reduce losses from bad business decisions,” CBP alleged of Resorts World Bimini and its affiliates.

“In effect, plaintiffs have come to the court asking it to save them from a series of bad business decisions, including a change in their business model.”

US CBP alleged that the relief being sought by Resorts World Bimini was “either impossible or inappropriate”, and that its action was “without merit and fails as a matter of law”.

“Plaintiffs, contrary to the hyperbole and histrionics expressed in their motion for preliminary injunction, can choose to return to their original business model of running cruises between Miami and Bimini, or can legally operate ‘cruises to nowhere’ with a crew of persons authorised to work in the United States,”CBP alleged.

“Thus, any alleged harm plaintiffs claim to have suffered is due solely to their own bad business decisions and apparent ignorance of federal law.”

CBP alleged that Resorts World Bimini’s court filings “neglect” to mention that the original business model was for “twice daily cruises” between Miami and Bimini, and just how vital the contentious cruise terminal and jetty are to its plans.

Diane Sabatino, CBP’s Miami port director, alleged in a December 19, 2013 affidavit that Resorts World Bimini executives first approached her in April 2013 over their plan for two daily sailings to Bimini.

“Plaintiffs [Resorts World] explained that it was working with the Bahamian government to build a dock in Bimini, which would provide more efficient processing for departing and embarking passengers, which would allow time for two daily cruises with an international stop in Bimini, Bahamas,” Ms Sabatino alleged.

“Based upon discussions with plaintiffs, the dock was expected to be complete in October 2013. In the interim, plaintiffs would transfer passengers via tender (smaller boats) from the vessel to Bimini.”

That construction schedule has proven optimistic, as Resorts World Bimini failed to get all the necessary permits it needed until that month. And the Bimini Blue Coalition, which is challenging the cruise terminal in the Supreme Court via Judicial Review, is questioning whether all the permits have been obtained.

Resorts World’s plan, according to Ms Sabatino, was to run a night cruise to Bimini that left Miami at 10pm and arrived in the Bahamas at 1.30am.

Passengers would have been taken on board until 2am, and the SuperFast arrive back in the US at 6am. The night cruises would have taken place four days a week, Thursday through Sunday.

Ms Sabatino alleged that Resorts World Bimini operated such night cruises, which complied with US law due to the Bimini stop, between July 20 and September 15, 2013.

It was then that the cruise terminal/jetty construction delays, and bad weather, intervened.

“At some point during this timeframe, CBP learned that plaintiffs were having difficulties obtaining approval to build a dock in Bimini for disembarking and embarking passengers in a timely manner, as well as other issues in processing passengers,” Ms Sabatino alleged.

“CBP was advised that plaintiffs continued to operate the tender operation in order to transfer passengers to the island; however, the tender operation was a lengthy process.

“Additionally, CBP was advised that seasonal rough seas had resulted in cancelled sailings due to the inability of plaintiffs to safely complete the tender operation.”

It was here that the night-time ‘cruises to nowhere’, where the Bimini SuperFast sails out on to the high seas for a night of partying and sailing, first reared their head.

Countering Resorts World’s assertions that CBP initially gave the ‘OK’ to its plans, Ms Sabatino alleged that the agency had responded to a different question - namely whether CBP checks were still needed even if no passengers embarked/disembarked the vessel in Bimini.

She added that Resorts World began operating its first ‘cruise to nowhere’ on September 21, taking it into conflict with US law.

“Plaintiffs’ own poor business choices are the source of any harm to their business,” the CBP reiterated.

“Contrary to plaintiffs’ representations, [their] original business plan called for fast cruises between Miami and Bimini, with the ship stopping in port each way – itineraries that comply with federal immigration law.

“Additionally, plaintiffs can operate ‘cruises to nowhere’ (even though they are a foreign-flagged vessel), but must do so with a crew made up of persons authorised to work in the United States, consistent with federal immigration law and longstanding CBP policy.”

The US government agency alleged that Resorts World Bimini’s case was “especially weak”, and its prospects of success “exceedingly low”.