The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Resorts World Bimini’s appeal against a court decision upholding a US government ban on its night-time cruises appeared to be in peril last night, after it missed a key filing deadline.

The Bimini developer, which has been at the centre of controversy and a legal battle in the Bahamas over its cruise terminal/jetty dredging, failed to file a rebuttal to US Customs and Border Protection’s (CBP) bid to dismiss the appeal by the court-ordered June 18 deadline.

A search of court records at the US Court of Appeals’ DC Circuit shows no documents have been filed by Resorts World Bimini, and its Bimini Superfast cruise ship, since April 18 this year, despite the company having previously alleged that the ban would place its “entire operations in peril”.

The Appeals Court threatened to dismiss the Resorts World Bimini appeal for “failure to prosecute” if it missed the June 18 filing deadline, and the developer’s inactivity on the US legal front appears mystifying given the previous damage it outlined to its business model.

It could be, though, that with considerable progress having been made on construction of its cruise ship terminal in the Bahamas, and the Bimini Blue Coalition and other environmental activists at bay for the moment, the night-time cruises have decreased in importance for Resorts World.

The cruise ship terminal and dock will allow passengers to disembark in Bimini safely, even in rough seas, and with dredging completed and construction moving apace, Resorts World likely to be in position to resume a full sailing schedule soon.

It appears likely that the developer, a subsidiary of the Malaysian conglomerate, Genting, was using the still-banned night-time cruises on the open sea as a ‘hedge’ and ‘fall back’ option if Bimini did not work out. With the latter now moving, the need to pursue the US appeal may well have lessened.

Resorts World, though, had previously alleged that the night-time sailing ban would “cause the “potential loss of its $275 million investment in a destination resort and dedicated cruise ship” - that resort being Bimini Bay.

Gregory Karan, the senior vice-president of Bimini SuperFast Operations, the cruise ship end of Resorts World’s operation, made the impact on the company’s wider Bimini/Bahamas plans crystal clear in an affidavit filed on December 13, 2013.

“Without the evening excursion, Resorts World Bimini simply cannot generate the revenues need to continue the day excursions [to Bimini], meet our financial commitments and otherwise continue the foregoing contributions to the local economy in Miami,” Mr Karan said.

He added that replacing the entire 600-strong workforce on the cruise ship side of Resorts World’s operations would require it to pay millions of dollars in severance pay, “and place the entire operations of Resorts World Bimini in peril”.

And Resorts World Bimini’s then-motion for an injunction added: “The operations of Resorts World Bimini are still in a start-up phase, they are not yet profitable.

“When it made its quarter-billion-dollar-plus investment, Resorts World Bimini originally projected that its initial operating losses would not be permanent.

“To achieve profitability, however, Resorts World Bimini cannot afford to have the vessel idle. Without the Evening Excursion, Resorts World Bimini simply cannot generate the revenues needed to sustain its financial commitments and keep the business running.”

US CBP, in its filing calling on the appeals court to uphold the lower court’s decision, demanded that Resorts World “must follow US immigration laws when conducting so-called ‘cruises to nowhere’ that fail to dock at a foreign port”.

It added that “the government’s stated intention to enforce these laws pursuant to longstanding policy was neither arbitrary nor capricious, supported by the record, and in accordance with the law”.

Resorts World had been using the Bimini Superfast for night-time excursions into international waters, with passengers sailing out from Miami for gambling and partying on the high seas until dawn, thereby generating a revenue stream that Resorts World said was vital to sustaining its entire $275 million investment in both Bimini and south Florida,

Earlier court documents made clear Resorts World’s business model could collapse as a result of the night-time sailing shutdown, which the CBP imposed under the US Immigration and Naturalisation (INA) Act.

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

In its appeal court filings, the US CBP said that while Resorts World initially conducted two daily sailings between Bimini and Miami, it sought to change this on August 23 last year to just one cruise to the Bahamas.

It began operating its international cruises on September 21, 2013, with CBP not processing the passengers on their return. However, a month later, the company served notice that the crew on the Bimini Superfast would not comply with US immigration requirements.

Referring to the lower US court’s decision, the CBP argued: “The District Court held that the agency’s actions were consistent with federal immigration statutes and longstanding expressed policy.......

“For the reasons set forth in the District Court’s well-reasoned opinion, the agency’s instructions to Bimini Superfast were consistent with federal immigration officials’ longstanding application of the law to such closed loop cruises.

“The District Court found that the record comfortably supported what CBP repeatedly explained to Bimini Superfast: That its foreign-built and foreign-flagged ship would not violate coastwise trade laws on a ‘cruise to nowhere’. but that its crew must be authorised to work in the United States.”

Noting the US court’s finding that granting Resorts World what it was seeking would be tantamount to ‘skirting’ US immigration laws, the CBP added: “Therefore, as Bimini Superfast could point to no agency authority demonstrating that the agency’s actions in this case were inconsistent with prior applications of federal immigration law to ‘cruises to nowhere’, CBP’s actions in this case comported with its mission and statutory authority, and to grant Bimini Superfast the relief it sought would be contrary to the law.”