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National Council on Disability
Spector v. Norwegian Cruise Line Ltd. — Background,
Legal Issues,
and Implications for Persons with Disabilities*
National Council on Disability
1331 F Street, NW, Suite 850
Washington, DC 20004
202-272-2004 Voice
202-272-2074 TTY
202-272-2022 Fax
Lex Frieden, Chairperson
February 8, 2005
Abstract
On February 28, 2005,
the U.S. Supreme Court will hear argument in Spector v. Norwegian
Cruise Line Ltd., No. 03-1388, a case that will determine whether
foreign-flagged cruise ships serving U.S. ports must comply with
the public accommodations provisions contained in Title III of the
Americans with Disabilities Act (ADA). This paper examines the Spector
case in detail and concludes that the plain and expansive language
of Title III evidences a congressional intent to require cruise
ships to comply with Title III. Cruise ship owners and operators
claim that they and their ships are exempt from the ADA because
all of their ships are, with few exceptions, foreign-flagged, and
historically under international law, a seagoing vessel need only
comply with the laws of the flagging nation when it comes to the
regulation of a ship's internal operations. This paper explains
that compliance with Title III would not impinge on the internal
management prerogatives of cruise lines or conflict with the United
States' obligations under international law. Moreover, the contemporary
practice of flying what is known as a "flag of convenience"
is simply a business decision that only marginally implicates the
sovereign interests of the flagging nation. In stark contrast, however,
the United States has a significant interest in ending invidious
discrimination against persons with disabilities by cruise lines
- particularly when cruise lines are headquartered in the United
States, base their ships in U.S. ports, draw their clientele almost
exclusively from the United States, and advertise and solicit most
of their passengers in the United States. In passing the ADA, Congress
sought to guarantee "full participation" by persons with
disabilities in all aspects of American life. The Supreme Court
has an opportunity in Spector to give force and effect to Congress'
unequivocal intent by refusing to exempt foreign-flagged cruise
ships from Title III of the ADA. To do otherwise would place the
Court's imprimatur upon the discriminatory practices of inaccessible
cruise lines, and write segregation on the basis of disability into
American law.
TABLE OF CONTENTS
Abstract
I. Introduction: When a Dream
Vacation Turns into a Nightmare
II. An Overview of the Cruise
Line Industry
A. The
Quintessentially American Nature of the Industry
B. Advertising and Marketing in the United States
C. The Marketing of Cruises to Persons with Disabilities
III. Open Registries and "Flags of
Convenience"
IV. The Application of Title
III of the ADA to Cruise Ships
A. The Unequivocal Language of the Statute
B. The
Development of Accessibility Standards for Cruise Ships
V. Setting the Stage for Supreme
Court Review
VI. The Question of Extraterritoriality
A. American
Jurisdiction over U.S. Territorial Waters
B. Choice of Law with Respect to a Ship's Internal Affairs
C. Choice
of Law with Respect to the Protection of American Interests
D. Looking
Behind the Façade of a Flag of Convenience
VII. The Feasibility of Accessibility
A. Finding
Conflict with International Law Where There Is None
B. Efforts
by Cruise Lines to Comply with Title III of the ADA
VIII. The Ultimate Goal: Full
Participation
IX. Conclusion: Separate and
Unequal
I. Introduction: When a Dream Vacation Turns into a Nightmare
Whether it's The Love
Boat or Titanic, Americans have a love affair with
cruise ships. For millions of Americans, the prospect of a few days
on a cruise ship conjures up a wealth of favorable images: A cruise
ship sailing under a clear blue sky; high-energy music playing in
the background; tourists frolicking in the sun; happy families exploring
exotic ports of call; couples dancing in formal wear in front of
an orchestra; a red-carpeted casino buzzing with activity; a Broadway-style
musical performed before an eager audience; tables draped in fine
linen with sumptuous dinners awaiting; and a contented traveler
reclining on a sun deck, umbrella-festooned beverage in hand. Images
such as these appear in countless advertisements, on television
and in print, all of them encouraging the viewer to escape to what
the cruise line industry likes to call "everyone's dream vacation."1
For many persons with disabilities, however, the reality of a cruise
vacation is quite different.
Douglas Spector's experience on a ship operated by
Norwegian Cruise Line (NCL) was more like a bad dream than a dream
vacation. First, NCL has a practice of charging passengers with
disabilities (and their required traveling companions)
higher fares than passengers without disabilities, so Mr. Spector,
who has a physical disability and uses a wheelchair, had to pay
considerably more for his cruise vacation than did other passengers.
Despite the premium he paid, Mr. Spector found that most of the
ship was inaccessible to him. Onboard swimming pools, restaurants,
elevators, and public restrooms were all inaccessible. In fact,
the only accessible restrooms on the ship were in the four (out
of eight hundred) cabins set aside by NCL for persons with disabilities
- all of them less desirable, windowless interior cabins. The ship's
crew would not let Mr. Spector participate in emergency evacuation
drills, and the cruise line provided him with no evacuation plan
in the event of an emergency. And when the ship docked at various
ports of call, Mr. Spector was stranded onboard because shore excursions
were not accessible to persons with mobility impairments.
Mr. Spector was not alone in having had a bad experience with
NCL. Other individuals with disabilities had reported similar
accessibility problems with NCL cruises. Mr. Spector contacted
these individuals and, through various informal channels, together
they tried to persuade NCL to end its discriminatory practices
and make its ships accessible. NCL refused. As a result, Mr.
Spector and two other persons with disabilities, together with
their traveling companions, filed a class action lawsuit against
NCL in August 2000.2 The plaintiffs sought declaratory and injunctive
relief under Title III - the public accommodations provisions
- of the Americans with Disabilities Act (ADA), which provides
that "[n]o individual shall be discriminated against in
the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of public
accommodation."3 Title III of the ADA also prohibits discrimination
on the basis of disability in the "full and equal enjoyment
of specified public transportation services provided by a private
entity that is primarily engaged in the business of transporting
people and whose operations affect commerce."4 Relying on
these provisions, the plaintiffs asked the court to order NCL
to end its discriminatory practices and policies, to remove physical
barriers on existing ships where feasible, and to insure that
any newly built ships are fully ADA accessible.
NCL did not dispute that its cruise ships were places of public
accommodations, nor did NCL dispute that it provided public transportation
services as defined by Title III. Rather than respond to the
plaintiffs' allegations of discrimination, however, NCL defended
the lawsuit by claiming that it did not have to comply with the
mandates of the ADA because its cruise ships do not fly the American
flag. Like every other major cruise line, NCL has opted to fly
a "flag of convenience" on its ships, i.e., a flag
from a country such as Liberia, Panama, or the Bahamas - countries
that only nominally regulate or supervise the ships whose flag
they fly. According to NCL, under established principles of international
maritime law, its ships need only comply with the laws of the
flagging country. NCL claimed that requiring its foreign-flagged
ships to comply with the ADA would violate international law
and amount to an extraterritorial application of the ADA not
explicitly authorized by the Act. According to NCL, the facts
that NCL's passenger base consists mainly of American citizens,
that it advertises and solicits passengers in the United States,
that its ships are based in U.S. ports, and that its company
headquarters is in Miami, Florida, were irrelevant in determining
whether it must comply with Title III of the ADA.
The federal district court in Houston, Texas, in
which Mr. Spector sued, rejected NCL's extraterritoriality argument.
On appeal, however, the U.S. Court of Appeals for the Fifth Circuit
reversed and ordered the case dismissed.5 Mr. Spector
sought review of the Fifth Circuit's decision in the United States
Supreme Court, and the Supreme Court has agreed to hear his case,
Spector v. Norwegian Cruise Line Ltd., No. 03-1388, which
is scheduled for oral argument on February 28, 2005. The issue presented,
as framed by the petition for a writ of certiorari, is whether and
to what extent Title III of the ADA applies to companies that operate
foreign-flagged cruise ships within United States waters. While
the case technically involves only one cruise line, it will have
wide implications for the entire cruise ship industry. Some cruise
lines have voluntarily made their ships accessible; many others,
however, have made their ships accessible only in response to litigation
or the threat of litigation. Lower federal courts have been divided
on the issue of whether Title III applies of the ADA to foreign-flagged
cruise ships.6 While some plaintiffs have successfully
forced a few cruise lines to make their ships more accessible, other
plaintiffs have had their cases dismissed at an early stage. A definitive
ruling from the Supreme Court will therefore determine the extent
to which cruise ships accommodate persons with disabilities for
years to come.
This paper examines the Spector case in
detail. It begins by looking at the cruise line industry, the ways
in which the industry is a quintessentially American one, and the
appeal that a cruise vacation has for persons with disabilities.
Next, it explains the practice of flying a flag of convenience and
why the cruise ship industry has opted to follow that practice.
The paper then turns to a discussion of the public accommodations
provisions of the ADA and how the federal government has drafted
guidelines detailing how cruise ships must be made accessible to
persons with disabilities. Next, it addresses the cruise industry's
argument that requiring foreign-flagged cruise ships to comply with
the ADA would be an impermissible extraterritorial application of
U.S. law. The paper then explains how requiring compliance with
the ADA would not, in fact, be an extraterritorial application of
U.S. law, and how it would not conflict with U.S. treaty obligations.
The paper describes how several major cruise lines have already
made their ships fully accessible, thereby undermining the cruise
line's argument that compliance with the ADA is somehow not technologically
or economically feasible in the cruise ship context. Finally, the
paper concludes that requiring cruise ships' compliance with the
ADA is the only way to achieve Congress' goal of "full participation"
in society by persons with disabilities. To deny persons with disabilities
the ability to enjoy a sea cruise would seriously undermine Congress'
primary goal in enacting the ADA: the full participation of persons
with disabilities in all aspects of American life.
