Number range CHAPTERBILL LANN LEE

Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH

Section Chief

RENEE M. WOHLENHAUS

Deputy Section Chief

PHILIP L. BREEN

Special Legal Counsel

M. CHRISTINE FOTOPULOS

Trial Attorney

Disability Rights Section

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 305-7475

ROBERT S. MUELLER, III

United States Attorney

GAIL KILLEFER (Bar No. CA 157248)

Civil Chief

Office of the United States Attorney

450 Golden Gate Ave.

Box 36055

San Francisco, CA 94102

\(415\) 436-7200

Attorneys for United States as [Amicus]{.underline} [Curiae]{.underline}

**UNITED STATES DISTRICT COURT**

**NORTHERN DISTRICT OF CALIFORNIA**

**BERNARD WALKER AND )**

**CHRISTINA ADAMS, )**

**)**

**Plaintiffs, ) Case No. C 98-2926 THE**

**) Civil Rights**

**vs. )**

**)**

**CARNIVAL CRUISE LINES; CARNIVAL ) Hearing:**

**CORPORATION; UNIQUE TRAVEL AGENCY; ) Date: November 20, 2000**

**and ANDRE'S TRAVEL AGENCY, ) Time: 10:00 a.m.**

**) Judge: Hon. Thelton E. Henderson**

**Defendants. )**

**)**

**UNITED STATES' MEMORANDUM OF LAW AS [AMICUS]{.underline}
[CURIAE]{.underline}**

**IN OPPOSITION TO DEFENDANT CARNIVAL'S**

**MOTION FOR SUMMARY JUDGMENT**

**TABLE OF CONTENTS**

#  PAGE

TABLE OF AUTHORITIES ii

INTRODUCTION 1

ISSUES TO BE DECIDED 2

RELEVANT FACTS 2

ARGUMENT 4

> I. THE ADA APPLIES TO CRUISE SHIPS 4
>
> A. Cruise Ships Are "Places Of Public Accommodation" 4
>
> B. Cruise Ships Provide "Specified Public Transportation Services" 6
>
> C. Title III's "Barrier Removal" Provision Applies to Cruise Ships 8

II\. THE ADA APPLIES TO FOREIGN-FLAG CRUISE SHIPS WHEN THOSE\
SHIPS ARE IN UNITED STATES PORTS OR OTHER INTERNAL\
WATERS 10

> A. Foreign-Flag Cruise Ships Are Generally Subject To United States
> Laws\
> When They Are In United States Ports Or Other Internal Waters 10
>
> B. The Presumption Against Extraterritoriality Does Not Apply 12

C. The Presumption Against Conflict With International Law Does Not\
Apply 15

> 1\. Application of the ADA Does Not Intrude Upon the Internal\
> Management and Affairs of Foreign-Flag Vessels 15
>
> 2\. Application of the ADA to Foreign-Flag Vessels Does Not\
> Abrogate Any International Treaties 18

CONCLUSION 20

**TABLE OF AUTHORITIES**

**CASES: PAGE**

[American Rivers v. F.E.R.C.]{.underline}, 201 F.3d 1186 (9^th^ Cir.
2000) 5

[Armement Deppe, S.A. v. United States]{.underline}, 399 F.2d 794 (5^th^
Cir. 1968), [cert.]{.underline} [denied]{.underline}, 393 U.S.\
1094 (1969) 11, 18

[Auer v. Robbins]{.underline}, 519 U.S. 452 (1997) 8

[Benz v. Compania Naviera Hidalgo, S.A.]{.underline}, 353 U.S.138 (1957)
11, 15-17

[Bragdon v. Abbott]{.underline}, 514 U.S. 624 (1998) 6

[Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc.]{.underline}, 467 U.S. 837 (1984) 5

[Cunard S.S. Co.]{.underline} v. [Mellon]{.underline}, 262 U.S. 100
(1923) 11-13

[Deck v. American Hawaii Cruises, Inc.]{.underline}, 51 F.Supp.2d 1057
(D. Haw. 1999) 5, 6

[Dowd v. International Longshoremen's Ass'n]{.underline}, 975 F.2d 779
(11th Cir. 1992) 16

[EEOC v. Arabian Am. Oil Co.]{.underline} ([ARAMCO]{.underline}), 499
U.S. 244 (1991) 12

[EEOC v. Bermuda Star Line, Inc.]{.underline}, 744 F. Supp.1109 (M.D.
Fla. 1990) 13, 17

[EEOC v. Kloster Cruise Ltd.]{.underline}, 939 F.2d 920 (11th Cir. 1991)
13, 17

[Environmental Defense Fund, Inc. v. Massey]{.underline}, 986 F.2d 528
(D.C. Cir. 1993) 14, 15

[Florida Paraplegic Ass'n v. Miccosukee Tribe]{.underline}, 166 F.3d
1126 (11th Cir. 1999) 5

[Foley Bros. v. Filardo]{.underline}, 336 U.S. 281 (1949) 12, 14

[Goyette v. DCA Adver., Inc.]{.underline}, 830 F. Supp. 737 (S.D.N.Y.
1993) 10

[Hartford Fire Ins. Co. v. California]{.underline}, 509 U.S. 764 (1993)
14, 15

[In re Simon]{.underline}, 153 F.3d 991 (9th Cir. 1998),
[cert.]{.underline} [denied]{.underline}, 525 U.S. 1141 (1999) 15

[Innovative Health Systems v. City of White Plains]{.underline}, 117
F.3d 37 (2nd Cir. 1997) 6

[International Longshoremen\'s Ass\'n v. Allied Int\'l,
Inc.]{.underline}, 456 U.S. 212 (1982) 17

[International Longshoremen\'s Local 1416 v. Ariadne Shipping
Co.]{.underline}, 397 U.S. 195 (1970) 17, 18

[Johnson v. City of Saline]{.underline}, 151 F.3d 564 (6th Cir. 1998) 6

[Laker Airways, Ltd. v. Sabena, Belgian World Airlines]{.underline}, 731
F.2d 909 (D.C. Cir. 1984) 15

[Lauritzen v. Larsen]{.underline}, 345 U.S. 571 (1953) 20

[Leisnoi, Inc. v. Stratman]{.underline}, 154 F.3d 1062 (9^th^ Cir. 1998)
5

[Mali v. Keeper of the Common Jail]{.underline}, 120 U.S. 1 (1887) 11,
16, 17

[McLean v. Crabtree]{.underline}, 173 F.3d 1176 (9^th^ Cir. 1999),
[cert.]{.underline} [denied]{.underline}, 120 S.Ct. 814 (2000) 5

[McCulloch v. Sociedad Nacional de Marineros de Honduras]{.underline},
372 U.S. 10 (1963) 15-17

[Menkowitz v. Pottstown Memorial Med. Ctr.]{.underline}, 154 F.3d 113
(3rd Cir. 1998) 6

[Morton v. Mancari]{.underline}, 417 U.S. 535 (1974) 19

[Murray v. The Schooner Charming Betsy]{.underline}, 6 U.S. (2 Cranch)
64 (1804) 18

[NLRB v. Dredge Operators, Inc.]{.underline} 19 F.3d 206 (5th Cir. 1984)
19

[Paralyzed Veterans of Am. v. D.C. Arena, L.P.]{.underline}, 117 F.3d
579 (D.C. Cir. 1997), [cert.]{.underline} [denied]{.underline},\
523 U.S. 1003 (1998) 6

[Pennsylvania Dep\'t of Corrections v. Yeskey]{.underline}, 524 U.S. 206
(1998) 5

