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Just when they thought it was safe to go back in the water . . .

by Cal Montgomery

The U. S. Supreme Court determined in Spector et al. v. Norwegian Cruise Line Ltd. that, yes, cruise ships flying foreign flags in U. S. waters are covered by Title III of the Americans with Disabilities Act.

Have you heard the one about the three crips who took cruises on either the Norwegian Sea or the Norwegian Star, only to discover that many of the facilities were inaccessible? Norwegian has -- and so have a couple of courts before the Justices got involved, because they filed a class-action lawsuit claiming that cruise lines are covered because they provide both public accommodation and public transportation.

I knew this case was coming, but I confess I took it for granted that the Justices wouldn't see it the way I do, any more than the local courts did. After all, I believe that civil rights come before states' rights and ... does everyone remember the Eleventh Amendment? The punch line, as one college Disability Students Services person quipped on a national listserv, is "What a paradox, the courts feel that they can control and abrogate foreign sovereign immunity but not state sovereign immunity under the ADA."

So the question of whether Norwegian Cruise Lines violated the ADA is going back to court.

Of course, Norwegian may win again. The Supreme Court has definitely not guaranteed people who use mobility devices a victory, because there are still questions about how readily achievable barrier removal might be and whether making the ships accessible might pose a direct threat to others, as well as whether making the necessary modifications would be a violation of international law.

"[I]t is likely," writes Justice Kennedy in the majority opinion (which was joined by Justices Stevens and Souter), that under a proper interpretation of 'readily achievable' Title III would impose no requirements that interfere with the internal affairs of foreign-flag cruise ships. If Title III did impose a duty that required cruise ships to make permanent and significant structural modifications that did not conflict with international law or threaten safety, or if the statute otherwise interfered with a foreign ship's internal affairs, the clear statement rule recognized in Benz and McCulloch would come into play at that point. The Title III requirement in question, however, would still apply to domestic cruise ships, and Title III requirements having nothing to do with internal affairs would continue to apply to domestic and foreign ships alike."

Justices Ginsburg and Breyer agree with the ruling, but disagree on some points, while Chief Justice Rehnquist and Justices Scalia and O'Connor, and Thomas disagree.

Posted June 6, 2005.

Cal Montgomery writes frequently for Ragged Edge.

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