Number range CHAPTER**IN THE UNITED STATES DISTRICT COURT**

**FOR THE SOUTHERN DISTRICT OF TEXAS**

**HOUSTON DIVISION**

**DOUGLAS SPECTOR, ANA SPECTOR, §**

**JULIA HOLLENBECK, DAVID T. KILLOUGH §**

**and RODGER PETERS Individually and §**

**Behalf of All Similarly Situated Persons §**

**§**

**Plaintiffs, §**

**§**

**vs. § C.A. NO. [H-00-2649]{.underline}**

**§**

**NORWEGIAN CRUISE LINE LIMITED §**

**d/b/a NORWEGIAN CRUISE LINE §**

**§**

**§**

**Defendant. §**

**§**

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

**IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT NORWEGIAN CRUISE
LINE'S**

**MOTION TO DISMISS**

**TABLE OF CONTENTS**

**PAGE**

TABLE OF AUTHORITIES iii

INTRODUCTION 1

ISSUES TO BE DECIDED 5

RELEVANT FACTS 5

ARGUMENT 7

I. THE ADA APPLIES TO FOREIGN-FLAG CRUISE SHIPS WHEN THOSE SHIPS ARE IN
UNITED STATES PORTS OR OTHER INTERNAL WATERS 7

A. Cruise Ships Are "Places Of Public Accommodation" and Are Therefore
Covered by the ADA 7

B. Cruise Ships Provide "Specified Public Transportation Services" 9

C. Foreign-Flag Cruise Ships Are Generally Subject To United States Laws
When They Are In United States Ports Or Other Internal Waters 10

1\. The Presumption Against Extraterritoriality Does Not Apply 14

2\. Application of the ADA Does Not Intrude Upon the Internal Management
and Affairs of Foreign-Flag\
Vessels. 15

3\. Application of the ADA to Foreign-Flag Vessels Does Not Abrogate Any
International Treaties. 18

D. The Departments of Justice and Transportation Have Determined That
Foreign-flag Cruise Ships Are Subject to the ADA When They Are in United
States Ports or Other Internal Waters. 20

II\. TITLE III'S BARRIER REMOVAL PROVISION APPLIES TO CRUISE\
SHIPS 22

A. To the Extent Plaintiffs' Claims for Relief Seek Physical
Modifications, Title III's Barrier Removal Provisions Are Applicable 22

B. The Barrier Removal Provisions Apply to Cruise Ships Even in the
Absence of New Construction and Alteration Standards for Cruise\
Ships 24

CONCLUSION 27

**TABLE OF AUTHORITIES**

**CASES: PAGE**

[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) 12, 13, 14, 22

[Auer v. Robbins]{.underline}, 519 U.S. 452 (1997) 22

[Benz v. Compania Naviera Hidalgo, S.A.]{.underline}, 353 U.S.138 (1957)
12, 17

[Campbell v. Wells Fargo Bank]{.underline}, 781 F.2d 440, 442 (5th
Cir.1986) 4, 5

[Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc.]{.underline}, 467 U.S. 837 (1984) 8

[Conley v. Gibson]{.underline}, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2
L.Ed.2d 80 (1957) 4

[Cunard S.S. Co.]{.underline} v. [Mellon]{.underline}, 262 U.S. 100
(1923) 12, 13, 14

[Deck v. American Hawaii Cruises, Inc.]{.underline}, 51 F.Supp.2d 1057
(D. Haw. 1999) 3, 9, 25-26

[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) 14

[EEOC v. Bermuda Star Line, Inc.]{.underline}, 744 F. Supp.1109 (M.D.
Fla. 1990) 15, 18

[EEOC v. Kloster Cruise Ltd.]{.underline}, 939 F.2d 920 (11th Cir. 1991)
18

[Environmental Defense Fund, Inc. v. Massey]{.underline}, 986 F.2d 528
(D.C. Cir. 1993) 11-12, 15

[Foley Bros. v. Filardo]{.underline}, 336 U.S. 281 (1949) 1

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

[International Longshoremen\'s Local 1416 v. Ariadne Shipping
Co.]{.underline}, 397 U.S. 195 (1970) 21

[Johnson v. Gambrinus Company/Spoetzl Brewery]{.underline}, 116 F.3d
1052, 1060 (5^th^ Cir. 1997) 8

[Kaiser Aluminum & Chem. Sales v. Avondale Shipyards]{.underline}, 677
F.2d 1045, 1050\
(5th Cir.1982) . 4