II. An Overview of the Cruise Line Industry
A. The Quintessentially
American Nature of the Industry
Travel and tourism in the United States are big business. In 2003,
the American travel industry generated over $550 billion dollars
in revenue,7 more than 5% of the country's gross domestic
product.8 The cruise line industry's contribution to
that output was sizable: According to a study commissioned by the
International Council of Cruise Lines (ICCL), North American cruise
lines had $14.7 billion in gross receipts and contributed over $25
billion to the U.S. economy in 2003.9 The cruise line
industry's growth in the past two decades has been impressive; despite
a relatively weak economy and a post-9/11 slump in much of the travel
and tourism sector, the cruise line industry has maintained an 8%
passenger growth rate over the past two decades.10
The United States is, far and away, the driving
force behind the global cruising industry. Passenger embarkations
at U.S. ports accounted for 72% of global embarkations in 2003,11
and U.S. residents constituted 76% of all cruise ship passengers
worldwide.12 The industry is rapidly expanding its American
presence by offering cruises originating from more and more U.S.
cities, and the industry actively seeks public funding of port expansion
projects to accommodate newer and bigger cruise ships. For example,
early in 2004 the city council of Norfolk, Virginia, committed to
spending over $40 million dollars to build a new cruise ship terminal
and upgrade associated infrastructure in order to make its port
more appealing and accessible to the cruise lines.13
Last year New York City likewise committed $50 million of public
monies to make improvements to its passenger ship terminals and
"keep NYC's cruise industry strong."14 A few
years ago, the Port of Seattle committed $12.9 million to build
a new cruise line terminal after NCL agreed to use the terminal
as a homeport for at least four years.15 As part of an
agreement with the Royal Caribbean cruise line, the State of New
Jersey invested $42 million (and expects to invest $60 to $80 million
more) to deepen its Port Jersey Channel and make the City of Bayonne's
port more accessible to larger cruise ships.16
Given their lucrative ties to the United States
market, it is hardly surprising that the major cruise lines all
maintain their principal offices in the United States. For example,
NCL has its corporate headquarters in Miami17 and employs
approximately 1200 personnel throughout the United States.18
Carnival Corporation, the largest cruise line company in the world,
has several offices in the U.S., as well as personnel and properties
scattered throughout the country.19 Carnival owns twelve
cruise brands, including Carnival Cruise Lines, Holland America
Line, Princess Cruises, and Windstar Cruises, all of which operate
in North America, and which together employ approximately 8500 full-time
and 2500 part-time/seasonal employees in shore side operations.20
Holland America, Princess Tours (a division of Princess Cruises),
and Windstar lease 179,000 square feet of office space in Seattle
for their headquarters operations. Princess Cruises leases an additional
282,000 square feet of office space in Santa Clarita, California.
Carnival also has a reservation center in Colorado Springs, and
an additional sales office in Pompano, Florida. Royal Caribbean
has its principal executive office in Miami, where it leases 359,000
square feet of office space from Miami-Dade County under long-term
leases.21 It also has a reservation center in Wichita,
Kansas, as well as an office building in Miramar, Florida.
B.
Advertising and Marketing in the United States
Beyond a physical presence, the most publicly visible way in which
cruise lines have ties to the U.S. is through the industry's advertising
and marketing activities. Royal Caribbean incurred over one-half
billion dollars in selling and administrative expenses in 2003,
up nearly 20% from the previous year.22 Carnival Corporation
spent even more.23 Cruise lines expend considerable sums
to advertise in print and television media. For example, Royal Caribbean
spent approximately $75 million on television advertising alone
in 2004,24 and plans to spend another $10 million during
the first quarter of 2005.25 Carnival Cruise Lines recently
announced a multi-million dollar television blitz of its own; as
part of its newest campaign - entitled "There Are A Million
Ways to Have Fun" - more than 6400 spots will air in 2005 on
several top-rated network shows, including West Wing, Gilmore
Girls, Law & Order, The O.C., 24, and Amazing Race.26
Beyond traditional commercial advertising,
cruise lines have found other creative ways in which to market their
vacation packages. Cruise lines regularly do product placements
and tie-ins on network television programming: Royal Caribbean has
offered free cruises to participants on the CBS reality-show,
Amazing Race,27 and in November 2004, NCL's CEO
Colin Veitch appeared on ABC's Good Morning America to
award complimentary ten-day cruises to 125 couples who had just
renewed their wedding vows live on national television.28
In September 2004, Royal Caribbean signed a deal with TiVo to run
a series of advertisements on the TiVo platform to promote the company
and its destinations.29 Carnival Cruise Lines has arranged
to print advertisements on the back of employee paychecks of United
Airlines and the Kroger Co.30
These advertising and marketing efforts of
the cruise lines have been remarkably successful. As indicated above,
the industry has experienced steady growth. A recent study sponsored
by Cruise Lines International Association found that, while 12.3%
of the U.S. population has actually taken a cruise, almost twice
as many (69 million) Americans have expressed a desire to take one.31
As another industry group puts it, "[a] cruise offers all the
things most people want in a vacation -- romance, excitement, relaxation,
adventure, escape, discovery, luxury, value and more -- without
the hassles nobody wants," and advertisements touting these
qualities saturate the market.32 The fact that roughly
40% of cruise-vacationers are first-timers attests to the success
of the industry's advertising efforts.33
C.
The Marketing of Cruises to Persons with Disabilities
Many cruise lines target persons with disabilities as part of their
advertising strategy. Carnival Cruise Lines has produced a brochure
for people with disabilities entitled "Easy Access to Fun"
aimed at the traveler with a disability. Cruise lines regularly
work with travel agents who cater to persons with disabilities,
and the cruise line industry has experienced remarkable growth in
that segment of the market.34 When the Royal Caribbean
cruise line launched its newest ship Mariner of the Seas
in 2003, the company chose Jean Driscoll, an Olympic wheelchair
champion and advocate for people with disabilities, to be the ship's
"godmother" in order to highlight the ship's accessibility.
At the Mariner's official launch, Driscoll christened the
ship, pushing a remote-control button to release a bottle of champagne
against the hull.35
Cruise lines have targeted persons with disabilities
because the industry has recognized the considerable appeal that
an accessible cruise has for someone with a physical disability.
For many people with disabilities, an accessible cruise would be
an ideal vacation because cruise ships offer, in a relatively small
space, an incredible array of leisure activities.36 Cruise
ships frequently contain restaurants, bars, movie theatres, shopping
outlets, casinos, sunbathing decks, swimming pools, live music and
theatre, educational programs, health spas, and gymnasiums. Thus,
a traveler with a disability, who may have limited mobility, need
not leave the confines of the ship in order to enjoy a host of entertainment
options. The cruise passenger with a disability also has access
to reliable, onboard medical services, a fact particularly comforting
when traveling to foreign locales.37 The traveler need
only unpack once over the course of her vacation, and if she requires
rest in the middle of the day, she can simply retire to her cabin.38
Furthermore, the consistent availability of ship staff ready to
provide assistance when necessary affords someone with a disability
a high level of comfort and security while traveling.39
Statistics attest to the popularity of cruises
for persons with disabilities. In 2003, the Travel Industry Association
of America, the Open Door Organization, and the Society for Accessible
Travel and Hospitality released the results of a Harris Interactive
Survey that examined the vacation habits of persons with disabilities.
The Survey found that 12% of the population with disabilities had
taken a vacation cruise in the preceding five years, compared to
8% of the population at large.40 The Harris Survey also
found that people with disabilities spend over $13 billion each
year on travel, and that this market will only expand in the future.41
According to the Travel Industry Association, because of aging baby-boomers,
persons with disabilities will make up to 24% of the U.S. population
by the year 2030.42 One can only expect the cruise line
industry to redouble its efforts to develop the market for persons
with disabilities.
III. Open Registries and "Flags of Convenience"
Despite the appeal that cruise vacations have for persons with disabilities,
some cruise lines (such as NCL) refuse to make their ships ADA-compliant.
These cruise lines claim that they do not have to comply with the public
accommodations provisions of the ADA because, instead of the American flag,
they fly a "flag of convenience" - in the case of NCL, the flag
of the Bahamas. Before addressing NCL's claim that its choice of flag determines
whether its ships need comply with the ADA, it would be useful to examine
the practice of listing ships under foreign registries.
Until the early twentieth century, owners and operators
of ships traveling in international waters normally registered their
vessels with the authorities in their own country, or with the nation
that served as the vessel's home port. The ship's national registration
would then be indicated by flying the flag of the registering authority.
The flag served as public notice that the ship, its crew, and its
cargo were under the protection of the registering nation.43
In return for this protection, the owner and operator of the ship
agreed to follow the registering nation's law, which typically included
the nation's right to take advantage of the vessel's shipping capacity
in time of war.44
At times, however, governments have encouraged their
citizens to register their ships elsewhere for strategic reasons.
For example, in the years preceding the United States' entry into
World War II, the U.S. government encouraged carriers transporting
war materiel to the United Kingdom to register their vessels in
Panama to avoid U.S. neutrality laws.45
Panama imposed almost no restrictions on registrants and let almost
anyone register a vessel, regardless of one's ties to Panama. Ship
owners realized, however, that by registering their vessels in Panama
(and other countries with so-called "open" registrations),
not only could they skirt U.S. neutrality laws, but they could also
avoid a host of other costly U.S. taxes, laws, and regulations.
As a result, the practice of flying a flag from an open registry
country greatly expanded after World War II. By 1953, the Supreme
Court was able to observe that "it is common knowledge that
in recent years a practice has grown, particularly among American
shipowners, to avoid stringent shipping laws by seeking foreign
registration eagerly offered by some countries."46
Indeed, the costs of operating a U.S.-flagged vessel
can be prohibitively expensive. As one commentator has noted, "[t]he
United States has the most stringent registration requirements of
any maritime nation."47
First, the registrant must be either (1) a U.S. citizen, (2) a group
of U.S. citizens, (3) a partnership whose general partners are U.S.
citizens, with a controlling interest owned by U.S. citizens, (4)
a U.S. corporation whose chief officers are U.S. citizens and whose
board consists predominantly of U.S. citizens, (5) the U.S. government,
or (6) a state government.48
Once the would-be registrant has cleared this initial hurdle, the
registrant must ensure that at least three-quarters of the registered
vessel's crew are U.S. citizens,49
and the master, chief engineer, radio operator, and all deck and
engineering watch officers must be U.S. citizens.50
Finally, the registrant must comply at all times with applicable
U.S. labor, environmental, and safety laws.51
Flying a flag of convenience imposes considerably
less of a burden on a ship's owner and operator. For example, registration
with the Bahamas Maritime Authority (whose offices are in London),
does not require any sort of beneficial local ownership or management
of the ship, and there are no crewing nationality requirements.52
Bahamian law imposes no minimum wage for crew members, and labor
union recognition is up to the individual registrant. The Bahamas
also has no corporate tax, and international business corporations
are exempt from capital gains, real estate, inheritance, sales and
customs taxes.53 Similarly,
the Panama Maritime Authority (whose offices are in New York City)
imposes no citizenship requirements for the crewing or ownership
of vessels, imposes no taxes on income derived from activity outside
of Panama, and has few, if any, meaningful labor standards imposed
as a condition of registration.54
Indeed, Panama touts its lack of regulation as a selling point;
it makes no secret of its eagerness to add new ships to its roster
and has "promoted itself relentlessly," resulting in $47.5
million dollars in registry fees in 1995 - five percent of the national
budget.55
The cruise line industry, eager to take advantage
of the benefits of open registries, has, with very rare exceptions,
eschewed U.S. registration altogether.56
As the U.S. Department of Transportation has observed, "[v]irtually
all cruise ships serving U.S. ports are foreign-flag vessels."57
By opting to fly flags of convenience, the cruise line industry
has managed to keep operating expenses considerably lower than they
would be otherwise, and the industry has been able to take advantage
of lower taxes, lenient labor and safety standards, and fewer inspections
to insure compliance with international treaties and other international
maritime law obligations.58
IV. The application of Title III of the ADA to Cruise Ships
A. The
Unequivocal Language of the Statute
Title III of the ADA prohibits discrimination "on the basis
of disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any place
of public accommodation by any person who owns, leases (or leases
to), or operates a place of public accommodation."59
It also prohibits discrimination in the provision of "specified
public transportation services."60
Ever since the enactment of the ADA, federal agencies have interpreted
these provisions to apply to cruise ships servicing U.S. ports,
notwithstanding the fact that almost all cruise ships serving U.S.
ports are foreign-flagged. This is so for several reasons.
