Cruise Lines, Disabled Spar Over Accessibility

EL SOBRANTE, Calif. â€”  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 Kevin 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 Michael 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.