Opposition Brief — Spector v. Norwegian Cruise Line Ltd.

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No. 03-1388

Supreme Coy rn Us

Fi LE D '

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In The 3

Supreme Court of the Anited States

¢

DOUGLAS SPECTOR, ET AL.,

Petitioners,

v.

NORWEGIAN CRUISE LINE LTD.,

Respondent.

«

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

¢

RESPONSE TO PETITION FOR CERTIORARI

¢

_— THOMAS H. WILSON

Counsel of Record

MICHAEL J. MUSKAT

VINSON & ELKINS, L.L.P.

1001 Fannin Street

Houston, Texas 77002

(713) 758-2222

MICHAEL F. STURLEY

727 E. Dean Keeton Street

Austin, Texas 78705

(512) 232-1350

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Does Title III of the Americans with Disabilities Act

(ADA), 42 U.S.C. §§ 12181-12189, apply to foreign cruise

ships?

ii

CORPORATE DISCLOSURE STATEMENT

The corporate parent of Norwegian Cruise Line Ltd. is

Arrasas, Ltd., which in turn is wholly owned by Star

Cruises PLC, a Malaysian company. Star Cruises PLC is a

public company and its shares are traded on several

foreign stock exchanges.

ili

TABLE OF CONTENTS

Page

te CB , . e i

CORPORATE DISCLOSURE STATEMENT ............. ii

, ° . 2 ES nerene nee iii

Fe I Gr CB ei ees evececccccccsescecccescseccscesseses iv

SITET iiininictintidlaninteantniiiemnnndipedinmmasinnnuminneineinninss 1

REASONS FOR GRANTING THE WRIT.................. 7

I. This Case Presents the Question Whether

Title III of the Americans with Disabilities

Act (ADA), 42 U.S.C. §§ 12181-12189, Ap-

plies to Foreign Cruise Ships. ................0...000 8

II. The Acknowledged Conflict Between the

Fifth and Eleventh Circuits Unacceptably

Subjects Foreign Cruise Ships to Inconsis-

ie eR icecccnnccnccesesteiscccssesesscnscece 12

III. This Court Should Overrule the Eleventh

Circuit’s Erroneous Decision in Stevens in

Favor of the Fifth Circuit’s Ruling Below. ...... 14

ee cccvesessscccesecesessscocosserenesecsavnosoesosnssosoeese 18

iv

TABLE OF AUTHORITIES

Page

CASES

Becker v. Montgomery, 531 U.S. 1110 (2001).................... 12

Benz v. Compania Naviera Hidalgo, S.A., 353 U.S.

ET iesdisliinitiiessnsieeeenileeicipestentaibdiieiiaaiiiaiiciitiecten 5, 6, 15, 16, 17

Clay v. United States, 536 U.S. 981 (2002)........: bianenenenvits 12

EEOC v. Arabian Am. Oil Co. (ARAMCO), 499 U.S.

ST wsiicieictinechteictieindibarpienibiiathdiandieaaeeideniiiaiioit etal 15, 16, 17

Giacopini v. Crystal Cruises, Inc., Case No. C-04-

1089MMC (N.D. Cal. June 25, 2004)............ eee 13

Hope v. Pelzer, 534 U.S. 1120 (2002)........ cece ees 12

Lauritzen v. Larsen, 345 U.S. 571 (1953) .............ccccceeeeeee 15

McCulloch v. Sociedad Nacional de Marineros de

Honduras, 372 U.S. 10 (1963)................... 5, 6, 15, 16, 17

Miller-El v. Cockrell, 535 U.S. 903 (2002)... eee 12

Stevens v. Premier Cruises, Inc., 215 F.3d 1237

(CA11 2000), reh’g denied, 284 F.3d 1187 (CA11

SUITE \ccssctiiipovininnitbaiiaiiaananiniaiianndabnibiniainnntitinieiniedl passim

