By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Resorts World Bimini yesterday said there would be “no impact” on its daily cruises to the island despite a US court’s refusal to overturn a ban on its vessel’s night-time sailing.

The developer behind the controversial cruise ship terminal and jetty told Tribune Business it had yet to decide whether to appeal the US District Court of Columbia’s verdict, which 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”.

As a result, she denied Resorts World Bimini’s bid for a preliminary injunction that would have allowed to continue with its night-time cruises on the high seas, and overturned the CBP ban.

The Bimini developer, in a statement sent to Tribune Business upon request yesterday, said: “We respectfully disagree with the ruling and are evaluating all options, including appeal.

“This decision does not impact our ability to conduct day cruises, which will continue without interruption.”

That second statement, though, appears at odds with Resorts World Bimini’s own court filings in the CBP case.

Tribune Business revealed last month how the developer was alleging that its “entire operations are in peril” as a result of the CBP banning a key aspect of its business model, the documents clearly stating that this would also jeopardise both its day sailing to Bimini and total $275 million investment.

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.

“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.”

It is unclear what impact the US court decision will have on Resorts World’s sailings to Bimini, plus its immediate plans for the island and further investment in the Bimini Bay Resort, which is designed to create 500 Bahamian jobs.

Resorts World’s statement yesterday seemingly contradicts the assertions in its own court documents, suggesting that it is either ‘putting a brave face’ on the US court’s decision or that it was ‘laying it on’ in its filings in a bid to sway the verdict in its favour.

Judge Kollar-Kotelly was unimpressed, finding 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.”

As a result, she found in favour of CBP, ruling that its ban decision was “not arbitrary, capricious or contrary to law.”

Tribune Business previously revealed that the problems with Resorts World’s ‘cruises to nowhere’, meaning the vessel does not call on another port, were that such voyages have to be 100 per cent crewed by US citizens or permanent residents. The Bimini SuperFast does not meet these criteria, placing it in violation of US immigration laws, hence the CBP ban.

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

Judge Kollar-Kotelly, meanwhile, criticised Resorts World’s arguments as “grossly insufficient” to show the CBP had previously allowed ‘cruises to nowhere’ to be staffed by foreign crews.

She added that the developer could not point to one such case, and also slammed affidavits sworn by Resorts World executives as “pure speculation and supposition” and “a bald assertion based on hearsay” for which no support is provided.