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. §**

**§**

[                                                                                                                                                            ]{.underline}

**UNITED STATES' SUR-REPLY AS [AMICUS]{.underline} [CURIAE]{.underline}
TO DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS**

[                                                                                                                                                            ]{.underline}

**INTRODUCTION**

Defendant Norwegian Cruise Line (NCL) relies on two claims in its reply
that demand clarification and response.[^1] First, NCL asserts
categorically that the flag of a ship dictates whether an application of
United States law to a foreign-flagged ship is considered
"extraterritorial" even when the ship is in United States territory.
[See]{.underline} NCL's Reply at 10-12. This position directly
contradicts Supreme Court authority and the plain meaning of the term
"extraterritorial." [Cunard S.S. Co. v. Mellon]{.underline}, 262 U.S.
100, 123-124 (1923) (activity that occurs on a foreign-flag ship within
United States internal waters or ports is not extraterritorial);
[Stevens v. Premier Cruises, Inc.]{.underline}, 215 F.3d 1237, 1242
(11^th^ Cir. 2000) ("\[b\]y definition, an extraterritorial application
of a statute involves that regulation of conduct beyond U.S. borders.");
[see also]{.underline} [United States v. Gonzales]{.underline}, 520 U.S.
1, 117 S.Ct. 1032, 1936 (1997) (\"The case must be a strong one indeed,
which would justify a court in departing from the plain meaning of words
\... in search of an intention which the words themselves did not
suggest\") (quoting [United States v. Wiltberger]{.underline}, 5 Wheat.
76, 95- 96, 5 L.Ed. 37 (1820) (Marshall, C.J.)).

Second, NCL asserts that the barrier removal requirements of the ADA are
limited to only those public accommodations for which specific New
Construction and Alteration standards are in place. This position
misstates the law. Barrier removal requirements are applicable to all
public accommodations covered by the ADA, and where specific New
Construction and Alteration standards have not been promulgated, the
remedies for a violation of the barrier removal provisions are dictated
by what is readily achievable as determined based on the facts on a case
by case basis.

**ARGUMENT**

**I. Unless Specifically Exempted by the Statute in Question,
Foreign-Flag Cruise Ships Doing Business Within the Internal Waters and
Ports of the United States Must Comply with All Generally Applicable
Laws**

It is axiomatic that activities taking place on United States waters are
generally governed by United States law. [Pennoyer v. Neff]{.underline},
95 U.S.714, 720 (1877) (the first principle of the public law that
regulates the relationships among independent nations is \"that every
State possesses exclusive jurisdiction and sovereignty over persons and
property within its territory.\") It is also well settled that a given
statute need not expressly contemplate or predict the specific
circumstances of all potential violations of that statute. [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). Thus, Plaintiffs ask this Court to apply the ADA to
alleged discriminatory activity occurring on a foreign-flag cruise ship
operating in United States waters and ports.[^2] Since the ADA does not
expressly exempt from coverage foreign-flag ships operating on United
States territory, the ADA clearly applies to NCL in the instant case.

> **A. Applying the ADA to Foreign-Flag Cruise Ships That Embark and
> Disembark From United States Ports Is Not Extraterritorial Application
> of United States Law**

NCL argues that the flag of a ship dictates whether an application of
United States law to a foreign-flagged ship is considered
"extraterritorial" even when the ship is in United States territory.
[See]{.underline} Reply at 3-12. The Supreme Court rejected this
argument in [Cunard S.S. Co. v. Mellon]{.underline}, 262 U.S. 100
(1923):

> \[T\]he statement \[is\] sometimes made that a merchant ship is a part
> of the territory of the country whose flag she flies. But this, as has
> been aptly observed, is a figure of speech, a metaphor. . . It is
> chiefly applicable to ships on the high seas, where there is no
> territorial sovereign; and as respects ships in foreign territorial
> waters it has little application beyond what is affirmatively or
> tacitly permitted by the local sovereign.

[Id.]{.underline}, 262 U.S. at 123-124 (citations omitted);
[accord]{.underline} [Cruz v. Chesapeake Shipping Co.]{.underline}, 932
F.2d 218, 227-228 (3d Cir. 1991).