First, cruise ships are clearly public accommodations.
The ADA defines "place of public accommodation" as a facility,
operated by a private entity, whose operations affect commerce and
that falls within one of the twelve broad categories listed in the
statute. For example, the categories include places of lodging,
establishments serving food and drink, places of "exhibition
or entertainment," and places of "exercise or recreation."61
There is no denying that cruise ships are essentially floating public
leisure and recreation centers. As one federal court of appeals
has observed, "[c]ruise ships, in fact, often contain places
of lodging, restaurants, bars, theaters, auditoriums, retail stores,
gift shops, gymnasiums, and health spas."62
Thus the U.S. Department of Justice, after a public notice-and-comment
period, and pursuant to its responsibility to interpret and promulgate
regulations implementing the ADA, determined that cruise ships function
as one or more of the types of public accommodations enumerated
in the statute and are therefore subject to requirements of Title
III of the ADA.63
Likewise, the U.S. Department of Transportation has
determined that cruise ships are one of Title III's "specified
public transportation services," defined by the ADA as "transportation
by bus, rail, or any other conveyance (other than by aircraft) that
provides the general public with general or special services (including
charter service) on a regular and continuing basis."64
The Department of Transportation is charged with promulgating regulations
enforcing the transportation provisions of the ADA, and like the
Department of Justice, the Department of Transportation, after a
public notice-and-comment period, determined that cruise ships fall
within the ambit of the ADA since cruise ships "easily meet
the definition of 'specified public transportation.' Cruise ships
are used almost exclusively for transporting passengers and no one
doubts that their operations affect commerce."65
Thus, as public accommodations and as providers
of specified public transportation services, cruise ships are obligated
to comply with applicable requirements of Title III of the ADA,
including nondiscriminatory eligibility criteria, reasonable modifications
in policies, practices, and procedures, the provision of auxiliary
aids, and the removal of architectural barriers in existing cruise
ships where readily achievable.66
According to the Department of Justice and the Department of Transportation,
this obligation extends to foreign-flagged cruise ships serving
U.S. ports. As the Department of Transportation has explained:
Virtually all cruise ships serving U.S. ports are
foreign-flag vessels. International law clearly allows the U.S.
to exercise jurisdiction over foreign-flag vessels while they
are in U.S. ports, subject to treaty obligations. A state has
complete sovereignty over its internal waters, including ports.
Therefore, once a commercial ship voluntarily enters a port, it
becomes subject to the jurisdiction of the coastal state. In addition,
a State may condition the entry of a foreign ship into its internal
waters or ports on compliance with its laws and regulations. The
United States thus appears to have jurisdiction to apply ADA requirements
to foreign-flag cruise ships that call in U.S. ports.67
The Department of Justice has come to the same conclusion:
"Ships registered under foreign flags that operate in United
States ports may be subject to domestic laws, such as the ADA, unless
there are specific treaty prohibitions that preclude enforcement."68
This conclusion is supported by Congress' invocation
of "the sweep of Congressional authority" in the ADA's
preamble, "including the power . . . to regulate commerce"
defined to include "transportation . . . between any foreign
country or any territory or possession and any State; or between
points in the same State but through another State or foreign country."69
Cruise ships, regardless of the country of registry, fall squarely
within this invocation of Congressional authority. As a result,
the Department of Justice has concluded that it can bring ADA enforcement
actions against cruise lines notwithstanding a foreign flag of convenience,
and, in fact, has brought one against NCL for the cruise line's
treatment of blind passengers on its foreign-flagged ships.70
B. The
Development of Accessibility Standards for Cruise Ships
While the Departments of Justice and Transportation are responsible
for promulgating regulations implementing the ADA, the ADA requires
that the Architectural and Transportation Barriers Compliance Board
(commonly referred to as the "Access Board") play an active
role in the development of regulations ensuring that public accommodations
are "accessible, in terms of architecture and design, transportation,
and communication, to individuals with disabilities."71
In furtherance of this mandate, the Access Board is required to
issue minimum guidelines and requirements for accessibility, which
federal agencies are then obligated to incorporate into any final
enforcement regulations. In developing standards for accessibility,
the Departments of Justice and Transportation, as well as the Access
Board, take into consideration Title III's distinction between existing
facilities and new or newly altered facilities. New or newly altered
facilities must be "readily accessible to and usable by persons
with disabilities,"72
whereas existing facilities are governed by a "readily achievable"
standard, i.e., they must be made accessible whenever "easily
accomplishable and able to be carried out without much difficulty
or expense."73
In their initial ADA rulemakings, the Departments
of Justice and Transportation determined that the Access Board's
guidelines for newly constructed buildings on land may not be appropriate
for vessels at sea, and concluded that further study by the Access
Board was warranted before issuing rules governing the new construction
or alteration of cruise ships and passenger vessels. In the meantime,
however, the Department of Justice indicated that all cruise ships
would be expected to adhere to the "readily achievable"
standard required of existing facilities.74
In August 1998, the Access Board created the Passenger
Vessel Access Advisory Committee (PVAAC), and charged it with providing
recommendations for proposed accessibility guidelines for newly
constructed and altered passenger vessels and cruise ships covered
by the ADA. The PVAAC was composed of twenty-one members representing
various groups, including owners and operators of passenger vessels
and cruise lines, designers of passenger vessels, and organizations
representing individuals with disabilities.75
For example, the International Council of Cruise Lines (of which
NCL is a member) served on the Committee, as did Princess Cruises
and the Society of Naval Architects and Marine Engineers. Members
of the PVAAC worked collaboratively and explored ways in which to
achieve access in light of competing considerations such as passenger
safety and seaworthiness, and in December 2000 the Committee made
recommendations (in the form of a Final Report) for the Access Board
to use in developing guidelines.76
In developing the Final Report, the PVAAC applied the existing ADA
Accessibility Guidelines for Buildings and Facilities to passenger
vessels and then modified certain "building" provisions
which the Committee determined would be problematic if applied to
seagoing vessels.77 For example,
to reduce the risk of water entering below deck, U.S. Coast Guard
regulations, international treaties, and good design practice all
mandate coamings (i.e., high thresholds) in doorways leading to
outdoor decks.78 This and other
design elements presenting accessibility challenges were taken into
consideration by the members of the PVAAC in developing the Final
Report.
The PVAAC issued its Final Report to the Access Board
in December, 2000. The Access Board released its draft guidelines
based on the Report in November 2004.79
The draft guidelines incorporate most of the recommendations contained
in the PVAAC Final Report.80
On the same day that the Access Board released its draft guidelines,
the Department of Transportation issued an Advance Notice of Proposed
Rulemaking (ANPRM) seeking comments on its consideration of issuing
regulations based on the Access Board's draft guidelines.81
The ANPRM reiterated the Department's conclusion that cruise ships
"clearly fall into the categories of public transportation
and public accommodation and, thus, are subject to the requirements
of the ADA," and that "the ADA applies to foreign-flag
vessels operating within the internal waters of the United States."82
The comment period for the ANPRM closes on March 28, 2005, and final
regulations will, presumably, be issued at a later date.83
Until specific regulations are issued, newly constructed cruise
ships apparently need only comply with the general accessibility
requirements of Title III applicable to existing facilities, i.e.,
the "readily achievable" standard discussed above.
V. Setting the Stage for Supreme Court Review
In the U.S. Court of Appeals for the Fifth Circuit,
NCL did not contend that cruise ships were exempt, as a general
proposition, from the ADA.84
Rather, NCL argued (and the Fifth Circuit concluded) that the case
turned on the fact that the cruise ships at issue were foreign-flagged.
While the court recognized that a foreign-flagged cruise ship that
voluntarily enters U.S. waters subjects itself to the laws and jurisdiction
of the United States, the court held that the ADA did not apply
to foreign-flagged cruise ships serving U.S. ports. Citing a "presumption
against extraterritorial application" of U.S. law,85
the court refused to extend the reach of the ADA to foreign-flagged
cruise ships because "many of the structural changes required
to comply with Title III would be permanent, investing the statute
with extraterritorial application as soon as the cruise ships leave
domestic waters."86 The
court also concluded that requiring compliance with Title III would
interfere with the "internal management and affairs" of
the foreign-flagged ship, matters normally governed by the law of
the flagging nation.87 The
court, however, did not address the fact that NCL's headquarters
is in the United States, that it advertises and solicits passengers
almost exclusively in the United States, and that its ships are
based in U.S. ports. The court relied solely on NCL's choice of
a foreign flag in holding that Title III of the ADA does not extend
to NCL's cruise ships.
