Page 20: of Maritime Reporter Magazine (November 2005)

20

Legal Beat

Section 12182 of the ADA. In addition, the vessels were alleged to be "public transportation services provided by a private entity … engaged in the business of transporting people … whose opera- tions affect commerce" which are also prohibited from discriminating by

Section 12184. The specific allegations of discrimination in the complaint con- cerning cruises in September 1998 and

August and September 1999 are: notwithstanding that the two named ves- sels can accommodate several thousand passengers, each vessel has but four cab- ins "accessible to persons who utilize wheel chairs or scooters"; passengers who must utilize these accessible cabins pay a surcharge; NCL has not taken steps and is unwilling to remove archi- tectural barriers in the vessels' existing facilities or to offer goods and services in alternative settings when it is readily achievable to do so and plaintiffs, there- fore, were denied full and equal benefit of the services, programs and facilities of the public accommodations unless they paid surcharges to obtain assistance or modifications from the crew; plain- tiffs were subjected to "different criteria and eligibility requirements that tend to screen out or discriminate against" per- sons utilizing scooters and wheel chairs in particular because NCL maintains evacuation equipment and programs in locations that are not accessible to them and would not be accessible in the event of an emergency; and, those plaintiffs traveling with the disabled were also discriminated against because they were forced either to miss programs, services and activities or avoid onboard facilities or to leave their loved ones alone. The suit seeks a declaratory judgment that

NCL has violated the ADA; an injunc- tion prohibiting NCL from continuing to fail to remove architectural barriers when such removal is readily achiev- able, to fail to modify its policies and procedures to insure equal access to goods and services aboard the vessels, and to fail to remove discriminatory policies, procedures and eligibility crite- ria; and the award of plaintiffs' reason- able attorneys fees and costs.

In November 2000, shortly after suit was filed, NCL moved to dismiss the complaint for failure to state a claim.

That is, even assuming the allegations of the complaint were true, NCL claimed they were legally insufficient to support the relief sought. NCL argued that requiring its ships to comply with the

ADA was an impermissible extraterrito- rial application of the ADA; that it was not required to remove barriers from its ships because the administrative agen- cies responsible for promulgating regu- lations regarding cruise ships had failed to do so; and, that the companion plain- tiffs' allegations did not establish that they were targeted for discrimination. It is important to understand that NCL's motion was made before plaintiffs offered any evidence in support of their allegations. The District Court issued its decision almost two years later, in

September 2002, granting in part and denying in part NCL's motion. A sum- mary of the District Court's holdings will help in understanding the signifi- cance of the Supreme Court's ruling.

Initially, the lower court determined that the ADA's definitions of public accom- modations-places of lodging (containing more than five rooms for rent); an estab- lishment serving food or drink; theaters, concert halls and the like; sales or rental and service establishments; museums

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