Supreme
Court Case Will Determine Americans’ Right to Cruise with a Disability
Brewster Thackeray
Date: 01/27/2005
A cruise is some people’s regular vacation of choice. For others it’s the treat
of a lifetime. But all Americans know that if they save their pennies, a cruise
is something that they could look forward to… right?
Not, it turns out, if they have some disabilities. Cruise ships may not be
required to meet the minimal requirements of the Americans with Disabilities
Act. In late February, the Supreme Court will hear the case of Spector Vs.
Norwegian Cruise Line Ltd., which will clarify whether foreign-registered
vessels sailing from U.S. ports are obligated to conform to this American law.
Since the vast majority of all ships sailing from U.S. ports are registered in
other countries, if they are found to be exempt, Americans with disabilities
will get the message that the high seas are not for them.
Plaintiff Douglas Spector, who uses a motorized scooter because a spinal tumor
makes him unable to walk, took a Norwegian Cruise Line trip in 1998, and found
the ship to be inaccessible to him. Where there were steps, there were no ramps
or alternative ways for him to get into restaurants, restrooms, and other public
areas. In an emergency, there was not even a system to get him into a lifeboat.
Adding insult to isolation, there was a surcharge for his accessible cabin, even
as he was denied other amenities that should have been covered by his fare.
Hoping to pressure cruise lines into removing accessibility barriers on their
ships, Spector and four other plaintiffs filed a class action suit against the
Miami, Florida-based Norwegian Cruise Line (most of whose ships are registered
in the Bahamas) for violating Title III of the ADA. The U.S. Court for the
Southern District of Texas found in the plaintiffs’ favor, and concluded that
foreign ships in U.S. territorial waters are subject to Title III. This looked
like a win for disability rights.
However, the Fifth Circuit Court of Appeals reversed that ruling in January,
2004. Their logic was that there wasn’t any evidence the Congressional authors
of the ADA intended it to affect these foreign vessels. Judge Edith Jones also
expressed concern about the case’s implications for national sovereignty, and
for safety in maritime construction.
There have been several notable cases in recent years that similarly questioned
the intents of the ADA’s authors, with judges suggesting that a narrow
definition of rights was the goal. Not so, according to House Democratic Whip
Steny Hoyer (D-MD), one of those authors, who has made it his mission to clarify
those intents. Queried about the Spector case by this writer, he replied, "When
Congress wrote the ADA, we clearly intended to eliminate discriminatory barriers
so that people with disabilities could be permitted to participate fully in all
aspects of society, including the enjoyment of recreational activities. Title
III of the ADA was crafted to broadly eliminate discrimination in public
accommodations, as well as public transportation services, such as cruise ships.
American passengers traveling on cruise ships, of which the vast majority are
foreign-flagged, should not be exempt from the protections of the ADA.”
A twist to the case is that Judge Jones’s decision conflicted with a 2000
decision by the Eleventh Circuit Court of Appeals (covering another major cruise
base, Florida), which found in the case of Tammy Stevens v. Premier Cruises,
Inc. that “a foreign flagged ship sailing in United States waters is not
extraterritorial” and thus was subject to the ADA. In settling the case, the
Supreme Court will endorse either the Fifth or the Eleventh Circuit conclusion.
Douglas Spector holds that the discrimination he faced was initially
“unquestionably within the United States’ sovereign territory.” Spector also
notes that, just as the ADA frequently stresses reasonable accommodations rather
than comprehensive ones, barrier removal that could not be readily achieved or
that would violate maritime safety would not be forced by the ADA even if he
wins his case.
People with disabilities would look to cruise ship lines to remove barriers that
are not necessary. For instance, they could put temporary or permanent ramps
over the steps to public areas, and reverse hinges on bathroom stalls so the
doors open out and allow wheelchair access. Such revisions would ideally benefit
other passengers, including older travelers and parents with small children,
without inconveniencing or endangering anyone.
The Paralyzed Veterans of America have filed an amicus brief in this case, as
have, jointly, AARP and eight disability organizations. The brief by AARP et al
states that the Fifth Circuit’s finding in favor of Norwegian Cruise Lines
“would stand for the proposition that by registering under a foreign flag, a
cruise line earns a free pass to discriminate against persons with disabilities,
regardless of the cruise line’s substantial contacts with the U.S. in marketing
and operating its cruises.”
The irony of the case is also pointed out in this brief: Norwegian Cruise Lines
“fails to acknowledge that the ADA protects the very Americans whom it seeks as
passengers, in the very activities it seeks to sell.” Logically, for cruise
ships as for other businesses, the spending power of tens of millions of
Americans with disabilities—to say nothing of the friends and relatives who will
or won’t accompany them depending on their ability to participate—should be a
powerful lure and a motivation for them to eagerly comply with, rather than seek
to challenge or circumvent, the ADA. And the brief details that in several other
cases, cruise lines have settled other cases by agreeing to make their ships
more accessible—proving it can be done.