Sundance Cruises Corp. v. American Bureau of

Shipping, 7 F.3d 1077 (CA2 1998) ........... ccc ceeeceeeeeeeeeeees 13

United States v. Locke, 529 U.S. 89 (2000)..................0008 13

STATUTES, TREATIES, AND REGULATIONS

I AN TT ini cctcintinstiedecieninciihaniiiiataibiadainacaiiaiapbidaidédins 4

Oe MT nvicicictisasesinninsticehatiitesinciopinipiamiptimamundialasaiaidiied 4

a ee ee isiciiccsanticesiiatininniauinapiintimatiinemseataduntetiuas 2

a ee ae erinniiiitcininiccieiiaehischnnnatincinstanaiiitinipiiatiiaiianial 2

ii -

TABLE OF AUTHORITIES -— Contin.e

Page

| ea 8, 11

ee MT sinicicntinintinctepcninecinttabntatindtetineiibienitane 8, 11

International Convention for the Safety of Life at

Sea (SOLAS), 32 U.S.T. 47, T.LA.S. No. 9700

Eiri slaeehicininietbciiaticieiadubiapbnbebaicliuiaaiasiddddiidniiienieadaeiusisineivianinesdt o

56 Fed. Reg. 35544 (July 26, 1991) 0.0... ee eeeeeeeeeteeeee 2

OTHER AUTHORITIES

Harry Shattuck, NCL’s Texarribean Cruises Will

Resume in November, Houston Chronicle,

October 26, 2003, Travel section, at 6. .................cccce000 14

NCL’s “Scandinavian Capitals” Itinerary, available

at http://www.ncl.com/itinerary/it_euro.htm (last

ie I vicicctticnctniinsticsininninnadiacciiiniatinnniininninnenies 1

Restatement (Third) of the Foreign Relations Law

Of the United Staten § G01 ......cccccccccccccccccccccccccccscccccccces 15

Restatement (Third) of the Foreign Relations Law

of the United States § 502 cmt. a............cccccecceeceeeseeeeees 15

United States Department of Justice, ADA Title III

Technical Assistance Manual III-1.2000 (1993),

available at http://www.usdoj.gov/crt/ada/taman3.

html (last visited July 2, 2004) .0.... eee eeteteteeeeeees 9

United States Department of State, Treaties in

i a eiebedamminandibabinidsiall 13

1

RESPONSE TO PETITION FOR CERTIORARI

Certiorari is warranted to enable this Court to affirm

the judgment of the United States Court of Appeals for the

Fifth Circuit and overrule the erroneous decision of the

United States Court of Appeals for the Eleventh Circuit in

Stevens v. Premier Cruises, Inc., 215 F.3d 1237 (CA11

2000), reh’g denied, 284 F.3d 1187 (CA11 2002).

+

STATEMENT

1. Respondent Norwegian Cruise Line Ltd. (NCL)

operates a fleet of oceangoing cruise ships that depart on

pleasure cruises from ports in the United States and, at

present, two other continents.’

NCL welcomes disabled passengers on its ships. It has

been NCL’s experience that disabled persons often view

cruises as ideal vacations because cruise ships offer

numerous activities and services in a self-contained,

accessible space. NCL is fully committed to making its

many disabled passengers’ cruise experiences as accessi-

ble, integrated, and enjoyable as possible. NCL rejects

discrimination against its disabled passengers in any

form.

2. Title III of the Americans with Disabilities Act

(ADA), 42 U.S.C. §§ 12181-12189, contains a lengthy and

* The implication that all NCL ships depart from U.S. ports

(Pet. 3), is incorrect. Like most major cruise lines, NCL operates cruise

ships that depart from ports in other countries and do not enter U.S.

waters for the duration of the cruises. See, e.g., NCL’s “Scandinavian

Capitals” Itinerary, available at http//www.ncl. eemeeraenger euro.htm

(last visited July 2, 2004).

