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WASHINGTON — As snow fell outside, the Supreme Court on Monday spent an hour discussing cruise ships. But it was not a wistful reverie; the serious topic of the day was whether foreign-flag cruise ships must comply with the Americans With Disabilities Act because they sell tickets to U.S. passengers and dock at U.S. ports. The justices appeared split on the issue raised in Spector v. Norwegian Cruise Lines. Douglas Spector, several other people with disabilities, and their companions sued the Bahamian-flag cruise operator for discrimination under the ADA after taking cruises on the company’s ships sailing from the port of Houston. They said that customers with disabilities are charged higher ticket rates and that the vessels are not configured to enable them to use facilities including bathrooms and swimming pools. The Fifth Circuit U.S. Court of Appeals ruled last year that the ADA does not apply to foreign-flag ships, even though they account for the vast majority of cruises taken by American tourists. Judge Edith Jones, often mentioned as a potential Supreme Court nominee, said that neither the text of the statute nor its legislative history indicated any intent by Congress to include foreign cruise ships in the ADA’s jurisdiction. The Fifth Circuit ruling conflicted with the 2000 ruling in Stevens v. Premier Cruises, an Eleventh Circuit decision that found ADA jurisdiction. Because Florida — the starting point of two-thirds of American cruises — is in the Eleventh Circuit, the $25 billion industry is eager for a definitive resolution of the split. But justices saw problems with both sides of the debate. Thomas Goldstein of D.C.’s Goldstein & Howe, representing the disabled passengers, and David Salmons from the U.S. solicitor general’s office said that the ADA could be applied to foreign cruise ships without wrecking foreign treaty obligations. They also asserted that Congress intended the ADA to apply to the “full sweep” of commerce, which would include cruise ships. But Justice Ruth Bader Ginsburg told Goldstein and Salmons that under their view, “You are saying, ‘The United States rules the world.’” Goldstein said that application of the ADA to foreign cruise ships “has consequences,” but did not mean the United States was ignoring other treaties or sovereignty issues. Salmons said that if a “clear statement” of congressional intent is required, such a rule might call into question the enforcement of other laws against foreign vessels, including the Civil Rights Act, which bars racial discrimination in public accommodations. When the cruise line’s lawyer David Frederick rose to argue against ADA jurisdiction, Ginsburg was quick to ask him whether in fact the Civil Rights Act would also not apply to his client’s vessels. Frederick, a partner at D.C.’s Kellogg, Huber, Hansen, Todd, Evans & Figel, said the Bahamian Constitution’s prohibitions against discrimination would apply, and he added that Congress had not spoken about the foreign vessel issue in the Civil Rights Act context either. But Ginsburg and Justice David Souter continued to press him on the point. Frederick finally acknowledged that under his analysis, as far as U.S. law is concerned, a foreign cruise operator could discriminate against passengers on the basis of race. After that potentially damaging acknowledgement, Frederick tried to emphasize that if the ADA does apply to cruise ships, it would mean that “district judges would be the special masters of the cruise industry,” refereeing disputes over the adequacy of accommodations made for disabled passengers. Frederick also asserted that the claims of discrimination made against his client were “categorically false.” Hogan & Hartson’s Gregory Garre, representing the Bahamian government in the case, argued that expanding ADA jurisdiction to cruise lines would invite other governments to retaliate by imposing new or different legal requirements of their own, creating “discord, conflict and confusion” in the industry and a “crazy maze” of regulations that would be impossible to keep up with. Garre also said that it is the job of Congress, not the Supreme Court, to find a way to reconcile the ADA with treaty obligations and relations with other nations. Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C.

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