High Court Reviews Access for Disabled on Foreign-Flag Cruise Ships
By Charles Lane
Washington Post Staff Writer
Tuesday, March 1, 2005; Page A06
Attorneys for a group of passengers and for the Bush administration yesterday urged the Supreme Court to require foreign-flagged cruise ships to be fully accessible to the disabled, but the court seemed unsure whether that would protect U.S. citizens from discrimination at sea or violate other countries' sovereignty.
Justice Ruth Bader Ginsburg summed up the competing concerns, telling an attorney for the passengers that he was "in effect saying, 'The U.S. rules the world,' " and then telling a lawyer for the cruise-ship industry that he was suggesting "an enterprise that is U.S.-centered in terms of where it does business . . . is not bound by bedrock anti-discrimination law."
The case of Spector v. Norwegian Cruise Line, No. 03-1388, arises at the intersection of maritime law, with its age-old notion that governments may not meddle in the "internal affairs" of foreign vessels except to keep the peace of their own ports, and the 1990 Americans With Disabilities Act (ADA), with its requirement that "places of public accommodation" and "private transportation entities" be made open and accessible for disabled people.
Major cruise lines are headquartered in Miami, ships often travel between U.S. ports, and 76 percent of the 9.8 million passengers who took cruises in 2003 were U.S. residents, according to the International Council of Cruise Lines. But because the vast majority of those ships are registered under "flags of convenience" offered by the Bahamas and other "open-registry" countries, they are outside U.S. jurisdiction.
The ADA did not clearly address the question. That is important because, in a 1963 case, the Supreme Court ruled that U.S. labor-relations law could not be applied to a foreign-flagged vessel unless Congress showed an "affirmative intent" to do so.
The question of whether this ruling should apply to an anti-discrimination law such as the ADA has perplexed regulators, who have not issued rules on the ADA's enforceability aboard foreign vessels. And it has generated conflicting rulings in federal appeals courts.
The Atlanta-based U.S. Court of Appeals for the 11th Circuit, with jurisdiction over the Miami port, has ruled that the ADA must be enforced. The New Orleans-based U.S. Court of Appeals for the 5th Circuit has ruled that it may not.
At the Supreme Court yesterday, attorney Thomas C. Goldstein told the justices that the 1963 precedent does not cover passengers, such as his clients. They say they were charged higher ticket prices in 1998 and 1999 for accessible cabins aboard Norwegian Cruise Lines and that the swimming pools, elevators and bathrooms were not configured for wheelchair users.
"The other side has no good argument why they can charge a disabled person double," Goldstein said.
But several justices noted that ships cannot readily change their amenities to fit the laws of each country they visit. International safety law also imposes restrictions on how ships must be built and operated, justices noted.
Justice Stephen G. Breyer told Goldstein he was troubled by the implication of Goldstein's argument that all ships in U.S. waters would be covered by the ADA, even if they were oil tankers that set aside a few berths for passengers.
"If that's your case, I'd be worried about it," he told Goldstein.
"Ninety-five percent of cruise ships' time is in U.S. water or U.S. ports," Goldstein replied.
Goldstein was supported by David B. Salmons of the Justice Department, who told the court that the Bush administration believes that the ADA covers "any vessel that comes into a U.S. port . . . and offers service to our residents."
But David C. Frederick, representing Norwegian Cruise Lines, countered that this would "open up a Pandora's Box" by exposing foreign ships to litigation without congressional authorization. "This is a highly complex area," he said. "Ships are very different from land-based conveyances."
Breyer asked him: "Why wouldn't Congress want a business that is two-thirds American to abide by American law?"
Frederick replied that Congress kept silent on the point to avoid a clash with foreign authorities.
A decision is expected by July.
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