Fight over making ships fit for the disabled

Monday the Supreme Court considers whether 'foreign flag' cruise lines have to follow US legislation.

Cruise-ship vacations are one of the fastest-growing segments of the travel industry. More than 10 million individuals embarked on ocean voyages last year, with US residents accounting for 3 of every 4 passengers.

The vast majority of cruise ships operate from US port cities like Miami, New York, and Los Angeles. Yet virtually all these cruise ships are registered in foreign countries such as Liberia, Panama, and the Bahamas.

Foreign-ship registrations allow cruise lines to avoid paying US taxes and sidestep compliance with expensive American labor regulations. While these foreign-registered ships must comply with American environmental laws when in US waters, it has been unclear whether they are subject to American civil rights statutes like the Americans With Disabilities Act (ADA).

Monday, the US Supreme Court takes up a case examining whether foreign-flag cruise ships doing business in US waters can be sued under the ADA for discrimination against disabled passengers.

"The Americans With Disabilities Act is the nation's promise to millions of persons with disabilities that they will be treated as full citizens," says Washington lawyer Thomas Goldstein in his brief to the high court. "Norwegian Cruise Line, however, claims that it has the right to flout that promise."

Lawyers for Norwegian Cruise Line counter that application of US civil rights laws to its foreign-flag ships runs counter to a long tradition of maritime treaties respecting the sovereign control of registry nations. "This case is not about Norwegian Cruise Line's treatment of people with special needs," says NCL's general counsel Mark Warren. "This case is about whether Congress intended that the ADA should apply to foreign-flag ships."

Case history

The issue has been examined by two appeals courts, one in Atlanta and the other in New Orleans. The Atlanta court ruled that the ADA applies; the New Orleans court ruled it does not.

It is now up to the Supreme Court to break the deadlock with a ruling that will apply nationwide.

Under the ADA, public places like hotels, restaurants, theaters, and recreational areas are required to make reasonable modifications to permit equal access for those with disabilities. Cruise ships offer all those public activities under a single roof and thus are also covered by the law, says Mr. Goldstein. In addition, the ADA requires equal access to public transportation, a category that he says also embraces cruise ships.

Mr. Warren of NCL disagrees. "There is nothing in the statute that speaks to vessels, boats, ships, ferries, or any kind of navigable craft, let alone those with foreign flags," he says. "If Congress chooses to regulate foreign-flag ships, it is certainly entitled to do so, but it must specify that is what is intended."

The case, Spector v. Norwegian Cruise Line, stems from a class-action lawsuit filed in 2000 by Douglas Spector and a group of other NCL passengers who allege that they were discriminated against during their cruise vacation because of their disabilities.

They say they were forced to pay higher fares, travel with a companion, waive any medical liability, and reside in a limited number of less attractive cabins, and were barred from participating in evacuation and other safety drills. In addition, they say there were no accessible public restrooms on the ship.

NCL officials say that the complaints relate to facilities on two of the cruise line's oldest ships. One has been decommissioned, and the second is slated to be taken out of service this summer, they say.

The cruise industry views disabled individuals as an important and growing market. That approach is reflected in newly constructed ships that are increasingly accessible to those using wheelchairs and other aids.

"By and large the industry is moving in the right direction," says David Vladeck, a professor at Georgetown University Law Center in Washington who filed a friend-of-the-court brief on behalf of Paralyzed Veterans of America and other advocacy groups for disabled individuals. "The industry has decided there is no economic downside to making the vessel more ADA compliant in competing for a very large market of people with disabilities."

Royal Caribbean Cruise Line advertises a long list of special services and features designed to attract passengers with disabilities. They range from a wheelchair-accessible boat shuttle system between the ship and small ports to wheelchair-level slot machines and blackjack tables in the ship's casino.

Where Norwegian stands

Professor Vladeck says NCL is behind the industry curve on the issue. But NCL officials insist their ships are accessible.

"We construct our newer vessels as if the ADA did apply," says NCL's Warren. "For example, we have on our new ships electric hoists that lift someone out of a wheelchair and place them in a swimming pool or Jacuzzi. I don't know of a single hotel where you could find such facilities."

Cruise and shipping industry officials say the Spector case is important because an NCL defeat could undermine the existing international framework governing worldwide shipping.

"If the United States chose to apply its own accessibility standards to foreign-flagged ships entering its waters, many of the other 40 countries around the world with antidiscrimination laws might respond by attempting to apply their own unique - and divergent, if not contradictory - set of standards to foreign-flagged ships, including US ships," says Washington attorney Gregory Garre in a brief filed on behalf of the Bahamas Maritime Authority.

"International maritime commerce would run aground, as no vessel could possibly navigate such an unpredictable and stormy regulatory sea," Mr. Garre writes.

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