[Posadas v. National City Bank]{.underline}, 296 U.S. 497 (1936) 12, 19

[Steele v. Bulova Watch Co.]{.underline}, 344 U.S. 280 (1952) 15

[Stevens v. Premier Cruise Lines]{.underline}, 215 F.3d 1237 (11th Cir.
2000) [passim]{.underline}

[Stinson v. United States]{.underline}, 508 U.S. 36 (1993) 6

[Thomas Jefferson Univ. v. Shalala]{.underline}, 512 U.S. 504 (1994) 8

[United States v. Inco Bank & Trust Corp.]{.underline}, 845 F.2d 919
(11th Cir. 1988) 15

[United States v. Louisiana]{.underline}, 470 U.S. 93 (1985) 10, 20

[United States v. Royal Caribbean Cruises, Ltd.]{.underline}, 11
F.Supp.2d 1358 (S.D.Fla. 1998) 18

[Walker v. Carnival Cruise Lines]{.underline}, 107 F.Supp.2d 1135 (N.D.
Cal. 2000) 2, 3

[Ward v. W & H Voortman, Ltd.]{.underline}, 685 F. Supp. 231 (M.D. Ala.
1988) 10

[Windward Shipping Ltd. v. American Radio Ass\'n]{.underline}, 415 U.S.
104 (1974) 16

**STATUTES:**

Title III of the Americans With Disabilities Act (ADA), 42 U.S.C.
§§12181-12189 [passim]{.underline}

National Labor Relations Act (NLRA), 29 U.S.C. 151 [et]{.underline}
[seq.]{.underline} 16-17

**RULES AND REGULATIONS:**

28 C.F.R. Pt. 36 [passim]{.underline}

49 C.F.R. Pt. 37 [passim]{.underline}

56 Fed. Reg. 45,584 (1991) [passim]{.underline}

63 Fed. Reg. 15,175 (1998) 6

**MISCELLANEOUS:**

ADA Title III Technical Assistance Manual and 1994 Supplement
[passim]{.underline}

ADA Legislative History

> S. Rep. No. 116, 101st Cong., 1st Sess. 65-66 (1989) 9
>
> H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 109-110 (1990) 9

Craig Allen, [Federalism in the Era of International Standards (Part
II)]{.underline},

> 29 J. Mar. L. & Com. 565 (1998) 18, 19

Convention on the High Seas, April 29, 1958

> T.I.A.S. No. 5200, 450 U.N.T.S. 82 18

International Convention for the Safety of Life at Sea (SOLAS)

> (Consolidated Ed. 1997) 10, 12, 18-19

United Nations Convention on the Law of the Sea, Dec. 10, 1982,

> 21 I.L.M 1261 (1982) 11, 19

**INTRODUCTION**

The question presented here is whether Title III of the Americans with
Disabilities Act (ADA), 42 U.S.C. §§12181-12189, applies to foreign-flag
cruise ships that do business in the United States. The answer to this
question will determine whether it is unlawful for cruise ships to
discriminate against people on the basis of disability in any of the
various ways prohibited by Title III. Thus, it will determine whether
cruise ships may impose unnecessary eligibility criteria for the purpose
of screening out passengers who have disabilities, or whether they may
simply deny boarding outright to any persons with disabilities. 42
U.S.C. §12182(a), §12182(b)(2). It will determine whether cruise ships
may treat passengers with disabilities differently than other
passengers, by, for example, charging higher prices or requiring all
persons with disabilities to travel with a companion. 42 U.S.C.
§12182(b)(1)(A). It will determine whether cruise ships may refuse to
reasonably modify the manner in which they provide their services and
amenities in order to afford passengers with disabilities a fair
opportunity to participate in and benefit from their cruise experience.
42 U.S.C. §12182(b)(2). In short, the question of Title III's
applicability will determine whether cruise ships will be allowed to
remain "disability-free" zones, or whether they will be required to
provide an equivalent level of service to passengers with disabilities
as they provide to all of their other paying customers.

Carnival has moved for summary judgment in this case on the broad ground
that Title III of the ADA, as a matter of law, is inapplicable to
foreign-flag cruise ships. As illustrated by the examples above, a
finding that Title III does not apply to cruise ships will deprive
persons with disabilities of the only basis they have under federal law
to challenge [any]{.underline} of the many different kinds of
discrimination on the basis of disability. Such a restrictive
interpretation of the ADA's coverage would have an unnecessarily harsh
and potentially far-reaching effect on the legal rights of people with
disabilities in the United States. At the same time, it is clear that
the real object of Carnival's concern is only one of the many specific
non-discrimination provisions in Title III that apply to cruise ships:
the provision requiring cruise ships to remove access barriers where it
is "readily achievable" to do so -- that is, when such removal can be
easily accomplished "without much difficulty or expense." 42 U.S.C.
§12182(b)(2)(iv); 28 C.F.R. §36.304. Overstating for the purpose of its
present motion the burden that this one requirement imposes upon cruise
ships, Carnival proceeds to conflate its analysis of these two distinct
issues -- whether the ADA applies to cruise ships at all, and how the
Title III provision requiring barrier removal should be applied in this
specific case.

Whether or not it is readily achievable for Carnival to remove any
particular access barrier on its "Holiday" cruise ship with respect to
the specific allegations made in this case is a largely fact-based
determination, which cannot and need not be resolved as part of this
motion. The only issue this Court should determine at this time is
whether Title III of the ADA -- including all of its applicable
non-discrimination and equal opportunity provisions -- applies to
foreign-flag cruise ships. If it does, Carnival is not entitled to
summary judgment and Plaintiffs must be permitted to proceed with their
claims of unlawful discrimination.

**ISSUES TO BE DECIDED**

1\. Whether cruise ships are "places of public accommodation" and/or
provide "specified public transportation" such that they are subject to
Title III of the ADA.

2\. Whether foreign-flag cruise ships that do business in United States
ports and internal waters are subject to the ADA.

## RELEVANT FACTS

1\. Plaintiffs Bernard Walker and Christina Adams (hereinafter and
collectively, "Plaintiffs") are persons with disabilities within the
meaning of the ADA. Plaintiff Bernard Walker has quadriplegia, and
Plaintiff Christina Adams has Multiple Sclerosis and is legally blind.
They both use wheelchairs for mobility. [Walker v. Carnival Cruise
Lines]{.underline}, 107 F. Supp.2d 1135, 1136-1137 (N.D. Cal. 2000).
During the summer of 1997, Plaintiffs and their families each took
separate, 3-4 day trips on the "Holiday," a cruise ship that picks up
passengers from Los Angeles, California, makes brief stops at ports on
Catalina Island, California and in Ensenada, Mexico, and then returns to
Los Angeles. [Ibid.]{.underline}; Carnival's Brief, p. 2. Although
Plaintiffs had been assured that the rooms they had reserved (which are
advertised in Carnival's brochures as "modified for \[the\] disabled")
and the "Holiday" ship as a whole were fully accessible to persons with
disabilities, they quickly discovered otherwise. As a result, they ended
up spending much of their 3-4 day cruises miserably confined to their
inaccessible rooms, unable to enjoy or participate in the ship's various
services and activities. They allege suffering personal injuries,
embarrassment and humiliation, and a wholly disappointing cruise
experience as a result of Carnival's failure to make its services and
amenities fully open and accessible to people with disabilities.
[Walker]{.underline} at 1137.