[Lauritzen v. Larsen]{.underline}, 345 U.S. 571 (1953) 17

[Leisnoi, Inc. v. Stratman]{.underline}, 154 F.3d 1062 (9^th^ Cir. 1998)
8

[Mali v. Keeper of the Common Jail]{.underline}, 120 U.S. 1 (1887) 12,
16, 17

[McLean v. Crabtree]{.underline}, 173 F.3d 1176 (9^th^ Cir. 1999),
[cert.]{.underline} [denied]{.underline}, 120 S.Ct. 814 (2000) 8

[McCulloch v. Sociedad Nacional de Marineros de Honduras]{.underline},
372 U.S. 10 (1963) 16-18

[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)
13, 19

[Pennsylvania Dep\'t of Corrections v. Yeskey]{.underline}, 524 U.S. 206
(1998) 22

[Posadas v. National City Bank]{.underline}, 296 U.S. 497 (1936) 19, 21

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

[Thomas Jefferson Univ. v. Shalala]{.underline}, 512 U.S. 504 (1994) 22

[United States v. Louisiana]{.underline}, 470 U.S. 93 (1985) 17

[United States v. Louisiana]{.underline}, 394 U.S. 11, 40 (1969) 11

[United States v. Royal Caribbean Cruises, Ltd.]{.underline}, 11
F.Supp.2d 1358 (S.D.Fla. 1998) 22

[Walker v. Carnival Cruise Lines]{.underline}, Case No. C 98-2926 (N.D.
Cal. 1998) 3, 9

[Ward v. W & H Voortman, Ltd.]{.underline}, 685 F. Supp. 231 (M.D. Ala.
1988) 11

[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 16

**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}

**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) 23

H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 109-110 (1990) 23

5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure

§ 1357, at 601 (1969). 4

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

29 J. Mar. L. & Com. 565 (1998) 19-20

Convention on the High Seas, April 29, 1958

T.I.A.S. No. 5200, 450 U.N.T.S. 82 18-19

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

(Consolidated Ed. 1997) 19, 21, 24

President's Ocean Policy Statement

19 Weekly Comp. Pres. Doc. 383 (Mar. 10, 1983) 20

Restatement (Third) of the Foreign Relations Law of the United States

§ 501 (1987) 13

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

21 I.L.M 1261 (1982) 11, 20

**INTRODUCTION**

The questions presented here are (1) 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 and (2)
whether cruise ships are subject to the ADA's requirement for barrier
removal.

The answer to the first 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
persons with disabilities. 42 U.S.C. §12182(a), §12182(b)(2). It will
determine whether cruise ships may treat passengers with disabilities
differently from 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).

The ADA is a comprehensive federal civil rights statute established to
protect the rights of the disabled. This case concerns Title III of the
ADA, 42 U.S.C. §§ 12181 through 12189, which 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). Pursuant to
Title III of ADA, owners and operators of public facilities are required
to remove architectural barriers to the extent such removal is readily
achievable (42 U.S.C. 12182(b)(2)(A)(iv)); make reasonable modifications
to policies, practices, or procedures, unless doing so would
\"fundamentally alter\" the nature of the services offered (42 U.S.C.
12182(b)(2)(A)(ii)); and design and construct new facilities such that
they are readily accessible to and usable by individuals with
disabilities (42 U.S.C. § 12183).

Plaintiffs Douglas Spector, Julia Hollenbeck, and Rodger Peters are
persons with mobility impairments who recently participated in cruises
aboard the "Norwegian Sea" and/or "Norwegian Star," ships owned and
operated by Defendant Norwegian Cruise Line ("NCL"). Plaintiffs allege
that areas of these ships accessible to the general public were not
accessible to individuals with mobility impairments, and as a result,
Plaintiffs were denied access to many of the ships' programs, services,
and facilities. [See]{.underline} Plaintiffs' First Amended Original
Complaint ("Complaint"), ¶¶ 17, 31. Plaintiffs therefore allege that NCL
has failed to remove architectural barriers in existing facilities or
offer services in alternative settings when it was readily achievable to
do so. 42 U.S.C. 12182(b)(2)(A)(iv).

Plaintiffs further allege that NCL charged Plaintiffs higher fares than
passengers without disabilities, required payment of illegal surcharges
for accessible features and/or accommodations, and failed to have
appropriate plans and assistance to safely evacuate persons with
mobility impairments in case of emergency. [Id]{.underline}. at ¶¶ 17,
19, 33. Plaintiffs therefore allege that NCL has failed to make
reasonable modifications to its policies, practices, or procedures. 42
U.S.C. 12182(b)(2)(A)(ii).

