Issue 1: Do the Title III provisions of the Americans with Disabilities Act (ADA) cover cruise lines, and are cruise lines defined as a public accommodation for purposes of the ADA?

Answer: Yes.

Issue 2: Are there limitations on Title III’s coverage of cruise lines?

Answer: Yes. Foreign cruise lines are covered only insofar as a ship sailing in American waters with American passengers can modify policies and procedures so as not to discriminate against persons with disabilities. A cruise liner need not remove architectural barriers if such removal would promote a possible threat to the safety of others, if such removal and restructuring of barriers would put the ship in noncompliance with international laws regarding safety at sea, and if such barrier removal would “interfere with the internal governing policies of the ship.”

Almost all cruise ships sailing round trips from American seaports are registered in other countries. Most of the cruise lines, even those with a principal place of business in the United States, have their corporation registered in another country. Norwegian Cruise Lines is incorporated in Bermuda, has its principal place of business in Miami, and the two ships in question in this case are registered in the Bahamas.

This case was filed by a group of disabled persons who attempted to sail two different Norwegian Cruise Lines ships sailing out of Houston, Texas. These passengers were subjected to discriminatory policies:

• they were forced to pay an extra charge to be carried on the ship because of their disabilities;

• they were forced to sign waivers of medical liability for the cruise line whereas non-disabled persons did not sign such waivers;

• they were not allowed to travel without a companion;

• they were informed that the ship’s crew reserved the right to put them off the ship if they interfered with the “comfort” of other passengers; and,

• the life boats and other procedures for vacating the ship in case of an emergency were located in inaccessible areas.

The plaintiffs also asserted that most cabins were not accessible at all or only minimally accessible, that doorsills at most entrances in the ship were too high for someone using a wheelchair or scooter, and bathrooms, showers etc. were inaccessible.

The case was filed in the district court of Texas. The judge found that, even though the long list of covered private entities under Title III defining a “public accommodation” did not include cruise lines, such cruise lines serving mostly American passengers were covered. However the District Court held that cruise lines were not covered by the requirement to eliminate architectural barriers. In part, the district court argued that since cruise lines were not actually mentioned in the list of businesses covered in the ADA, and since the regulating agencies (Dept. of Justice, Dept. of Transportation and the Architectural Barriers and Transportation Compliance Board) had not yet promulgated guidelines of access governing cruise ships, they could not be held to a standard of removing barriers as other businesses were required to do. Therefore the district court dismissed the portion of the claim dealing with removal of barriers, but denied Norwegian’s request to dismiss the rest of the claims dealing with disability discrimination.

The 5th circuit court of appeals took a very straightforward stand: Cruise liners were not listed as a covered private entity in the ADA, and therefore they were not covered. The Court of Appeals dismissed the entire case.

The Supreme Court granted review in this case, and it published its decision on June 6, 2005. The majority opinion was signed by six of the nine justices, but the decision was not a comfortable one for them. Justice Kennedy wrote the majority opinion, parts of which five other justices joined. Justice Ginsburg wrote a concurring opinion but separated herself from one part of the majority argument, this was also signed by Justice Breyer. Justice Thomas wrote an opinion concurring in part with the majority, but he also concurred with the dissent written by Justice Scalia arguing that public accommodations provisions had no application to cruise lines.

What This Decision Means

Well, the good news is that the court allowed for the definition of “public accommodations” to include a business not actually listed in the long list of covered businesses. The danger of listing examples of covered businesses was that the court, when faced with something not included would argue that Congress had the opportunity to include such a business and did not. Thankfully, the court did not decide the case on that basis, and determined that cruise lines constituted a public accommodation both with regard to its being a private business and a provider of public transportation.

The court held that:

• the cruise lines could not discriminate against persons with disabilities when a modification of policies and procedures would allow them to participate equally in enjoying the ship;

• architectural barrier removal would not be required where such removal would put foreign or domestic ships in conflict with policies set forth internationally regarding construction of ships for safety at sea;

• removal of architectural barriers in compliance with the ADA was not required if it interfered with the ship’s internal governing policies.

While the court held that each case would have to undergo an individualized analysis to determine whether the ship was in compliance with the ADA, Justice Kennedy also left the door open for the court to determine ultimately that architectural barriers would always conflict with international laws or with the internal order governing the ship, and that such barriers would then not have to be removed.

Justices Ginsburg and Breyer took exception to this last statement arguing that internal policies should have no more, and no less, weight with regard to ships than management policies do with regard to other private businesses. Justice Thomas wrote his own opinion in which he was unwilling to state that a cruise line would never constitute a public accommodation under the ADA, but he concurred with the dissenting opinion that the ADA did not apply in this case.

The dissent argued it would take a strictly declared intention by Congress to include cruise lines in the ADA’s list of public accommodations. When making such a decision, the dissenters stated that Congress would have to weigh the risks of:

a) Subjecting domestic cruise lines to stricter standards of accessibility than foreign ships cruising in American waters and carrying American passengers were subjected to; or

b) Subjecting foreign ships traveling in American waters to standards that conflicted with those of other countries or international law.

There will definitely be more cases brought to the court regarding cruise lines, and the makeup of the court will definitely determine the outcome of future cases. For now, it would seem that if a cruise liner can raise arguments that removal of architectural barriers would conflict with international law or with the ship’s own internal policies, (and it’s not clear how high their burden of proof is) then such barriers can remain in place even if they could be removed without much expense.

So, while it appears that foreign and domestic cruise lines are covered in the definition of public accommodations of the ADA, and while policies which specifically subject persons with disabilities to discriminatory treatment will not be tolerated, ships may not have to remove barriers. It’s unclear then how many more people with disabilities, or senior citizens who use scooters, will be able to enjoy cruises. As usual, my final line is: stay tuned for further news.