Nevertheless, NCL asks this Court to adopt its own, unique, definition
of the term "extraterritorial." According to NCL, it is the flag of the
ship, not the geographic location of where the ship sails, that dictates
extraterritoriality. [See]{.underline} NCL's Reply at 9, 12. Thus,
according to NCL, the application of the ADA to foreign ships sailing on
United States waters is an extraterritorial application, regardless of
the fact that the ships were operating within the territory of the
United States. [Id.]{.underline}

The only two courts to consider this issue have rejected NCL's
proposition and found that the ADA does apply to foreign-flag cruise
ships. [Stevens]{.underline}, 215 F.3d at 1242 (11^th^ Cir. 2000)
(cruise ships sailing under a foreign flag are not exempt from the ADA
when operating in United States waters); [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).
In [Stevens]{.underline}, the Eleventh Circuit endorsed a plain reading
of the term "extraterritorial" where it held that "\[b\]y definition, an
extraterritorial application of a statute involves the regulation of
conduct beyond U.S. borders." 215 F.3d at1242 (quoting [Environmental
Defense Fund, Inc. v. Massey]{.underline}, 986 F.2d 528, 531
(D.C.Cir.1993)); [see also]{.underline} [Black's Law
Dictionary]{.underline} 528 (5^th^ ed. 1979) (defining
"extraterritorial" as "\[b\]eyond the physical and juridical boundaries
of a particular state or country."); [Webster\'s Ninth New Collegiate
Dictionary]{.underline} 441 (1989) (defining "extraterritorial" as
"existing or taking place outside the territorial limits of a
jurisdiction."). Despite NCL's claim that the Eleventh Circuit "got it
wrong," [see]{.underline} NCL's Reply at 8, NCL provides no genuine and
contrary authority to support its alternative reading of the word
"extraterritorial."

Instead, NCL selectively quotes dicta from [Lauritzen v.
Larsen]{.underline}, 345 U.S. 571, 584-585 (1953), concerning the law of
the flag. [See]{.underline} NCL's Brief at 6. The point of the passage
relied on by NCL, however, was that the flag state could sometimes
retain \"concurrent jurisdiction\" over a crime that occurred on the
ship while it was in the territorial waters of another country.[^3]
[Lauritzen]{.underline}, 345 U.S. at 585. A flag state may exercise
jurisdiction over conduct that occurs on the high seas. [See,
e.g.]{.underline}, [United States v. Hayes]{.underline}, 653 F.2d 8, 15
(1st Cir. 1981). It may also exercise concurrent jurisdiction over
certain actions that occur on the ship while it is in foreign waters.
[See, e.g.]{.underline}, [United States v. Flores]{.underline}, 289 U.S.
137, 157-158 (1933). No court, however, has held that a foreign-flag
ship sailing in United States waters is always an extraterritorial legal
entity. In fact, [Cunard]{.underline} expressly rejects the proposition,
262 U.S. at 123-124, and [Lauritzen]{.underline} refuses to rule on it.
345 U.S. at 585, n. 18.

Moreover, NCL's reliance on [NLRB v. Dredge Operators, Inc.]{.underline}
19 F.3d 206, 208 (5^th^ Cir. 1984) in an attempt to distinguish the
Eleventh Circuit's holding in [Stevens]{.underline} is misplaced.
[See]{.underline} NCL's Reply at 6-9. [Dredge Operators]{.underline}
dealt specifically with the application of a United States law to
activities occurring in Hong Kong waters. 19 F.3d at 208. The court did
not address the question at issue here, whether a law is applied
extraterritorially, even if it is applied to events occurring within the
territorial limits of the United States.[^4]

Finally, NCL relies on comity and international law considerations by
raising claims about "possibly" conflicting legal obligations stemming
from barrier removal obligations and laws of other countries and the
"potentially deleterious" impact of the United States' position.
[See]{.underline} NCL's Reply at 4-5. However, NCL has not shown that
any eventual remedy would result\
in conflicting legal obligations. NCL's speculative concerns are not
relevant to the disposition of a motion to dismiss. [Campbell v. Wells
Fargo Bank]{.underline}, 781 F.2d 440, 442 (5th Cir.1986) (The complaint
must be liberally construed in favor of the plaintiff.)

