IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

CASE NO. 01-0244-CIV-KING/O'SULLIVAN

UNITED STATES OF AMERICA,

Plaintiff

v\.

NORWEGIAN CRUISE LINES, INC.,

and

NORWEGIAN CRUISE LINE LIMITED,

Defendants.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_/

PLAINTIFF UNITED STATES' MEMORANDUM RESPONDING TO THE COURT'S [REQUEST
TO BRIEF THE APPLICABILITY OF PRIOR AUTHORITY]{.underline}

On August 8, 2001, this Court issued an Order directing the parties to
file briefs regarding whether the holding in [Resnick v. Norwegian
Cruise Line, Inc.]{.underline}, No. 99-1615-CIV-SEITZ (S.D. Fla. Nov.
10, 1999), is applicable and dispositive of the present case. The court
in [Resnick]{.underline} held that application of the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12181 [et]{.underline}
[seq.]{.underline}, to a foreign-flag cruise ship violated the legal
presumption against extraterritorial application of United States law.
Because the holding on this threshold coverage issue was effectively
overruled by the Eleventh Circuit in [Stevens v. Premier Cruises,
Inc.]{.underline}, 215 F.3d 1237 (11^th^ Cir. 2000), the United States
respectfully submits that the holding in [Resnick]{.underline} is
neither dispositive of nor applicable to this case.

**I. Background**

On January 19, 2001, the United States filed a Complaint in the United
States District Court for the Southern District of Florida against
Norwegian Cruise Lines, Inc., and Norwegian Cruise Line Limited
("Defendants"). The Complaint alleged that Defendants violated Title III
of the ADA[^1] by imposing unfair terms and conditions of travel on
passengers and potential passengers with vision impairments. The
Complaint alleges that Defendants' policies violate various provisions
of the ADA and includes, *inter alia*, claims that Defendants deny
persons with disabilities the full and equal enjoyment of their
facilities; that Defendants impose eligibility criteria that screen out
or tend to screen out persons with disabilities; and that Defendants
fail to make reasonable modifications in policies, practices, or
procedures where such modifications are necessary to make its cruise
ships available to persons with disabilities.[^2]

On November 10, 2000, Judge Seitz of the Southern District of Florida
issued an Order granting the Defendants' Motion to Dismiss in [Resnick
v. Norwegian Cruise Lines, Inc.]{.underline}, No. 99-1615-CIV-SEITZ
(S.D. Fla. Nov. 10, 1999). In [Resnick]{.underline}, the plaintiff, who
uses a wheelchair, argued that Defendants violated the ADA because one
of their ships was inaccessible to persons using wheelchairs. Judge
Seitz dismissed the plaintiff's complaint, concluding that plaintiffs
were seeking "extraterritorial application of the ADA to a ship which
flies under a foreign flag." [See]{.underline} Order Granting
Defendants' Motion to Dismiss, [Resnick v. Norwegian Cruise Lines,
Inc.]{.underline}, No. 99-1615-CIV-SEITZ (S.D. Fla. Nov. 10, 1999)
\[hereinafter [Resnick]{.underline} Order\], attached as Exhibit A, at
2-3. The court relied in large part on [Stevens v. Premier Cruises,
Inc.]{.underline}, 98-2140-CIV-MORENO (S.D. Fla. Nov. 30, 1998), which
dismissed an ADA complaint against a foreign-flag cruise ship on the
same grounds.

On June 22, 2000, the United States Court of Appeals for the Eleventh
Circuit ruled on an appeal in the [Stevens]{.underline} case. [Stevens
v. Premier Cruises, Inc.]{.underline}, 215 F.3d 1237 (11^th^ Cir. 2000),
attached as Exhibit B.[^3] In a unanimous decision, the court held that
Title III of the ADA applied to foreign-flag cruise ships operating in
United States waters. In reversing the district court, the Court held
that

> \[t\]he district court's conclusion . . . was grounded in an
> inaccurate legal assumption: that foreign-flag ships in United States
> waters are "extraterritorial." "By definition, an extraterritorial
> application of a statute involves the regulation of conduct beyond
> *U.S. borders*." ***Accordingly, a foreign-flag cruise ship sailing in
> United States waters is not extraterritorial.*** The presumption
> against extraterritoriality, therefore, is inapposite to this case.