The Fifth Circuit's conclusion stands in stark contrast
to the decision of the Eleventh Circuit in Stevens v. Premier
Cruises, Inc., in which that court held that Title III does,
in fact, cover foreign-flagged cruise ships serving U.S. ports.88
The Eleventh Circuit found that the case presented no extraterritorial
application of the ADA because "a foreign-flag ship sailing
in United States waters is not extraterritorial."89
Moreover, observed the Eleventh Circuit, "this case does not
involve the 'internal management and affairs' of a foreign-flag
ship; this case is about whether Title III requires a foreign-flag
cruise ship reasonably to accommodate a disabled, fare-paying, American
passenger while the ship is sailing in American waters."90
Therefore, the court concluded, Title III of the ADA applied to
all cruise ships, regardless of flag. While the Fifth Circuit in
Spector acknowledged Stevens and its holding, the Fifth Circuit
found it "unpersuasive" and declined to follow it.91
With conflicting circuit court rulings - in two circuits
whose jurisdictions together account for the bulk of the cruise
industry's U.S. activities - the stage was set for Supreme Court
review. After Mr. Spector filed his petition for a writ of certiorari,
NCL, rather than opposing the petition, responded by urging the
Court to take the case for review.92
In addition, the International Council of Cruise Lines as well as
a coalition of disability rights groups (led by the Paralyzed Veterans
of America) urged the Court to take the case in order to resolve
the conflicting lower court rulings. In September 2004, the Supreme
Court granted Mr. Spector's petition for a writ of certiorari, and
the case has been fully briefed and set for argument. As is frequently
the case with Supreme Court cases, interested persons and outside
groups other than the actual litigants have a strong interest in
the outcome of the case and file amicus (or "friend-of-the-court")
briefs to present their concerns and arguments to the Court. In
Spector, amicus briefs in support of Mr. Spector have been
filed by disability rights groups, a professor of maritime law,
eight state attorneys-general, and the U.S. Department of Justice,
all urging reversal.93 On the
other side, a cruise line industry group, a small family-owned cruise
line based in Italy, the U.S. Chamber of Commerce, the Bahamas,
and a group of thirteen mutual assurance associations have filed
briefs in support of NCL, urging the Court to affirm the Fifth Circuit's
decision.94
VI. The Question of Extraterritoriality
A. American
Jurisdiction over U.S. Territorial Waters
As explained above, the Fifth Circuit held that applying Title III
of the ADA to foreign-flagged cruise ships would amount to an unauthorized
extraterritorial application of U.S. law. This holding, however,
does not conform with Supreme Court decisions concerning the application
of U.S. law to foreign-flagged vessels sailing in U.S. territorial
waters. Only the Fifth Circuit's initial observation was correct:
"It is settled that 'a ship voluntarily entering the territorial
limits of another country subjects itself to the laws and jurisdiction
of that country.'"95 This
principle is at least as old as the American legal system. In 1812,
the Supreme Court explained in The Schooner Exchange v. McFaddon,
"when merchant vessels enter for the purposes of trade, it
would be obviously inconvenient and dangerous to society, and would
subject the laws to continual infraction, and the government to
degradation, if such . . . merchants did not owe temporary and local
allegiance, and were not amenable to the jurisdiction of the country."96
The Court reiterated this principle over 100 years later in Cunard
Steamship Co. v. Mellon, when it observed that "a merchant
ship of one country voluntarily entering the territorial limits
of another subjects herself to the jurisdiction of the latter,"
and this "jurisdiction attaches in virtue of her presence,
just as with other objects within those limits."97
Therefore, while a foreign-flagged ship cruising within U.S. waters
is "entitled to the protection of [U.S.] laws," that ship
is also "correlatively [] bound to yield obedience to them."98
Thus in Cunard, the Court held that the
National Prohibition Act (which implemented the Eighteenth Amendment
and banned the manufacture, transportation, importation, exportation
and sale of intoxicating liquors) extended to foreign-flagged ships
sailing in U.S. waters.99 Foreign
corporations owning foreign-flagged cruise ships argued that the
National Prohibition Act should not apply to alcoholic beverages
that were taken on board at foreign ports and that would be consumed
by passengers and crew members only when the ship was once again
outside U.S. territorial waters. The Court, however, noted that
the Act could easily "cover both domestic and foreign merchant
ships when within the territorial waters of the United States,"
that it did, in fact, "cover both when within those limits"
since it contained no exception for foreign-flagged ships, and that
carving out such an exception would "tend to embarrass its
enforcement and to defeat the attainment of its obvious purpose"
- the prohibition of alcohol within U.S. territory.100
Cunard's reasoning would appear to have
equal force with regard to the application of Title III of the ADA
to foreign-flagged cruise ships serving U.S. ports and operating
within U.S. waters. Like the National Prohibition Act, Title III
of the ADA establishes a comprehensive, nationwide enforcement scheme,
in addition to providing a "national mandate for the elimination
of discrimination against individuals with disabilities."101
And as with the National Prohibition Act in Cunard, the
failure to apply Title III to foreign-flagged cruise ships serving
U.S. ports and operating in U.S. waters would "embarrass [the]
enforcement" of the comprehensive scheme created by Congress
and would "defeat the attainment of [the scheme's] obvious
purpose" - the comprehensive, nationwide protection of Americans
with disabilities from invidious discrimination.102
B. Choice of Law with Respect
to a Ship's Internal Affairs
The Fifth Circuit avoided the clear import of Cunard by
relying on a line of more recent cases involving the regulation
of the internal management and business affairs of foreign-flagged
vessels. In Benz v. Compania Naviera Hidalgo,103
and McCulloch v. Sociedad Nacional de Marineros de Honduras,104
the Supreme Court held that, absent an affirmative expression of
Congressional intent, it would not apply the National Labor Relations
Act (NLRA) to disputes between a foreign-flagged vessel and its
foreign crew regarding the ship's employment policies and practices.
The Court recognized that Congress had the power to extend the NLRA
to cover foreign-flagged vessels, at least while they were in U.S.
waters. Nevertheless, the Court indicated that, in the interest
of comity, it would not do so without some express indication that
Congress intended the NLRA to cover foreign-flagged vessels. As
the Supreme Court had explained in an earlier case, "by comity
it came to be generally understood among civilized nations that
all matters of discipline and all things done on board, which affected
only the vessel, or those belonging to her, and did not involve
the peace and dignity of the country, or the tranquility of the
port, should be left by the local government to be dealt with by
the authorities of the nation to which the vessel belonged as the
laws of that nation or the interests of its commerce should require."105
The Court therefore declined to extend the protective reach of U.S.
labor laws to foreign-flagged vessels where such an extension would
implicate "the pervasive regulation of the internal order of
a ship," something that historically has been left to the flagging
nation.106
The Fifth Circuit, relying on Benz and McCulloch,
concluded that requiring foreign-flagged cruise ships to comply
with Title III of the ADA would likewise impinge on the management
prerogatives of the ship's operators and thereby impinge on the
sovereign interests of the flagging nation. Compliance with the
ADA, according to the Fifth Circuit, would require permanent modifications
to a ship's structure that would (presumably) remain long after
the ship leaves U.S. waters, and that compliance would therefore
amount to an extraterritorial application of U.S. law. Quoting
EEOC v. Arabian American Oil Company (ARAMCO),107
a case that considered whether Title VII of the Civil Rights Act
of 1964 covered American employees in Saudi Arabia working for an
American company, the Fifth Circuit stated that it would "assume
that Congress legislates against the backdrop of the presumption
against extraterritoriality."108
Since the text of the ADA nowhere mentions Congress' desire to extend
the reach of the ADA to foreign-flagged cruise ships, the Fifth
Circuit concluded that Congress had not "clearly indicate[d]
its intention" to overcome that presumption.109
Absent "specific evidence of congressional intent," the
court stated that it would not require foreign-flagged cruise ships
to comply with Title III of the ADA.110
C. Choice
of Law with Respect to the Protection of American Interests
Under the Fifth Circuit's reasoning, however, it is hard to imagine
what sort of regulation of a cruise ship would not interfere
with a cruise ship's' internal management and affairs. Foreign-flagged
cruise ships are subject to a host of U.S. laws while in U.S. territorial
waters, many of which have some sort of perceptible, lasting effect
once the ship leaves U.S. waters. Nevertheless, those laws have
not been held to have an impermissible extraterritorial effect.
For example, in Cunard, the application of the National
Prohibition Act to foreign-flagged cruise ships inevitably had an
extraterritorial effect. Even though the cruise line in Cunard
had offered to place any alcoholic beverages under lock and key
once the ship entered U.S. territorial waters, the Supreme Court
held that merely bringing alcoholic beverages into U.S. waters violated
the Act.111 Accordingly, the
owners of the ship had to modify their conduct outside U.S. territorial
waters, either by ceasing to carry alcohol on board any ship entering
U.S. territorial waters, or by throwing overboard all remaining
liquor before entering those waters.112
The Supreme Court, however, did not see Cunard as involving
an extraterritorial application of U.S. law requiring "specific
evidence of congressional intent."
In a similar vein, the Supreme Court in Uravic
v. F. Jarka Co. unanimously held that the Jones Act (which
provides a remedy to seamen for the negligence of coworkers or employers)
covered a U.S. citizen working as a stevedore who died as a result
of a coworker's negligence while unloading goods from a German vessel
flying the German flag in New York harbor.113
Even though exposing a ship owner to general tort liability for
negligence would indisputably have a lasting effect on everything
from a ship's physical structure to the crew's working conditions,
the Supreme Court did not consider the application of the Jones
Act in that case as having any sort of extraterritorial effect,
or even any effect on the internal operations of the ship. Relying
on Cunard, the Court observed that "[t]he jurisdiction
and the authority of Congress to deal" with tortious conduct
on a foreign-flagged vessel are "unquestionable and unquestioned"114
and that there was "no reason for limiting the liability for
torts committed [aboard a foreign-flagged vessel] when they go beyond
the scope of discipline and private matters that do not interest
the territorial power."115
In support of this conclusion, the Court noted that "[t]here
is strong reason for giving the same protection to the person of
those who work in our harbors when they are working on a German
ship that they would receive when working upon an American ship
in the next dock."116
The implications for U.S. citizens of a contrary ruling also deeply
concerned the Court: "It would be extraordinary to apply German
law to Americans momentarily on board of a private German ship in
New York."117
In light of Cunard, Uravic and other cases
extending U.S. law to foreign-flagged vessels while in U.S. ports,
particularly when the rights of U.S. citizens are at stake, it is
hard to see how application of the public accommodations
provisions of the ADA to cruise ships in any way implicates purely
private matters to such an extent that the flagging nation's
sovereignty is implicated.118
At issue is not merely the internal management or affairs of foreign-flagged
ships, but the ships' accessibility to American citizens - citizens
whom the cruise lines have specifically sought out and targeted
as customers. Thus the primary purpose of Title III is not to regulate
the internal affairs of a foreign-flagged ship, but to regulate
relations between cruise ships and U.S. citizens granted rights
and protections under U.S. law. And, as explained above, since a
cruise line's decision to fly a flag of convenience is purely a
business decision untethered from any real consideration of issues
of national sovereignty, that decision should have little bearing
on the determination whether those rights and protections may ultimately
be vindicated in court.
