Cruise Lines, Disabled Spar Over Accessibility

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Cruise Lines, Disabled Spar Over Accessibility September 28, 2004

A California woman's suit says U.S. law should apply. Foreign operators

dispute that claim.

By Lee Romney, Times Staff Writer, Los Angeles Times

EL SOBRANTE, Calif. — Dorene Giacopini is embroiled in a national legal

debate that could affect millions of Americans, particularly as baby

boomers age. The issue: whether foreign-flagged cruise ships operating

out of U.S. ports must comply with the Americans With Disabilities Act

to accommodate people like her.

The special education mediator from this Bay Area suburb uses a

wheelchair and had researched her vacation carefully, settling on an

Alaskan cruise operated by Los Angeles-based Crystal Cruises.

Crystal had assured Giacopini that most of the Crystal Harmony was

accessible. She had hoped to zip around the ship to attend to her

88-year-old mother. Instead, she says, she was rendered helpless.

Workers had to set up and dismantle ramps just so she could reach the

buffet and poolside grill, she said. When no ramps were in place, she

took her chances backing her chair over jutting thresholds. On one

occasion, she tipped backward, smacking her head on the floor.

Giacopini sued in U.S. District Court. But a judge dismissed her case

this summer without hearing evidence, widening a legal rift of growing

consequence to the cruise ship industry and the booming

disabled-consumer market.

The U.S. 11th Circuit Court of Appeals, which sits in Florida, ruled in

2002 that the ships must comply with the act. This year, the 5th

Circuit, in Texas, said the ships don't have to, since doing so would

impose U.S. law on nations, such as Liberia, that flag the vessels.

The U.S. Supreme Court is expected to announce as early as today whether

it will take up the Texas case.

If it does, Giacopini will watch from the sidelines. If it doesn't, she

will press ahead with her appeal in the 9th Circuit in San Francisco.

" If [cruise ships are] high end, most of their customers are older; and

they [operators] tell you they're accessible — you figure they're

accessible, " said Giacopini, 44, who was born with the neural tube

defect spina bifida.

The cruise ship companies fly flags of some of the world's least

regulated countries on most, if not all, of their vessels, but do much

of their business out of U.S. ports. The ability of such ships to avoid

compliance with U.S. environmental law has created controversy. The

question of compliance with the Americans With Disabilities Act extends

that debate into the civil rights arena.

" You couldn't bring a cruise ship into San Francisco port and say, 'No

blacks here, no women allowed on the seventh floor,' " said Giacopini

attorney Knestrick, of the Oakland-based Disability Rights

Advocates. " But that's really what's happening here. She literally

couldn't go to certain parts of the ship. "

Industry officials, including a Crystal spokeswoman, say they welcome

disabled passengers and have made great strides to accommodate them.

Some cruise lines actively court the market.

However, the companies steadfastly maintain that they are not mandated

to comply with the landmark 1990 U.S. law that forbids discrimination

against the disabled in public accommodations and on commercial

transportation. Even if the act did apply, they say, they would not be

required to make physical changes to the ships because the U.S.

departments of Justice and Transportation, which oversee implementation

of the statute, have not issued regulations mandating specific changes.

The legal confusion is creating havoc for disabled customers and for

cruise lines: Because of the conflicting court decisions, passengers who

board in Florida have rights that others who roll onto the same ship in

Houston do not. Those like Giacopini who board in California have no

idea what their rights are.

" This is one of those [situations] where you want to do the right

thing, " said Crye, president of the Virginia-based International

Council of Cruise Lines, which has joined Texas plaintiffs and

defendants and the Justice Department in asking for U.S. Supreme Court

review. " But you need to know what the right thing is. "

The Travel Industry Assn. of America estimates that 24% of the U.S.

population will be disabled by 2030, as baby boomers age. Cruise ship

travel is touted by all sides as well-suited to the mobility-impaired.

Royal Caribbean, Carnival Cruise Lines and Holland America are among

those lauded for doing the most, said Jani Nayar, executive coordinator

of the Society for Accessible Travel and Hospitality. Several now

provide a lift that lets wheelchairs on and off tender boats when

docking with a ramp is not feasible.

New ships are being built with extra-wide cabin doorways and other

accommodations, Crye said. But the vessels still must include watertight

compartments and fire zones to stop flames. That often means raised

thresholds and doors that close automatically.

Advocates for the disabled concede that safety should not be jeopardized

but emphasize that much can be done to make reasonable accommodation for

the disabled, as the law requires.

There has been some compromise, but for the most part — including in

Giacopini's case — the industry has sought prompt dismissal of lawsuits,

arguing that Congress did not intend to apply the law to foreign-flagged

ships or cruise ships at all.

Justice Department and plaintiffs' attorneys counter that cruise ships

are covered by the law because they are a form of commercial

transportation and contain facilities deemed public accommodations.

Also,they say, because the vessels cater predominantly to U.S. customers

and sail from U.S. ports, they should be subject to U.S. law.

The 11th Circuit Court of Appeals concurred in 2002. Meanwhile, the

Texas case was moving forward against Norwegian Cruise Lines. Plaintiffs

alleged that they were required to pay more than other passengers

because wheelchair-accessible cabins were not included in shipwide

discount programs.

Once on board, they said, they discovered that key parts of the ship

were inaccessible — including the lifeboat deck. Norwegian said crew

members would carry disabled passengers to safety in an emergency and

insisted that it does not discriminate. But it focused legal arguments

on the vessel's foreign-flagged status. The company prevailed in the 5th

Circuit Court of Appeals, when judges concluded that " an act of Congress

ought never be construed to violate the law of nations, if any other

possible construction remains. "

It was that opinion that persuaded U.S. District Judge Maxine Chesney to

dismiss Giacopini's lawsuit. When Giacopini inquired about accessibility

on the Harmony, which sailed from San Francisco, a Crystal employee sent

her a detailed fax. Only two parts of the ship were listed as

inaccessible, the tip of the sun deck and a piano bar.

But on board, Giacopini said she discovered that key parts of the deck

where the buffet, pool and grill were located had steep doorway

thresholds.

Crew members regularly set up a ramp for Giacopini. But she would return

to find it stashed under a nearby highchair, she said. On Aug. 11, 2003,

she noticed once again that the ramp had been removed. She attempted to

roll over the threshold backward, but faltered.

" I couldn't grab her or anything. I just watched her go over, " said her

mother, Primetta Giacopini. " It's a helpless feeling. "

Giacopini said the computer room, fitness room, movie theater and other

places not listed on the fax were also difficult to access. Embarking

and disembarking posed problems too: At one port, Giacopini rolled off

the ship's ramp and returned to find that it had been modified to become

a stairway after the tide changed.

Crystal Cruises spokeswoman Mimi Weisband said the company has made

" every reasonable accommodation " for hundreds of disabled guests each

year, many of them repeat customers. Cruise ships must honor maritime

safety first, she said, but there are " more than 500 crew members on

each ship who are very service oriented and who could continually assist

our disabled guests. "

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