Seyfarth Shaw LLP
USA August 13 2015
In late July, coinciding with the 25th Anniversary of the Americans with Disabilities Act (ADA), the Department of Justice (DOJ) entered into a landmark settlement agreement with Carnival Corp. to improve the physical accessibility of 62 cruise ships sailing under the Carnival Cruise Line, Holland America Line, and Princess Cruise brands. The agreement, also addresses the accessibility of Carnivals website, mobile application, and reservation system.
The agreement is notable in at least two key respects:
First, this is the first time that DOJ has taken the position that a cruise line must provide a minimum number of accessible cabins, conduct a survey of its ships, and develop a plan to improve the accessibility of its ships. This news may come as a surprise to some in the industry because DOJ has never issued any regulations setting the design standards for accessible cruise ships.
The U.S. Access Board is still in the process of issuing final guidelines for accessible cruise ship design, but those guidelines will not legally binding until DOJ adopts them through a proper rulemaking process which has yet to begin. No matter DOJ is moving forward with enforcement anyway, borrowing accessibility principles from the ADA Standards for Accessible Design, that apply to facilities on land. (Sound familiar to those of you watching the website enforcement actions proceed faster than regulations? For those of you not familiar, read on)
Second, the agreement shows DOJs continued pressure on businesses to make their websites and mobile applications conform to a privately developed accessibility standard that it has yet to adopt in any regulation namely, the Web Content Accessibility Guidelines (WCAG) version 2.0, level AA. As part of the settlement, Carnival agreed to make its website and mobile application conform with this set of guidelines.
Carnival also agreed to pay a $55,000 civil penalty to the federal government and $350,000 in damages to eligible complainants.
DOJ began its investigation into Carnival Corp. after receiving complaints from individuals with disabilities and their traveling companions about the alleged lack of accessible seating for entertainment and dining, accommodation procedures, deficient procedures for reserving accessible cabins and communication during emergency drills, and their inability to participate in various programs and services because of a disability.
Carnival expressly denied that it violated the law, but entered into the agreement to avoid potential litigation.
In addition to the website and mobile application remediation, and damages noted above, the agreement requires:
- 42 existing ships, and seven ships under construction, must be remediated to comply with certain aspects of ADA design standards that were written for accessible hotel rooms;
- Three percent of the cabins on 49 ships must be accessible according to three newly-created levels of accessibility (again, based on design standards for hotel rooms) depending on the age and class of ship;
- The cabins on the remaining 13 ships will be subject to remediation if still in service in four years;
- Implementation of corporate accessibility standards and policies relating to management of accessibility issues, complaint procedures, training, reservations and bookings for accessible cabins, airport transfers, embarkation and disembarkation, youth programs, dining and entertainment venues, service animals, and more;
- Appointment of (i) an executive-level ADA compliance officer, (ii) two ADA responsibilities officers, and (iii) ADA shipboard officers for each ship who are responsible for issues that arise at sea.
For those in the cruise line industry, the settlement terms are certainly a shot across the bow that warrant immediate attention.