D. Looking
Behind the Façade of a Flag of Convenience
In Hellenic Lines Ltd. v. Rhoditis, the Supreme Court described
as a "façade" the contemporary practice of flying
flags of convenience.119 Rhoditis
concerned the applicability of the Jones Act to a non-U.S. seaman
injured on a foreign-flagged vessel. As explained above, the Supreme
Court in Uravic concluded without hesitation that the Jones
Act applied to injuries suffered by U.S. seamen on foreign-flagged
vessels. In determining whether under the Jones Act a defendant
employer was subject to suit by a non-U.S. seaman, the Court indicated
that a ship's foreign registry "must be considered as minor,
compared with the real nature of the operation and a cold objective
look at the actual operational contacts that [the] ship and its
owner have with the United States."120
The Court, relying on an earlier case, Lauritzen v. Larsen,
explained that courts should consider a variety of factors in determining
whether U.S. law should apply: (1) the place of the wrongful act,
(2) the law of the flagging nation, (3) allegiance or domicile of
the injured, (4) allegiance of the defendant employer, (5) place
of contract, (6) inaccessibility of a foreign forum, (7) the law
of the forum, and (8) the ship owner's base of operation and the
extent of his or her contacts with the forum state.121
To afford dispositive weight to a ship owner's decision to fly a
flag of convenience would permit a defendant to easily circumvent
American law and give that defendant "an advantage over citizens
engaged in the same business by allowing [the foreign-flagged ship's
owner] to escape the obligations and responsibility" imposed
by Congress.122
The Court has indicated that the factors identified
in Rhoditis and Lauritzen are not limited to Jones
Act cases; rather, they are "intended to guide courts in the
application of maritime law generally."123
In Mr. Spector's case almost every one of the Rhoditis/Lauritzen
factors weigh in favor of the applicability of Title III of the
ADA. First, the "wrongful acts" at issue occurred in U.S.
territory. Before Mr. Spector had even boarded an NCL cruise ship,
he and his traveling companion were subject to NCL's discriminatory
policies and procedures. Once on board, acts of discrimination continued
in the form of barriers to access while the ship operated in U.S.
waters. Next, the "injured" parties, i.e., the victims
of NCL's discriminatory acts, were all U.S. residents. The "contracts,"
i.e., the passengers' tickets, were all formed in the United States,
and, indeed, by NCL's own design, explicitly provided that they
were governed "in all respects" by U.S. law. As for the
availability of a "foreign forum," the contract specifically
provided that "any and all claims, disputes or controversies
. . . arising from or in connection with" it must be brought
in a U.S. forum, thereby precluding Mr. Spector from seeking relief
in any foreign forum. Next, as for the actual "law of the forum,"
Mr. Spector brought his claim in a federal court in Texas. Finally,
NCL has its "base of operations" in Miami, Florida, where
its public relations, employee retirement, hiring, benefits, and
human resources departments are centered.
The only two factors weighing against the application
of U.S. law - the ship's foreign registry and NCL's foreign incorporation
- are insignificant in light of these other factors demonstrating
a significant U.S. nexus. Indeed, in Rhoditis, the Supreme
Court held that the Jones Act applied when the injured seaman was
a Greek citizen, retained under a Greek contract with a Greek choice-of-law
clause, on a Greek-flagged ship owned by a company incorporated
in Greece, with an injury claim that could have been redressed in
a Greek forum.124 The Court
found the Greek contacts to be "minor weights in the scales
compared with the substantial and continuing contacts that this
alien owner has with this country."125
According to the Court, the significance of the Rhoditis/Lauritzen
factors "must be considered in light of the national interest
served by the assertion of Jones Act jurisdiction."126
In light of the fact that Mr. Rhoditis was injured in the United
States, that the defendant had its principal place of business in
the United States, that the defendant was engaged in significant
U.S. commerce, and that the suit was brought in a U.S. forum, the
Court concluded that, consonant with the "liberal purposes
of the Jones Act," the defendant was subject to suit under
the Act.127
The application of Title III of the ADA to foreign-flagged
cruise ships presents a much more convincing connection to the United
States than the Jones Act application in Rhoditis. In Mr.
Spector's case, six of the eight factors clearly weigh in favor
of the application of U.S. law. Moreover, the "liberal purposes"
of the ADA - which include the elimination of invidious discrimination
against persons with disabilities - mandate, if anything, that it
be construed at least as liberally as the Jones Act. Congress specifically
designed the public accommodations provisions of the ADA to be exceedingly
broad in scope; the sweep of ADA coverage reaches more entities
and services than any of Congress' earlier civil rights statutes.128
Unquestionably, then, the Rhoditis/Lauritzen factors compel
the conclusion that Title III of the ADA applies to foreign-flagged
cruise ships doing business in U.S. ports.
VII.
The Feasibility of Accessibility
A. Finding Conflict with International Law
Where There Is None
In support of its decision, the Fifth Circuit also claimed that
application of Title III of the ADA would violate international
law and treaties. Under what is known as the Charming Betsy
doctrine, an act of Congress "ought never to be construed to
violate the law of nations, if any other possible construction remains."129
The Fifth Circuit asserted that Title III's barrier removal provisions
"may govern the finest details of maritime architecture in
the quest to render ships fully accessible to disabled passengers."
Those provisions, according to the court, "pose a stark likelihood
of conflicts with the standards set out in the International Convention
for Safety of Life at Sea (SOLAS)," a treaty which the United
States has ratified and which establishes minimum safety standards
for the construction, equipment, and operation of ships weighing
more than five hundred tons and engaged in international passage.130
Given this perceived "likelihood" of conflicts, the Fifth
Circuit concluded that "as a matter of statutory construction,
Title III must be narrowly construed" to avoid any possible
inconsistency.131
The Fifth Circuit's error with respect to its reliance
on SOLAS is three-fold. First, the court assumed the existence (or
at least the potentiality) of conflicts between the barrier removal
requirements of Title III and SOLAS. As a matter of law, however,
there should be no conflict. Under the ADA, barriers need only be
removed when their removal is "readily achievable."132
To the extent that removal of an architectural barrier would conflict
with an existing treaty provision, such removal could not be considered
"readily achievable" within the meaning of Title III.133
Thus the Fifth Circuit's wholesale rejection of Title III on the
basis of a perceived conflict was unwarranted.
Second, as a matter of fact, there is no conflict
between SOLAS and Title III. Indeed, the Fifth Circuit was hard-pressed
to identify any. The best it could do was reference the Final Report
of the PVAAC that identified two possible inconsistencies between
SOLAS and Title III - inconsistencies that the Access Board addressed
(and resolved) in the draft guidelines the Board recently issued.134
The Department of Transportation likewise has made clear that when
it issues its final regulations based on the Access Board's guidelines,
it "would structure any regulatory requirements to avoid [conflicts]"
with SOLAS. Conflicts, however, are unlikely. SOLAS merely establishes
"minimum standards for the construction, equipment
and operation of ships, compatible with their safety."135
Nothing in the language, structure, or purposes of SOLAS prevents
signatory nations from imposing accessibility requirements on ships
that enter their territorial waters.
Finally, much of the conduct at issue in Mr. Spector's
case has nothing to do with removal of barriers that would implicate
SOLAS. For example, NCL's practice of imposing a surcharge for accessible
cabins, its requirement that all passengers with disabilities be
accompanied by a companion, its requirement that passengers with
disabilities self-identify and present a doctor's statement before
traveling, its insistence that persons with disabilities waive NCL's
liability for personal injury occurring onboard, its failure to
provide any accessible exterior cabins, and its exclusion of persons
with disabilities from emergency evacuation programs are all unrelated
to physical barriers on board.136
The Fifth Circuit's reliance on SOLAS in reaching its holding is
therefore misplaced. SOLAS does not present a bar to the enforcement
of Title III of the ADA against cruise-ships.137
B. Efforts
by Cruise Lines to Comply with Title III of the ADA
The efforts of some cruise lines to become fully accessible to persons
with disabilities further undermine the claim that SOLAS and Title
III of the ADA are irreconcilable. For example, some cruise lines
have voluntarily removed barriers and made their fleets accessible
to persons with disabilities. Royal Caribbean states that every
ship in its fleet has staterooms that are specially designed to
be wheelchair accessible, and the company has undertaken a multimillion
dollar renovation project to make its fleet even more accessible.138
Accommodations on Royal Caribbean ships include extra-wide corridors,
hydraulic pool and Jacuzzi lifts, and ramps in terraced public areas;
Braille on menus, stateroom doors, service directories and elevator
buttons; portable kits for people who are deaf or hard of hearing,
including TTY (Text Telephone)/TDD (Telecommunications Device for
the Deaf), personal notification systems, and strobe alarms; closed-captioned
televisions, amplified telephones in staterooms and public areas,
and infrared audio receiver systems; and wheelchair accessible slot
machines, and roulette, blackjack, and craps tables.139
Other cruise lines have implemented similar measures.
For example, Princess Cruise Lines has made its cruise ships accessible
to persons with mobility impairments: "Ramps are located around
the ship which allow wheelchairs or scooters to easily maneuver
within the vessel and to cross thresholds between the inside and
outside of the ship. Additionally, areas in the major public rooms
of the ship have been made accessible including the beauty salon,
boutiques, casino, dining rooms and restaurants, self-serve laundromats,
public restrooms, lounges, and health spa and gymnasium."140
Indeed, Princess was involved in developing the Access Board's guidelines,
having served as an active member of the PVAAC.141
Despite these voluntary efforts by some cruise lines
to become accessible, other cruise lines (such as NCL) have refused
to comply with the mandate of the ADA to make their ships accessible
to persons with disabilities. As a result of litigation against
these cruise lines, several of them have been forced into compliance.
For example, when Carnival Corporation decided in 2001 to settle
a class-action lawsuit brought to make Carnival's cruise ships ADA
compliant, the parties incorporated into their settlement agreement
accessibility standards from the PVAAC's Final Report.142
Carnival agreed to spend seven million dollars on installing fully
and partially accessible cabins, accessible public restrooms, new
signage, coamings, thresholds, stairs, corridors, doorways, restaurant
facilities, lounges, spas, and elevators.143
The agreement covered fifteen existing ships, seven under construction,
and ships ordered in the future.
Compliance with the ADA is not only architecturally feasible,
but evidence also indicates that it is not unduly burdensome.
First, the fact that several cruise lines have voluntarily
made their ships accessible to persons with disabilities would
lend support to the conclusion that it makes good business
sense for cruise ships to be accessible. Cruise lines have
shareholders and owners to whom they are accountable; they
are not going to invest large amounts of capital in becoming
more accessible unless they believe that there is some sort
of financial benefit to be gained from it. Moreover, as explained
above, the number of persons with disabilities will only increase
as our nation's population lives longer and baby boomers enter
their golden years. Many cruise lines specifically target their
advertising to senior citizens and persons with disabilities
to take advantage of these rapidly growing market segments.
Finally, as the Supreme Court brief filed by NCL in response
to the petition for a writ of certiorari seems to suggest,
NCL is equally (if not more) concerned with the certainty of
knowing whether Title III of the ADA applies to its cruise
ships. Of primary concern is uniformity of law among the American
ports where NCL does business; burdensomeness is not.
VIII.
