June 06, 2005

ADA and Foreign-flagged Cruise Ships

A limited victory for ADA on cruise ships. See several reports below.

Once again, let me reiterate, that the obsolete traditions of inaccessibilty masquerading under the rubric of "seaworthiness" must be fundamentally reconsidered from the perspective of Universal Design.

While today's weak implementation of ADA will be exploited by the less imaginative in the industry as a time to retreat into a frenzy of loophole chasing, those who understand their market, and its growth potential as Boomers age, will observe the constuction industry's shift to barrier-free, universally designed private homes -- and follow suit.

As Universal Design becomes day-to-day "normal" in people's homes, why imagine they will pay to be incovenienced on ships that exclude them by design? As Universal Design is recognized for what it is - simply "good design" - what industry exectutive could be foolish enough to pilot his or her career onto the shoals by approving inaccessible design in even one more additional cruise ship?

Inclusion projected from the design phase incurs no costs. Retrofitting expenses on any inaccessible passenger ships built from this day forward ought to be drawn from the salary line of those who gambled on salvation through loopholes - and lost.

For another opinion, one perhaps casting a bit more "light" than mine does "heat", I recommend Candy Harrington:

"And the Verdict Is In (Kind Of)"

United States Supreme Court Rules on Spector et. al. VS Norwegian Cruise Lines
Goldstein & Howe, PC, Washington, DC ~ June 6th, 2005

The Supreme Court decided Spector v. Norwegian Cruise Lines today, reversing the Fifth Circuit’s holding that Title III of the Americans With Disabilities Act does not apply to foreign-flag cruise ships. The decision represents the third victory for the Stanford Law School’s Supreme Court Litigation Clinic this Term. Earlier, the Court ruled that IRAs are exempt property of the estate (Rousey v. Jacoway, argued by Pam Karlan) and that the Age Discrimination in Employment Act recognizes disparate impact claims (Smith v. City of Jackson, which I argued along with Spector). Congratulations to the many Stanford students who worked on the case at the cert. and/or merits stages: William Adams, Eric Feigin, Nat Garrett, Daniel Goldman, Lauren Kofke, Jennifer Thomas, and Sean Tonolli.

Preliminarily, the Court holds without any substantial discussion that Title III of the ADA applies to cruise ships generally. Norwegian had contested that issue, but had placed its principal emphasis on the question whether the ADA applies to foreign-flag vessels.

The holding on that question that the ADA applies is effectively six to three. Justice Kennedy writes a majority opinion on that point joined by Justices Stevens, Souter, Ginsburg, and Breyer. Justice Thomas, in a separate opinion, agrees that “those applications of Title III that do not pertain to internal affairs apply to foreign-flag vessels.” By contrast, Justice Scalia’s dissenting opinion – joined in relevant part by the Chief Justice and Justice O’Connor – would flatly hold that “Title III does not apply to foreign-flag cruise ships.”

The issue then becomes: To what extent does the ADA apply? Here, the Court is further divided. The controlling opinion of three Justices – Kennedy for a plurality, joined by Stevens and Souter – holds that Title III applies except in all likelihood to the extent the statute would otherwise require “permanent,” “significant,” “structural” changes to the “basic ship design and construction.” That opinion is controlling because it is the narrowest holding: Justice Thomas would not apply the statute to require any structural changes and, as noted, the three Justices dissenting in full would not apply the statute at all. By contrast, two concurring Justices – Justice Ginsburg, joined by Justice Breyer – would hold that Title III applies except to the extent that the statute imposes requirements that conflict with treaty obligations.

So the decision is a significant, although not total, victory for persons with disabilities. Cruise lines that do not want to incur the costs of making their ships fully accessible can take comfort that they may not need to make the most significant, structural changes to their ships that the statute otherwise would require.



Court Expands Scope of Disabilities Law

Associated Press - June 6th, 2005

WASHINGTON (AP) - The Supreme Court, expanding the scope of a landmark
federal disabilities law, ruled Monday that foreign cruise lines sailing in
U.S. waters must provide better access for passengers in wheelchairs.

The narrow 6-3 decision is a victory for disabled rights advocates, who
said inadequate ship facilities inhibited their right to "participate fully
in society."

"With this decision the Supreme Court has told the cruise lines that we are
entitled to what every other passenger receives -- access to emergency
equipment and the full range of public facilities," said Douglas Spector of
Houston, one of the disabled passengers suing the cruise lines.

A spokeswoman for the International Council of Cruise Lines, based in
Arlington, Va., said the group was reviewing the decision and had no
immediate comment. The ruling has wide implications for the cruise
industry, which fears that remodeling to comply with the disabilities law
could cost millions.

Congress intended the 1990 American with Disabilities Act to apply to
cruise lines, justices said.

"The statute is applicable to foreign ships in the United States waters to
the same extent that it is applicable to American ships in those waters,"
Justice Anthony Kennedy wrote for the majority. He was joined by Justices
John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G.

Still, the ruling is unclear how much the $2.5 billion foreign cruise
industry, which carries 7.1 million passengers each year, will actually
have to reconfigure pools, restaurants and emergency equipment for
wheelchair accessibility, an upgrade that could cost the industry millions.

