August 2005 49
Legislation Report
by William N. France
On June 6, 2005 the United States
Supreme Court issued its decision in
Spector v. Norwegian Cruise Lines
resolving a conflict between Circuit
Courts of Appeal by holding that the
Americans with Disabilities Act of 1990
(the ADA) applies to foreign-flag cruise
ships in United States waters except
insofar as it regulates a vessel's internal
affairs. The decision, concerning the two
Norwegian Cruise Line vessels,
reversed the Fifth Circuit Court of
Appeals (governing federal courts in
Louisiana, Mississippi, Texas and the
Panama Canal Zone) which had held in
January 2004 that the ADA did not
apply to cruise ships. In 2000, the
Eleventh Circuit (governing federal
courts in Alabama, Florida and Georgia)
had ruled that it did apply. Interestingly,
Congress only created the Eleventh
Circuit in 1981 and then by dividing the
territory of the old Fifth Circuit. It may
be that the conflicting decisions reflect-
ed some personal disagreements of the
several judges involved. In any event,
these jurisdictions host a large number
of cruise ship operations.
The ADA, codified in the United
States Code at Title 42, Sections 12101
through 12213, is a broad, remedial
statute intended to provide a "compre-
hensive national mandate" and "clear,
strong, consistent enforceable stan-
dards" for the elimination of discrimina-
tion against individuals with disabilities.
Its purpose is also to ensure that the
Federal Government plays a central role
in establishing and enforcing those stan-
dards. Congress' authority for enacting
the ADA is the Commerce clause of and
the Fourteenth Amendment to the
Constitution, the latter, among other
matters, prohibiting states from making
or enforcing laws that abridge the privi-
leges and immunities of United States
citizens. Indeed, the ADA specifically
makes its remedies - civil penalties,
monetary damages, injunctive relief and
the provision of substitute services or
the requirement of physical alterations
of structures and accessibility-applica-
ble to the states.
The language of the statute is relative-
ly complex, as will appear. It is in four
subchapters, the first three governing
matters of employment; the provision of
public services by certain public agen-
cies; and the provision of public accom-
modations and services by private enti-
ties. The final subchapter contains a
number of miscellaneous provisions,
including authorization for the
Architectural and Transportation
Barriers Compliance Board (ATBCB) to
issue minimum guidelines and require-
ments for "accessible design" for pur-
poses of public services and accommo-
dations. The Supreme Court specifical-
ly considered application of sections of
the third subchapter to cruise ships. That
subchapter also directs the Departments
of Justice (DOJ) and Transportation
(DOT) to issue regulations regarding
matters of new construction and alter-
ations and barrier removal for public
accommodations and transportation
services.
A brief review of the relevant sections
of the third sub-chapter will provide a
better understanding of the scope of the
statute and of the Supreme Court's deci-
sion. Section 12182 prohibits discrimi-
nation on the basis of disability in the
"full and equal enjoyment of the goods,
services, facilities, privileges, advan-
tages or accommodations of any place
of public accommodation." Briefly, the
term "public accommodation" includes,
generically, a place of lodging; an estab-
lishment serving food or drink; a place
of exhibition or entertainment; sales, or
rental or service establishments; a termi-
nal, deport or other station for access to
public transportation a place of public
display or collection; and places of
recreation, exercise and education.
Section 12184 prohibits discrimina-
tion 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."
