5th Circuit

When Douglas Spector, who uses a motorized wheelchair because of a spinal tumor, set off for a five-day cruise from Houston in 1998 aboard a Norwegian Cruise Line ship, he quickly realized the ship wasn't equipped to handle the needs of the handicapped. The ship's restaurants, restrooms and swimming pool, he alleges, had steps designed to keep water sealed out of the interior decks, but didn't have ramps. And he claims the cruise line charged him $900 in extra fees for a handicapped-accessible cabin.

Along with other disabled passengers, he filed a class action suit against Norwegian two years later, and the ensuing legal firestorm went all the way to the U.S. Supreme Court in Douglas Spector et al. v. Norwegian Cruise Line Ltd.

At issue is whether Title III of the Americans with Disabilities Act (ADA) should apply to foreign-flagged ships. Perhaps the larger issue though, is what it would mean if the Supreme Court rules that Title III does apply to international vessels. As Justice Ruth Bader Ginsburg said during oral arguments on Feb. 28, if American judges are allowed to decide the regulations of foreign-flagged ships, in effect, "the U.S. rules the world."

Limited Access

Disabled access in the United States has advanced significantly since Congress passed the ADA in 1990 to prohibit discrimination against disabled people and guarantee access to public places.

Title III of the ADA, a federal statute, prohibits public places from depriving individuals with disabilities of equal access. However most cruise ships that leave from the United States sail under foreign flags for tax reasons. The ship in question in Douglas sailed under a Bahamian flag.

The 5th Circuit ruled Jan. 12, 2004, that Congress, in enacting Title III of the ADA, "failed to express any intention to the subject of foreign-flagged cruise ships from its dictates. Thus the application of Title III to foreign-flagged cruise ships is impermissible."

Both the Justice Department, which is charged with primary enforcement of Title III, and the Transportation Department have argued the law applies to all ships in U.S. waters. Meanwhile, Congress has been silent on the topic.

Lawrence W. Kaye, a partner at Kaye Rose & Maltzman in Los Angeles, agrees. He filed an amicus brief in Douglas on behalf of the International Council of Cruise Lines and said that there is basically "no singular set of rules" regarding accessibility on international vessels at the moment, which means the courts cannot interpret U.S. rules to apply to foreign vessels.

The defense echoed the idea that without Congressional intent, the Act doesn't apply.

Thomas Wilson, attorney for Norwegian Cruise Line, believes the case is pretty straightforward. "Title III of the ADA and its legislative history indicates no intention by Congress to cover foreign-flagged ships. In fact it doesn't even mention ships, boats, anything on the water whatsoever. It's really a matter of international comity between the U.S. and the rest of the world."

But Thomas Goldstein of Goldstein & Howe in Washington, D.C., who represents Spector, believes that the ADA should apply to cruise ships because the statute is broadly construed.

"This isn't an area where you would expect Congress to have made some special statement if it wanted to apply a law to foreign flag vessels because it doesn't deal with the internal affairs of the ship," Goldstein says. "It deals with American customers buying tickets in the U.S., for travel to and from the U.S., from a company that's based in the U.S. So it seems as a common sense matter, totally obvious that Congress would have intended persons with disabilities to be covered."

Market Forces

This case isn't as obvious as either party would like the Court to believe. The

5th Circuit decision conflicted with a 2000 11th Circuit decision in Stevens v. Premier Cruises, Inc. that said that Title III did apply to foreign-flagged ships. The opinions of these circuits are particularly pertinent to the issue because two-thirds of cruise ships leaving from the United States are from these jurisdictions, which abut the Gulf of Mexico.

Both parties are hoping the High Court will settle the issue decisively, but said the Court appeared divided during oral arguments.

"The Supreme Court didn't want to go too far, and they didn't want to apply the ADA to ships that have only incidental contact with the U.S.," Goldstein says. But he says that because Norwegian's ships are constantly embarking from U.S. waters, the contact is not incidental. "I think they seem pretty comfortable (with applying it to ships that constantly sail on U.S. waters), so I think people expect us to win."

Wilson thinks the Court can encourage accessibility without stepping on other nations' toes.

"The concern is that when it comes to regulations of ships, it should be a matter left to a large extent to the flag nation, recognizing that there will be nations where the port nation will want to assert control," Wilson says. "At those times it would be anticipated that there would be some interaction between the executive branches of both nations with regard to how that would be handled."

The Court's decision is expected in June.

But it might not take an edict from the Supreme Court to make foreign cruise lines get up to speed on making their ships accessible to people with disabilities. While the cost of retrofitting large vessels could be enormous, cruise ships, like other businesses, see the spending money of millions of Americans as a reason to ensure their facilities are equipped for the disabled.

While this case may provide the legal impetus for cruise ships to get themselves in order, market economics may be incentive enough on their own. Norwegian stated as much in its brief to the Supreme Court, "Notwithstanding the important market forces that already are achieving substantial gains for the disabled as the cruise industry makes greater and greater accommodations to attract their business, respondent Norwegian Cruise Line Ltd. believes that this Court should affirm the Fifth Circuit's judgment that the ADA does not apply to foreign cruise ships."

Norwegian went on to say it is replacing old ships with new, handicapped-accessible ones and will have all of the older ones replaced by this summer.

Maybe the United States doesn't rule the world after all.

Staff Writer

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