MORE ON DISABLED IN THE COURTS

When a foreign flagged cruise line is confronted with any possibility of an Americans With Disability Act (ADA)lawsuit, it appears they use three defense tactics. First they contend that ADA does not apply to foreign flagged ships; second, if applicable to Title III of ADA, then they hold that the United States has never developed standards of construction and occupancy for the disabled; third, the enforcement of the passenger ticket forum selection clause. Before going into a recent case, I hasten to point out that I am not giving legal advise but supplying educational information.

Waters & Adams v. Carnival Cruise Lines and Unique Travel and Andre's Travel Agency, Defendants, cited as 107 Federal supplement 1138, February 10,2000 is an ADA suit for failure to provide adequate facilities for these two passengers, who are not related but each a separate plaintiff. After years of scrimping and saving each separately booked a 3-4 day cruise on the "Holiday." They had informed their travel agents that they were disabled; one had Multiple Sclerosis, the other was a quadriplegic. Both had incontinence and bladder problems. They were given to believe they would be supplied with suitable cabins, which proved not to be the case. In reading the court case I never realized how degrading and humiliating their disability can be.

Carnival used as a defense that the passenger ticket required filing suit not in California but I Miami , Florida. Using this defense the trial court dismissed the suit but under Federal rules the case was re-instituted and the second trial the court held enforcing the forum clause was unfair and unreasonable. The plaintiffs were hardly in financial position to go to Florida for their day in court. Then Carnival took the tact that the financial plight of the plaintiffs should have no bearing on the enforcement of the forum clause, which seems to be rather callous. Carnival also plead that their successful suit, Carnival v. Shute , which the Supreme Court ruled that a forum clause is enforceable. The trial court was reversed and it was ruled the forum for deciding the case has to be in California.

What I learned from this case is that the Supreme Court decision for Carnival v Shute has a "loop hole", the enforcement of the forum clause should not be unfair and unreasonable. In the Carnival v. Shute case, Shute did not plead that it was financially not possible to travel to Florida. If she had so plead, the Supreme Court might have ruled otherwise. I would not be surprised, based on Carnival's response in the past when it lost a case, that the U.S. Supreme Court be asked to decide the matter. This would probably be a good idea for the future of all passengers. The case of Walker, etal v. Carnival, etal is long but extremely informative and well written. I recommend those who take cruises, even if not disabled go to a law library and read the case. I learned that airlines do not provide accessibility facilities for the disabled. And that it can be humiliating for a disabled passenger who has bowel or incontinence problems during a flight. This case should also be a lesson for travel agents.

Mors@aol.com
The Cruise Line Ombudsman