2

exhaustive list of “public accommodations” and “specified

public transportation” services subject to the statute. 42

U.S.C. §§ 12181(7), 12181(10). Foreign ships are not

mentioned anywhere in this text, nor are they identified

anywhere in the extensive legislative history of the stat-

ute. Moreover, there are no accessibility standards specific

to ships, even though the Department of Justice — which

has asserted that the statute should apply to foreign ships

— recognized in 1991 that cruise ships are sufficiently

different from land-based structures to require their own

set of accessibility guidelines. See 56 Fed. Reg. 35544,

35550 (July 26, 1991).

3. Three of the petitioners are mobility impaired.

(Amended Compl. {7 7-8.) Two of the petitioners are not

mobility impaired but traveled with two mobility impaired

petitioners during NCL cruises. (Jd. 418.) Petitioners

allege that they took cruises aboard the Norwegian Star

and the Norwegian Sea. (Id. {J 11, 17.) The ships departed

from the Port of Houston, Texas, traveled to foreign ports

of call, and returned to Houston. (Pet. App. 2a.) Both ships

sailed under the Bahamian flag. (Jd.)

On August 1, 2000, petitioners filed this putative class

action lawsuit in the district court on behalf of all “current

and former” passengers of all NCL cruises who are mobility

impaired or who had a “known association” with mobility-

impaired passengers during the cruise. (Amended Compl.

{ 23.) Petitioners assert that NCL’s foreign cruise ships are

governed by Title III of the ADA. (Pet. App. 2a.) Primarily,

they allege that Title III requires NCL to make modifica-

tions to the physical structure of each of its ships. Petition-

ers seek modifications to the ships’ cabins, restaurants,

swimming pools, restrooms, elevators, and other unspeci-

fied structures. (Pet. 4; Amended Compl. 4§ 17, 31, 38.)

3

Petitioners also allege that they were subjected to alleged

discriminatory onboard policies and procedures, for which

they seek injunctive relief. (Pet. 4-5.)

Petitioners’ allegations of discrimination are merit-

less. NCL does not discriminate against its many disabled

passengers, and petitioners are no exception. NCL never-

theless recognizes that in the procedural context of the

case, this Court must assume that petitioners’ allegations

are true. Thus, NCL proceeds by assuming, as it must (for

the limited purpose of resolving the question presented

here), the truth of petitioners’ allegations regarding

inaccessibility of certain areas of NCL ships and the

content of certain NCL policies and procedures.”

4. In the district court, NCL moved to dismiss

petitioners’ complaint for failure to state a claim. NCL

argued that Title III does not govern foreign ships because

there is no evidence that Congress intended the statute to

be applied to such ships. NCL argued that the application

of Title III to foreign ships conflicts with comity principles

and creates potential substantive conflicts with interna-

tional conventions and foreign law. Also, a lack of guidance

from Congress as to how the statute should be applied to

foreign ships leaves cruise lines like NCL unable to deter-

mine in advance how to comply with the law.

In the alternative, NCL argued that petitioners’

claims seeking the removal of structural barriers on NCL’s

ships must be dismissed because the federal agencies

charged with promulgating architectural and design

standards under Title III have never done so with respect

? In any event, these factual allegations are irrelevant for present

purposes. The issue before this Court is a pure question of law.

4

us ships — despite having had over a dozen years. NCL also

argued that the non-mobility impaired petitioners’ claims

for “associational discrimination” fail because the non-

mobility impaired petitioners do not 2llege that they were

singled out for discrimination.

The district court, relying on the Eleventh Circuit’s

opinion in Stevens v. Premier Cruises, Inc., 215 F.3d 1237

(CA11 2000), reh’g denied, 284 F.3d 1187 (CA11 2002), held

that Title III applies to foreign ships within the territorial

waters of the United States. (Pet. App. 35a.) The district

court nevertheless dismissed petitioners’ barrier removal

claims, recognizing that the lack of architectural stan-

dards specific to ships destroys Congress’s goal in Title III

of establishing uniformity in aspects of the aesign and

structure of public accommodations. (Jd. 42a.) The lack of

standards also leaves cruise ships unable to determine

what is required by the statute. (Jd.) Finally, the court

permitted the non-mobility impaired petitioners to proceed

on their claims for “associational discrimination.” (Id. 46a-

47a.)

