A Review of Recent Developments with the Americans with Disabilities Act's Requirements for U.S. and Foreign Flag Passenger-Vessels
By James P. Nader & Rudolph F. Lehrer
Douglas Spector and Tammy Stevens presumably do not know each other, but they have a lot in common. Approximately five years ago, both Spector and Stevens boarded cruise ships out of major ports in the southern United States. Both Spector and Stevens, who are wheel-chair bound, believed their respective cruise ships discriminated against them as disabled passengers. Both individuals filed suit in federal courts alleging violations of the Americans with Disabilities Act. Despite the similarities in their lawsuits, these two federal courts reached completely opposite results. The disagreement between these courts has now drawn the attention of the United States Supreme Court, which recently decided it will review the lower courts' decisions in Spector v. Norwegian Cruise Line, Ltd. during the present 2005 term. The Supreme Court's decision to review these cases will not only affect the cruise-ship industry, but also promises to focus the spot-light on the obligations of all passenger-vessel owners and operators under the Americans with Disabilities Act.
Congress enacted the Americans with Disabilities Act of 1990, ("ADA"), for the purpose of prohibiting discrimination against disabled persons. Title III of the ADA prohibits discrimination against disabled persons that would deny disabled persons full and equal enjoyment of "places of public accommodation." Title III of the ADA also prohibits discrimination against disabled persons "on specified public transportation services provided by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce." In order to enforce to these dual provisions of Title III, the ADA vests the Department of Justice ("DOJ") and the Department of Transportation ("DOT") with the authority to issue regulations concerning the construction and alteration of new buildings, facilities, and specific means of transportation. The DOJ and DOT furthermore have the authority to issue what are commonly referred to as "barrier removal" regulations. These regulations require that architectural and communications barriers must be removed in public areas of "existing facilities" when their removal is "readily achievable."
The ADA regulations have the potential to significantly affect the design, staffing, and even evacuation procedures of the passenger-vessels. Understandably then, owners and operators of these vessels, like other affected private entities, are well-advised to keep current with ADA regulations. However passenger-vessel owners and operators face an additional burden, because even though the ADA was enacted nearly fifteen years ago, there are no formal regulations specifically for passenger-vessels. Any effort by operators and owners to be ADA-compliant is further complicated, when one realizes the current ambiguity in federal maritime law. As it currently stands now, some federal courts have
determined that foreign-flag vessels can not be bound by any ADA regulations at all. This has made the cruise ship industry's compliance with the ADA especially problematic, as it is well known that, "virtually all cruise ships serving U.S. ports are foreign flag vessels." The U.S. Supreme Court's decision to review Spector v. Norwegian Cruise Line, Ltd. has brought all of these issues to the forefront.
In Spector v. Norwegian Cruise Line, Ltd., Douglas Spector sued Norwegian Cruise Lines for what they alleged were discriminatory practices by the cruise company against disabled passengers. The plaintiffs maintained that under the ADA the cruise ship improperly denied plaintiffs access to (1) key facilities such as public restrooms, restaurants, pools, and elevators; (2) emergency programs and emergency evacuation equipment; and (3) cabins with a balcony or window. Norwegian Cruise Lines defended the lawsuit contending that its cruise ships fly the Bahamian flag, and therefore as a foreign-flag vessel, it is not obligated to conform to the requirements of the United States' ADA. Norwegian Cruise Lines also argued that the absence of any specific ADA regulations applicable to cruise ships renders compliance with the ADA impossible. While the federal district court acknowledged the deficiency in passenger-vessel regulations, that court held that foreign-flag vessels were obligated to follow the ADA. Thereafter, Norwegian Cruise Lines appealed to the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit agreed with Norwegian Cruise Lines and held that Congress never explicitly legislated that the ADA was meant to regulate foreign-flag passenger vessels
. Without any expressed intention by Congress to extend the ADA to foreign-flag vessels, the Fifth Circuit ruled that Norwegian Cruise Lines could not be sued for any violation of the ADA.