[Stevens]{.underline}, 215 F.3d at 1242 (quoting [Environmental Defense
Fund, Inc. v. Massey]{.underline}, 986 F.2d 528, 531 (D.C. Cir. 1993)
(second emphasis added).[^4]

**II. The Holding in [Resnick]{.underline} Is Not Applicable and
Dispositive of This Case Because It Is Contrary to the Controlling Law
in the Eleventh Circuit, [Stevens v. Premier Cruises,
Inc.]{.underline}**

In construing federal common law, this Court is "undoubtedly bound by
the current law in the Eleventh Circuit." [U.S. Philips Corp. v.
Windmere Corp.]{.underline}, No. 84-2508-CIV-MARCUS, 1991 WL 338258, \*6
(S.D. Fla. Sept. 3, 1991) ("\[T\]here can be no question that an
appellate court's decision is the law of the case at the district court
level."); [accord]{.underline} [Dean Witter Reynolds, Inc. v.
Daily]{.underline}, 12 F. Supp.2d 1319, 1322 (S.D. Fla. 1998) ("Upon
determining that federal law applies, the Court is bound by the law as
dictated by the Supreme Court and the Eleventh Circuit.").
[Stevens]{.underline} is the current law in the Eleventh Circuit
regarding whether application of the ADA to foreign-flag cruise ships
operating in United States waters constitutes an extraterritorial
application of federal law. In holding that the presumption against
extraterritoriality was inapposite to deciding the applicability of the
ADA in such situations, the Eleventh Circuit not only reversed the
district court in [Stevens;]{.underline} it effectively reversed the
holding in the [Resnick]{.underline} Order, which was largely premised
upon the [Stevens]{.underline} district court holding regarding
extraterritoriality. In reversing the district court in
[Stevens]{.underline}, the Eleventh Circuit explained that applying the
ADA to a foreign-flag cruise ship sailing in United States waters was
not an extraterritorial application of the law. [See]{.underline}
[Stevens]{.underline}, 215 F.3d at 1242 & n.7. The Eleventh Circuit
specifically found that the district court's erroneous conclusion about
non-coverage of foreign-flag cruise ships was "grounded in an inaccurate
legal assumption: that foreign-flag ships in United States waters are
'extraterritorial'"; and that the presumption against extraterritorial
application of a statute was "inapposite to this case."
[Id]{.underline}. at 1242. The district court had relied upon [EEOC v.
Arabian American Oil Co.]{.underline}, 499 U.S. 244 (1991)
("[Aramco]{.underline}"), in which the Supreme Court announced that this
presumption against extraterritorial application of a statute was to be
invoked in the absence of a clearly expressed intention to the contrary.
In [Stevens]{.underline}, the Court of Appeals found the district
court's reliance on [Aramco]{.underline} to be misplaced and reasoned
that it was unnecessary to decide the reach of a federal civil rights
law beyond United States territory because "a foreign-flag ship sailing
in United States waters is not extraterritorial." [Id.]{.underline}

Because the [Resnick]{.underline} decision is based on the same
conclusion and underlying assumption found to be in error by the
Eleventh Circuit, [see]{.underline} [Resnick]{.underline} Order at 3
(citing [Aramco]{.underline}, 499 U.S. at 250-51), it is not valid law
and cannot be dispositive of this case. In fact, the district court in
[Resnick]{.underline} relied solely on [Aramco]{.underline} and the
lower court's decision in [Stevens,]{.underline} and noted that the
factual allegations in [Stevens]{.underline} were "nearly identical" to
those presented in [Resnick]{.underline}. [See]{.underline}
[Resnick]{.underline} Order at 3.

It is, then, the Eleventh Circuit's decision in [Stevens]{.underline}
that is controlling and dispositive of the threshold title III coverage
issue in this case. As is the case in [Stevens]{.underline}, the United
States in the instant case does not allege that Defendants discriminated
against individuals with disabilities outside United States territorial
waters. The United States has alleged that Defendants' policies and
practices, set forth and carried out by its Miami, Florida, main office
and directed at passengers and prospective passengers residing within
the United States, violate the ADA. This court therefore need not decide
whether the presumption against extraterritoriality prevents the ADA's
application outside the United States; instead, the jury may be allowed
to decide whether Defendants' conduct against passengers and prospective
passengers with vision impairments within the United States violates the
ADA.

