The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The developers behind Bimini’s controversial cruise terminal are appealing a US court’s decision to uphold a government ban on its night-time cruises, a move it previously claimed would place its entire $275 million Bahamian investment “in peril”.

Court documents obtained by Tribune Business show that Resorts World Bimini and its affiliates filed their notice of appeal with the Columbia (Washington D. C.) District Court on March 11, 2014, in their continuing bid to overturn the night-time sailing ban imposed by US Customs and Border Protection (CBP).

All documents relating to the appeal, which will be heard in the US Court of Appeals for the District of Columbia, are to be filed on two separate days - April 14 and April 28, 2014, according to a trial schedule seen by Tribune Business.

The fact Resorts World Bimini and its affiliates have decided to incur extra legal costs and time in trying to appeal the US District Court’s ruling again gives an indication of how important the night-time cruises on the ocean are to its overall Bimini business plan.

Documents filed over the initial Judicial Review-style action made clear their Bimini development model cannot survive without the revenues produced by their cruise ship’s night-time excursions.

And they suggested that the Genting-owned company faces the “potential loss of its $275 million investment in a destination resort and dedicated cruise ship” - the resort being Bimini Bay.

While the Bimini SuperFast’s daytime sailings to and from Bimini are unaffected by the US CBP ban, the documents revealed that Resorts World has also been using the vessel for night-time excursions into international waters.

Passengers were sailing out from Miami for gambling and partying on the high seas until dawn, thereby generating a revenue stream that Resorts World admitted was vital to sustaining its entire $275 million investment in both Bimini and south Florida.

The US CBP imposed the ban 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 does not meet these criteria.

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”.

The developer, in its original motion, had argued: “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.”

The US District Court, though, refused to grant Resorts World an injunction that would have lifted the night-time sailing ban, and part-allowed US CBP’s motion to dismiss the Judicial Review action.

It found that its ‘cruises to nowhere’ - as presently structured - “effectively skirt [US] immigration laws”.

Judge Colleen Kollar-Kotelly ruled that the night-time sailing ban imposed by US Customs and Border Protection (CBP) was “not arbitrary, capricious or contrary to the law”.

She found that Resorts World Bimini’s interpretation of US immigration law would permit its vessel’s foreign crew to work “without proper authorisation” so long as they travelled to Bimini.

“Plaintiffs argue that because the crewmen operating the evening ‘cruises to nowhere’ depart ‘virtually every single day’ for the foreign port of Bimini, they are in compliance with the D-1 visa’s requirement that the crewmen ‘intend to land temporarily’ and ‘depart from the United States’,” the verdict, obtained by Tribune Business, reads.

“Essentially, plaintiffs [Resorts World] try to broaden the interpretation of the statutory term ‘depart’ by attaching the separate ‘cruise to nowhere’ operation on to the daily cruise to Bimini. Plaintiffs, however, offer no legal support for this analysis of their ‘cruise to nowhere’.”

Concluding her analysis, Judge Kollar-Kotelly added: “Plaintiffs’ interpretation would effectively allow alien crewmen to work in the United States without proper authorisation so long as the vessel they operated occasionally departed on a legitimate foreign cruise, effectively skirting immigration employment laws.”