Spector vs. Norwegian Cruise Lines Case Decided
By Kathy Hagen
Issue 1: Do the Title III provisions of the Americans with Disabilities
Act (ADA) cover cruise lines, and are cruise lines defined as a public
accommodation for purposes of the ADA?
Answer: Yes.
Issue 2: Are there limitations
on Title III’s coverage of
cruise lines?
Answer: Yes. Foreign
cruise lines are covered only insofar as a ship sailing in American
waters with American passengers can modify policies and procedures
so as not to discriminate against persons with disabilities. A
cruise liner need not remove architectural barriers if such removal
would promote a possible threat to the safety of others, if such
removal and restructuring of barriers would put the ship in noncompliance
with international laws regarding safety at sea, and if such barrier
removal would “interfere with the
internal governing policies of the ship.”
Almost all cruise ships sailing round trips from American seaports
are registered in other countries. Most of the cruise lines, even
those with a principal place of business in the United States, have
their corporation registered in another country. Norwegian Cruise
Lines is incorporated in Bermuda, has its principal place of business
in Miami, and the two ships in question in this case are registered
in the Bahamas.
This case was filed by a group of disabled persons who attempted
to sail two different Norwegian Cruise Lines ships sailing out of
Houston, Texas. These passengers were subjected to discriminatory
policies:
• they were forced to pay an extra charge to be carried on the
ship because of their disabilities;
• they were forced to sign waivers of medical liability for the
cruise line whereas non-disabled persons did not sign such waivers;
• they were not allowed to travel without a companion;
• they were informed that the ship’s crew reserved the right
to put them off the ship if they interfered with the “comfort” of
other passengers; and,
• the life boats and other procedures for vacating the ship in
case of an emergency were located in inaccessible areas.
The plaintiffs also asserted that most cabins were not accessible
at all or only minimally accessible, that doorsills at most entrances
in the ship were too high for someone using a wheelchair or scooter,
and bathrooms, showers etc. were inaccessible.
The case was filed in
the district court of Texas. The judge found that, even though
the long list of covered private entities under Title III defining
a “public accommodation” did not include
cruise lines, such cruise lines serving mostly American passengers
were covered. However the District Court held that cruise lines were
not covered by the requirement to eliminate architectural barriers.
In part, the district court argued that since cruise lines were not
actually mentioned in the list of businesses covered in the ADA,
and since the regulating agencies (Dept. of Justice, Dept. of Transportation
and the Architectural Barriers and Transportation Compliance Board)
had not yet promulgated guidelines of access governing cruise ships,
they could not be held to a standard of removing barriers as other
businesses were required to do. Therefore the district court dismissed
the portion of the claim dealing with removal of barriers, but denied
Norwegian’s request to dismiss the rest of the claims dealing
with disability discrimination.
The 5th circuit court of appeals took a very straightforward stand:
Cruise liners were not listed as a covered private entity in the
ADA, and therefore they were not covered. The Court of Appeals dismissed
the entire case.
The Supreme Court granted review in this case, and it published
its decision on June 6, 2005. The majority opinion was signed by
six of the nine justices, but the decision was not a comfortable
one for them. Justice Kennedy wrote the majority opinion, parts of
which five other justices joined. Justice Ginsburg wrote a concurring
opinion but separated herself from one part of the majority argument,
this was also signed by Justice Breyer. Justice Thomas wrote an opinion
concurring in part with the majority, but he also concurred with
the dissent written by Justice Scalia arguing that public accommodations
provisions had no application to cruise lines.
What This Decision Means
Well,
the good news is that the court allowed for the definition of “public
accommodations” to include a business not
actually listed in the long list of covered businesses. The danger
of listing examples of covered businesses was that the court, when
faced with something not included would argue that Congress had
the opportunity to include such a business and did not. Thankfully,
the court did not decide the case on that basis, and determined
that cruise lines constituted a public accommodation both with
regard to its being a private business and a provider of public
transportation.
The court held that:
• the cruise lines could not discriminate against persons with
disabilities when a modification of policies and procedures would allow
them to participate equally in enjoying the ship;
• architectural barrier removal would not be required where such
removal would put foreign or domestic ships in conflict with policies
set forth internationally regarding construction of ships for safety
at sea;
• removal of architectural barriers in compliance with the ADA
was not required if it interfered with the ship’s internal governing
policies.
While the court held that each case would have to undergo an individualized
analysis to determine whether the ship was in compliance with the
ADA, Justice Kennedy also left the door open for the court to determine
ultimately that architectural barriers would always conflict with
international laws or with the internal order governing the ship,
and that such barriers would then not have to be removed.
Justices Ginsburg and Breyer took exception to this last statement
arguing that internal policies should have no more, and no less,
weight with regard to ships than management policies do with regard
to other private businesses. Justice Thomas wrote his own opinion
in which he was unwilling to state that a cruise line would never
constitute a public accommodation under the ADA, but he concurred
with the dissenting opinion that the ADA did not apply in this case.
The dissent argued it
would take a strictly declared intention by Congress to include
cruise lines in the ADA’s list of public
accommodations. When making such a decision, the dissenters stated
that Congress would have to weigh the risks of:
a) Subjecting domestic cruise lines to stricter standards of accessibility
than foreign ships cruising in American waters and carrying American
passengers were subjected to; or
b) Subjecting foreign ships traveling in American waters to standards
that conflicted with those of other countries or international law.
There will definitely
be more cases brought to the court regarding cruise lines, and
the makeup of the court will definitely determine the outcome of
future cases. For now, it would seem that if a cruise liner can
raise arguments that removal of architectural barriers would conflict
with international law or with the ship’s own
internal policies, (and it’s not clear how high their burden
of proof is) then such barriers can remain in place even if they
could be removed without much expense.
So, while it appears
that foreign and domestic cruise lines are covered in the definition
of public accommodations of the ADA, and while policies which specifically
subject persons with disabilities to discriminatory treatment will
not be tolerated, ships may not have to remove barriers. It’s
unclear then how many more people with disabilities, or senior
citizens who use scooters, will be able to enjoy cruises. As usual,
my final line is: stay
tuned
for further news.
