Supreme Court to hear Baytown native�s case

Published February 15, 2005

A Baytown native will have his day in the U.S. Supreme Court Feb. 28, as the justices hear arguments on whether a U.S. law protecting the rights of the disabled applies to foreign-flagged ships operating in America.

David T. Killough is one of five named plaintiffs in a federal lawsuit against Norwegian Cruise Line Ltd. alleging that the company provided them unequal accommodations in violation of the Americans with Disabilities Act. One of the other plaintiffs, Rodger Peters, died last year, four years after the suit was originally filed in Houston federal court.

The case will decide whether Congress meant the 1990 law to apply to foreign-flagged vessels operating at U.S. ports. Although NCL is based in Miami and many of its ships are based in American ports, the ships are registered in the Bahamas.

Killough, a 1962 Lee High School graduate, lived in several places before returning to the Houston area about 10 years ago. He is the director of occupational, environmental, safety and health matters for AARC Environmental Inc., a consulting firm.

Killough has been partially disabled since 1998, when a surgery to remove a cancerous tumor from his left leg damaged some nerves, partially paralyzing the leg.

But Killough�s involvement in the suit stems from his capacity as an attendant to a woman, Julia Hollenbeck, who is paralyzed as a result of her development of post-polio syndrome, a condition which affects people who were exposed to the polio virus prior to the development of the vaccine in the 1950s.

In 1999, Hollenbeck booked an eight-day cruise to celebrate her birthday. The ship, Norwegian Sea, left the Barbours Cut terminal and called on the Mexican ports of Cancun and Cozumel, as well as Islas de la Bahia off the coast of Honduras.

�I asked Julia to make sure she was going to be comfortable on the trip with her wheelchair, and that Norwegian could appropriately accommodate her. So she contacted the travel agent, and not being satisfied with what the travel agent said, she contacted Norwegian�s U.S. headquarters (in Miami),� Killough said.

He said the company assured Hollenbeck that the ship, built in 1988, had appropriate accommodations for her and that she and Killough would be able to participate in the NCL-sponsored activities at the cruise�s three ports of call.

�That wasn�t the case. We were held onboard as a captured audience when the ship docked. They had even gone so far as to sell us tickets to the onshore activities, but on the day of the activities, when the ship pulled into port, they wouldn�t let us debark.�

Killough said that in Cancun, which is a shallow-water port, the ship isn�t able to pull alongside a pier, so passengers are ferried ashore by Mexican tender vessels.

�We found out later that Norwegian had had a terrible experience in the recent past. A person in a wheelchair had been dropped between the two vessels and crushed to death,� Killough said.

For that reason, NCL officials wouldn�t let Hollenbeck leave the ship. And because the company�s rules required that disabled passengers could not be left unattended by their companies, Killough was not able to debark at Cancun either.

While the pair was able to go ashore at the other two ports, Killough said, they were not allowed to participate in the NCL-sponsored onshore activities for which they had already paid.

�We had to hire at our own expense hire an off-duty NCL employee who was about the size of Arnold Schwarzenegger. He was able to drive for us and physically carry Ms. Hollenbeck into places of interest,� he said.

�We felt left out. We were a captured audience,� Killough says of their experience.

They later learned that another couple, David and Ana Spector, had a similar experience with the cruise line. Along with the late Rodger Peters, they filed the original lawsuit in 2000, hoping to be granted class-action status. The district judge did not grant that status, but allowed the suit to proceed.

In its response to the lawsuit, NCL primarily argues that when Congress enacted the ADA, it did not explicitly state that the law would apply to foreign vessels. Making it so would subject ships to all laws of any country they entered, rendering centuries of maritime law meaningless, the cruise line argues.

The district judge ruled that Title III of the ADA does apply to foreign-flagged vessels operating out of American ports, but denied the plaintiffs� claims that NCL had violated the barrier-removal regulations of the law.

Both sides appealed to the Fifth Circuit Court of Appeals, which held that Title III did not apply to foreign-flagged ships. But in a similar case out of Florida, the Eleventh Circuit Court of Appeals made an opposite ruling, creating a contradiction.

Elaine Roberts, one of the Houston attorneys representing the plaintiffs, said the split between the two appellate courts is �probably� one of the main reasons the Supreme Court agreed to hear the case.

�We�re not trying to talk about extraterritorial application, foreign cruise ships that operate in other countries. Clearly, when you have a Miami-based company like NCL, whose headquarters is in Miami, all their hiring, personnel, legal department is in Maimi, and they sail into American ports, we feel they should be held to compliance with the ADA, both in terms of their policies and their physical facilities,� she said.

Roberts said that the plaintiffs and their lawyers feel they have strong arguments, as well as good company. Aside from leading disability-rights organizations, the U.S. Department of Justice and the attorneys general of Texas and several other states have weighed in on the plaintiffs� side.

�It�s a shame that the cruise lines wouldn�t look to the public passenger potential for this. Because, just as a public service matter, you would think that a cruise line would want to make sure that its accessible for all of its guests, regardless of whether the ADA was in effect or not,� she said.

�Apparently, NCL doesn�t feel that way, and has actively fought it for five years now. It�s a shame when individuals have to go to the courts and resort to five years of litigation in order to get something that you would think would automatically be guaranteed to everyone traveling on their cruises,� she said.

In a written statement, the cruise line said that �accessibility issues are very important to both cruise vacation providers and to the traveling public. The inconsistent court decisions around the country on this subject are confusing to both cruise lines and their guests.�

The company said that it was �grateful� that the Supreme Court is reviewing the case to clear up the matter.

�Norwegian Cruise Line is proud of its record in accommodating passengers with disabilities. Just as NCL prevailed in this case in the Court of Appeals, we are confident that the U.S. Supreme Court will affirm that NCL has acted properly in matters relating to disability access,� the statement said.

The company also provided a fact sheet listing the ways it says it has acted to accommodate disabled passengers.