The Ultimate Goal: Full Participation
When Congress passed the ADA in 1990, it lamented
"the continuing existence of unfair and unnecessary discrimination"
against people with disabilities.144
Congress sought to remedy this invidious discrimination through
the public accommodations provisions of Title III of the ADA, which
were designed to assure "full participation" by people
with disabilities in all aspects of American life.145
That sentiment is clearly embraced by the text of the Act itself:
"No individual shall be discriminated against on the basis
of disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any place
of public accommodation by any person who owns, leases (or leases
to), or operates a place of public accommodation."146
As the House Committee on Public Works and Transportation noted
in its final report, "[t]he [ADA] will permit the United States
to take a long-delayed but very necessary step to welcome individuals
with disabilities fully into the mainstream of American
society."147
Notably, the Act does not limit its coverage to only
those businesses and services that a person with a disability would
need in order to meet the day-to-day requirements of contemporary
life. Rather, the provisions cover almost all aspects of public
life and human interaction. In addition to requiring accessibility
for more basic needs (e.g., grocery stores and hospitals), Title
III expressly includes concert halls, galleries, museums, health
spas, amusement parks, or any "other place of recreation"
in order to ensure that people with disabilities have access to
cultural outlets that make life joyous, not just possible.148
That Congress opted to explicitly include these signifiers of a
fully-lived life is unsurprising in light of its finding that "persons
with disabilities . . . have less social and community life, participate
much less often in social activities that other Americans regularly
enjoy, and express less satisfaction with life."149
Thus, in passing the ADA, Congress sought to empower
people with disabilities to live an unconstrained life that includes
everything society has to offer.
Given the distinguished position occupied by cruise
ships in American society, "full participation" must,
necessarily, include equality of access on board. Cruise ships figure
prominently in the American cultural landscape, and their rich history
has been well documented and fictionalized in print, film, and television.150
From the long-running television show The Love Boat, to
the major motion picture Titanic (and the Broadway musical
of the same name), cruise ships are a source of creative inspiration
that satisfies Americans' desire for romance, fun, adventure, drama,
and luxury. As the recent media coverage of the maiden voyage of
the Queen Mary 2 attests, cruise ships continue to operate
as a cultural signifier of the good life.151
It is not difficult to locate the source of America's
fascination with cruise ships. Besides occupying a unique place
in our collective consciousness, "a cruise offers all the things
most people want in a vacation - romance, excitement, relaxation,
adventure, escape, discovery, luxury, value and more."152
It is practically stating the obvious to note that "full participation"
in society includes the ability to enjoy these celebrated aspects
of human existence. Philosophers have observed for centuries that
"being able to laugh, to play, to enjoy recreational activities"
is central to the attainment of a fully-lived life.153
Congress recognized just how important these kinds of activities
are when it included leisure-focused entities such as health spas,
museums, and amusement parks in the list of public accommodations
covered by Title III of the ADA.154
If, however, the Supreme Court follows the Fifth Circuit's lead
and exempts cruise ships from the requirements of Title III of the
ADA simply because they fly foreign flags of convenience, it would
not only be a deviation from settled precedent, but it would seriously
undermine Congress' goal of full participation by people with disabilities
in all aspects of American life.
In the debates leading up to the passage of the ADA,
Congress heard testimony repeatedly emphasizing that the attainment
of the "American dream" for people with disabilities was
one of the Act's primary goals.155
According to Senator Orrin Hatch, "[p]ersons with disabilities,
no less than other Americans, are entitled to an equal opportunity
to participate in the American dream. It is time for that dream
to become a reality."156
Senator John McCain echoed that sentiment: "Mr. President,
this bill is an important step in making the American dream available
to all . . . . The freedom to pursue the American dream is at the
heart of what makes our Nation great."157
For over twenty years, the ADA has permitted persons with disabilities
to get closer than ever before to the American dream. The outcome
of Spector v. Norwegian Cruise Line Ltd. will determine
whether we take another step forward or a giant leap back.
IX. Conclusion: Separate and Unequal
When Douglas Spector bought his ticket from NCL, he wanted what millions of
other Americans have had: the opportunity to experience a fun-filled cruise
vacation with all the enjoyable activities and amenities that typically go
along with it. He had seen the advertisements on television, and he had seen
the promotional materials prepared by the cruise line, so he thought he knew
what to expect. Instead of a dream vacation, however, he got nothing but
mistreatment, disillusionment, and exclusion. NCL and the cruise line industry
insist that they have the right under U.S. and international law to exclude
persons with disabilities from their ships, programs, and services. They
maintain that they have no obligation to make their ships accessible to people
like Mr. Spector.
For the better part of a century, people of color in the United
States endured the indignity of state-sanctioned "separate but equal" access to
the public sphere. Only in the latter part of the twentieth century did the
Supreme Court come to recognize the inherent inequality in such an approach
to human interaction. When a cruise ship remains inaccessible to persons with
disabilities, however, one cannot even describe the state of affairs as "separate
but equal." Rather, it is one of wholesale exclusion and segregation on
the basis of disability. When the Supreme Court takes up the case of Douglas
Spector, it will either give its imprimatur to the discriminatory business
practices of cruise lines, or it will honor Congress' desire to end invidious
discrimination against persons with disabilities. We can only hope that the
Court takes the latter course.
Acknowledgment
The National Council on Disability wishes to express its appreciation
to David C. Vladeck, Associate Professor of Law and Co-Director
of the Institute for Public Representation (IPR) at Georgetown
University Law Center, and Richard McKewen, IPR Staff Attorney,
for drafting this document.
1See
International Council of Cruise Lines (ICCL), Inside Cruising: A
Guide for Travel Professionals, at <http://www.iccl.org/faq/cruising.cfm>
(last visited Jan. 8, 2005).
2Mr. Spector's co-plaintiffs
were Ana Spector, Julia Hollenbeck, David Killough, and Rodger Peters.
For the convenience of the reader, however, this paper will refer
to the case as Mr. Spector's. Except for Mr. Peters, who has since
passed away, all of the co-plaintiffs are still parties in the appeal
pending before the Supreme Court.
342 U.S.C. § 12182(a).
4Id. § 12184(a). "Specified
public transportation" is defined as "transportation by
bus, rail, or any other conveyance (other than by aircraft) that
provides the general public with general or special services (including
charter service) on a regular and continuing basis." Id.
§ 12181(10).
5Spector v. Norwegian Cruise
Line Ltd., 356 F.3d 641 (5th Cir. 2004).
6Compare Stevens v. Premier
Cruises, Inc., 215 F.3d 1237 (11th Cir. 2000) (holding that
Title III of the ADA applies to foreign-flagged cruise ships), with
Spector, 356 F.3d at 649 (rejecting Stevens).
7Travel Industry Association
of America (TIA), Economic Research: Economic Impact of Travel and
Tourism, at <http://www.tia.org/Travel/EconImpact.asp> (last
visited Jan. 9, 2005).
8Bureau of Economic Analysis,
U.S. Department of Commerce, Gross Domestic Product (GDP), at <http://www.bea.doc.gov/bea/dn/home/gdp.htm>
(last visited Jan. 9, 2005) (indicating that 2003 GDP was $11,004
billion).
9Business Research and Economic
Advisors, The Contribution of the North American Cruise Industry
to the U.S. Economy in 2003, at 5, 15 (Aug. 2004), available
at
<http://www.iccl.org/resources/2003_economic_study.pdf> (last
visited Jan. 9, 2005). While the report speaks in terms of the "North
American" cruise industry, the vast majority (94%) of North
American embarkations are at U.S. ports (including San Juan, Puerto
Rico). Id. at 13.
10ICCL, The Cruise Industry:
2003 Economic Summary, a
<http://www.iccl.org/resources/2003_econstudy-analysis.pdf>
(last visited Jan. 9, 2005).
11Business Research and Economic
Advisors, supra note 9 at 13. The figure increases to 76% if one
includes Puerto Rico.
12Id. at 10.
13Harry Minium, Cruise
Ship Terminal Plan Unveiled, Virginian-Pilot (Apr. 21, 2004),
available at
<http://www.cruisenorfolk.org/php-bin/news/showArticle.php?id=7>
(last visited Jan. 9, 2005).
14NYC Economic Development
Corp., Press Release, NYC Economic Development Corporation Announces
Improvements for Passenger Ship Terminal (Jan. 15, 2004), available
at <http://www.nycedc.com/About_Us/getPressReleasePreview2004_detail.cfm?id=231>
(last visited Jan. 9, 2005).
15NCL, Press Release, Countdown
to Norwegian Cruise Line's First Homeport Season (May 7, 1999),
available at <http://www.ncl.com/news/pr/pr990507a.html>
(last visited Jan. 9, 2005).
16New Jersey Office of Travel & Tourism, Press
Release, Royal Caribbean Cruises Ltd. Makes a New Home in New Jersey
(May 18, 2004), available at
<http://www.state.nj.us/travel/news/2004_releases/p051804a.html>
(last visited Jan. 9, 2005).
17See NCL, Press Release, NCL
Purchases Hawai'i Tour Bus Company (Nov. 16, 2004), available
at <http://www.ncl.com/news/pr/pr111704.htm> (last visited
Jan. 9, 2005).
18Dun & Bradstreet Report
on NCL (Nov. 29, 2004) (cited in Brief of Amici Curiae,
Nine Associations Representing Persons with Disabilities, see
infra note 93).
19Carnival Corporation, 2003
SEC Form 10-K, at 28, available at
<http://sec.freeedgar.com/displayText.asp?ID=2789703>
(last visited Jan. 9, 2005).
20 Id. at 22.
21Royal Caribbean Ltd., 2003
SEC Form 20-F, at 18, available at
<http://sec.freeedgar.com/displayHTML.asp?ID=2832825>
(last visited Jan. 9, 2005).
22Id. at 26.
23Carnival Corporation, 2003
SEC Form 10-K, at 78, supra note 19.
24Arnold Urges Snowbound to
Sail Away, AdWeek.com (Dec. 28, 2004).
25Jane L. Lefevre, Cruise
Ship Campaign Aims at Vacationers Tired of Snow, New York Times,
Dec. 28, 2004.
26Carnival Cruise Lines, Press
Release, Carnival To Launch New Multimillion-Dollar Ad Campaign
To Convey Product Enhancements (Dec. 6, 2004), available at
<http://www.carnival.com/CMS/Articles/new_adcampaign.aspx>
(last visited Jan. 9, 2005).
27Wayne Friedman, Madison
& Vine: Product Placements Rise at CBS, Advertising Age,
Sept. 23, 2002, at 8.
28NCL, Press Release, Norwegian
Cruise Line Gives Away 125 Surprise "Second Honeymoons"
at Reaffirmation Ceremony on Good Morning America (Nov. 18, 2004),
available at
<http://www.ncl.com/news/pr/pr111804.htm> (last visited
Jan. 9, 2005).
29Royal Caribbean Sails with
TiVo, AdWeek.com (Sept. 30, 2004).
30Robert Gutsche Jr., (Work)space
Available - For a Price, Chicago Tribune, Sept. 14, 2003, at
C5.
31See ICCL, Inside
Cruising, supra note 1.
32 Id.
33Id.
34See Tricia Holly,
Able Bodies, Open Minds: Learning to Serve the Disabled Travel
Market is Daunting but Well Worth the Effort of Travel Agents,
Travel Agent, Vol. 311, No. 2, Jan. 13, 2003, at 20 (noting that
"the number of disabled passengers shot up 36 percent between
2000 and 2001" and "predict[ing] an even larger increase
in 2002").