NCL has filed a motion to dismiss 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. According to NCL, a cruise ship is governed
only by the laws of its flag, regardless of where it sails, and
regardless of the nature of the dispute at issue. The United States
respectfully submits that this position is unsupportable. It has already
been rejected by the Eleventh Circuit in [Stevens v. Premier Cruise
Lines]{.underline}, 215 F.3d 1237, 1241 (11^th^ Cir. 2000) (cruise ships
sailing under a foreign flag are not exempt from the ADA when operating
in United States waters).[^1] Moreover, the long-standing, official
position of the United States Departments of Justice and Transportation
is that cruise ships operating in United States ports and internal
waters are subject to all generally applicable federal laws, including
Title III of the ADA. As demonstrated by the arguments below, the United
States' position on this matter is supported by relevant Supreme Court
and Fifth Circuit case law.

NCL further argues that in the absence of federal regulations governing
new construction and alterations of cruise ships, no relief can be
granted in the instant case. Again, the United States respectfully
disagrees with NCL's position. The Plaintiffs in the instant case make
no claims for relief pursuant to the new construction and alteration
provisions of Title III, and thus the absence of new construction and
alteration standards is irrelevant. Rather, Plaintiffs in the instant
case raise claims pursuant to other nondiscrimination and equal
opportunity provisions of Title III. 42 U.S.C. §12182. Thus, to the
extent Plaintiffs' claims specifically seek physical modifications,
Title III's barrier removal provisions are applicable. 42 U.S.C.
§12182(b)(2)(A)(iv).

Furthermore, NCL has not satisfied its burden for dismissing the
complaint. A motion to dismiss under rule 12(b)(6) \"is viewed with
disfavor and is rarely granted.\" [Kaiser Aluminum & Chem. Sales v.
Avondale Shipyards]{.underline}, 677 F.2d 1045, 1050 (5th Cir.1982). The
complaint must be liberally construed in favor of the plaintiff, and all
facts pleaded in the complaint must be taken as true. [Campbell v. Wells
Fargo Bank]{.underline}, 781 F.2d 440, 442 (5th Cir.1986). A district
court may not dismiss a complaint under rule 12(b)(6) \"unless it
appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.\" [Conley v.
Gibson]{.underline}, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957). This strict standard of review under rule 12(b)(6) has been
summarized as follows: \"The question therefore is whether in the light
most favorable to the plaintiff and with every doubt resolved in his
behalf, the complaint states any valid claim for relief.\" 5 Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 601
(1969).

Thus, because the provisions of Title III (and the associated
regulations) relevant to Plaintiffs' complaint do in fact apply to
foreign-flag cruise ships operating in domestic ports and waters, and to
removal of physical barriers in cruise ships, and because any doubts
about these issues should be resolved in Plaintiffs' favor, Plaintiffs
have successfully stated claims upon which relief can be granted, and
Defendant's motion to dismiss should be denied. Moreover, a finding that
Title III does not apply to cruise ships sailing in United States waters
would not only contravene clear and unambiguous Supreme Court precedent,
it would 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 with respect to
cruise ships. 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.

**ISSUES TO BE DECIDED**[^2]

1\. Whether Title III of the ADA applies to foreign-flag cruise ships
that do business in United States ports and internal waters.

2\. Whether Title III's barrier removal provisions are applicable to
Plaintiffs' claims seeking physical modifications.

**RELEVANT FACTS**[^3]

1\. Plaintiffs Douglas Spector, Julia Hollenbeck, and Rodger Peters
(hereinafter and collectively, "Plaintiffs") are persons with
disabilities within the meaning of the ADA. Plaintiff Douglas Spector
has a physical disability that requires him to utilize an electric
scooter for mobility. Plaintiffs Julia Hollenbeck and Rodger Peters have
physical disabilities that require them to utilize a wheelchair for
mobility. During August and September of 1999, Plaintiffs and their
families each participated in a cruise aboard the "Norwegian Sea" and/or
"Norwegian Star;" cruise ships that sail regularly to and from the Port
of Houston. Areas of the ship accessible to the general public on the
Norwegian Sea and Norwegian Star were inaccessible to Plaintiffs during
their August and September 1999 cruises. As a result, Plaintiffs were
denied access to many of the programs, services, and facilities provided
by the defendant to patrons without disabilities.