Kennedy noted that cruise lines need not comply with Title III of the ADA
to the extent it creates too much international discord or disruption of a
ship's internal affairs, under a provision of the statute that calls only
for "readily achievable" modifications.

"It is likely that under a proper interpretation of 'readily achievable'
Title III would impose no requirements that interfere with the internal
affairs of foreign-flag cruise ships," Kennedy wrote, in sending the case
back to lower court to determine what is ultimately required of cruise

Justice Clarence Thomas provided the sixth vote holding that the ADA
applies. But he joined the dissenters in saying the actual modifications
required under the federal law did not extend to changes to a ship's
"physical structure."

Three disabled passengers, who boarded Norwegian Cruise Line in Houston in
1998 and 1999, say they paid premiums for handicapped-accessible cabins and
the assistance of crew but the cruise line failed to configure restaurants,
elevators and other facilities in violation of the ADA.

Norwegian Cruise Line countered that only an explicit statement of Congress
can justify imposing the U.S. law on a ship that sails under a foreign
flag, even if it is docked at a U.S. port. The federal law is silent as to
whether foreign cruise lines are covered by the ADA.

In a dissent, Justice Antonin Scalia argued that extending the federal law
to foreign ships will create international discord and is wrong because
Congress does not explicitly call for it. The ruling should leave no
opening for ships to be required to change their amenities to fit the laws
of each country they visit, he said in a dissent joined by Chief Justice
William H. Rehnquist and Justice Sandra Day O'Connor.

Much of the industry registers its ships away from home countries in places
such as the Bahamas, Liberia, Honduras, Panama and Cyprus, which promote
the practice by pointing to their business-friendly regulatory outlooks.
The U.S. cruise industry is almost exclusively foreign-flagged.

The case was an appeal from the 5th U.S. Circuit Court of Appeals based in
New Orleans, which ruled in January that foreign-flag cruise ships are not
covered by the ADA. Under the Supreme Court's decision, the disabled
passengers who filed suit may now proceed to trial to prove discrimination.

The case is Spector v. Norwegian Cruise Line, 03-1388.


5 plus years in the making

Dear Colleagues,

Please take the time to congratulate and thank Julia Hollenbeck,
President/CEO, Wheel Me On (WHO), jhollenbeck@wheelmeon.org,
http://www.wheelmeon.org/ncl.html , WMO members, their legal team and

35 Covington Street
Clarksville, TN 37040-6511
Telephone 931-551-9204
Fax 931-553-9204


AAPD http://www.aapd-dc.org

U.S. disability law covers foreign cruise ships

By James Vicini
Monday, June 6, 2005; 11:01 AM

WASHINGTON (Reuters) - Foreign cruise ships that sail in U.S. waters can
be sued under a federal civil rights law for discriminating against
disabled passengers, a divided U.S. Supreme Court ruled on Monday.

The high court clarified the reach of a key part of the Americans with
Disabilities Act of 1990 in a case that has pitted disability rights
advocates against the cruise industry. The law applied to foreign-flagged
cruise ships in U.S. waters, except for regulating a vessel's internal
affairs, it said.

By a 5-4 vote, the justices overturned a lower-court ruling that
foreign-flagged cruise ships are not covered by the law barring
discrimination at places of public accommodation and in public
transportation services.

The case had been closely followed by the multibillion-dollar cruise
industry. About 10 million people a year take cruises and an estimated 54
million Americans have some type of disability.

The case involved a lawsuit against Norwegian Cruise Line Ltd. over three
cruises that originated in 1998 and 1999 in Houston and that went to
various foreign ports.

The ships at issue, the Norwegian Sea and the Norwegian Star, sail under
the Bahamian flag. Miami-based Norwegian Cruise Line is a unit of Star
Cruises Ltd., a Malaysian-owned company and the world's third largest
cruise company.

The lawsuit was brought by three individuals with disabilities who use a
wheelchair or electric scooter and two other individuals who were not
disabled, but who accompanied those with the physical impairments.

It said physical barriers on the ships denied the disabled passengers
access to emergency evacuation equipment and to facilities such as public
restrooms, restaurants, swimming pools, elevators and cabins with a
balcony or a window.

The lawsuit said Norwegian Cruise Lines charged a premium for use of
handicapped-accessible cabins and for assistance of crew members. It
sought to require Norwegian Cruise Line to remove certain barriers that
obstructed access by the disabled individuals to the ships' facilities.

The U.S. Justice and Transportation departments have long taken the
position that foreign-flagged cruise ships operating at U.S. ports were
covered by the law.

Different U.S. appeals courts have issued conflicting rulings.

In the majority opinion, Justice Anthony Kennedy said that except for
regulating a vessel's internal affairs, the law applied to foreign ships
in U.S. waters to the same extent that it applied to American ships in
those waters.

He said the law's own limitations and qualifications would prevent it
from imposing requirements that would conflict with international
obligations or threaten shipboard safety.

Kennedy sent the case back to the appeals court for further proceedings.

Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin
Scalia and Clarence Thomas dissented. Scalia said in dissent he would
hold that the law does not apply to foreign-flag cruise ships.

2005 Reuters


National Coalition for Disability Rights
1201 Pennsylvania Avenue, Suite 300
Washington, District of Columbia 20004

Posted by rollingrains at June 6, 2005 10:37 PM