Cruise Ships

Victory at Sea:

U.S. Supreme Court Extends ADA Protections to Foreign Cruise Ships

In recent years, the U. S. Supreme Court has narrowed the scope of the Americans with Disabilities Act (ADA), 42 U.S.C. sec. 12181 et seq. In June, 2005, however, advocates for the disabled reversed the tide with a key victory in the case of Spector v. Norwegian Cruise Lines.

The defendant Norwegian Cruise Lines (NCL) operates cruise ships that depart from, and return to, ports in the United States. Its ships are essentially floating resorts which provide passengers with cabins, food and entertainment. Although NCL is based in Miami, Florida and serves predominantly U. S. residents, almost all of its ships are registered in other countries, flying so-called flags of convenience. The two ships involved in the Spector case, the Norwegian Sea and the Norwegian Star, were both registered in the Bahamas.

The plaintiffs in Spector were disabled individuals and their companions. They had purchased tickets on the Norwegian Sea and the Norwegian Star for cruises originating from Houston, Texas in 1998 or 1999. They believed that they had been "taken for a ride" in a variety of discriminatory ways. Disabled passengers, unlike others, were required to waive potential medical liability and to travel with companions. They had been charged higher fares and a special surcharge. Evacuation programs and equipment had been maintained in inaccessible locations. NCL reserved the right to remove any disabled individuals whose presence endangered the "comfort" of other passengers. In addition, there were many physical access problems on board the ships. Most of the cabins were inaccessible, and the ships' coamings, the raised edges around the doorways, blocked access for passengers in wheelchairs or scooters.

The plaintiffs brought suit under Title III of the ADA, which prohibits discrimination in places of "public accommodation" and in "specified public transportation services." 42 U.S.C. sec. 12181(a), sec. 12184(a). The lower court dismissed some of the claims on jurisdictional grounds. Eventually, the 5th Circuit Court of Appeals torpedoed all of the plaintiffs' claims, ruling that the ADA did not apply to foreign-flag vessels -- even if they navigated through U. S. territorial waters.

The Supreme Court charted a middle course in the dispute. A 5-4 majority of the justices concluded that foreign-flagged cruise ships were in fact places of "public accommodation" and "specified public transportation" within the meaning of Title III. Accordingly, NCL could not permissibly discriminate against their disabled passengers. However, the Supreme Court also found a potential escape hatch in the ADA from some of the plaintiffs' claims. The Court noted that the statute requires discriminatory barriers to be removed only where "readily achievable." 42 U.S.C. sec. 12181(9)(B) and 12182(b)(2)(A)(iv). The Court interpreted this exception to permit considerations other than the mere cost of the modifications involved. The Court also ruled that the "readily achievable" exception does not require physical access changes that would bring a foreign-flagged vessel into conflict with international laws or that would compromise other passengers' health or safety. The Court remanded the case to the trial court so that more evidence could be gathered and a fuller record developed.

What is the course for the ADA in the wake of Spector? In light of the Supreme Court's pattern of curtailment in recent years, any expansion in the ADA's scope and rights is welcome and positive. Specifically, the Court's decision should mean that cruise ships flying foreign flags will have to be more accommodating to the 7 million U.S. passengers whom they serve annually, large numbers of whom are disabled.

The margin of victory in Spector could not have been slimmer, however, with the recently retiring Justice Sandra Day O'Connor casting a dissenting vote. How the ADA continues to fare at the Supreme Court in the near future will likely proceed on an incremental, case-by-case basis and may well turn on the perspective and persuasiveness of Justice O'Connor's successor.