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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. MR AUGUST 2005 #7 (49-56).qxd 8/4/2005 9:20 PM Page 49