Discrimination is defined in four basic
modes: (1) "the imposition … of eligi-
bility criteria that tend to screen out" the
disabled from "fully and equally enjoy-
ing any goods, services, facilities, privi-
leges, advantages or accommodations"
unless "such criteria can be shown to be
necessary for the provision" of those
goods and services; (2) a "failure to
make reasonable modifications in poli-
cies, practices or procedures, when such
modifications are necessary to afford"
the goods or services to the disabled,
unless such modifications would "fun-
damentally alter the nature" of the goods
and services; (3) a "failure to take such
steps as may be necessary to ensure that
no individual with a disability is exclud-
ed, denied services, segregated or other-
wise treated differently" because of the
"absence of auxiliary aids and services"
unless taking such steps "would funda-
mentally alter the nature" of the goods
and services or "would result in an
undue burden"; and, (4) a "failure to
remove architectural barriers, and com-
munication barriers that are structural in
nature, in existing facilities, and trans-
portation barriers in existing vehicles
…where such removal is readily achiev-
able" and, if removal of a barrier is not
readily achievable, then a failure to
make such goods and services "available
through alternative methods if such
methods are readily achievable."
Section 12183 specially applies to new
construction or alterations of public
accommodations and commercial facili-
ties and states a key difference when
compared to existing facilities. New
construction must be designed and built
to be readily accessible unless "struc-
turally impracticable" and alterations
must be designed and constructed to be
readily accessible to the "maximum
extent feasible" while, as noted, the
removal of architectural barriers in
existing facilities need only be made if
"readily achievable."
The meaning of that term-sure to give
rise to endless litigation-is "easily
accomplishable and able to be carried
out without much difficulty or expense."
Factors to be considered in making the
"readily achievable" determination
include: the nature and cost of the nec-
essary action; the overall financial
resources of the facility or entity
involved; the number of persons
employed; the effect on expenses and
resources; the number, type and location
of individual facilities affected; and the
type of operation of the entity and the
geographic separateness and administra-
tive or fiscal relationship of the facilities
in question to the entity.
A caveat to application of the sub-
chapter complicates matters further.
Section 12182(b)(3) provides that "noth-
ing in this subchapter shall require an
entity to permit an individual to partici-
pate in or benefit from the goods, serv-
ices, facilities, privileges, advantages
and accommodations of such entity
where such individual poses a direct
threat to the health or safety of others."
Direct threat is defined as "a significant
risk to the health or safety of others that
cannot be eliminated by a modification
of policies, practices or procedures or by
the provision of auxiliary aids or servic-
es." Although the holding of the
Supreme Court's decision can be stated
simply-the ADA applies to foreign-flag
cruise ships in United States waters
except insofar as it regulates a vessel's
internal affairs-the decision can best be
described as fractured. There was no
clear majority, only several pluralities
on specific applications of parts of the
ADA. A dissent by the chief justice and
two justices, joined in part by a fourth,
was to the effect that because the ADA
plainly affects the internal order of for-
eign-flag cruise ships and since the
ADA lacks a clear statement of intent to
apply to such vessels, the Court should
not interpret it to apply. A key element
of the three dissenting justices' pointed
criticism was that the several plurality
determinations result in a piecemeal
application of ADA. According to the
dissent: "… it is a matter of determining
whether Congress in fact intended that
its enactment cover foreign-flag ships.
To believe that there was any such intent
section-by-section and paragraph-by-
paragraph is delusional. Either Congress
enacted [the ADA] only with domestic
entities (and not foreign-flag ships) in
mind, or it intended [it] to apply across-
the-board. It could not possibly be the
real congressional intent that foreign-
flag cruise ships be considered 'places of
public accommodation' or 'specified
public transportation' for purposes of
certain provisions but not for others.
That Congress had separate foreign-flag
intent with respect to each requirement-
and would presumably adopt a clear
statement provision-by-provision-is
utterly implausible."
What the several plurality interpreta-
tions actually mean insofar as applica-
tion of the ADA two the two mentioned
cruise ships and in the context of the
complaint filed by the plaintiffs will be
the subject of the next installment.
(This is Part I of a two-part story. Look
for Part II in the September 2005 edi-
tion)
Cruise Ships and the Americans with Disabilities Act
William N. France is a senior part-
ner of Healy & Baillie, LLP, a New
York law firm with a focus in mar-
itime law, as well as a licensed pro-
fessional engineer with a degree in
naval architecture and marine
engineering.
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