ADA Applies to Foreign-Flag Cruise Ships—In Theory
August 2005
Our November 2004 article discussed the U.S.
Court of Appeals for the Fifth Circuit's decision in Spector v. Norwegian Cruise Lines, Ltd., 356 F.3d 641 (5th Cir. 2004),
which held that the Americans With Disabilities Act (ADA) does not apply to
foreign-flag cruise ships serving U.S. ports. That decision stood in stark contrast
to the decision of the Eleventh Circuit in Steven v.
Premier Cruises, Inc., 215 F.3d 1237 (11th Cir. 2000), wherein that court
held just the opposite.
by Michael
A. Orlando*
Meyer Orlando,
LLC
To resolve the conflicting circuit court rulings, the Supreme Court granted
certiorari and, in June 2005, theoretically resolved the split by holding that
foreign cruise lines that dock at U.S. ports must provide better access to handicapped
people. Spector v. Norwegian Cruise Line, Ltd.,
125 S. Ct. 2169 (2005). However, the various Justices' opinions fell short of
specifically stating what kind of modifications must be made to foreign cruise
ships to bring them into compliance with the ADA.
In a decision reminiscent of the split between the underlying Fifth and Eleventh
Circuits, the Court's 6-3 ruling, authored by Justice Kennedy, writing for the
majority, joined by Justices Stevens, Souter, Ginsburg, and Breyer, said Congress
clearly intended for Title III of the ADA to apply to foreign cruise lines even
though the 1990 legislation is silent on the issue. Justice Kennedy wrote:
- To hold there is no Title III protection for disabled persons who seek
to use the amenities of foreign cruise ships would be a harsh and unexpected
interpretation of a statute designed to provide broad protection for the
disabled.
But Kennedy also stated to the extent that it creates "too much" international
discord or disruption of a ship's internal affairs, cruise lines need not comply
with the ADA under a provision of the statute that calls only for "readily achievable
modifications." In contrast, Justice Scalia's dissenting opinion, joined by
Chief Justice Rehnquist and Justice O'Connor, indicates that they would hold
that Title III does not apply to foreign-flagged cruise ships at all because
it affects the internal order of foreign-flag cruise ships and exposes them
to conflicting international obligations.
Arguing that extending the federal law to foreign ships would wrongfully
create international discord because Congress did not explicitly call for it,
Rehnquist and O'Conner joined Scalia in averring that the Court's ruling should
leave no opening for ships to be required to change their amenities to fit the
laws of each country they visit. Justice Thomas, in a separate opinion concurring
in part, dissenting in part, and concurring in the judgment in part, agreed
that those applications of ADA which do not pertain to internal affairs do apply
to foreign-flag vessels.
The issue then becomes: To what extent does the ADA actually apply to aid
its anticipated beneficiaries? Here, as the Justices' controvertible writings
reveal, the Court is even further divided. The controlling opinion of three
Justices—Kennedy for a plurality, joined by Stevens and Souter—holds that the
ADA applies except to the extent the statute would otherwise require "permanent,"
"significant," "structural" changes to the "basic ship design and construction."
That opinion may be perceived as controlling because it is the narrowest holding.
Justice Thomas, as noted, agreed that the ADA applied to foreign-flag cruise
ships, but he joined the dissenters in saying that under federal law, the modifications
required clearly did not extend to changes to a ship's "physical structure."
Against this, Justice Ginsburg's concurring in part and concurring in the judgment,
joined by Justice Breyer, would have held that the ADA applies except to the
extent that the ADA imposes requirements that conflict with international treaty
undertakings, raising concerns of extraterritorial application of domestic law
and domestic regulations that would, for instance, conflict with the United
States obligations under the International Convention for the Safety of Life
at Sea.1
Hence, the decision is an important, although not total, victory for disabled
persons. There can be no doubt that the Supreme Court has clearly ruled foreign-flag
cruise ship owners must make reasonable accommodations for disabled passengers
as required by federal law. The cruise line industry, which denied that it discriminates
against disabled passengers, argued that it should not be forced to retrofit
older ships to fully accommodate disabled persons. The Supreme Court's decision
arguably affords some solace to cruise ship owners in that the owners who do
not wish to incur the costs of making their ships fully accessible may not need
to make the most expensive, structural changes to their ships that the ADA might
otherwise require.
A substantial question remains as to exactly what changes cruise ship owners
will be required to make to their vessels in order to bring them into compliance
with the ADA. The Supreme Court's reversal and remand of the Fifth Circuit's
decision to dismiss Spector means that the Fifth
Circuit will now reexamine those issues should the disabled passengers who originally
filed suit now proceed to trial to prove discrimination.
Douglas Spector claimed he was charged more for his viewless interior handicapped-accessible
cabin than other passengers who had purchased exterior ocean view accommodations.
He also complained that the public restrooms and most of the ship were wheelchair
inaccessible and that he was treated as an annoyance. In an industry where the
North American cruise lines yearly carry 7.1 million passengers on 185 ships
operating from U.S. ports, the Supreme Court's decision means that the case
will now resume its heavily laden course with significant consequences for disabled
persons and the cruise line industry, as now once again Spector must navigate judicial waters fraught
with emotional, economical, and extraterritorial concerns.
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