Accessibility Issue Going To Supreme Court

[Hondu]

I figured this case being argued before the Supreme Court today would be of interest.

 

Law.com

Cruise Ships Resist Docking With ADA

Monday February 28, 3:01 am ET

Marcia Coyle, The National Law Journal

 

 

For more than a decade, the multibillion-dollar North American cruise industry has taken the position that the Americans With Disabilities Act does not apply to foreign-flagged ships. Today, a group of disabled cruise passengers will test that position in the U.S. Supreme Court.

 

For Douglas Spector, Julia Hollenbeck and the disability community, a loss in the high court would be a "giant leap" back from Congress' goal in the statute of full participation in all aspects of American life by people with disabilities.

 

"The ADA is so sweeping that this would be the one gaping hole if the industry's position is correct," said Thomas Goldstein of Washington's Goldstein & Howe, counsel to Spector, Hollenbeck and others. They say they experienced isolation, higher prices and obstacles to participating in activities during their Norwegian Cruise Line trip.

 

"That's what is so unusual -- it would be the only type of transportation and form of accommodation that would have this exception," Goldstein said. "That's difficult to understand as a common sense matter."

 

UNDERMINING TREATIES?

 

But for Norwegian Cruise Line, the U.S. Chamber of Commerce and others, their opponents' "breathtakingly broad" argument carries consequences for "myriad companies" that subject some portion of their business to foreign regulation, and it threatens to undermine international treaties.

 

"Congress has an extensive history of clearly stating in its legislation when the law is to apply to foreign ships," said Thomas Wilson of Houston's Vinson & Ellis, counsel to Norwegian Cruise Lines, noting such intent in the 1990 Oil Pollution Act. "By contrast, Congress gave no indication of any kind that the ADA should apply to foreign ships."

 

Spector v. Norwegian Cruise Line, No. 03-1338, to be argued today, centers on Title III of the ADA, which requires "places of public accommodation" and "private transportation entities" to be accessible to the disabled.

 

Two federal appellate courts, the 5th and 11th U.S. Circuit Courts of Appeals, have split sharply on Title III's applicability to foreign cruise ships. The bulk of the industry's activities in the United States are in those two jurisdictions.

 

In the high court, Spector argues that the 5th Circuit erred when it applied the presumption against extraterritorial application of domestic law. That court said, "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."

 

The 5th Circuit also said that compliance would interfere with the internal management and affairs of a foreign-flagged ship, which is governed by the law of the flagging nation.

 

THE 11TH CIRCUIT'S VIEW

 

In contrast, the 11th Circuit said, "A foreign-flag ship sailing in United States waters is not extraterritorial." The issue is not about a foreign-flagged ship's internal management, the court added, but "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."

 

NCL's operations have an "overwhelming U.S. nexus," according to Goldstein. In every case in which the high court has addressed the applicability of U.S. law in U.S. territory to protect U.S. citizens, he said, the court has held the law applied to foreign-flagged vessels. "Certainly nothing in the ADA overcomes the presumption established by those decisions," he argued.

 

But the petitioners' rule -- that domestic law applies to foreign ships that enter U.S. waters -- contradicts "the purpose of the international treaty system for regulation of the high seas and ignores flag-state sovereignty," argues Wilson in his brief.

 

"Under petitioner's regime, a foreign cruise ship would be obligated to comply with the domestic design and construction laws of every port nation at which they call," he said. "Such a regime is obviously impracticable."

 

Not true, countered Goldstein, who said a federal advisory committee recently issued "very detailed" guidelines on how ships will comply with the ADA and international conventions. "The key point is Congress created that advisory board to resolve those sorts of issues. It is a million-times better solution than saying, 'Now we can discriminate against the disabled.'"

 

Amicus briefs supporting Spector have been filed by the Department of Justice, disability rights groups, eight state attorneys general and a maritime law professor. NCL is supported by the U.S. Chamber of Commerce, a cruise-line industry group, the Bahamas and 13 mutual assurance associations.

 

http://biz.yahoo.com/law/050228/a1f3784ce6701ce46cc5254303aaf019_1.html

 

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Since Norwegian now has US flagged ships, this case may take a turn against the industry. Also, the ships may be foreign flagged but most of the parent companies have their home office on US soil.

[jhannah]

The whole area of accommodation is a touchy one. From what I've seen, cruise ships have been as accommodating as possible to those who have mobility impairments. But the fact is, there are just some parts of cruise travel that are not able to be accommodated. While I understand the desire of the disabled to participate in all areas of life possible, each as to understand that some things simply aren't feasible. In cruising, the matter of tendering is probably the most problematic. How could a wheelchair-bound passenger be accommodated outside of designing special tenders and installing a tender capture system to steady it in rough waters so the individual could be boarded? It would take a humongous outlay of money to retrofit the cruise ship fleet with such equipment to benefit a statistically small number of people.

 

Please don't think I'm oblivious to the needs of the disabled. My SIL is deaf. While he is extremely independent, he has limitations that cannot be overcome. His dream in life was to become a firefighter/paramedic, but he cannot be licensed as such. Not being able to hear in the situations they are often in would be a threat to his life as well as those around him. It doesn't mean he's being discriminated against in a negative way, or that it's felt he doesn't have the mental or physical capacity to do it ... it's just an unfortunate fact of life.

 

I believe the ADA was established in intent to make certain the disabled have equal access to work, government services, and the everyday activities of life. I don't believe it's practical, or even possible, to apply it to every possible aspect of life.

[tomc]

I have several disabilities, physical and neurological. But I do not expect to have the same ADA accomodations on a cruise as I have at work. Nor do I think it is reasonable for cruise ships to bend over backwards to make tendering (difficult at times for the able-bodied) possible for me when I'm having a bad day physically. That's life. Next thing you know, some people will be filing suits because they can't do the rock walls on RCL.