35Victoria Stevens, Royal
Treatment: Royal Caribbean Line Launches Its Newest Luxury Ship,
the Mariner of the Seas, Toronto Star, Nov. 27, 2003, at H01.
36See Alexandria Berger,
For the Disabled, Cruises Are Now an Easy Vacation, Virginian-Pilot
(Norfolk, VA), Jan. 7, 2002, at E3.
37While not required to do
so by the U.S. law, most cruise lines provide quality medical services
on board, and most cruise lines require each onboard physician to
have an American medical license or its equivalent. See, e.g.,
Princess Cruise Lines, Shipboard Medical Program, available
at <http://www.princess.com/about/policy.jsp?policyId=na397>
(last visited Jan. 29, 2005); Crystal Cruises, Shipboard Life: Medical
Services, available at <http://www.crystalcruises.com/onboard.aspx?ID=9#id36>
(last visited Jan. 29, 2005); Carnival Cruise Lines, Is There a
Doctor on Board?, available at <http://www.carnival.com/CMS/FAQs/Medical_Services.aspx>
(last visited Jan. 29, 2005).
38See Karin Esterhammer,
Sailing on Four Wheels: A Short Voyage to Mexico Proves to Be
Easy Going for a Wheelchair-Bound Vacationer, L.A. Times, Feb.
6, 2000, at L5.
39See Dian McDougall,
Ships Meet Special Needs, Toronto Sun, Dec. 1, 2002, at
T3.
40See Deborah Alexander,
Vacationing with Disabilities: New Travel Market Is Opening
Up on the Road, Omaha World-Herald, May 23, 2003, at 1D; see
also A League of Their Own, Exceptional Parent, Vol. 34, No.
5, May 1, 2004, at 42.
41 See Alexander,
supra note 40.
42See Holly, supra
note 34.
43See N.P. Ready,
Ship Registration 6, 8-9 (3d ed. 1998).
44See H. Edward Anderson,
III, The Nationality of Ships and Flags of Convenience: Economics,
Politics, and Alternatives, 21 Tul. Mar. L. J. 139, 144 (1996);
Robert Rienow, Test of the Nationality of a Merchant Vessel 155-57
(1937).
45See William Langewiesche,
The Outlaw Sea 5 (2004).
46Lauritzen v. Larsen, 345 U.S. 571, 587 (1953).
47Anderson, supra
note 44, at 151.
4846 U.S.C. § 12102.
49Id. § 8103(b)(1)(B).
50Id. § 8103(a).
51See Anderson, supra
note 44, at 162-67; Jim Morris, "Flags of Convenience"
Give Owners a Paper Refuge, Houston Chronicle, Aug. 22,
1996, available at
<http://www.chron.com/content/interactive/special/maritime/96/08/22/part5.html>
(last visited Jan. 15, 2005).
52See Ready, supra
note 43, at 88; International Ship Registry Review, The Official
Guide to Ship Registries, at 22-25 (2002) (cited in Brief of
Amicus Curiae Jonathan M. Gutoff, see infra note 93).
53Id.; see also Ready,
supra note 43, at 88.
54See Official Guide
to Ship Registries, supra note 52, at 317-21; Morris, supra
note 51; Ready, supra note 43, at 132-33.
55Id.
56Under the Passenger Services
Act of 1886, 46 App. U.S.C. § 289, foreign-flagged vessels
cannot transport passengers directly between U.S. ports. The handful
of U.S.-flagged cruise ships in operation are registered in the
U.S. to permit cruises between the Hawaiian Islands, or from the
continental U.S. to Hawaii. The Passenger Services Act, however,
does not prohibit foreign-flagged ships departing from and returning
to the same U.S. port. Nor does it prohibit foreign-flagged ships
departing from a U.S. port, visiting a foreign port, and then continuing
to a second U.S. port. Nor does it prevent a ship from taking on
passengers at a U.S. port and then returning them to another U.S.
city by ground or air, or vice-versa.
5745 Fed. Reg. 45,600 (1991).
Congress has also indicated its awareness of the widespread practice
of flying foreign flags of convenience. In deciding whether to amend
the Johnson Act, 15 U.S.C. § 1175, to permit gambling on certain
U.S.-flagged ships, the House Report on the proposed amendment explained
that, of the seventy-seven cruise ships serving U.S. ports, only
two of them were U.S.-flagged. See H.R. Rep. 102-357 (Nov.
22, 1991).
58Stephen Thomas, Jr., State
Regulation of the Cruise Ship Pollution: Alaska's Commercial Passenger
Vessel Compliance Program as a Model for Florida, 13 J. Transnat'l
L. & Pol'y 533, 540 (2003).
5942 U.S.C. § 12182(a).
60Id. § 12184(a).
61Id. § 12181(7).
62Stevens v. Premier Cruises,
Inc., 215 F.3d 1237, 1241 (11th Cir. 2000) (spelling error
corrected).
63See 56 Fed. Reg.
35,551 (1991); 28 C.F.R. Pt. 36 App. B at 677; Title III Technical
Assistance Manual III-1.2000(D) (Supp. 1994), available at
<http://www.usdoj.gov/crt/ada/taman3.html> (last visited Jan.
14, 2005).
6442 U.S.C. § 12181(10).
6556 Fed. Reg. 45,600 (1991).
66See 28 C.F.R. Pt.
36, App. B at 677; 49 C.F.R. 37.5(f); Title III Technical Assistance
Manual III-1.2000(D) (Supp. 1994). As for newly constructed cruise
ships, until the government promulgates regulations setting specific
accessibility standards for newly constructed or altered cruise
ships, the vessels need only comply with the accessibility requirements
for existing ships, e.g., the removal of barriers to access where
readily achievable. Id.; see discussion of PVAAC, infra.
6756 Fed. Reg. 45,600.
68Title III Technical Assistance
Manual III-1.2000(D) (Supp. 1994).
6942 U.S.C. §§ 12101(b)(4),
12181(1)(B),(C).
70See United States v.
Norwegian Cruise Line Ltd., No. 01-0244-CIV (S.D. Fla. Aug.
22, 2001) (consent decree), available at <http://www.usdoj.gov/crt/ada/ncruise.htm>
(last visited Jan. 9, 2005).
7142
U.S.C. §§ 12204, 12186(c).
72Id. § 12183(a)(1).
73Id. §§
12182(b)(2)(A)(iv), 12181(9)
74Title III Technical Assistance
Manual III-1.2000(D) (Supp. 1994).
75The Committee's membership
included American Classic Voyages, American Council of the Blind,
American Sail Training Association, American Society of Travel Agents,
BB Riverboats, Boston Commission for Persons with Disabilities,
Chesapeake Region Accessible Boating, International Council of Cruise
Lines, National Tour Association, Paralyzed Veterans of America,
Passenger Vessel Association, Port of San Francisco, Princess Cruises,
Rhode Island Tourism Division, Self Help for Hard of Hearing People,
Society for the Advancement of Travel for the Handicapped, Society
of Naval Architects and Marine Engineers, Southeast Alaska Independent
Living, Southwest Disability and Business Technical Assistance Center,
Transportation Institute, and the Washington State Department of
Transportation. See Passenger Vessel Access Advisory Committee
Members, available at <http://www.access-board.gov/pvaac/CommList.htm>
(last visited Jan. 9, 2005).
76The Final Report is available
at <http://www.access-board.gov/pvaac/commrept/index.htm>
(last visited Jan. 29, 2005). See also Summary of the Report
from the Passenger Vessel Access Advisory Committee, available
at <http://www.access-board.gov/pvaac/commrept/report-summary.htm>
(last visited Jan. 29, 2005).
77The PVAAC relied primarily
on the original ADA Accessibility Guidelines for Buildings and Facilities
(ADAAG) that the Access Board issued in 1991. See 56 Fed.
Reg. 35408 (July 26, 1991). The PVAAC also considered the "Recommendations
for a New ADAAG" published on September 30, 1996, by another
Access Board advisory committee. See ADAAG Review Advisory
Committee's Recommendations, available at <http://www.access-board.gov/ada-aba/commrept.htm>
(last visited Jan. 9, 2005). The Access Board eventually issued
a revised version of its Accessibility Guidelines for Buildings
and Facilities in July 2004. See Americans with Disabilities
Act (ADA) Accessibility Guidelines for Buildings and Facilities;
Architectural Barriers Act (ABA) Accessibility Guidelines, 69 Fed.
Reg. 44084 (July 23, 2004).
78See Summary of the
Report from the Passenger Vessel Access Advisory Committee, supra
note 76; International Convention for Safety of Life at Sea, 32
U.S.T. 47 (1974).
79See Americans with
Disabilities Act Accessibility Guidelines for Passenger Vessels;
Large Vessels, 69 Fed. Reg. 69244 (Nov. 26, 2004); see also
Board Releases Information for Guidelines for Passenger Vessels
(Nov. 26, 2004), available at <http://www.access-board.gov/news/pvag.htm>
(last visited Jan. 9, 2005).
80As explained above, the PVAAC
relied on the 1991 version of the ADAAG in preparing its Final Report,
and the Access Board has since issued a revised ADAAG. See supra
note 77. As a result, the recently issued draft guidelines borrow
several standards from the revised ADAAG, rather than from the PVAAC's
recommendations.
8169 Fed. Reg. 69,246.
82Id.
83It is difficult to say when
final regulations will be issued. As the Fifth Circuit observed
in Mr. Spector's case, "[a]mazingly, now more than a decade
since the ADA's passage, DOJ and DOT have yet to issue new construction
and alteration regulations specific to cruise ships." Spector,
356 F.3d at 650 n.10.
84See Spector, 356
F.3d at 644 (noting that NCL did not dispute district court's finding
that cruise ships are "public accommodations" and a "specified
public transportation service" under Title III).
85Spector, 356 F.3d
at 645 (quoting EEOC v. Arabian American Oil Company, 499
U.S. 244, 250 (1999)).
86Spector, 356 F.3d
at 648.
87Id. at 649.
88Stevens v. Premier Cruises,
Inc., 215 F.3d 1237 (11th Cir. 2000).
89Id. at 1242.
90Id.
91Spector, 356 F.3d
at 649.
92See Sup. Ct. R.
10(a) (recognizing that conflict among circuit court rulings can
be reason to grant writ of certiorari). The Eleventh Circuit covers
Florida, Georgia, and Alabama; the Fifth Circuit covers Texas, Louisiana,
and Mississippi.