2\. The "Holiday" cruise ship, which until last year was registered in
Panama and is currently registered in the Bahamas, is owned and operated
by Carnival Cruise Lines and Carnival Corporation (hereinafter and
collectively, "Carnival"). Carnival's Brief, p. 2-3. Carnival is "the
largest, most popular and most profitable cruise line in the world,"
earning over \$1 billion in net income last year. Carnival's 1999 Annual
Report, p. 2. Although Carnival is incorporated in Panama, it has its
principal place of business in Florida. [Walker]{.underline} at 1136. As
an integral part of the cruise experience, Carnival's cruise ships,
including the "Holiday," offer numerous types of services and amenities
to their passengers, including but not limited to lodging, restaurants,
bars, coffee shops, retail stores, Broadway-style shows, movie theaters,
social activities, computer rooms, gyms, health spas, swimming pools and
hot tubs, gaming casinos and arcades, arrangements for "shore
excursions" and day care facilities.

3\. On July 27, 1998, Plaintiffs filed suit against Carnival in this
Court, alleging various violations of the ADA as well as California law.
Plaintiffs allege that Carnival violated several of the
non-discrimination provisions in Title III of the ADA, including: (1)
discrimination against individuals with disabilities "in the full and
equal enjoyment of the \[cruise ship's\] goods, services, facilities,
privileges, advantages, or accommodations" (42 U.S.C. §12182); (2)
"failure to make reasonable modifications in policies, practices or
procedures when such modifications are necessary to afford \[the cruise
ship's\] goods, services, facilities, privileges, advantages or
accommodations to individuals with disabilities" (42 U.S.C.
§12182(b)(2)(A)(ii)); (3) "failure to take such steps as may be
necessary to ensure that no individual with a disability is excluded,
denied services, segregated, or otherwise treated differently than other
individuals because of the absence of auxiliary aids and services\..."
(42 U.S.C. §12182(b)(2)(A)(iii)); (4) "failure 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)); and (5) where it is not, "failure to make
such goods, services, facilities, privileges, advantages, or
accommodations available through alternative methods if such methods are
readily achievable" (42 U.S.C. §12182(b)(2)(A)(v)). Plaintiffs'
Complaint, p. 18-19.

4\. On September 15, 2000, Carnival filed a Motion for Final Summary
Judgment, asserting that Title III of the ADA does not apply to the
"Holiday" cruise ship because the ADA does not apply to foreign-flag
cruise ships.

## ARGUMENT

### I. THE ADA APPLIES TO CRUISE SHIPS

#  A. Cruise Ships Are "Places Of Public Accommodation"

Title III of the ADA prohibits discrimination "on the basis of
disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any place of
public accommodation." 42 U.S.C. §12182(a). A "place of public
accommodation" is defined as a facility, operated by a private entity,
whose operations affect commerce and fall within one or more of the 12
broad categories of facilities listed in the statute. See 42 U.S.C.
§12181(7). These categories include, [inter]{.underline}
[alia]{.underline}, places of lodging, establishments serving food or
drink, places of exhibition or entertainment, sales establishments,
service establishments, and places of exercise or recreation.
[Ibid]{.underline}.

The Department of Justice has determined that a cruise ship is a place
of public accommodation, and is therefore subject to Title III of the
ADA. 28 C.F.R. Pt. 36, App. B at 587 (finding "places of public
accommodation operated in mobile facilities, such as cruise
ships\...\[to be\] covered under this part, and\...included in the
definition of 'facility.'"); Title III Technical Assistance Manual
III-1.2000(D) (1994 Supp.). Cruise ships, which typically contain many
if not all of these kinds of establishments, function as one or more of
the types of places of public accommodations enumerated in 42 U.S.C.
§12181(7). As the Department of Transportation cogently observed, making
its own determination that cruise ships are places of public
accommodation, "\[c\]ruise ships are self-contained floating
communities." 56 Fed. Reg. 45,584, 45,600 (1991). "In addition to
transporting passengers, cruise ships house, feed, and entertain
passengers and thus take on aspects of public accommodations."
[Ibid]{.underline}. The only two federal courts to address the question
thus far have both held that a cruise ship is a place of public
accommodation, subject to the requirements of Title III of the ADA.
[See]{.underline} [Stevens v. Premier Cruise Lines]{.underline}, 215
F.3d 1237, 1241 (11^th^ Cir. 2000); [Deck v. American Hawaii Cruises,
Inc.]{.underline}, 51 F.Supp.2d 1057, 1061 (D. Haw. 1999). As the
Eleventh Circuit stated in [Stevens]{.underline}:

> Because Congress has provided such a comprehensive definition of
> "public accommodation," we think that the intent of Congress \[to
> apply Title III to cruise ships\] is clear enough\...Cruise ships, in
> fact, often contain places of lodging, restaurants, bars, theaters,
> auditoriums, retail stores, gift shops, gymnasiums, and health spas.
> And a public accommodation aboard a cruise ship seems no less a public
> accommodation just because it is located on a ship instead of upon dry
> land. In other words, a restaurant aboard a ship is still a
> restaurant. Very important, Congress made no distinctions -- in
> defining "public accommodation" -- based on the physical location of
> the public accommodation. We conclude, therefore, that those parts of
> a cruise ship which fall within the statutory enumeration of public
> accommodations are themselves public accommodations for the purposes
> of Title III.

[Stevens]{.underline} at 1241.[^1] Moreover, this Court must defer to
the Department of Justice's interpretation of the ADA as long as it
represents a reasonable construction of the statute. [See]{.underline}
[Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc.]{.underline}, 467 U.S. 837, 843-844 (1984); [American Rivers v.
F.E.R.C.]{.underline}, 201 F.3d 1186, 1197 (9th Cir. 2000). This is so
even if this Court might have reached a different result were it
confronted with the question in the first instance. [See]{.underline}
[McLean v. Crabtree]{.underline}, 173 F.3d 1176, 1181 (9th Cir. 1999)
("Instead, \[the Court\] simply ask\[s\] 'whether \[it is\]
compell\[ed\] to reject' the agency's construction"), citing [Leisnoi,
Inc. v. Stratman]{.underline}, 154 F.3d 1062, 1069 (9^th^ Cir. 1998).
The determination of the Department of Justice that cruise ships are
places of public accommodation is reasonable.[^2]

As places of public accommodation, cruise ships must comply with all
Title III requirements applicable to their provision of goods and
services, such as nondiscriminatory eligibility criteria, reasonable
modifications in policies, practices, and procedures, provision of
auxiliary aids, removal of architectural barriers in existing facilities
where readily achievable, and alternatives to barrier removal that are
readily achievable. 42 U.S.C. §12182(b)(2)(A); 28 C.F.R. Pt. 36, App. B
at 587; Technical Assistance Manual III-1.2000(D) (1994 Supp.).[^3]
Cruise ships are not required to comply with any specific accessibility
standards for new construction or alterations, however, because no
federal standards for the construction or alteration of accessible ships
have been developed. 28 C.F.R. Pt. 36, App. B at 587; Technical
Assistance Manual III-5.3000. As noted by Carnival, the Access Board is
currently developing such guidelines. 63 Fed. Reg. 15,175 (1998).
Although the Court need not address at this juncture the secondary
issues regarding application of Title III's requirements to cruise
ships, Plaintiffs' allegations in this case fall well within the scope
of the requirements that the Department of Justice has determined are
applicable to cruise ships.