5. Citing 28 U.S.C. §1291(a), petitioners filed a

notice of appeal challenging the district court’s dismissal

of their barrier removal claims. Separately, NCL sought

certification of the district court’s order for interlocutory

appeal under 28 U.S.C. § 1292(b) so that it could seek

review of the court’s ruling that Title III applies to foreign

ships. The district court certified its order for interlocutory

appeal under section 1292(b), finding two questions of law

to be controlling: “(1) whether federal agencies’ failure to

create guidelines for new construction or alterations of

cruise ships bars enforcement of Title III of the ADA’s

5

existing barrier removal guidelines; and (2) whether Title

III of the ADA applies to foreign-flagged cruise ships.”

(Resp. App. 4.) NCL received the court of appeals’ permis-

sion to pursue its separate appeal on these issues. The

Fifth Circuit ultimately consolidated the two appeals.

The Fifth Circuit held that “[floreign-flagged cruise

ships are not subject to Title III of the ADA unless and

until Congress clearly expresses its intention to do so.”

(Pet. App. 15a.) The court observed that although the

United States has the raw power to subject foreign ships

to its laws, whether it exercises that power is within

Congress’s discretion. ([d. 4a-5a.) For a court to apply a

statute to a foreign ship, there must be specific and clear

evidence in the statute or its legislative history indicating

Congress’s intent to do so. (Jd. 7a-8a, citing Benz v. Com-

pania Naviera Hidalgo, SA., 353 U.S. 138 (1957);

McCulloch v. Sociedad Nacional de Marineros de Hondu-

ras, 372 U.S. 10 (1963).) As the court of appeals stated,

“Congress’s silence cannot be read to express an intent to

legislate where issues touching on other nations’ sover-

eignty are involved.” (Pet. App. 8a.)

The Fifth Circuit found no evidence that Congress had

intended that Title III apply to foreign ships. (Jd. 8a.) The

court also noted the potential conflict between the require-

ments of Title IfI and the international convention govern-

ing maritime architecture, the International Convention for

the Safety of Life at Sea (SOLAS), 32 U.S.T. 47, T.LAS.

No. 9700 (1974). (Pet. App. 8a-9a.)

* The courts below referred to the ships at issue as “foreign-flagged

ships” or “foreign-flagged cruise ships.” In this Response, NCL uses the

more concise term “foreign ships,” which has the same meaning, ie.,

ships registered in a foreign country.

6

The Fifth Circuit rejected the Eleventh Circuit’s

contrary ruling in Stevens. The court first disagreed with

the Eleventh Circuit’s refusal to apply the presumption

against the application of U.S. statutes to foreign ships.

(Id. 12a-13a.) Although the Eleventh Circuit had held this

presumption to be applicable only to labor relations laws

(id.), the Fifth Circuit observed that petitioners’ requested

relief - which encompasses structural modifications, policy

changes, and changes in crewmember duties — would

affect the “internal management and affairs” of the ships

no less than would labor relations laws. (Jd. 13a.) Thus, in

contrast to Stevens, the Fifth Circuit found the presump-

tion in Benz and McCulloch to be applicable to the instant

question. (Jd. 12a-13a.)

The circuits also differed over the question whether

application of Title III would require an impermissible

extraterritorial application of the statute. (Jd. 10a-1la,

13a.) Whereas the Stevens court found no requested

extraterritorial application (215 F.3d at 1242), the Fifth

Circuit believed it to be obvious that the permanent

modifications to ship structure and policies sought under

Title III would necessitate an extraterritorial application

once the ships left U.S. waters. (Pet. App. l1la-13a.) This

would be impermissible because there is no evidence that

Congress intended the statute to apply extraterritorially.