2\. The Norwegian Sea and Norwegian Star cruise ships, currently
registered in the Bahamas, are owned and operated by Norwegian Cruise
Limited d/b/a Norwegian Cruise Lines (hereinafter and collectively,
"NCL"). Although NCL is incorporated in Bermuda, it has its principal
place of business in Florida. NCL's Brief, p. 7. As an integral part of
the cruise experience, NCL's cruise ships, including the "Norwegian Sea"
and the "Norwegian Star," 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 3, 2000, Plaintiffs filed suit against NCL in this Court,
alleging various violations of the ADA. Plaintiffs allege that NCL
violated several of the non-discrimination and equal opportunity
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) use of standards
or criteria or methods of administration that had the effect of
discriminating on the basis of disability, and that perpetuated such
discrimination by others subject to common administrative control (42
U.S.C. §12182 (b)(1)(D)); (3) imposition or application of eligibility
criteria that screen out, or tend to screen out, individuals with
disabilities from fully and equally enjoying the Defendant's services,
facilities, privileges, advantages, or accommodations -- including
unlawfully charging the Plaintiffs higher fares than passengers without
disabilities and allowing or requiring Plaintiffs to pay other illegal
surcharges for accessible features and/or accommodations (42 U.S.C.
§12182(b)(2)(A)(i) and 28 C.F.R. 36.301(c)); (4) 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)); and (5)
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)).

**ARGUMENT**

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

**A. Cruise Ships Are "Places Of Public Accommodation" and Are Therefore
Covered by the ADA**

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]{.underline}
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.
[Id]{.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."
[Id]{.underline}. This Court should defer to the Department of Justice's
and Department of Transportation's interpretation of the ADA as long as
they 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); [Johnson v.
Gambrinus Company/Spoetzl Brewery]{.underline}, 116 F.3d 1052, 1060
(5^th^ Cir. 1997). This is so even if this Court might have reached a
different result were it confronted with the question in the first
instance.[^4] [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.[^5]

Moreover, the only three federal courts to address the question thus far
have all held that a cruise ship is a place of public accommodation,
subject to the requirements of Title III of the ADA. [See]{.underline}
[Stevens]{.underline}, 215 F.3d at 1241; [Deck]{.underline}, 51
F.Supp.2d at 1061; [Walker]{.underline}, Case No. C 98-2926 (N.D. Cal.
Nov 22, 2000) (order denying cruise ship's motion for summary judgment).
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}, 215 F.3d at 1241.

**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},51 F.
Supp.2d at 1061.[^6] 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.").[^7]

**C. 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). Many of these foreign-flag
cruise ships are actually owned and operated by U.S. corporations.
However, whether a foreign flag cruise ship is owned by a U.S.
corporation or a foreign corporation, places of public accommodation and
transportation services 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]{.underline},
[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). Nothing in
the plain language of the ADA excludes from coverage foreign-flag cruise
ships that do business in the United States. Furthermore, when a cruise
ship enters United States ports and internal waters, it is doing
business in the United States.[^8] Therefore, cruise ships operating in
United States ports and internal waters are subject to all generally
applicable federal laws, including the ADA.[^9]

This conclusion was recently confirmed by the Eleventh Circuit in
[Stevens v. Premier Cruises, Inc.]{.underline}, 215 F.3d 1237 (11^th^
Cir. 2000). The facts in [Stevens]{.underline} are strikingly similar to
the instant case. The plaintiff in [Stevens]{.underline}, an individual
who uses a wheelchair, participated in a cruise aboard a Bahamian-flag
ship owned by the defendant, a foreign-owned corporation.
[Id]{.underline}. at 1238. After finding that aspects of the ship were
not accessible, the plaintiff filed suit alleging that the
inaccessibility of the ship violated Title III of the ADA.
[Id]{.underline}. at 1238-1239. The defendant moved the district court
to dismiss under Fed.R.Civ.P. 12(b), based in part on the ground that
the ADA as a matter of law does not apply to foreign-flag cruise ships.
[Id]{.underline}. at 1239. After the district court granted defendant's
motion, the Eleventh Circuit reversed, stating:

> The 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 that regulation of conduct beyond U.S. borders.
> Accordingly, a foreign flag ship sailing in United States waters is
> not extraterritorial.

[Id]{.underline}. at 1242 (quoting [Environmental Defense Fund, Inc. v.
Massey]{.underline}, 986 F.2d 528, 531 (D.C.Cir.1993)).

The ruling in [Stevens]{.underline} -- that cruise ships sailing under a
foreign flag are not exempt from the generally applicable laws of the
countries in which it does business -- is consistent with both Supreme
Court and Fifth Circuit case law addressing this issue. "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]{.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). 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.