As the Fifth Circuit readily acknowledged, its ruling in Spector directly conflicts with the U.S. Eleventh Circuit Court of Appeal's earlier decision in Stevens v. Premier Cruises
, Inc. from June of 2000. On strikingly similar facts, the Eleventh Circuit ruled in a completely opposite direction. The Eleventh Circuit found that "public accommodations", such as restaurants, bars, health clubs, etc., which must comply with the ADA when on land, similarly must comply with the ADA when these public accommodations are incorporated as part of a cruise ship. The Eleventh Circuit further held that foreign-flag vessels had been regulated in the past by Congress under the terms of the National Prohibition Act. The court also noted that cruise ships in U.S. waters are predominantly foreign flag vessels, that the U.S. government is well aware of this statistic, and therefore the Congress could not have meant to exempt these foreign vessels from the requirements of the ADA. By deciding to review Spector v. Norwegian Cruise Line, Ltd., the U.S. Supreme Court will
directly address the stark conflict between the Fifth and Eleventh Circuits as to the applicability of the ADA to foreign-flag vessels. The Supreme Court will be forced to strike a balance between competing, core principles of maritime and international law. It is well-established that a ship that "voluntarily enters the territorial limits of another country subjects itself to the laws and jurisdiction of that country." At the same time, the Court has also found it advisable to refrain from "interfering with the internal management and affairs" of a foreign-flag ship. Under these competing principles, the Supreme Court has held it was permissible to enforce National Prohibition laws against foreign-flag vessels, but impermissible to apply United States' labor laws to foreign-flag vessels.
While it is premature to predict how the U.S. Supreme Court will ultimately rule on Spector v. Norwegian Cruise Line, Ltd., its progression though the federal appellate system has already had some limited results for U.S.-flag passenger-vessels. Since the Supreme Court's recent decision to hear argument on Spector v. Norwegian Cruise Line, Ltd., the federal government has begun the formal steps in promulgating ADA-specific regulations for passenger-vessels.
On November 26, 2004, the Architectural and Transportation Barriers Compliance Board, the government body charged with the task of issuing ADA regulations for vessels, released its draft guidelines. These draft guidelines relate specifically to the accessibility requirements for those newly constructed and altered "large" passenger-vessels (those vessels permitted to carry more than 150 passengers or more than 49 overnight passengers). The board has made its proposed guidelines available through its website () and seeks the comments and feedback from the maritime community by March 28, 2005. In fashioning these draft guidelines, the board considered a range of different types of passenger-vessels including ferries, gaming boats, cruise ships, and sight-seeing boats. The board's guidelines address a variety of issues including requirements for different accessibility routes on the vessels, requirements for restrooms and bathing facilities, requirements for providing assistive listening systems in auditoriums, guidelines for providing instructions and directions in tactile and Braille messages, and requirements for providing accessibility in means of escape routes. It should be emphasized that the board's guidelines govern only "large" passenger-vessels which are newly constructed or newly altered. Also, the guidelines notably do not address the requirements for "removal of barriers" from existing passenger-vessels. The combined jurisdictions of the United States' Fifth and Eleventh Circuit Courts cover the majority of the cruise ship industry based
in the Gulf of Mexico. Considering that these courts have taken completely opposite positions on the applicability of the ADA to cruise ships, it was necessary for the U.S. Supreme Court to resolve this dispute. And while the U.S. Supreme Court's decision to review Spector v. Norwegian Cruise Line, Ltd. will by no means provide instant clarity, it is undoubtedly a step in the right direction. In the meantime, passenger-vessel owners and operators of both U.S. and foreign flag vessels are well-advised to carefully monitor and contribute to the Architectural and Transportation Barriers Compliance Board's rule-making process, as the new-year promises a number of judicial and regulatory developments in this area of maritime law.