**B. Cruise Ships Provide "Specified Public Transportation Services"**

In addition to being "places of public accommodation," cruise ships are
also "specified public transportation services," which are covered by
Section 12184 of the ADA. [See]{.underline} [Deck]{.underline},
[supra]{.underline}.[^4] Section 12184 prohibits discrimination on the
basis of disability in "specified public

transportation services provided by a private entity that is primarily
engaged in the business of transporting people and whose operations
affect commerce." 42 U.S.C. §12184(a). Specified public transportation
is defined as "transportation by bus, rail, or [any other
conveyance]{.underline} (other than by aircraft) that provides the
general public with general or special service\...on a regular and
continuing basis." 42 U.S.C. §12181(10) (emphasis added). The ADA
directs the Department of Transportation to issue regulations to
implement 42 U.S.C. §12184. 42 U.S.C. §12186(a)(1). The Department of
Transportation has determined that cruise ships are covered by Section
12184 of the ADA. 56 Fed. Reg. 45,584, 45,600 (1991) (stating that "the
ADA\...cover\[s\] passenger vessels, including ferries, excursion
vessels, sightseeing vessels, floating restaurants, cruise ships, and
others," and also noting that "\[c\]ruise ships are used almost
exclusively for transporting passengers and no one doubts that their
operations affect commerce."). The Department of Transportation has
incorporated the Department of Justice regulations that govern cruise
ships -- including those requiring barrier removal -- into its
regulations. See 49 C.F.R. Pt. 37, App. D § 37.109 at 488; 49 C.F.R.
37.5(f). Like the Department of Justice, the Department of
Transportation has not yet established new construction or alteration
standards applicable to cruise ships. [Ibid]{.underline}.

Carnival argues that the "Holiday" is not "primarily engaged in the
business of transporting people," asserting that it "serves only an
incidental transportation function, while its primary function is to
provide entertainment and relaxation for its guests." Carnival's Brief,
p. 5. This is disingenuous -- that cruise ships "go somewhere" and
transport passengers from one place to another is unquestionably an
essential component of the cruise experience. That it provides other
services and amenities is not determinative -- the coverage of the
statute is not limited to entities that are [exclusively]{.underline}
engaged in providing transportation.[^5] Moreover, contrary to
Carnival's suggestion, transportation services offered to the public are
covered even if they are not primarily used to get people to work -- the
equal opportunity goals of the ADA are served regardless of whether the
ultimate purpose of the transportation is utility or pleasure. Thus, in
addition to being covered as "places of public accommodation," cruise
ships are also covered insofar as they provide "specified public
transportation services" and are thus subject to all applicable
requirements of Title III of the ADA.

C.  **Title III's "Barrier Removal" Provision Applies to Cruise Ships**

Carnival argues that the provision in Title III requiring "readily
achievable" barrier removal does not apply to cruise ships. This is
incorrect. In the preamble to its Title III regulations, the Department
of Justice stated that cruise ships are places of public accommodation
and are subject to subparts B and C of its regulations (28 C.F.R.
36.201-36.310).[^6] 28 C.F.R. Pt. 36, App. B at 587. Similarly, in its
interpretive guidance, the Department of Transportation explained that
"ferries and other passenger vessels operated by private entities are
subject to the requirements of \[49 C.F.R. 37.5\] and applicable
requirements of 28 C.F.R. Pt. 36, the \[Department of Justice\] rule
under title III of the ADA." 56 Fed. Reg. 45,584, 45,744 (1991)
(codified at 49 C.F.R. Pt. 37, App. D § 37.109 at 488).

These regulations establish enforceable accessibility requirements for
cruise ships. The regulations require covered entities, including cruise
ships, to comply with the "barrier removal" provision as set forth in 42
U.S.C. §12182(b)(2)(A)(iv) for public accommodations and in 42 U.S.C.
§12184(b)(2)(C) for 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.). These barrier removal 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 regulations give 21 examples of
measures that, depending on the facts, may or may not be "readily
achievable" for a given facility to implement, including,
[inter]{.underline} [alia]{.underline}, installing or providing
temporary ramps; removing high-pile, low density carpeting;
repositioning such items as shelves, telephones and paper-towel
dispensers and adding full-length mirrors; adding raised markings on
elevator control buttons; installing flashing alarm lights; providing
alternative accessible paths; installing accessible door hardware;
installing grab bars in bathrooms; installing raised toilet seats and
rearranging toilet partitions to increase maneuvering space; insulating
pipes under sinks to prevent burns; and rearranging tables, chairs and
other furniture. 28 C.F.R. 36.304(b).[^7]

The readily achievable standard "focuses on the business operator and
addresses the degree of ease or difficulty of the business operator in
removing a barrier; if barrier removal cannot be accomplished readily,
then it is not required." S. Rep. No. 116, 101st Cong., 1st Sess. 65-66
(1989); H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 109-110 (1990).
Title III provides that the primary factors to be considered in
determining whether an action is readily achievable are "the nature and
cost of the action," "the overall financial resources of the facility,"
including "the effect on expenses and resources, or the impact otherwise
of such action upon the operation of the facility," "the overall
financial resources of the covered entity," including "the number, type
and location of its facilities," and "the type of operation or
operations of the covered entity." 42 U.S.C. § 12181(9). In addition,
the regulations implementing Title III make clear that "legitimate
safety requirements that are necessary for safe operation" must also be
considered as an essential part of the determination whether a given
action is "readily achievable."[^8] As far as the ADA is concerned,
then, the meaning of the barrier removal requirement with respect to any
given access barrier is ultimately driven, not by compliance with any
particular design standard, but by whether a proposed modification is
"readily achievable" for the covered entity to implement.

**III. THE ADA APPLIES TO FOREIGN-FLAG CRUISE SHIPS WHEN THOSE SHIPS ARE
IN UNITED STATES PORTS OR OTHER INTERNAL WATERS**

A. Foreign-Flag Cruise Ships Are Generally Subject To United States Laws
When They Are In United States Ports Or Other Internal Waters

Virtually all cruise ships serving United States ports are foreign-flag
vessels. 56 Fed. Reg. 45,584, 45,600 (1991). Nothing in the plain
language of the ADA excludes from coverage foreign-flag cruise ships
that do business in the United States. In addition, while many
foreign-flag cruise ships are actually owned and operated by U.S.
corporations, even if they are not, places of public accommodation and
transportation services that are owned by foreign corporations are not
exempted from the ADA's coverage if they are operated in the United
States. 42 U.S.C. §12182, §12184. Unless specifically exempted by the
statute in question, entities doing business in the United States must
comply with all generally applicable laws, including laws that prohibit
discrimination. See, [e.g.]{.underline}, [Goyette v. DCA Adver.,
Inc.]{.underline}, 830 F. Supp. 737, 745 (S.D.N.Y. 1993); [Ward v. W & H
Voortman, Ltd.]{.underline}, 685 F. Supp. 231, 232 (M.D. Ala. 1988).
When a cruise ship enters United States ports and internal waters, it is
doing business in the United States.[^9] Therefore, cruise ships
operating in United States ports and internal waters

are subject to all generally applicable federal laws.[^10]

The fact that a cruise ship sails under a foreign flag or is registered
in a foreign country does not exempt it from the generally applicable
laws of the countries in which it does business. "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."
[Benz v. Compania Naviera Hidalgo, S.A.]{.underline}, 353 U.S. 138, 142
(1957); accord [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). In
[Cunard]{.underline}, the Supreme Court held:

> The merchant ship of one country voluntarily entering the territorial
> limits of another subjects herself to the jurisdiction of the latter.
> The jurisdiction attaches in virtue of her presence, just as with
> other objects within those limits. During her stay she is entitled to
> the protection of the laws of that place and correlatively is bound to
> yield obedience to them.

[Cunard]{.underline}, 262 U.S. at 124.[^11] No court has held that
foreign-flag ships that enter United States ports are presumptively
exempt from all United States laws merely because of their foreign
registry.