262 U.S. at 124. In [Armement Deppe]{.underline}, the Fifth Circuit
held:

It is well settled that when a foreign-flag shipping line chooses to
engage in foreign commerce and use American ports it is amenable to the
jurisdiction of the United States and subject to the laws thereof.

399 F.2d at 797.

NCL provides no authority to support its underlying claim that United
States laws, such as the ADA, do not apply to a foreign-flagged vessel
sailing in domestic waters.[^10] Instead, NCL relies on the general
proposition that a vessel is governed only by the law of her flag,
regardless of where it sails, and regardless of the nature of the
dispute at issue. However, a review of both Supreme Court and Fifth
Circuit case law reveals that this general proposition is simply not
applicable in cases where a ship is operating in U.S. waters and the
claim arises out of a dispute between the ship and members of the
general public. [See]{.underline} [e.g.]{.underline},
[Cunard]{.underline}, 262 U.S. at 124 (1923); [Armement
Deppe]{.underline}, 399 F.2d at 797. [See]{.underline}
[also]{.underline} [Stevens]{.underline}, 215 F.3d at 1242.

NCL relies on [National Labor Relations Board v. Dredge Operators
Inc.]{.underline}, 19 F.3d 206 (5^th^ Cir. 1994),[^11] in which the
Fifth Circuit ruled that the NLRB had jurisdiction over an internal
labor management dispute occurring on a United States flag vessel
operating in Hong Kong waters. However, the holding in [Dredge
Operators]{.underline} is not applicable to the instant case. The Court
in [Dredge Operators]{.underline} held that where there is a conflict of
law with respect to an issue implicating the internal management of a
ship, the laws of the United States could be applied to a United States
flag ship even though it is operating in foreign waters.
[Id]{.underline}. at 212. However, in the instant case, there is no
conflict of law at issue. Further, the Court in [Dredge
Operators]{.underline} based its decision in large part on the fact that
the legal dispute at issue was an internal labor dispute on the vessel
in question. 19 F.3d at 211. In the instant case, the legal dispute is
not internal; it centers around NCL's rights and responsibilities with
respect to members of the United States public. [See]{.underline}
[also]{.underline} [Stevens]{.underline}, 215 F.3d at 1242 (recognizing
a separate and different legal presumption when issues involve the
internal management and affairs of foreign-flagged vessels). Finally,
the instant case involves a ship sailing under the flag of the Bahamas
operating in United States waters and is therefore properly analyzed by
the line of cases dealing with foreign-flag ships operating on domestic
waters. [See]{.underline} [e.g.]{.underline}, [Cunard]{.underline}, 262
U.S. at 124 (1923); [Armement Deppe]{.underline}, 399 F.2d at 797.
[See]{.underline} [also]{.underline} [Stevens]{.underline}, 215 F.3d at
1242 (holding that the legal analysis applied to ships sailing in
foreign waters is different than the legal analysis applied to ships
sailing in domestic waters).

**1. 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)).[^12] 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.
[Id]{.underline}. [See also]{.underline} [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).

Thus, 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
sails 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]{.underline}
[Stevens]{.underline}, 215 F.3d 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})). 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 with NCL, and when they boarded the ship in Houston and
discovered that the ship and most of its activities were not accessible
to people with disabilities.

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

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]{.underline} [McCulloch v. Sociedad
Nacional de Marineros de Honduras]{.underline}, 372 U.S. 10, 21; accord
[Mali]{.underline},120 U.S. at 12. The Supreme Court has applied these
principles in a series of cases interpreting the scope of the National
Labor Relations Act (NLRA), 29 U.S.C. §151, a statute which regulates a
wide variety of activities that affect "commerce." [See]{.underline}
[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.[^13] [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]{.underline}
[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}, 215 F.3d 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.")

Thus, 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."[^14] [See]{.underline} [Lauritzen v. Larsen]{.underline}, 345
U.S. 571, 585-586 (1953). NCL relies on this same standard, but
erroneously argues that the issues arising out of the instant case are
matters internal to the cruise ship and do not involve the dignity of
the United States. NCL's brief, pp. 8 -10.

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." [Lauritzen]{.underline}, 345 U.S. at 571.
[See]{.underline} [also]{.underline} [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]{.underline} 42 U.S.C. §12101. This
goes directly to both NCL's rights and responsibilities with respect to
members of the United States public, and therefore is not an internal
matter. Furthermore, this directly serves the interest of American
citizens and residents to be protected from unlawful discrimination on
the basis of disability, and therefore has a direct effect on the
dignity of the United States. Thus, the international law principles
relied upon by NCL do not require courts to construe the ADA to exclude
from coverage foreign-flag ships that enter United States ports.

