Disabled travelers fight for access on cruise ships

By Lee Romney
Los Angeles Times

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EL SOBRANTE, Calif. — Dorene Giacopini is embroiled in a national legal debate that could affect millions of Americans, particularly as baby boomers age. At 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.

Giacopini, who was born with spina bifida and requires a wheelchair, had researched her vacation carefully, settling on an Alaskan cruise operated by Los Angeles-based Crystal Cruises.

Crystal had ensured Giacopini that the bulk of the Crystal Harmony was accessible. She had hoped to zip around the ship to attend to her 88-year-old mother. Instead, she said, 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 there were no ramps 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, who works as a special-education mediator, 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 11th U.S. Circuit Court of Appeals — which sits in Florida — ruled in 2002 that the ships must comply with the law. This year, the 5th Circuit — in Texas — said the ships don't have to, since doing so would impose U.S. law on other nations that flag vessels.

The U.S. Supreme Court decided Tuesday to take up the Texas case, meaning it will rule whether federal civil rights law, which prohibits discrimination against people with disabilities, applies to foreign-registered cruise ships sailing in U.S. waters. That means

Giacopini will watch from the sidelinesinstead of pressing 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 tell you they're accessible — you figure they're accessible," said Giacopini, 44, who lives in El Sobrante, a San Francisco Bay Area suburb. Cruise ship companies fly the flags of some of the world's least-regulated countries on most, if not all, their vessels, but they do much of their business out of U.S. ports. The ability of such ships to avoid compliance with U.S. environmental laws has created past 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 7th floor,"' said Kevin Knestrick, an attorney for Giacopini with 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 note that they have made great strides to accommodate them. A number of 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 bound 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 Travel Industry Association of America estimates that 24 percent 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 those with impaired mobility. 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 & Hospitality. Several provide a lift that lets wheelchairs on and off "tender boats" when docking with a ramp is not feasible.

New ships are being constructed with extra-wide cabin doorways and other accommodations, but the vessels still must contain watertight compartments and "fire zones" to stop flames. That often means raised thresholds and doors that automatically close.Advocates for disabled travelers concede that safety cannot be jeopardized but stress there is plenty that can be done to make "reasonable accommodation" as the law requires. Justice Department and plaintiffs' attorneys say cruise ships are covered by the law since they are both a form of commercial transportation and contain facilities such as restaurants and hotels deemed "public accommodations." Furthermore, they add, 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. Around the same time, the Texas case, that now will be heard by the U.S. Supreme Court, was moving forward against Norwegian Cruise Lines. Plaintiffs alleged they were required to pay more than other passengers because wheelchair-accessible cabins were not included in discount programs.

Once on board, they said, they discovered 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 it did 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 justices 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. Crystal Cruises spokeswoman Mimi Weisband said the company had made "every reasonable accommodation" for hundreds of disabled guests each year, many of them repeat customers. Cruise ships simply 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."