The Department of Justice has determined that cruise ships must comply
with the ADA "to the extent that \[their\] operations are subject to the
laws of the United States." 28 C.F.R. Pt. 36, App. B at 587. Because
foreign-flag vessels are "subject to the laws of the United States" when
they are in United States ports or other internal waters, this means
that foreign-flag cruise ships are subject to the requirements of the
ADA when they are in the ports or internal waters of the United States.
The Department of Justice Technical Assistance Manual provides that
foreign-flag ships "that operate in United States ports may be subject
to domestic law, such as the ADA, unless there are specific treaty
prohibitions that preclude enforcement." Title III Technical Assistance
Manual III-1.2000(D) (1994 Supp.).[^12] The Department of Transportation
has similarly determined that the United States "appears to have
jurisdiction to apply ADA requirements to foreign-flag cruise ships that
call in U.S. ports" except to the extent that enforcing ADA requirements
would conflict with any international treaty. 56 Fed. Reg. 45,584,
45,600 (1991). Because the ADA is generally applicable federal
legislation and the plain language of Title III does not exempt
foreign-flag ships from its coverage, Carnival can avoid coverage only
by establishing that some canon of statutory construction requires this
Court to exempt foreign-flag cruise ships that do business in the United
States from the requirements of the ADA. No such presumption against
application of the ADA applies in this case.

####  B. The Presumption Against Extraterritoriality Does Not Apply

It is true that "legislation of Congress, unless a contrary intent
appears, is meant to apply only within the territorial jurisdiction of
the United States." [EEOC v. Arabian Am. Oil Co.]{.underline}, 499 U.S.
244, 248 (1991) ([ARAMCO]{.underline}) (quoting [Foley Bros. v.
Filardo]{.underline}, 336 U.S. 281, 285 (1949)).[^13] Under the
[ARAMCO]{.underline} standard, Title III of the ADA does not apply
extraterritorially. However, the Supreme Court's decision in
[Cunard]{.underline} makes clear that activity that occurs on a
foreign-flag ship within United States internal waters or ports is not
extraterritorial. [Id]{.underline}., 262 U.S. at 123-124. In
[Cunard]{.underline}, the Court held that the Volstead Act, which
outlawed the importation and transportation of alcoholic beverages
within the United States, prohibited foreign-flag vessels from bringing
alcohol into American ports. After concluding that the Act did not apply
extraterritorially, the Court held that the Act [did]{.underline} apply
to vessels while they were docked in an American port or otherwise
operating in American waters. [Id]{.underline}. at 124. The Court found
it irrelevant to its analysis that the alcoholic beverages were kept
sealed in storage to be used only when the ship was outside United
States waters. [Id]{.underline}. at 130. Because the beverages were
brought into United States ports and harbors, the statute applied.
[Ibid]{.underline}.

Similarly, in [EEOC v. Kloster Cruise Ltd.]{.underline}, 939 F.2d 920
(11th Cir. 1991) the Eleventh Circuit held that an employer operating a
foreign-flag cruise ship had to comply with an agency subpoena issued in
connection with the investigation of complaints filed by two cruise ship
employees who brought employment discrimination complaints under Title
VII. [Id]{.underline}. at 924. Rejecting the argument that the EEOC
clearly lacked jurisdiction to investigate the complaint, the court held
that the EEOC was entitled to discover information that would be
relevant to its jurisdiction, such as "the nature and extent of \[the
employer's\] business operations in Miami, the extent to which the
employment activities occurred in Miami, and whether the acts of alleged
discrimination occurred in Miami." [Id]{.underline}. at 923. See also
[EEOC v. Bermuda Star Line, Inc.]{.underline}, 744 F. Supp. 1109, 1111
(M.D. Fla. 1990) (presumption against extraterritoriality did not
require dismissal of Title VII claim alleging that plaintiff had been
denied employment on foreign-flag ship, where plaintiff alleged that her
application had been submitted to the employer's Miami office and had
been rejected in the United States). Because the alleged discriminatory
conduct took place within the United States, the presumption against
extraterritoriality did not apply.

Moreover, when a cruise ship is doing business within the internal
waters and ports of the United States, the principle of
extraterritoriality is not implicated simply because the ship is owned
by a foreign company or flies under a foreign flag. Application of the
presumption against extraterritoriality is triggered by where the
conduct takes place, not by the nationality of the actor. See
[Stevens]{.underline}, [supra]{.underline} at 1242 (rejecting the
argument "that foreign-flag ships in United States waters are
'extraterritorial'\... \[since\] '\[b\]y definition, an extraterritorial
application of a statute involves the regulation of conduct [beyond U.S.
borders]{.underline},'" citing [Environmental Defense Fund, Inc. v.
Massey]{.underline}, 986 F.2d 528, 531 (D.C. Cir. 1993) (emphasis added
in [Stevens]{.underline}.) In [Massey]{.underline}, the Court held that
the presumption against extraterritoriality does not apply where the
conduct that is being regulated by a statute occurs within the United
States. See also [Hartford Fire Ins. Co. v.]{.underline}
[California]{.underline}, 509 U.S. 764, 815 (1993) (Scalia J.,
dissenting) (presumption against extraterritoriality does not apply to
tort occurring on board ship in American waters).

Here, Plaintiffs are not seeking an extraterritorial application of the
statute. Plaintiffs allege that they were subjected to discrimination in
the United States when they booked the cruise in reliance upon
Carnival's representation that the ship was accessible to persons with
disabilities, and when they boarded the ship in Los Angeles and
discovered that the ship and most of its activities were not accessible
to people with disabilities.[^14] Had Plaintiffs realized this prior to
booking the trip, they would have stayed home. [See]{.underline}
Plaintiffs' Complaint, p. 8. Moreover, they and their families continue
to carry with them the harmful effects of the discrimination they
suffered -- of being unreasonably foreclosed from access to a place of
public accommodation and transportation service that is available to all
other paying customers -- as they carried on with their lives in the
United States.[^15] Thus, in this case both the relevant conduct and the
relevant harm took place within the territorial United States. Applying
the ADA in this instance does not represent an extraterritorial
application of the statute.[^16]

**C. The Presumption Against Conflict With International Law Is Not
Applicable**

Carnival argues that a second legal presumption applies to prevent
application of the ADA to foreign-flag cruise ships operating in the
United States -- namely, the presumption against the application of
federal law where it conflicts with international law. [See]{.underline}
[Hartford Fire]{.underline}, [supra]{.underline} at 815-816 (Scalia J.,
dissenting) ("\[t\]his canon is 'wholly independent' of the presumption
against extraterritoriality.") The relevant question, therefore, is
whether applying the ADA to foreign-flag cruise ships that do business
in United States ports or other internal waters would conflict with
international law.

**1. Application of the ADA Does Not Intrude Upon the Internal
Management and Affairs of Foreign-Flag Vessels**

Carnival argues that applying the ADA to foreign-flag cruise ships would
interfere with the ship's "internal management and affairs" and would
thereby create the "possibility for international discord." Carnival's
Brief, p. 14; [see]{.underline} [Benz]{.underline}, [supra]{.underline},
and [McCulloch v. Sociedad Nacional de Marineros de
Honduras]{.underline}, 372 U.S. 10 (1963). In those cases, the Court
construed the

National Labor Relations Act (NLRA), 29 U.S.C. 151 [et]{.underline}
[seq.]{.underline}, not to regulate the labor relations of a
foreign-flag ship with its foreign crew, even when the ship was in an
American port.

