ADA Before the Supreme Court Today

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>From ADA Watch and the National Coalition for Disability Rights:

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Published at Law.com:

" Cruise Ships Resist Docking with ADA "

Marcia Coyle

The National Law Journal

02-28-2005

For more than a decade, the multibillion-dollar North American

cruise industry has taken the position that the Americans With

Disabilities Act does not apply to foreign-flagged ships. Today,a

group of cruise passengers with disabilities will test that position

in

the U.S. Supreme Court.

For Spector, Hollenbeck and the disability

community, a loss in the high court would be a " giant leap " back

from Congress' goal in the statute of full participation in all

aspects of American life by people with disabilities.

" The ADA is so sweeping that this would be the one gaping hole

if the industry's position is correct, " said Goldstein

of Washington's Goldstein & Howe, counsel to Spector, Hollenbeck

and others. They say they experienced isolation, higher prices

and obstacles to participating in activities during their Norwegian

Cruise Line trip.

" That's what is so unusual -- it would be the only type of

transportation and form of accommodation that would have this

exception, " Goldstein said. " That's difficult to understand as

a common sense matter. "

UNDERMINING TREATIES?

But for Norwegian Cruise Line, the U.S. Chamber of Commerce and

others, their opponents' " breathtakingly broad " argument carries

consequences for " myriad companies " that subject some portion

of their business to foreign regulation, and it threatens to

undermine international treaties.

" Congress has an extensive history of clearly stating in its

legislation when the law is to apply to foreign ships, " said

of Houston's Vinson & Ellis, counsel to Norwegian

Cruise Lines, noting such intent in the 1990 Oil Pollution Act.

" By contrast, Congress gave no indication of any kind that the

ADA should apply to foreign ships. "

Spector v. Norwegian Cruise Line, No. 03-1338, to be argued

today, centers on Title III of the ADA, which requires " places

of public accommodation " and " private transportation entities "

to be accessible to the disabled.

Two federal appellate courts, the 5th and 11th U.S. Circuit

Courts of Appeals, have split sharply on Title III's applicability

to foreign cruise ships. The bulk of the

industry's activities in the United States are in those two

jurisdictions.

In the high court, Spector argues that the 5th Circuit erred

when it applied the presumption against extraterritorial

application of domestic law. That court said, " Many of the

structural changes required to comply with Title III would be

permanent, investing the statute with extraterritorial

application as soon as the cruise ships leave domestic waters. "

The 5th Circuit also said that compliance would interfere with

the internal management and affairs of a foreign-flagged ship,

which is governed by the law of the flagging nation.

THE 11TH CIRCUIT'S VIEW

In contrast, the 11th Circuit said, " A foreign-flag ship sailing

in United States waters is not extraterritorial. " The issue is

not about a foreign-flagged ship's internal management, the court

added, but " about whether Title III requires a foreign-flag cruise

ship reasonably to accommodate a disabled, fare-paying, American

passenger while the ship is sailing in American waters. "

NCL's operations have an " overwhelming U.S. nexus, " according

to Goldstein. In every case in which the high court has addressed

the applicability of U.S. law in U.S. territory to protect U.S.

citizens, he said, the court has held the law applied to foreign-flagged

vessels. " Certainly nothing in the ADA overcomes the presumption

established by those decisions, " he argued.

But the petitioners' rule -- that domestic law applies to

foreign ships that enter U.S. waters -- contradicts " the purpose

of the international treaty system for regulation of the high

seas and ignores flag-state sovereignty, " argues in his

brief.

" Under petitioner's regime, a foreign cruise ship would be

obligated to comply with the domestic design and construction

laws of every port nation at which they call, " he said. " Such

a regime is obviously impracticable. "

Not true, countered Goldstein, who said a federal advisory

committee recently issued " very detailed " guidelines on how

ships will comply with the ADA and international conventions.

" The key point is Congress created that advisory board to

resolve those sorts of issues. It is a million-times better

solution than saying, 'Now we can discriminate against the

disabled.' "

Amicus briefs supporting Spector have been filed by the

Department of Justice, disability rights groups, eight state

attorneys general and a maritime law professor. NCL is supported

by the U.S. Chamber of Commerce, a cruise-line industry group,

the Bahamas and 13 mutual assurance associations.