The fact that some, but not all, of Defendants' conduct alleged by the
United States to violate the ADA occurred after the
[Resnick]{.underline} decision and before the [Stevens]{.underline}
decision does not make [Resnick]{.underline} dispositive.[^5] Even if
all of Defendants' allegedly discriminatory conduct had occurred before
the Eleventh Circuit's opinion was issued, that opinion must be given
full retroactive effect.[^6] [Cf.]{.underline} [Harper v. Virginia Dep
of Taxation]{.underline}, 509 U.S. 86, 96 (1993) (\"\[A\] rule of
federal law, once announced and applied to the parties to the
controversy, must be given full retroactive effect by all courts
adjudicating federal law. . . . in all cases still open on direct
review.\"); [see also]{.underline} [Herman v. Hector I. Nieves Transp.,
Inc.]{.underline}, 244 F.3d 32, 37-38 (1^st^ Cir. 2001); [Laborers\'
Int\'l Union of N. Am., AFL-CIO v. Foster Wheeler Corp.]{.underline}, 26
F.3d 375, 386 n.8 (3d Cir.1994); [Eckstein v. Balcor Film
Investors]{.underline}, 8 F.3d 1121, 1128 (7th Cir.1993).

Furthermore, the fact that the three-judge panel that decided
[Stevens]{.underline} has asked for supplemental briefing from the
parties does not disturb the [Stevens]{.underline} binding precedent.
Examination of the panel's request reveals that it is highly unlikely
that any possible revision of the [Stevens]{.underline} decision would
affect this case, because the panel's request focuses on a narrow issue
relevant only to physical changes to a cruise ship, which are not at
issue here.

When the Eleventh Circuit reversed the district court in
[Stevens]{.underline}, it held, *inter alia*, that "Title III was not
inapplicable, as a matter of law, to foreign-flag cruise ships in United
States waters." [Stevens]{.underline}, 215 F.3d at 1243. The court noted
that it specifically did not address "whether the treaty obligations of
the United States might, in some cases, preclude or limit application of
Title III." [Id.]{.underline} at 1243 n.8. In response to Premier's
petition for rehearing, the panel has requested supplemental briefing on
the narrow issue of "\[w\]hether customary international law establishes
that the flag state of a vessel has the responsibility for regulating
and implementing any changes to the physical aspects of a vessel and
whether application of the Americans with Disabilities Act to foreign
flagged cruise ships would conflict with that law." [See]{.underline}
Order, [Stevens v. Premier Cruises, Inc.]{.underline}, No. 98-5913 (June
14, 2000). The question appears carefully crafted to settle precisely an
issue relevant to the case before that court \-- but not this one \--
relating to the ADA's regulation of the "physical aspects of a
vessel."[^7]

Unlike this case, [Stevens]{.underline} involves claims that Premier
violated the "barrier removal" provisions of Title III of the ADA.[^8]
These provisions require covered entities to "remove architectural
barriers, and communication barriers that are structural in nature, in
existing facilities . . . where such removal is readily achievable." 42
U.S.C. § 12182(b)(2)(A)(iv). Barrier removal is considered "readily
achievable" if it is "easily accomplishable and able to be carried out
without much difficulty or expense." 42 U.S.C. § 12181(9).

The [Stevens]{.underline} panel's request for supplemental briefing as
to whether application of the ADA's "barrier removal" requirements
conflict with customary international law does not cast doubt on the
viability of a case alleging that a foreign-flag cruise ship violates
the ADA by employing discriminatory *policies and procedures* against
passengers and prospective passengers within the United States.[^9] Nor
can it affect the panel's holding regarding the inapplicability of the
presumption against extraterritoriality. The United States' Complaint
alleges that Defendants discriminate by completely denying their
facilities to persons with vision impairments; by imposing eligibility
criteria that screen out or tend to screen out such persons; and by
failing to make reasonable modifications in existing policies necessary
in order for persons with vision impairments to enjoy their cruise ships
-- conduct that, in this case, takes place entirely within United States
borders and is remedied by changes in policies and procedures, *not*
changes to the physical structure of a ship.[^10]

**CONCLUSION**

As the Eleventh Circuit in [Stevens]{.underline} explicitly rejected the
rationale in the [Stevens]{.underline} district court decision that was
the basis for the court's decision in [Resnick]{.underline}, both orders
have been effectively overruled and cannot control, or even affect, the
outcome of the proceedings here.