**B.** **Because the Activity Regulated Here is Not "Extraterritorial,"
this Court Does Not Need to Address the Presumption Against
Extraterritoriality**

Under the "presumption against extraterritoriality," a statute is only
applicable [outside]{.underline} the territory of the United States if
the statute contains congressional intent for such an extraterritorial
application. [See]{.underline} [EEOC v. Arabian Am. Oil
Co.]{.underline}, 499 U.S. 244, 248 (1991) ([ARAMCO]{.underline}). Thus,
if the presumption were applied in the instant case, the ADA would be
applicable to foreign-flag ships operating in United States territory
only if specific congressional intent existed for such an application.
However, the "presumption against extraterritoriality" is not applicable
where no extraterritorial application of a statute exists.[^5]

A plain reading of [ARAMCO]{.underline} -- where the Supreme Court most
recently defined the "presumption against extraterritoriality" --
conclusively reveals that the presumption applies only where a law is
being applied extraterritorially, i.e., outside of United States
territory. 499 U.S. at 248. The definition of the presumption as
provided in [ARAMCO]{.underline} is tied directly to the location of
events and is not based, in whole or in part, on the nationality of the
actors involved. [Id.]{.underline} ("legislation of Congress, unless a
contrary intent appears, is meant to apply only [within the territorial
jurisdiction]{.underline} of the United States.\") (emphasis added).
Thus the ARAMCO decision further confirms that "extraterritoriality" is
triggered by where the conduct takes place, not by the nationality of
the actor. [Id.]{.underline}; [see also]{.underline} [Foley Bros. v.
Filardo]{.underline}, 336 U.S. 281, 285 (1949) (in addressing the
presumption, indicating that the key question is whether Congress
intended to make the law applicable to work performed in foreign
countries); [Stevens]{.underline}, 215 F.3d at 1242 (specifically
declining to adopt ARAMCO's "presumption against extraterritoriality"
because foreign-flag ships in United States waters are not
extraterritorial).

Neither the [ARAMCO]{.underline} decision, nor any decision in the body
of law addressing the presumption,[^6] expand the meaning of
"extraterritorial" to include matters occurring within the territory of
the United States. Moreover, there is no authority, and NCL provides
none, to support the use of the "presumption against
extraterritoriality" where there is no extraterritorial application of a
statute at issue. Therefore, because the application of the ADA to
foreign flag cruise ships operating in United States waters is not
extraterritorial, the "presumption against extraterritoriality" is not
applicable in the instant case.

**II. The Barrier Removal Requirements Are Applicable to All Public
Accommodations Covered by the ADA**

According to NCL, the barrier removal requirements of the ADA are not
applicable unless there are corresponding "New Construction and
Alteration" standards in place for the type of public accommodation at
issue. [See]{.underline} NCL's Reply at 20-22. The United States
respectfully submits that this position misstates the law.

The barrier removal requirement, which is one of several specific
non-discrimination prohibitions in Section 302 of Title III (42 U.S.C.
§12182(b)(2)(A)(iv)), is separate from the new construction and
alteration requirements found in Section 303 of title III of the ADA (42
U.S.C. §12183). Section 303\'s design and construction standards are
meant to be comprehensive and incorporate the ADA Standards for
Accessible Design to regulate a variety of construction features that
will affect accessibility of new construction. The concept of barrier
removal in Section 302 means, simply, that when a place of public
accommodation has physical barriers to access, it must remove them if it
is "easily accomplishable. . . without much difficulty or expense." 42
U.S.C. §12181(9). For example, if the facility has boxes blocking the
hallway, it is undeniable that it would be "readily achievable" to move
the boxes in order to permit persons who use wheelchairs to pass through
the hallways. [See]{.underline} 28 C.F.R. § 36.304(b)(4).