[Oceanwench]

Hondu,

 

You may want to post this on the board for disabled cruisers.

Many of us who are disabled, or have family/friends who are, are aware of this issue.

I have found HAL to be very accommodating to those with handicaps. DH has no problems getting around the ship, and the rooms are well planned and offer grab bars, turning space, roll-in showers, etc.

 

DH does not expect to have accessible tenders -- and why bother, if he would only get into a very non-accessible port?

Most of the ports I've visited are not conducive to exploration by a person in a wheelchair.

He does not expect an accessible tender any more than he'd expect Disney World to make Space Mountain accessible!

There are some things that cannot, by their nature, be made accessible to all.

Most of us realize that.

 

The ADA, however, is about so much more.

[cjh]

I want this to make the cruise lines build cabins that will sleep more then 2 so a family with a disabled member isn't forced to book 2 cabins.

[Queenie2]

Yes, I blogged about that today.

 

I've been following the case for a long time.

 

http://emerginghorizons.com/blog/2005/02/what-will-supremes-say.html

 

Candy

[kruzzer]

I was very disappointed to find [10 days before we were to sail last April] that the HC cabin #7260 we'd booked on the brand-new Carnival Miracle didn't have an accessable balcony! Only ONE HC cabin [#6281] has WC access to it's balcony!

 

750 balcony cabins & only ONE that handles a WC..... 0.13% availability for a quadriplegic veteran confined to his WC. I'll let you know how #6281 works out when we get back from our 6-13mar cruise. I don't even mind that I can't tender into GC & Belize.

 

80 hours!......

 

Tom

[Petr]

I wonder what will convince shipbuilders and cruise lines if not something like a high profile lawsuit?

 

Here's an editorial --

 

Manifest Accessibility

http://www.suite101.com/article.cfm/18423/114545

 

Petr

[NorthernLite]

You mean they upgraded from the Legend? I'd be interested in hearing how your trip goes and if the balcony is truly acceessible.

 

And about tendering? I was waiting to get off the Celebrity Galaxy in Villefranc when I noticed that above me in the ceiling of the tendering gangway someone had welded a piece of sheet metal over the handicap accessible boom. They just forgot to paint out the word "wheelchair" on the very edge of the metal. So while I do not expect retrofitting ships with tender capture devices I also do not expect companies to remove those that were built in. I do expect new ships to have all these devices or charge the ships more for being non-compliant for our ports. What does this do? It makes it affordable to build longer, deeper water docks.

 

Also a quadriplegic lifetime member of the Paralyzed veterans of America.

 

I was very disappointed to find [10 days before we were to sail last April] that the HC cabin #7260 we'd booked on the brand-new Carnival Miracle didn't have an accessable balcony! Only ONE HC cabin [#6281] has WC access to it's balcony!

 

750 balcony cabins & only ONE that handles a WC..... 0.13% availability for a quadriplegic veteran confined to his WC. I'll let you know how #6281 works out when we get back from our 6-13mar cruise. I don't even mind that I can't tender into GC & Belize.

 

80 hours!......

 

Tom

[Arlened236]

Hi...I just returned from the Island Princess 15 day RT from LA. The cruise included the ports of: Hilo, Kona, Honolulu, Nahwiliwili, and Lahina.

It would be nice if the cruise lines followed the ADA recommendations correctly and not just the intent of the law.

My observations:

Hilo and Lahina were tender ports. I am an AK that uses a w/c for longer distance walking. Because the sea's were so high...the tender personal insisted that I not climb into the tender rather 4 large men picked up my w/c and put me on the ldeck and proceeded to strap in the w/c. Very easy and without any embarassment.

Our w/c accessible room C-633 was adaquate...large bathroom with pull down shower seat and great hand held shower. Not much storage in the bathroom so as someone suggested bring a hang on the door plastic shoebag with many pockets. With a w/c and a rented electric scooter(which could not turn around in the room easily) we were ok, but had to constantly move one or the other to use the desk or closet. There were 2 large closests with pull down rods, a closet with shelves, A desk with 3 drawers, and 2 four drawer chests (one on either side of the queen bed). The balcony was completly accessible with 2 chairs, one table and one lounge chair. and I still could turn the w/c around easily. This balcony seemed to be 2x the size of the regular balcony cabins, it was 1/2 covered as we were next to the bump out.

The tour office was great and recommened a tour in each port that was w/c accessible, even calling me to tell me that the tour we booked in Lahina was unable to get an accessibe van ( I can climb stairs) so this was not a problem. All the tours that they recommened were wonderful and both my husband and I enjoyed them.

There was always a staff member asking if I needed any help and doing so when I requested it.

Now the problem with the Island Princess. Even though all the women's public bathrooms have an accessible stall...none of them have a push button to open the door from the outside or inside, making getting into the bathroom very difficult if you need both hands to operate the chair or scooter. Plus the bathroom stalls are in the most difficult places to turn into from the outside door. Strange angles and stange shaped stalls. Plus some of the stalls cannot accomodate the scooter and still close the door without having to back out of the stall and then have no room to turn around inorder to get out of the bathroom. However all of the w/c stalls have a sink to wash your hands in and that was nice.

The other problem was with the swimming pools. None were accessilbe due to the number of stairs getting up and down into the pools.(impossible with my prosthesis off) LOL. The sides of the pool were higher than other ships probably because they have so many sea days with chance of high sea's getting water all over the deck (as happend on a few days)

All in all it was a wonderful trip on a beautiful ship, a great crew, amazing food, beautiful weather in beautiful islands...and I want to go back.

Arlene

[DesrtDrmr]

oops, sorry, wrong thread............deleted................