This Court must follow [Stevens]{.underline} on this issue, and
ultimately find that Title III of the ADA applies to foreign-flag cruise
ships operating in United States waters.

JOHN L. WODATCH

Chief

L. IRENE BOWEN

Deputy Chief

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

August 13, 2001 DANIEL I. WERFEL (Special Bar No. A5500561)

EUGENIA ESCH (Special Bar No. A5500563)

LEWIS BOSSING (Special Bar No. A550574)

Trial Attorneys

Disability Rights Section

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 514-5510

\(202\) 307-1197 (facsimile)

BARRY SABIN

Acting U.S. Attorney

VERONICA HARRELL-JAMES

Assistant United States Attorney

99 N.E. 4^th^ Street, 6^th^ Floor

Miami, Florida 33132

\(305\) 961-9327

\(305\) 530-7976 (facsimile)

[CERTIFICATE OF SERVICE]{.underline}

I hereby certify that the foregoing Plaintiff United States' Brief
Regarding Applicability of [Resnick]{.underline} was served by facsimile
and regular mail on August 13, 2001 on the following counsel:

Catherine MacIvor, Esq.

Richard Lara, Esq.

Eric J. Stockel

MASE & GASSENHEIMER, P.A.

1200 Brickell Bay Office Tower

1001 Brickell Bay Drive

Miami, Florida 33131

Phone Number: (305) 377-3770

Fax Number: (305) 377-0080

(Attorney for the Defendants)

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

LEWIS BOSSING (Special Bar No. A5500574)

Attorney

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, DC 20035-6738

\(202\) 514-5510

[^1]: Title III prohibits discrimination on the basis of disability by,
    *inter alia*, owners and operators of public accommodations and
    providers of specified public transportation. 42 U.S.C. §§ 12182,
    12184.

[^2]: The Complaint contains four separate counts. The first count
    alleges discrimination by Defendants against Stephen Gomes, a
    prospective passenger on one of Defendants' ships who was denied
    boarding in Houston, Texas, on August 22, 1999. Counts Two and Three
    allege that Defendants discriminated against Joy Stigile, neé
    Cardinet, and Robert Stigile, who had reserved and paid deposits for
    a June 19, 2000 honeymoon cruise aboard one of Defendants' ships.
    Count Four alleges that Defendants' policies and practices
    (including written requests to persons with vision impairments that
    they travel with a sighted chaperone, provide "fit for travel" notes
    from physicians, sign waivers acknowledging and assuming all risks
    associated with travel onboard the ship, and purchase travel
    insurance) constitute a pattern or practice of discrimination
    against all passengers or prospective passengers with vision
    impairments.

[^3]: The plaintiff in [Stevens]{.underline}, a wheelchair user, had
    reserved an accessible cabin onboard a Premier cruise ship that was
    registered in the Bahamas. Once onboard, however, the plaintiff
    discovered that some aspects of her cabin were inaccessible to
    persons using wheelchairs, and that many public areas of the cruise
    ship were similarly inaccessible. The plaintiff then filed suit
    against Premier, alleging that Premier had violated Title III of the
    ADA, by charging her a higher fare for an accessible cabin and by
    failing to remove architectural barriers aboard its ship. The
    district court dismissed the complaint for failure to state a claim,
    holding that Stevens failed to establish standing and that, as a
    matter of law, the ADA did not apply to foreign-flag cruise ships.

[^4]: On July 12, 2000, Premier filed a petition for rehearing or
    rehearing en banc raising several grounds for rehearing. On June 14,
    2001, the same three-judge panel that decided [Stevens]{.underline}
    issued an order requesting supplemental briefs on an issue that does
    not disturb the application of the ADA to Defendants in this case.
    [See]{.underline} Order, [Stevens v. Premier Cruises,
    Inc.]{.underline}, No. 98-5913 (June 14, 2000), attached as Exhibit
    C. As of the date of this filing, however, the court has not granted
    Premier's motion for rehearing. [See]{.underline}
    [infra]{.underline} Part II.