This conclusion draws further 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 [EEOC v.
Kloster Cruise Ltd.]{.underline}, 939 F.2d 920 (11^th^ Cir. 1991), the
Court 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}, 939 F.2d at 923-924. [See]{.underline}
[also]{.underline} [Bermuda Star Line]{.underline}, 744 F. Supp. 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).

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

NCL 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. The
International Convention for the Safety of Life at Sea (SOLAS)
(Consolidated Ed. 1997), 56 Fed. Reg. 45,584, 45,600 (1991), establishes
minimum safety standards for the construction, equipment, and operation
of ships. [See]{.underline} 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. NCL has not 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, NCL argues that "a federal district court could apply a
congressional statute in a way that conflicts with the construction
standards of SOLAS." NCL's Brief, p. 10. However, the extent to which
there may be any conflict between SOLAS and ADA accessibility
requirements is a question to be resolved at trial. If NCL can
demonstrate that a particular physical 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.[^15]

Furthermore, states are not precluded by customary international law
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]{.underline} Allen,
[supra]{.underline}, 29 J. Mar. L. & Com. at 570 (1998). The United
Nations Convention on the Law of the Sea[^16] 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 (i.e., not in a port) 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]{.underline} 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.

**D. The Departments of Justice and Transportation Have Determined That
Foreign-flag Cruise Ships Are Subject to the ADA When They Are in United
States Ports or Other Internal Waters**

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.).[^17] 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, NCL 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. Despite NCL's claims to the
contrary, no such presumption against application of the ADA applies in
this case.

> NCL argues that if Congress intended the ADA to apply to foreign-flag
> ships, it would

have specifically referenced them in the Act. NCL's Brief, pp. 7-8.
However, they provide no authority for such a statutory construction. In
fact, there are numerous instances in which courts have upheld the
application of United States law to foreign-flag ships, in the absence
of any explicit statutory provision stating that such ships are covered
by the applicable statute. [See]{.underline}, [e.g.]{.underline},
[International Longshoremen\'s Local 1416 v. Ariadne Shipping
Co.]{.underline}, 397 U.S. 195 (1970);

[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); [United States v. Royal Caribbean Cruises, Ltd.]{.underline}, 11
F. Supp. 2d 1358 (S.D. Fla. 1998). [See]{.underline} [also]{.underline}
[Pennsylvania Dep\'t of Corrections v. Yeskey]{.underline}, 524 U.S.
206, 212 (1998) (the fact that a statute can be applied in situations
not expressly anticipated by Congress does not demonstrate ambiguity; it
demonstrates its breadth).

**II. TITLE III'S BARRIER REMOVAL PROVISION APPLIES TO CRUISE SHIPS**

**A. To the Extent Plaintiffs' Claims for Relief Seek Physical
Modifications, Title III's Barrier Removal Provisions Are Applicable**

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).[^18] 28 C.F.R. Pt. 36, App. B at 587. Similarly, the
Department of Transportation explained in its interpretive guidance 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 requirements for removal of
physical barriers in existing 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).

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."[^19] 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. When barrier
removal is not readily achievable, public accommodations must take
whatever alternative measures are readily achievable to provide their
goods and services to people with disabilities in a non-discriminatory
manner. 42 U.S.C. § 12182(b)(2)(A)(v); 28 C.F.R. § 36.305.

**B. The Barrier Removal Provisions Apply to Cruise Ships Even in the
Absence of New Construction and Alteration Standards for Cruise Ships**

NCL argues that the instant case should be dismissed because the Federal
Government has not promulgated new construction and alteration standards
for cruise ships. However, the requirement that a public accommodation
remove physical barriers is not dependent on the existence of new
construction or alteration standards for a particular type of public
accommodation or space; the standards merely serve as a guide for
determining how to remove barriers. In fact, the Department has
specifically addressed the issue raised by Defendants with respect to
cruise ships. In its Technical Assistance Manual for title III, issued
in 1993, the Department noted that, until such time as specific
standards are issued for ships, there is "no requirement that ships be
constructed accessibly\...Cruise ships would still be subject to other
title III requirements\...." Title III Technical Assistance Manual
III-5.3000 (1993). In the 1994 supplement to the Manual, the Department
more specifically explained:

> Places of public accommodation aboard ships must comply with all of
> the title III requirements, [including removal of barriers to access
> where readily achievable]{.underline}. Currently, however, a ship is
> not required to comply with specific accessibility standards for new
> construction or alterations, because specific accessibility standards
> for new construction or alteration of cruise ships have not yet been
> developed.