Customary international law recognizes that "the law of the flag state
ordinarily governs the internal affairs of a ship," and nations,
therefore, generally refrain from regulating such matters even when the
ship enters their ports. See [McCulloch]{.underline}, 372 U.S. at 21;
accord [Mali]{.underline}, [supra]{.underline} at 12. The Supreme Court
has applied these principles in a series of cases interpreting the scope
of the NLRA, a statute which regulates a wide variety of activities that
affect "commerce." See [McCulloch]{.underline}, 372 U.S. at 15. Although
the NLRA is broad enough to reach foreign-flag ships, the Court
construed it not to regulate the labor relations between a foreign ship
and its foreign crew, even when the ship is temporarily docked in a
United States port.[^17] [See also]{.underline} [Windward Shipping Ltd.
v. American Radio Ass'n]{.underline}, 415 U.S. 104 (1974).

That rationale does not apply to this case, which does not involve "the
pervasive regulation of the internal order of a ship," see
[McCulloch]{.underline}, 372 U.S. at 19 n.9, but rather the protection
of passengers who are United States citizens and who are embarking and
disembarking in United States ports. [See]{.underline}
[Stevens]{.underline} at 1242 (concluding that the "internal management
and affairs of a foreign-flag ship" were not implicated and that the
real issue was "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.") In subsequent cases, for
example, the Supreme Court has held that the NLRA governs the
interaction of

foreign-flag ships with American citizens and businesses, even though
the Act does not specifically state that it applies to foreign-flag
vessels. See [International Longshoremen's Local 1416 v. Ariadne
Shipping Co.]{.underline}, 397 U.S. 195 (1970) (NLRA protected union
picketing protesting substandard wages paid by foreign-flag vessel to
American longshoremen working in American ports); [International
Longshoremen's Ass'n v. Allied Int'l, Inc.]{.underline}, 456 U.S. 212,
218 (1982) (NLRA prohibited secondary boycott by unions refusing to
unload shipments from Soviet ships destined for American importers).

The above international law principles do not require courts to construe
the ADA to exclude from coverage foreign-flag ships that enter United
States ports. Accessibility of a ship to United States passengers is not
internal to a ship's operations; it does not affect "only the vessel or
those belonging to her." See [Mali]{.underline}, 120 U.S. at 12. Rather,
accessibility concerns the relations of the cruise line with United
States residents who use its services. Because application of the ADA
directly protects the interests of United States residents, the
principles cautioning restraint when regulating the relations between
foreign ships and their foreign crew are not applicable. Moreover,
unlike the situation in [McCulloch]{.underline} and [Benz]{.underline},
applying the ADA to foreign-flag cruise ships that enter United States
ports furthers the explicit purpose of the Act, to protect the rights of
Americans with disabilities. See 42 U.S.C. §12101.

This conclusion draws support from the fact that United States citizens
and residents may bring Title VII actions against foreign-flag cruise
lines without conflict with international law. In [Kloster
Cruise]{.underline}, the Eleventh Circuit held that the EEOC did not
clearly lack jurisdiction to investigate a Title VII complaint alleging
that a foreign-flag cruise line with business operations in the United
States had fired two American citizens in violation of federal law. In
rejecting the argument that [McCulloch]{.underline} and its progeny
required that the subpoena be quashed, this Court held that the
application of Title VII to the employment of United States citizens was
"sufficiently dissimilar" to the "pervasive regulation of the internal
order of a ship" at issue in [McCulloch]{.underline}, 372 U.S. at 19
n.9. [Kloster Cruise]{.underline}, [supra]{.underline} at 923-924. [See
also]{.underline} [Bermuda Star Line]{.underline}, [supra]{.underline}
at 1111 (rejecting argument that the employment of United States
citizens on cruise ship was an internal matter that should be governed
by law of the flag).

Finally, Carnival fails to explain the numerous instances in which
courts have upheld the application of United States law to foreign-flag
ships, even in the absence of any explicit statutory provision stating
that such ships are covered by the applicable statute. See,
[e.g.]{.underline}, [Ariadne Shipping Co.]{.underline},
[supra]{.underline}; [Armement Deppe]{.underline}, [supra]{.underline};
[United States v. Royal Caribbean Cruises, Ltd.]{.underline}, 11 F.
Supp. 2d 1358 (S.D. Fla. 1998). Carnival suggests that in all of these
cases, the statutes being applied were "directed at matters external to
the ships," and cites [Cunard]{.underline} as an example where Congress'
legislative concern related to the liquor that would be imported into
the United States, rather than to the ship itself. Carnival's Brief, fn.
22. In this context, Congress' legislative concern in Title III was not
the regulation of ships, but the elimination of discrimination against
people with disabilities due to its harmful effects upon United States
society.

**2. Application of the ADA to Foreign-Flag Vessels Does Not Abrogate
Any International Treaties**

Carnival has also failed to demonstrate that application of the ADA to
cruise ships will conflict with the provisions of any applicable
international treaty. [See]{.underline} [Murray v. The Schooner Charming
Betsy]{.underline}, 6 U.S. (2 Cranch) 64, 118 (1804) (Marshall, C.J.)
("\[A\]n act of congress ought never to be construed to violate the law
of nations, if any other possible construction remains.") In this
context, Article 10 of the Convention on the High Seas requires states
to take steps to ensure that ships that fly their flag are constructed
in a manner that ensures safety at sea. Convention on the High Seas,
Apr. 29, 1958, art. 10, T.I.A.S. No. 5200, 450 U.N.T.S. 82. SOLAS
establishes minimum safety standards for the construction, equipment,
and operation of ships. See Craig Allen, [Federalism in the Era of
International Standards (Part II)]{.underline}, 29 J. Mar. L. & Com.
565, 578 (1998). Nothing in the plain language of the Convention on the
High Seas or SOLAS prevents states from imposing accessibility
requirements on ships that enter their ports. Nor has Carnival shown how
applying the ADA's general non-discrimination provisions to its ships
would conflict with any international safety standard established in
SOLAS or in any other international convention to which the United
States is a party.

Instead, focusing only on the specific requirement in Title III
regarding barrier removal, Carnival argues that certain safety
regulations in SOLAS "conflict with [existing]{.underline} ADA Title III
standards." Carnival's Brief, p. 16 (emphasis added), citing 28 C.F.R.
Part 36 App. A §§ 4.13.8 and 4.13.9. However, as discussed, the specific
design standards to which Carnival refers (the standards for doorway
thresholds and door-opening hardware applicable to newly constructed or
altered buildings) [do not apply]{.underline} to cruise ships. 28 C.F.R.
Pt. 36, App. B at 587. Moreover, to the extent that there may be any
conflict between SOLAS and any proposed accessibility standard under the
ADA is a question to be resolved at trial. If Carnival can demonstrate
that a particular structural modification proposed by Plaintiffs would
cause a conflict with the requirements of an international treaty (or
even simply that it would create a safety hazard), such modification, by
definition, would not be "readily achievable," and would not be required
by the ADA.[^18]

Furthermore, customary international law does not prevent states from
imposing accessibility requirements on ships that enter their ports.
Customary international law gives states broad authority to regulate
ships that enter their ports. See Allen, [supra]{.underline}, 29 J. Mar.
L. & Com. at 570 (1998). For example, the United Nations Convention on
the Law of the Sea[^19] precludes states from imposing design and
construction requirements that do not give effect to generally accepted
international standards on ships that are in innocent passage in their
waters. [See]{.underline} United Nations Convention on the Law of the
Sea, Dec. 10, 1982, art. 21(2), 21 I.L.M. 1261, 1274. This restriction
does not apply, however, when the ship enters the ports or other
internal waters of a foreign state. See United Nations Convention,
[supra]{.underline}, art. 11, 18, 25(2), 21 I.L.M. at 1273-1275;
President's Transmittal of the United Nations Convention on the Law of
the Sea, Oct. 7, 1994, 34 I.L.M. 1393, 1406.