[^5]: Defendants' Motion to Stay and Incorporated Memorandum of Law
    states that, "\[s\]ignificantly, the [Stevens]{.underline} opinion
    took place after the cause of action accrued for both Gomes and the
    Stigiles." This statement is factually inaccurate. The Eleventh
    Circuit's decision in [Stevens]{.underline} was issued on June 22,
    2000. On June 30, 2000, Defendants advised counsel for Robert and
    Joy Cardinet Stigile, named complainants in this case, that
    Defendants would not refund the \$500 deposit paid by the Stigiles
    when they booked a cruise on the Norwegian Wind in March 2000. The
    United States' Complaint alleges that Defendants' conduct on this
    date, as well as conduct occurring before June 22, 2000, injured the
    Stigiles. [See]{.underline} Complaint, ¶¶ 35, 37, 51, 53.
    Furthermore, the United States alleges that, as long as they remain
    in effect, Defendants' discriminatory policies continue to injure
    passengers and prospective passengers onboard Defendants' ships.
    [See]{.underline} Complaint, ¶¶ 57-62.

[^6]: Whether Defendants believed the ADA applied to them is no more a
    defense than their ignorance of the existence of the law itself
    would be. [See]{.underline} [Torres v. INS]{.underline}, 144 F.3d
    472, 474 (7^th^ Cir. 1998) (Posner, J.) (Ignorance of a statute is .
    . . never a defense in a civil case, no matter how recent, obscure,
    or opaque the statute."). Moreover, both the Department of Justice
    and the Department of Transportation had indicated, well before the
    Eleventh Circuit's decision in [Stevens]{.underline}, that the ADA
    applied to foreign-flag cruise ships in United States internal
    waters. [See]{.underline} 28 C.F.R. Pt. 36, App. B at 585
    (Department of Justice); 56 Fed. Reg. 45,584, 45, 600 (1991)
    (Department of Transportation); Title III Technical Assistance
    Manual III-1.2000(D) (1994 Supp.).

[^7]: The briefing schedule is at this date uncertain. In addition to
    the parties' supplemental briefs, the International Council of
    Cruise Lines has requested permission to file a brief addressing the
    issue. The United States has also participated as amicus in the
    case. [See]{.underline} Brief for the United States as Amicus Curiae
    Supporting Appellants and Urging Reversal, [Stevens v. Premier
    Cruises, Inc.]{.underline}, No. 98-5913 (March 24, 1999), attached
    as Exhibit D.

[^8]: [See]{.underline} 42 U.S.C. §§ 12182(b)(2)(A)(iv) (public
    accommodations), 12184(b)(2)(C) (entities primarily engaged in
    transportation); 28 C.F.R. § 36.304; 49 C.F.R. § 37.5(f); Title III
    Technical Assistance Manual III-1.2000(D) (1994 Supp.) (stating that
    barrier removal provisions apply to cruise ships).

[^9]: [See]{.underline}, [e.g.]{.underline}, [Benz v. Compania Naviera
    Hidalgo, S.A.]{.underline}, 353 U.S. 138, 142 (1957) ("It is beyond
    question that a ship voluntarily entering the territorial limits of
    another country subjects itself to the laws and jurisdiction of that
    country."); [accord]{.underline} [Cunard S.S. Co. v.
    Mellon]{.underline}, 262 U.S. 100, 124 (1923); [Mali v. Keeper of
    the Common Jail]{.underline}, 120 U.S. 1, 12 (1887); [Armement
    Deppe, S.A. v. United States]{.underline}, 399 F.2d 794 (5th Cir.
    1968), cert. denied, 393 U.S. 1094 (1969).

[^10]: These issues of policy have no bearing on the physical aspects of
    a ship. Thus even if the Eleventh Circuit were to reverse its
    holding in [Stevens]{.underline} on the supplemental question on
    which it has asked for briefing, and to hold that customary
    international law dictates that the physical aspects of a cruise
    ship are governed by the ship\'s flag state, this result would not
    dictate a finding that the ADA does not apply to policy issues such
    as these.