Title III Technical Assistance Manual III-1.2000(D) (1994 Supp.)
(emphasis added).

To support its argument, NCL relies on the single case of
[Deck]{.underline}, 51 F. Supp.2d at 1061, which held, in part, that
claims failing under the "New Construction and Alterations" section of
the ADA (42 U.S.C. §12183, 28 C.F.R. Pt. 36, Subpart D) should be
dismissed until the Federal Government issues regulations pursuant to
that section. However, the [Deck]{.underline} opinion is not
inconsistent with Plaintiffs' barrier removal claim in the instant case.
First, this is a barrier removal case, not one involving a claim
pursuant to the "New Construction and Alterations" section of the ADA
(42 U.S.C. §12183, 28 C.F.R. Pt. 36, subpart D). [See]{.underline}
Complaint, ¶¶ 24-35. Thus, this part of the [Deck]{.underline} holding
is not relevant to the instant case. Second, the [Deck]{.underline}
Court held that "to the extent that Plaintiff raises \[ADA claims other
than 'New Construction and Alterations'\], they are clearly applicable
to cruise ships, and thus are properly brought in the instant case."
[Deck]{.underline}, 51 F.Supp at 1061. In the instant case, Plaintiffs
allege that they were denied full and equal enjoyment of NCL's goods,
services, and accommodations, pursuant to 42 U.S.C. §12182, 28 CFR Pt.
36, subparts B and C. Thus, consistent with [Deck]{.underline},
plaintiffs' claims have been properly brought before this Court.
[Deck]{.underline}, 51 F. Supp. at 1061.

Moreover, Plaintiffs make several claims that do not necessitate
physical modifications. For example, Plaintiffs allege that NCL charges
passengers with disabilities higher fares than those charged to
passengers without disabilities. Complaint, ¶ 32. In addition,
Plaintiffs allege that NCL requires payment of illegal surcharges for
accessible features and/or accommodations. [Id]{.underline}., ¶¶ 17, 32.
These claims, pursuant to Section 302 of Title III (42 U.S.C. §12182),
are remedied though changes in NCL's policies and practices. Thus, NCL's
argument with respect to a lack of regulations governing potential
physical modifications is clearly irrelevant to those claims in which
Plaintiffs seek a policy or practice remedy.

The absence of federal regulations governing new construction and
alterations of cruise ships, therefore, does not invalidate Plaintiffs'
claim for relief. 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 separate from the new
construction and alteration requirements in Section 303 (42 U.S.C.
§12183), and is applicable in the instant case. Whether a particular
change is "readily achievable" is an issue of fact to be determined by
the court. Further, Plaintiffs' claims seeking policy or practice
remedies are issues of fact to be determined by the court. Thus, each of
Plaintiffs' claims for relief pursuant to Section 302 of Title III (42
U.S.C. §12182) is appropriately alleged and arguably could be remedied
through applicable physical or policy changes and therefore Defendant's
motion to dismiss should be denied.

**CONCLUSION**

For the foregoing reasons, NCL's Motion to Dismiss should be denied.

> Respectfully submitted,
>
> BILL LANN LEE
>
> Assistant Attorney General
>
> Civil Rights Division
>
> JOHN L. WODATCH
>
> Chief
>
> L. IRENE BOWEN
>
> Deputy Chief
>
> PHILIP L. BREEN
>
> Special Legal Counsel
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> DANIEL I. WERFEL
>
> DANIEL W. SUTHERLAND
>
> Trial Attorneys
>
> Disability Rights Section
>
> U.S. Department of Justice
>
> P.O. Box 66738
>
> Washington, D.C. 20035-6738
>
> Phone: 202-514-5510
>
> 202-616-5540
>
> Fax: 202-307-1197
>
> Gordon Young
>
> Assistant United States Attorney
>
> Keith E. Wyatt
>
> Chief, Civil Division
>
> Office of the United States Attorney
>
> P.O. Box 61129
>
> Houston, Texas 77208
>
> Phone: 713-567-9000
>
> Fax: 713-718-3303
>
> Attorneys for United States as [Amicus]{.underline}
> [Curiae]{.underline}

**CERTIFICATE OF SERVICE**

I, Daniel I. Werfel, 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 December 4, 2000, I served a true and correct copy of the attached
document

> **UNITED STATES' MEMORANDUM OF LAW AS [AMICUS]{.underline}
> [CURIAE]{.underline}** **IN SUPPORT OF PLAINTIFFS' OPPOSITION TO
> DEFENDANT NORWEGIAN CRUISE LINE'S MOTION TO DISMISS**

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:

Thomas H. Wilson Elaine Roberts

Vinson & Elkins L.L.P. Bruckner Burch PLLC

2300 First City Tower 5847 San Felipe, Suite 39000

1001 Fannin Street Houston, Texas 77057

Houston, Texas 77002-6760

> Attorney for Defendant Norwegian Attorney for Plaintiffs Douglas

Cruise Limited d/b/a Norwegian Cruise Spector, Ana Spector, Julia

Lines ("NCL") Hollenbeck, and Rodger Peters

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

Executed on: December 4, 2000, at Washington, D.C.

> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> Daniel I. Werfel

[^1]: [See]{.underline} [also]{.underline} [Walker v. Carnival Cruise
    Lines]{.underline}, Case No. C 98-2926 (N.D. Cal. Nov. 22, 2000)
    (Judge Thelton Henderson) (denying cruise ship's motion for summary
    judgement and ruling that foreign flag ships are covered by Title
    III of the ADA); [Deck v. American Hawaii Cruises,
    Inc.]{.underline}, 51 F.Supp.2d 1057, 1061 (D. Haw. 1999).

[^2]: This Memorandum will not address Plaintiffs' separate claim of
    discrimination on the basis of association with a person with a
    disability.

[^3]: The summary of facts provided is taken directly from Plaintiffs'
    First Amended Original Complaint. For the purposes of deciding NCL's
    motion to dismiss, the Court must consider all facts plead by
    Plaintiffs as true. [Campbell]{.underline}, 781 F.2d at 442.

[^4]: 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}, 215 F.3d at 1241, n. 6.

[^5]: 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.).

[^6]: 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." 215 F.3d at 1240, n. 3.

[^7]: The Department of Transportation has incorporated the Department
    of Justice regulations that govern cruise ships -- including those
    requiring barrier removal -- into its regulations. [See]{.underline}
    49 C.F.R. Pt. 37, App. D § 37.109 at 488; 49 C.F.R. 37.5(f).

[^8]: Ports are part of a nation's internal waters. [See]{.underline}
    [United States v. Louisiana]{.underline}, 394 U.S. 11, 40 (1969).

[^9]: 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]{.underline} United Nations Convention on the Law of the Sea,
    done at Montego Bay, Dec. 10, 1982, 21 I.L.M. 1261 (1982).

[^10]: In fact, the United States is aware of no court decisions holding
    that foreign-flag ships that enter United States ports are
    presumptively exempt from all United States laws merely because of
    their foreign registry.

[^11]: NCL further relies on *Restatement (Third) of the Foreign
    Relations Law of the United States* § 501 (1987). However, Section
    501 of the *Restatement* merely establishes that a ship has the
    nationality of the flag it flies under. It does not, as NCL implies,
    address the issue of whether a vessel is universally governed only
    by the law of her flag, regardless of the circumstances.

[^12]: 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]{.underline} 42 U.S.C. 12111(4); 42 U.S.C.
    12112(c).

[^13]: 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]{.underline} [also]{.underline} [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. [Id]{.underline}.

[^14]: [See]{.underline} [also]{.underline} [United States v.
    Louisiana]{.underline}, 470 U.S. at 98 (nation has same "complete
    sovereignty" over internal waters as over land territory).

[^15]: 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]{.underline}, [e.g.]{.underline},
    [Morton v. Mancari]{.underline}, 417 U.S. 535, 551 (1974); [Posadas
    v. National City Bank]{.underline}, 296 U.S. 497, 503 (1936). At
    this stage, however, any such conflict is purely speculative and
    cannot be used as a basis for dismissing Plaintiffs' complaint.
    [See]{.underline} [Dredge Operators]{.underline}, 19 F.3d at 213-214
    (holding that claims of potential conflict with foreign law were not
    ripe where no conflict had yet occurred).

[^16]: 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.

[^17]: Courts ordinarily construe statutes and treaties to avoid a
    conflict between them and to give effect to both laws.
    [See]{.underline}, [e.g.]{.underline}, [Posadas]{.underline}, 296
    U.S. at 503. 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]{.underline} SOLAS (Consolidated Ed. 1997); 56
    Fed. Reg. 45,584, 45,600 (1991).

[^18]: An agency's interpretation of its own regulations is controlling
    unless it is plainly erroneous or inconsistent with the regulations.
    [See]{.underline} [Auer v. Robbins]{.underline}, 519 U.S. 452, 461
    (1997); [Thomas Jefferson Univ. v. Shalala]{.underline}, 512 U.S.
    504, 512 (1994).

[^19]: 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.