Absent a treaty obligation to the contrary, customary international law
authorizes nations to regulate all matters concerning ships that enter
their ports, excepting only those internal matters that affect "only the
vessel or those belonging to her, and d\[o\] not involve the peace or
dignity of the country, or the tranquility of the port." See [Lauritzen
v. Larsen]{.underline}, 345 U.S. 571, 585-586 (1953); [see]{.underline}
[also]{.underline} [United States v. Louisiana]{.underline},
[supra]{.underline} 470 U.S. at 98 (nation has same "complete
sovereignty" over internal waters as over land territory). Accessibility
of a cruise ship that calls at a United States port to pick up and drop
off passengers is not a matter that is internal to the ship. It directly
serves the interest of American citizens and residents to be protected
from unlawful discrimination on the basis of disability.

**CONCLUSION**

For the foregoing reasons, Carnival's Motion for Summary Judgment on the
grounds that the ADA does not apply to foreign-flag cruise ships should
be denied.

> Respectfully submitted,

BILL LANN LEE

Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH

Chief

RENEE M. WOHLENHAUS

Deputy Chief

PHILIP L. BREEN

Special Legal Counsel

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

M. CHRISTINE FOTOPULOS

Trial Attorney

Disability Rights Section

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 305-7475

## CERTIFICATE OF SERVICE

I, M. Christine Fotopulos, declare:

I am over the age of 18 and not a party to the within action. I am
employed by the U.S. Department of Justice, Civil Rights Division,
Disability Rights Section. My business address is 1425 New York Avenue,
Suite 4039, Washington, D.C. 20005.

On October 21, 2000, I served a true and correct copy of the attached
document

> **UNITED STATES' MEMORANDUM OF LAW AS [AMICUS]{.underline}
> [CURIAE]{.underline}** **IN OPPOSITION TO DEFENDANT CARNIVAL'S MOTION
> FOR SUMMARY JUDGMENT**

on each person or entity named below by enclosing a copy in an envelope
addressed as shown below and depositing the same with Federal Express
for priority overnight delivery.

Date and Place of service: October 21, 2000, Washington, D.C.

Person(s) and/or Entity(ies) to Whom Mailed:

Wayne F. Emard Paul L. Rein

Robert Gaumer Law Offices of Paul L. Rein

Kaye Rose & Partners, LLP 200 Lakeside Drive, Suite A

One California St., Ste. 2230 Oakland, CA 94612

San Francisco, CA 94111-5401

Marty Steinberg John L. Burris

Thomas R. Julin The Law Offices of John L. Burris

Hunton & Williams Oakport Airport Center

One Biscayne Tower 7677 Oakport Blvd., Suite 1120

2 Biscayne Blvd., Ste. 2500 Oakland, CA 94621

Miami, FL 33131

Carolyn Doppelt Gray Attorneys for Plaintiffs Bernard Walker

Teresa L. Jakubowski and Christina Adams

Epstein Becker & Green, P.C.

1227 25^th^ St., N.W.

Washington, D.C. 20037

Attorneys for Defendants Carnival Corp.

and Carnival Cruise Lines ("Carnival")

I declare under penalty of perjury under the laws of the United States
of America that the foregoing is true and correct.

Executed on: October 21, 2000, at Washington, D.C.

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

M. Christine Fotopulos

[^1]: Carnival's argument that cruise ships are not covered by the ADA
    because Title III does not specifically mention "vessels, boats or
    ships" is without merit. Entities embraced within the ADA's broad
    definitions are just as clearly covered by the ADA as those that are
    specifically mentioned by name. [See]{.underline},
    [e.g.]{.underline}, [Pennsylvania Dep\'t of Corrections v.
    Yeskey]{.underline}, 118 S. Ct. 1952, 1954-6 (1998) (Title II covers
    state prisons); [Florida Paraplegic Ass'n v. Miccosukee Tribe of
    Indians of Florida]{.underline}, 166 F.3d 1126, 1128-9 (11^th^ Cir.
    1999) (Title III applies to places of public accommodation owned or
    operated by Indian tribes).

[^2]: Although the Eleventh Circuit in [Stevens]{.underline} did not
    need to rely on deference to the Department of Justice because it
    found that the "plain language of Title III makes Congress' intent
    sufficiently clear," it noted that "in the light of the Justice
    Department's position, our ultimate conclusion -- that Plaintiff's
    complaint states a claim under Title III -- would remain the same,
    even if the language of Title III were vague and ambiguous."
    [Stevens]{.underline} at fn. 6.

[^3]: The Department of Justice's regulations, interpretive guidance,
    and technical assistance manuals are also entitled to deference.
    [See]{.underline}, [e.g.]{.underline}, [Bragdon v.
    Abbott]{.underline}, 118 S. Ct. 2196, 2209 (1998); [Stinson v.
    United States]{.underline}, 508 U.S. 36, 45 (1993); [Paralyzed
    Veterans of Am. v. D.C. Arena, L.P.]{.underline}, 117 F.3d 579,
    584-585 (D.C. Cir. 1997), cert. denied, 118 S. Ct. 1184 (1998);
    [Innovative Health Systems v. City of White Plains]{.underline}, 117
    F.3d 37, 45 n.8 (2^nd^ Cir. 1997); [Menkowitz v. Pottstown Memorial
    Med. Ctr.]{.underline}, 154 F.3d 113, 123 (3^rd^ Cir. 1998);
    [Johnson v. City of Saline]{.underline}, 151 F.3d 564, 570 (6^th^
    Cir. 1998).

[^4]: In [Stevens]{.underline}, the Eleventh Circuit found it
    unnecessary to decide whether cruise ships were also "specified
    public transportation," given its finding that they were fully
    covered as "places of public accommodation." [Id]{.underline}. at
    fn. 3.

[^5]: Alternatively, even if a cruise ship's operations as a place of
    public accommodation were viewed as its primary activity,
    transportation that is incidental to the operation of a place of
    public accommodation is subject to both the Department of Justice
    regulations for public accommodations and the Department of
    Transportation's requirements pertaining to vehicles and
    transportation systems. 28 C.F.R. 36.310.

[^6]: An agency's interpretation of its own regulations is controlling
    unless it is plainly erroneous or inconsistent with the regulations.
    See [Auer v. Robbins]{.underline}, 519 U.S. 452, 461 (1997); [Thomas
    Jefferson Univ. v. Shalala]{.underline}, 512 U.S. 504, 512 (1994).

[^7]: The barrier removal requirement, which is one of various general
    non-discrimination provisions in Section 302 of Title III (42 U.S.C.
    §12182(b)(2)(A)(iv)), is in no way contingent upon the new
    construction and alteration requirements in Section 303 (42 U.S.C.
    §12183), which currently do not apply to cruise ships. Thus, the
    absence of specific design standards for new construction and
    alteration of cruise ships does not render the barrier removal
    requirement (much less all of Title III) void for vagueness, and
    there is no need for this Court to defer its jurisdiction pending
    the adoption of standards implementing those provisions of Title
    III.

