Troubled Waters in Landmark Case

The U.S. Supreme Court will rule on whether the Americans with Disabilities Act applies to foreign-flagged cruise ships.

In what may turn out to be a landmark interpretation of the Americans With Disabilities Act (ADA), the United States Supreme Court heard arguments on Monday, February 28, 2005, in Spector v. Norwegian Cruise Line Ltd., a five-year-old lawsuit alleging discrimination against persons with disabilities on a cruise ship. At issue is whether the provisions of Title III of the ADA apply to cruise ships sailing under foreign flags, which account for virtually all luxury liners doing business in the U.S. Title III prohibits discrimination against individuals with disabilities by private entities which operate places of “public accommodation.”

The case began as a civil suit filed in 2000 by five individuals in the U.S. District Court in Houston, Texas, claiming that, among other things, Norwegian Cruise Lines (NCL) charged a premium for rooms set aside for people with disabilities, despite the fact that there was no difference in the size or location of such rooms; some restaurants, public bathrooms, swimming pools, and elevators were inaccessible for people in wheelchairs and scooters; and there was no provision for people with disabilities to take part in lifeboat drills. NCL moved to have the suit dismissed.

The Houston court ruled that, since the government had not yet issued specific regulations concerning barrier removal on cruise ships, the plaintiffs could not pursue their claims for structural changes in the ships, but could proceed on their complaint about nonstructural issues, such as the disparity in room prices.

Both parties appealed to the U.S. Court of Appeals for the Fifth Circuit in New Orleans in 2003 and—essentially siding with NCL—the appellate court ruled that since Congress had not clearly stated whether the ADA applied to ships under foreign registry, the law could not be enforced and dismissed the suit against NCL.

But this interpretation came into direct conflict with another circuit court decision issued five years earlier. In 2000, the U.S. Court of Appeals for the Eleventh Circuit in Miami ruled that foreign ships must comply with the ADA. With two circuit courts-the Fifth and the Eleventh—issuing directly conflicting interpretations of federal law, Spector v. Norwegian Cruise Line became eligible to move to the Supreme Court, which agreed, in September 2004, to hear the case (No. 03-1388).

On March 1, one day after making their arguments to the Supreme Court, the attorneys representing both sides joined a symposium sponsored by United Spinal and the Institute for Public Representation at the Georgetown University Law Center.

Thomas Goldstein of Goldstein & Howe, Washington, D.C., who represented the plaintiffs before the high court explained that sections of the ADA “do require barrier removal construction changes, in order to ensure that a particular facility is accessible.” The problem, Goldstein noted, was that the ship is not going to stay in the United States forever. “The interesting question raised by the case is: What if these ships take these [structural] changes to a foreign port where other rules apply . . . or what if, a year later, these ships will no longer be coming to the United States?”

On the other hand, Goldstein reasoned, “If a cruise ship is not a public accommodation under Title III of the ADA, then it is not a public accommodation for the purposes of other civil rights laws” such as racial discrimination, which implies even more serious problems.

Representing Norwegian Cruise Line, David C. Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel PLLC, Washington, D.C., vehemently denied the charges of discrimination. “We categorically reject the allegations that have been made.”

Frederick argued that “The ADA is about structure, it’s about location, it’s about building ramps, about creating accessible features and the cruise industry does not discriminate against people in the nonstructural ways that you are talking about. Those allegations are just flat false.”

He noted that “What petitioners assert comes down to a very basic proposition: If a ship, no matter where its flag, and no matter what laws it is required to comply with under prevailing international law, has to comply with the structural and nonstructural demands of the ADA-Did Congress intend that?” Frederick complained that “There isn’t any limiting principle to the petitioner’s position.”

Responding to Frederick’s argument that the ADA is “about structure,” United Spinal General Counsel James Weisman said, “It’s not all about structure. It’s all about behavior. It’s about how you treat people with disabilities. Structure is a very small, albeit significant, component of the ADA. But it’s really about how you behave in a nondiscriminatory way and part of that behavior is removing barriers to the extent that is feasible.”

“If the court separates construction from behavior and permits an inaccessible facility to be built, yet, at the same time, requires people to act in a nondiscriminatory way, it is finding a seam in the statute that’s not there and they would be opening up the ADA to allow second-class treatment of people with disabilities.

“The ‘limiting principle’ you [Frederick] were looking for is reasonableness, what is readily achievable and what’s not, which makes this no different than any other ADA case.”

Rob Ingraham is senior editor at United Spinal.