The regulations implementing the barrier removal provisions do reference
the New Construction and Alteration requirements. [See]{.underline} 28
C.F.R. § 36.304(d)(1) ("Except as provided in paragraph (d)(2) of this
section \[setting out the "readily achievable" standard\], measures
taken to comply with the barrier removal requirements of this section
shall comply with the applicable \[New Construction and Alteration
requirements\] for the element being altered."); [see also]{.underline}
[id.]{.underline} at §36.304(g). The purpose of this reference is to set
a limit on what entities may be required to do. [See]{.underline}
[id.]{.underline} ("the \[barrier removal\] requirements for § 36.304
shall not be interpreted to exceed the standards for \[new construction
and alterations\] in subpart D of this part."); 28 C.F.R. Pt. 36, App. B
at 649 (explaining that the references to the new construction and
alteration requirements were incorporated into the regulation in order
to set a limit on what is required under the barrier removal
provisions). The purpose of these references are [not]{.underline} to
exclude from any barrier removal requirements, all public accommodations
for which no specific standards are in place.

A public accommodation for which there are no new construction and
alteration standard in place, such as a cruise ship, follows a three
step approach in complying with the barrier removal requirements of the
ADA. First, cruise ships are under a general requirement to remove
barriers where it is readily achievable to do so. 28 C.F.R. § 36.304(a).
In some situations, appropriate barrier removal measures have no
applicable new construction or alteration "standards" in place.
[See]{.underline} [id.]{.underline} at § 36.304(b) (providing examples
of barrier removal where no applicable new construction or alteration
standard applies, such as rearranging tables and chairs). Second, cruise
ships removing barriers are required to comply with any applicable new
construction and alteration standards where it is readily achievable to
do so. [Id.]{.underline} at § 36.304(d). Thus, if a cruise ships must
lower a countertop to provide appropriate wheelchair access, and such a
remedy is readily achievable, cruise ships must comply with the relevant
regulations governing alterations of public facilities and countertop
heights. Moreover, a cruise ship would not be required, under 28 C.F.R.
§ 36.304(a), to do any more than what is required under the applicable
standards for countertop heights, [see]{.underline} [id.]{.underline} at
§ 36.304(g), and could be required to do less, depending on what is
readily achievable.[^7] Third, where barrier removal is not readily
achievable, cruise ships must implement alternatives to barrier removal,
e.g., providing assistance. 28 CFR § 36.305.

Under NCL's reading of the law, because there are no specific standards
governing new construction and alterations for cruise ships, cruise
ships are free of any barrier removal obligations. This reading of the
law is incorrect. The United States respectfully urges that this Court
reject NCL's argument and rule that the barrier removal requirements are
applicable to all public accommodations covered by the ADA, and that
where specific New Construction and Alteration standards are not in
place, entities must remove barriers wherever it is readily achievable
to do so, as determined based on the facts on a case by case basis.
Should this Court find the regulatory language in question to be
ambiguous, the United States' interpretation of that regulation is
entitled to deference. [Christensen v. Harris County]{.underline}, 529
U.S. 576, 120 S. Ct. 1655, 1663 (2000) (holding that an agency's
interpretation of its own regulation is entitled to deference when the
language of a regulation is ambiguous); [see]{.underline}
[also]{.underline} [Olmstead v. Zimring]{.underline}, 527 U.S. 581, 582
(1999) (the well-reasoned views of the agencies implementing a statute
constitute a body of experience and informed judgment to which courts
and litigants may properly resort for guidance). [Cf.]{.underline} NCL's
Reply at 19 (incorrectly concluding that [Christensen]{.underline}
effectively eliminates deference to agency interpretations.).

**CONCLUSION**

Based upon Plaintiffs' arguments and the arguments presented by the
United States in its Memorandum of Law as [Amicus Curiae]{.underline} In
Support of Plaintiff's Opposition to Defendant Norwegian Cruise Line's
Motion to Dismiss, and arguments stated above, the Court should deny
defendant's motion to dismiss and allow this case to go forward, as
scheduled.

> Respectfully submitted,
>
> WILLIAM R. YEOMANS
>
> Acting 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
>
> \(202\) 305-7475
>
> 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}

[^1]: [See]{.underline} Defendant Norwegian Cruise Line's Reply to
    Plaintiffs' Response to the Motion to Dismiss and to the United
    States' Memorandum of Law as *Amicus Curiae* in Support of
    Plaintiffs' Response" ("NCL's Reply") at 9, 12. The United States
    respectfully submits that NCL's Reply contains numerous
    misapplications of the law and mischaracterizations of the United
    States' position. However, the United States limits its sur reply as
    [amicus curiae]{.underline} to the two issues referenced above and
    asks this Court to refer to United States' Memorandum of Law as
    [Amicus Curiae]{.underline} In Support of Plaintiff's Opposition to
    Defendant Norwegian Cruise Line's Motion to Dismiss ("U.S. First
    Brief") for all other issues.