[^8]: Thus, a cruise ship may demonstrate that a proposed modification
    is not readily achievable because it would pose a safety hazard. For
    example, if a proposed modification would violate an applicable
    safety standard mandated by federal law or an international treaty,
    such as the International Convention for the Safety of Life at Sea
    (SOLAS), then that modification would not be readily achievable, and
    it would not be required under the ADA. [See]{.underline} Title III
    Technical Assistance Manual III-1.2000(D) (1994 Supp.) ("unless
    there are specific treaty prohibitions that preclude
    enforcement\...places of public accommodation aboard ships must
    comply with all of the Title III requirements, including removal of
    barriers to access where readily achievable"); [see]{.underline}
    [also]{.underline} 56 Fed. Reg. 45,584, 45,600.

[^9]: Ports are part of a nation's internal waters. [See]{.underline}
    [United States v. Louisiana]{.underline}, 394 U.S. 11, 40 (1969).

[^10]: This is consistent with customary international law of the sea,
    which limits the authority of coastal states to regulate ships in
    innocent passage through their territorial waters, but permits
    regulation of ships that enter ports or other internal waters. See
    United Nations Convention on the Law of the Sea, done at Montego
    Bay, Dec. 10, 1982, 21 I.L.M. 1261 (1982).

[^11]: In this respect, Carnival's assertion that "it is almost as if
    the passenger is stepping into a foreign country at the moment of
    embarkation" is wholly without merit. It is also belied by the fact
    that, at the same time it claims to be exempt from any
    [obligation]{.underline} imposed by U.S. law, Carnival grants itself
    -- in the fine print of its passenger ticket contract -- "the
    benefit of all Statutes of the United States of America providing
    for limitation and exoneration from liability and the procedures
    provided thereby." Carnival's Brief, p. 11; Carnival's Guest Ticket
    Contract, p. 7. Carnival would thus have the U.S. passenger stripped
    of the protections of U.S. law at the same time that it assures
    itself the benefit of those laws.

[^12]: Courts ordinarily construe statutes and treaties to avoid a
    conflict between them and to give effect to both laws. See,
    [e.g.]{.underline}, [Posadas v. National City Bank]{.underline}, 296
    U.S. 497, 503 (1936). If Plaintiffs prevail, then, the Court should
    not order any relief that conflicts with any treaty obligations of
    the United States, such as the International Convention for the
    Safety of Life at Sea (SOLAS). See SOLAS (Consolidated Ed. 1997); 56
    Fed. Reg. 45,584, 45,600 (1991). [See]{.underline} discussion in
    section II(C)(2) of this brief.

[^13]: In [ARAMCO]{.underline}, the Court applied this presumption in
    ruling that Title VII did not prohibit employment discrimination
    against United States citizens working for a U.S. employer in Saudi
    Arabia, and cited the ADA as a statute that had "\[never\] been held
    to apply overseas." [Id]{.underline}., 499 U.S. at 244, 251.
    Following the decision in [ARAMCO]{.underline}, Title I of the ADA
    was amended to cover employees employed by covered entities in
    foreign countries. See 42 U.S.C. 12111(4); 42 U.S.C. 12112(c).

[^14]: This is supported by the fact that nearly all of the services and
    amenities that are open and available to passengers while a cruise
    ship is traveling in international waters are also open and
    available while the ship is docked in United States ports and
    traveling in its internal waters. [See]{.underline} Declaration of
    Brenda Rein. The exceptions to this rule are those amenities -- such
    as casinos and duty free shops -- that are restricted by United
    States law, consistent with the fact that federal law governs the
    ships while they are in U.S. ports and internal waters.

[^15]: Carnival cites several cases for the proposition that when
    enacting a federal statute, "Congress is primarily concerned with
    domestic conditions." Carnival's Brief, p. 9-10, citing [Foley
    Bros.]{.underline}, [supra]{.underline} at 285. This is no doubt
    correct. When Congress enacted the ADA, it was primarily concerned
    with eliminating the economic and social inequality that "some
    43,000,000 Americans" with disabilities have historically endured
    simply because of their disability. 42 U.S.C. §12101(a)(1). In
    particular, by enacting Title III, Congress intended to further
    social equality by ensuring that Americans with disabilities would
    have full and equal access to all of the "goods, services,
    facilities, privileges, advantages \[and\] accommodations" that have
    historically been offered to people without disabilities by private
    entities doing business in the United States. 42 U.S.C. §12182(a).
    If cruise ships were permitted to offer their services to all
    American passengers, excepting only those with disabilities, the
    ADA's goal of ensuring social equality in the United States would be
    disserved.

[^16]: Courts have also held the presumption against extraterritoriality
    to be inapplicable when, [inter]{.underline} [alia]{.underline} (1)
    failure to apply the statute in a foreign setting will result in
    adverse effects within the United States; or (2) the regulated
    conduct is intended to cause, and results in, substantial effects
    within the United States. [In re Simon]{.underline}, 153 F.3d 991,
    995 (9th Cir. 1998), cert. denied, 119 S. Ct. 1032 (1999);
    [Massey]{.underline}, [supra]{.underline} at 531 (citing [Steele v.
    Bulova Watch Co.]{.underline}, 344 U.S. 280 (1952)); [Laker Airways,
    Ltd. v. Sabena, Belgian World Airlines]{.underline}, 731 F.2d 909,
    925 (D.C. Cir. 1984). Courts have also held that the presumption is
    not implicated by a course of conduct, part of which takes place in
    the United States. [See]{.underline}, [e.g.]{.underline}, [United
    States v. Inco Bank & Trust Corp.]{.underline}, 845 F.2d 919, 920
    n.4 (11th Cir. 1988). Because in this case Carnival's conduct is not
    extraterritorial, it is not necessary to determine whether any of
    these exceptions to the presumption against extraterritoriality are
    applicable.

[^17]: In [McCulloch]{.underline}, the Court explained that applying the
    Act in such circumstances would contravene "the well-established
    rule of international law that the law of the flag state ordinarily
    governs the internal affairs of a ship." 372 U.S. at 21. The Court
    found that application of U.S. law would unnecessarily interfere
    with the internal relations between the ships' foreign owners and
    their foreign crews, and emphasized that applying the NLRA to
    foreign seamen employed on a foreign-flag ship would not advance the
    Act's purpose of protecting United States workers. [Id]{.underline}.
    at 18; see also [Dowd v. International Longshoremen's
    Ass'n]{.underline}, 975 F.2d 779, 788-89 (11^th^ Cir. 1992) (finding
    this presumption to govern the applicability of a statute to "the
    practices of owners of foreign vessels which are temporarily present
    in an American port with regard to foreign employees working on
    those vessels.") The Court, therefore, held that it would be
    inappropriate to construe the Act to regulate the labor relations
    between a foreign ship and its foreign crew, unless Congress had
    clearly expressed such an intention. [Ibid]{.underline}.

[^18]: This approach is consistent with the general principle that when
    two applicable laws overlap, courts should give effect to both laws
    to the extent possible. See, [e.g.]{.underline}, [Morton v.
    Mancari]{.underline}, 417 U.S. 535, 551 (1974);
    [Posadas]{.underline}, [supra]{.underline}, 296 U.S. at 503. At this
    stage, however, any such conflict is purely speculative and cannot
    be used as a basis for dismissing Plaintiffs' complaint. See [NLRB
    v. Dredge Operators, Inc.]{.underline}, 19 F.3d 206, 213-214 (5th
    Cir. 1984) (holding that claims of potential conflict with foreign
    law were not ripe where no conflict had yet occurred).

[^19]: The United States has not yet ratified the Convention, but,
    pursuant to the President's Ocean Policy Statement, 19 Weekly Comp.
    Pres. Doc. 383 (Mar. 10, 1983), it is recognized to reflect
    customary international law to which the United States adheres.