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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 disabled cruise passengers will test that position in the U.S. Supreme Court. For Douglas Spector, Julia 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 Thomas 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 Thomas Wilson 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 Wilson 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.

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