Fifth Circuit sinks claims of disabled cruise-ship passengers.

Title III of the Americans with Disabilities Act (ADA) does not apply to foreign-flagged cruise ships, the Fifth Circuit ruled recently. Reversing the district court's ruling, the Fifth Circuit split with the Eleventh Circuit, which reached the opposite conclusion two years ago. (Spector v. Norwegian Cruise Line, Ltd., 356 F.3d 641 (5th Cir. 2004).)

The plaintiffs--passengers who use wheelchairs, and their companions--sued Norwegian Cruise Line (NCL), alleging that physical barriers prevented them from enjoying certain amenities and that they were charged a higher rate for their accommodations than other passengers. The ships sailed out of Houston under a Bahamian flag.

"Norwegian Cruise Line has a lot of ways it discriminates against people who are mobility-impaired," said Houston attorney David George, who represented the plaintiffs. "For example, even if you are a self-sufficient person, you have to have somebody stay with you in your cabin."

Most passengers on cruise ships do not pay the full price for a cabin, just as hotel guests generally do not pay the room rate listed on the door, George said. However, because cruise ships have a limited number of wheel chair-accessible cabins, companies charge the full price for them, he said.

"It's like a financial penalty," George said. "And not only do you pay more, but you have to have a second person along to babysit you, and that person pays more."

The plaintiffs allege that the ships' public bathrooms were inaccessible and that elevators were not designed properly to accommodate wheelchairs. Some decks were reachable only by stairs or inadequate elevators, they claim.

"One of those is the deck where the lifeboats are, so mobility-impaired passengers don't take part in the drills and don't know what to do in the case of the ship going down," George said. NCL claims that if a ship were to go down, employees would carry wheelchair-bound passengers to safety, he added.

"We all saw Titanic," George said. "If you're like the person in steerage, God help you. That's shocking to us that there's no provision for the safety of these people if the ship goes down."

The Fifth Circuit's analysis focused on Congress's intent when it enacted the ADA.

"There is no indication, either in the statutory text or in the ADA's extensive legislative history, that Congress intended Title III to apply to foreign-flagged cruise ships," Judge Edith Jones wrote for the majority. "Congress's silence cannot be read to express an intent to legislate where issues touching on other nations' sovereignty are involved."

The court was unpersuaded by the Eleventh Circuit's ruling in Stevens v. Premier Cruises, which held that Title III does apply to areas of cruise ships that could be considered public accommodations, such as restaurants, stores, and health spas. (284 F.3d 1187 (11th Cit. 2002).)

"In Stevens, the court maintained that Congress's silence as to cruise ships meant not only that Title III applied to cruise ships ... but that the coverage of cruise ships necessarily implied coverage of foreign-flag cruise ships," Jones wrote. "This latter inference disregards the Supreme Court's admonition that before applying domestic law in the 'delicate field of international relations,' Congress must clearly express its intent."

No other circuit has ruled on the question.

"Virtually every cruise line is foreign-flagged," George said. "What this [decision] means is that an entire industry is exempt from disability laws."

The plaintiffs planned to file a petition for certiorari by this month. "This issue is of exceptional importance, and there is a clear split [in the circuits], so we feel there is a very good chance that the Court would give it very serious consideration," George said.