93See Brief of Amici
Curiae Paralyzed Veterans of America, American Association
of People with Disabilities, The Council of Parent Attorneys and
Advocates, Inc., Epilepsy Foundation, United Spinal Association,
United Cerebral Palsy, The Arc of the United States, American Council
of the Blind, National Multiple Sclerosis Society, and The Training
and Advocacy Support Center of the National Association of Protection
and Advocacy Systems, Inc., in Support of Petitioners; Brief of
Amici Curiae Nine Associations Representing Persons with
Disabilities in Support of Petitioner (AARP, Alexander Graham Bell
Association for the Deaf and Hard of Hearing, American Diabetes
Association, Association on Higher Education and Disability, Depression
and Bipolar Support Alliance, Disability Rights Education and Defense
Fund, Inc., Judge David L. Bazelon Center for Mental Health Law,
National Association of Councils on Developmental Disabilities,
and National Association of the Deaf); Brief of Amicus Curiae
Jonathan M. Gutoff in Support of Petitioners; Brief of Texas, Arizona,
California, Illinois, Massachusetts, Missouri, Utah, and Washington
as Amici Curiae in Support of Petitioners; Brief for the
United States as Amicus Curiae Supporting Petitioners.
The briefs are available online at
<http://www.goldsteinhowe.com/blog/archive/2004_12_12_SCOTUSblog.cfm#110314602661730727>
(last visited Jan. 31, 2005).
94See Brief of Amicus
Curiae International Council of Cruise Lines in Support of
Respondent; Brief of Amicus Curiae Mediterranean Shipping
Company Crociere, S.P.A.; Brief of the Chamber of Commerce of the
United States as Amicus Curiae in Support of Respondent;
Brief for the Commonwealth of the Bahamas Maritime Authority as
Amici Curiae in Support of Respondent; Brief Amicus
Curiae of American Steamship Owners Mutual Protection and Indemnity
Association, Inc., Assuranceforeningen Gard (Gjensidig), Assuranceforeningen
Skuld (Gjensidig), Britannia Steam Ship Insurance Association Ltd.,
Japan Shipowners' Mutual P&I Association, London Steam Ship
Owners Mutual Insurance Association Ltd., North of England Protecting
and Indemnity Association Ltd., Shipowners' Mutual Protection and
Indemnity Association (Luxembourg), Standard Steamship Owners Protection
and Indemnity Association (Bermuda) Ltd., Steamship Mutual Underwriting
Association (Bermuda) Ltd., Sveriges Angfartygs Assurans Forening,
United Kingdom Mutual Steam Ship Assurance Association (Bermuda)
Ltd., and West of England Shipowners Mutual Insurance Association
(Luxembourg) in Support of Respondent.
95Spector, 356 F.3d
at 644 (quoting Benz v. Compania Naviera Hidalgo, S.A.,
353 U.S. 138, 142 (1957)).
9611 U.S. (7 Cranch) 116, 144
(1812).
97262 U.S. 100, 124 (1923).
98Id.; see also Patterson
v. Bark Eudora, 190 U.S. 169, 176 (1903) ("[W]hen a foreign
merchant vessel comes into our ports, like a foreign citizen coming
into our territory, it subjects itself to the jurisdiction of this
country.").
99Cunard, 262 U.S.
at 120.
100Id. at 125-26.
10142 U.S.C. § 12102(b)(1).
102Cunard, 262 U.S.
at 126.
103353 U.S. 138 (1957).
104372 U.S. 10 (1963).
105Mali v. Keeper of the
Common Jail (Wildenhus's Case), 120 U.S. 1, 12 (1887).
106McCulloch, 372
U.S. at 19, n.9; see Restatement (Third) of the Foreign Relations
Law of the United States, § 502 cmt. a (1987) ("Under
international law, the flag state is responsible for adopting and
enforcing laws to protect the welfare of the crew and passengers
aboard a ship.").
107EEOC v. Arabian American
Oil Company, 499 U.S. 244, 248 (1999)
108Spector, 356 F.3d
at 645 (quoting ARAMCO, 499 U.S. at 248).
109Id. at 646.
110Id.
111Cunard, 262 U.S.
at 130.
112See Grogan v. Hiram
Walker & Sons, 259 U.S. 80, 89-90 (1922) (holding that
National Prohibition Act prohibited transfer of alcoholic beverages
from one British vessel to another in New York harbor).
113282 U.S. 234 (1931). While
Uravic was subsequently overruled on statutory grounds,
its reasoning with regard to the application of U.S. law to foreign-flagged
ships remains valid. See McDermott Int'l, Inc. v. Wilander,
498 U.S. 337, 348 (1991).
114Id. at 238.
115Id. at 240.
116Id. at 238.
117Id. at 240.
118See, e.g.,
Wildenhus's Case, 120 U.S. at 12 (upholding on public safety
grounds the application of New Jersey's general murder statute to
prosecute murder of one Belgian national by another aboard a Belgian
vessel while docked in a New Jersey port).
119Hellenic Lines Ltd.
v. Rhoditis, 398 U.S. 306, 310 (1970).
120Id.
121Id. at 309 (citing
Lauritzen v. Larsen, 345 U.S. 571, 583-92 (1953)).
122Id. at 310.
123Romero v. Int'l Terminal
Operating Co., 358 U.S. 354, 382 (1959).
124398 U.S. at 310.
125Id.
126Id. at 309.
127Id. at 310.
128See Ruth Colker,
ADA Title III: A Fragile Compromise, 21 Berkeley J. Emp.
& Lab. L. 377, 385-87 (2001) (comparing scope of Title III to
the narrower public accommodations provisions of the Civil Rights
Act of 1964); Robert L. Burgdorf Jr., The Americans with Disabilities
Act: Analysis and Implications of a Second-Generation Civil Rights
Statute, 26 Harv. C.R.-C.L. L. Rev. 413, 470-73, 493-501 (1991)
(noting that Title III covers, "with a few exceptions such
as the sale or rental of housing, almost every facet of American
life in which a business establishment or other entity serves or
comes into contact with members of the general public").
129Murray v. The Schooner
Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1904) (quoted
in Spector, 356 F.3d at 646).
130Spector, 356 F.3d
at 647; see International Convention for Safety of Life at Sea,
32 U.S.T. 47 (1974).
131Spector, 356 F.3d
at 647.
13242 U.S.C. § 12182(b)(2)(A)(iv).
133See Title III Technical
Assistance Manual III-1.2000(D) (Supp. 1994); see also
U.S. Const. art. VI, § 2 ("Treaties . . . shall be the
supreme Law of the Land.).
134Americans with Disabilities
Act Accessibility Guidelines for Passenger Vessels; Large Vessels,
69 Fed. Reg. 69244 (Nov. 26, 2004).
135SOLAS, Technical Provisions,
32 U.S.T. 47 (emphasis added).
136Ironically, this last aspect
- NCL's exclusion of persons with disabilities from evacuation drills
- is itself a violation of SOLAS: "Clear instructions to be
followed in the event of an emergency shall be provided for every
person on board." SOLAS: Consolidated Edition 2001, at 303
(Int'l Mar. Org. ed., 2001) (emphasis added).
137SOLAS applies to all
passenger vessels on international voyages, regardless of the ship's
registry. Under the Fifth Circuit's reasoning, even U.S.-flagged
cruise ships would get a free pass from the ADA because of the "conflict"
with SOLAS.
138Royal Caribbean International,
Accessibility Onboard, available at
<http://www.royalcaribbean.com/allaboutcruising/accessibleseas/home.do>
(last visited Jan 15, 2005). The website also provides specific
information regarding accessibility for individuals with visual,
hearing, and other mobility impairments.
139Press Release, Society for
Accessible Travel and Hospitality, Royal Caribbean International
Supports SATH (July 27, 2004), available at <http://www.sath.org/index.html?section=Press
Releases&id=4259> (last visited Jan. 15, 2004); Royal Caribbean
International, Feel Right at Home, available at <http://www.royalcaribbean.com/allaboutcruising/accessibleseas/feelRightAtHome.do>
(last visited Jan. 15, 2005)
140See Princess Cruise
Lines, Accessibility for Passengers with Disabilities, available
at
<http://www.princess.com/about/policy.jsp?policyId=na405>
(last visited Jan. 15, 2005).
.141Id.
142See Access Now, Inc.
v. Cunard Line Ltd., No. 00-7233-Civ (S.D. Fla. Apr. 18, 2001)
(Ex. 1 to Notice of Conditional Class Certification, Proposed Settlement,
and Fairness Hearing).
143Id. (Order Approving
Settlement Agreement, Oct. 31, 2001, available at 2001
U.S. Dist. LEXIS 21481). In a class action brought against Costa
Cruises, the cruise line agreed to make substantial modifications
to its ships as part of a settlement. See Access Now, Inc. v.
Costa Crociere, S.P.A., No. 00-7231-CIV (order approving class
settlement) (S.D. Fla. Oct. 21, 2004).
14442 U.S.C. § 12101(a)(9).
145Id. § 12101(a)(8).
14642 U.S.C. § 12182(a)
(emphasis added).
147H.R. Rep. No. 101-485(I)
(1990), at 24 (emphasis added); see also H.R. Rep. No.
101-485(III), at 22 ("The purpose of the [ADA] is to provide
a clear and comprehensive national mandate to end discrimination
against individuals with disabilities and to bring persons with
disabilities into the economic and social mainstream of American
life.").
148See 42 U.S.C. §
12181(7).
149H.R. Rep. No. 101-485(III),
at 25 (citing Louis Harris & Assocs., The ICD Survey of
Disabled Americans: Bringing Disabled Americans Into the Mainstream
(1986)).
150See, e.g.,
Kurt Ulrich, Monarchs of the Sea (1999, St. Martin's Press); Titanic
(Paramount Studios, 1997); Frederick Emmons, American Passenger
Ships: The Ocean Lines and Liners, 1873-1983 (1985, Univ. of Del.
Press); The Love Boat (1977-1986, ABC Television).
151See Melissa Grace,
et al., Bow to the Queen: New Yorkers Stand at Attention as
QM2 Ends 1st Voyage Here, N.Y. Daily News, Apr. 23, 2004, at
2; James Barron, A Queen Arrives, and Even in Jaded New York,
Jaws Drop, N.Y. Times, Apr. 23, 2004, at B2.
152ICCL, Inside Cruising, supra
note 1.
153Martha C. Nussbaum, Human
Functioning and Social Justice: In Defense of Aristotelian Essentialism,
20 Pol. Theory 202, 222 (1992) (quoted in Ann Hubbard,
Meaningful Lives and Major Life Activities, 55 Ala. L.
Rev. 997, 1015 (2004)).
154See 42 U.S.C. §
12181(7).
155See, e.g., S. Rep.
No. 101-116, at 20 (1989) (citing testimony that the ADA would permit
people with disabilities to "have the same aspirations and
dreams as other American citizens" and "know that their
dreams can be fulfilled," and that America is true to its ideal
of equality, which is "the full measure of the American dream").
156Id. at 96.
157136 Cong. Rec. S9684 (July
13, 1990).
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