[^2]: Ports are part of a nation's internal waters. [See]{.underline}
    [United States v. Louisiana]{.underline}, 394 U.S. 11, 40 (1969).

[^3]: Indeed, the [Lauritzen]{.underline} Court refused to endorse the
    very language relied on by NCL. [Lauritzen]{.underline}, 345 U.S. at
    585, n. 18. Instead the Court laid out competing positions on
    whether a ship is a "floating part of the flagstate" and then
    conspicuously declined to resolve it. [Id.]{.underline} ("\[w\]e
    leave the controversy where we find it, for either basis leads to
    the same result in this case"); [see also]{.underline} U.S. First
    Brief at 17 (distinguishing [Lauritzen]{.underline} because its
    holding was based on the cause of action arising out of matters
    internal to the ship which did not affect the dignity of the United
    States).

[^4]: Therefore, despite NCL's efforts to cast this issue in terms of a
    difference of opinions between between the Eleventh and Fifth
    Circuits, no such difference exists. [See]{.underline} NCL's Reply
    at 9. NCL further relies on [Benz v. Compania Naviera Hidalgo,
    S.A.]{.underline}, 353 U.S. 138 (1957). [See]{.underline} NCL's
    Reply at 7-8, 11. The [Benz]{.underline} case does not expand the
    definition of extraterritorial to include foreign-flag ships sailing
    in United States waters. More accurately, the [Benz]{.underline}
    Court, at the very outset of the decision, defines the issue as
    whether United States laws should be applied in matters arising out
    of internal disputes between a "foreign employer and a foreign crew"
    where the "only American connection was that the ship was
    transiently in a United States port." [Id.]{.underline} at 142. The
    instant case is distinguishable from [Benz]{.underline} because it
    has far greater "American connections" -- the ships embark and
    disembark from American ports, the ships spend a considerable amount
    of time on American waters, the Plaintiffs' are American citizens
    seeking protection of their civil rights, and the owner and operator
    of the ship has its principle place of business in the United
    States.

[^5]: NCL also argues that this Court should find that Plaintiffs seek
    an extraterritorial application of the ADA because the cruise ships
    at issue leave the United States waters during certain cruises and
    thus "the relief that Plaintiffs seek would alter the character of
    the ships' 'facilities, services and programs' at a time when the
    ships are outside of United States territory." [See]{.underline}
    NCL's Reply at 13. Ironically, in this instance NCL is willing to
    rely on the location of the ship, i.e., "outside United States
    territory," as a factor for establishing "extraterritoriality."
    Significantly, however, NCL provides no authority for its position
    that ADA violations occurring in United States territory must be
    overlooked because they also occur outside United States territory.
    That the discrimination also happens to occur when the ship is in
    international waters -- where United States law cannot reach -- does
    not in any way negate the fact that it also occurred in United
    States waters, where it [is]{.underline} against the law.

[^6]: [See e.g.]{.underline}, [Sale v. Haitian Centers Council,
    Inc.]{.underline}, 509 U.S. 155, 156 (1993) (applying the
    "presumption of extraterritoriality" as it relates to the location
    of the conduct); [Healy v. Beer Institute, Inc.]{.underline}, 491
    U.S. 324, 336 (1989) (same); [Foley Bros., Inc]{.underline},, 336
    U.S. 281, 284-285, 69 S.Ct. 575, 577, 93 L.Ed. 680 (1949) (same);
    [Boureslan v. Aramco, Arabian American Oil Co.]{.underline}, 892
    F.2d 1271, 1274 (5^th^ Cir. 1990) (same).

[^7]: Under the readily achievable standard, the appropriate remedy is a
    factual determination made on a case by case basis. Because there
    are existing factual disputes over whether NCL's alleged barrier
    removal violations are readily achievable, NCL's Motion to Dismiss
    is inappropriate. [Campbell]{.underline}, 781 F.2d at 442.