(Id.)

The two circuits also disagreed whether Title III

should be narrowly construed to avoid potential conflicts

with international law. The Eleventh Circuit declined to

consider the effect of potential conflicts of law, ruling that

conflicts were appropriately considered only when specific

conflicts between ‘he , laintiffs’ requested relief and

international law had been proven. Stevens, 284 F.3d at

7

1187. In contrast, the Fifth Circuit, explicitly rejecting the

Eleventh Circuit’s approach (Pet. App. 12a n.9), held that

potential conflicts affect the manner in which the statute

should be interpreted. (Jd. 8a.) Because of the possibility of

conflict between Title III and SOLAS, the court ruled that

Title III should not be interpreted to include foreign ships.

(Id. 9a.)

Neither the Fifth Circuit nor the Eleventh Circuit

held, as petitioners claim (Pet. 1, 9, 11, 12 & n.2, 21, 22),

that Title III could never be applied to the conduct of the

operators of foreign cruise ships that do business in the

United States. Neither court had occasion to consider the

circumstances under which Title III applies to services

provided by land-based accommodations operated by

foreign companies, as the claims in both cases related only

to the services offered by foreign cruise ships. (Pet. App.

2a; Stevens, 215 F.3d at 1240, 1243.)

In an unpublished order, the Fifth Circuit denied

petitioners’ petition for rehearing en banc. (Pet. App. 48a-

49a.)

6. On April 1, 2004, petitioners sought a writ of

certiorari from this Court.

-

REASONS FOR GRANTING THE WRIT

Although petitioners and NCL disagree about many

aspects of the case, including both the question presented

and the proper answer to that question, NCL agrees that

this is an important case raising a_significant issue of

federal law that this Court should decide.

8

I. This Case Presents the Question Whether

Title III of the Americans with Disabilities

Act (ADA), 42 U.S.C. §§ 12181-12189, Applies to

Foreign Cruise Ships.

NCL agrees that the Court should decide this case,

but it is important to recognize the correct issue raised by

petitioners’ allegations and addressed by the courts below.

The proper question before this Court is not, as petitioners

claim, whether Title III applies to “companies” that oper-

ate foreign cruise ships. (Pet. i.) Nor is the question

“whether Title III applies to the on-land conduct of compa-

nies that operate foreign-flag ships.” (Jd. 11.) Nor is the

question generally “whether U.S. citizens enjoy the protec-

tion of U.S. law when they contract to take a cruise that

originates in a U.S. port and is operated by a company

whose principal place of business is the United States.”

(Id. 15.) All of these questions are overbroad and misstate

the relevant issue.

Title III governs “place[s] of public accommodation,”

42 U.S.C. § 12182(a), and “specified public transportation

services,” 42 U.S.C. § 12184(a), as those terms are defined

by the statute. Because statutory coverage is determined

on a place-by-place or transportation service-by-service

basis, it is incorrect to ask whether the statute applies to

particular operators such as NCL.‘ In view of the statutory

* The threshold issue under Title III is whether a place of public

accommodation is involved. The role assigned to an “operator” under

the statute is to ensure that a place of “public accommodation,” as

defined by the statute, complies with the statutory non-discrimination

requirements. See 42 U.S.C. § 12182(a). An operator of one place of

public accommodation does not become subject to Title III with respect

to all structures that it operates. Even the Department of Justice and

the Stevens court — each of which has otherwise taken an overly

(Continued on following page)

9

language, the precise issue in this case is whether Title III

applies to “place[s] of public accommodation” on foreign

cruise ships or to “specified public transportation services”

offered by foreign cruise ships. Asking whether Title III

applies to foreign cruise ships is a convenient and accepted

shorthand for this more precise formulation of the ques-

tion.

The courts below consistently recognized that the

issue before them was whether Title III applies to foreign

cruise ships — not whether Title III applies to the opera-

tors of foreign cruise ships. The opening sentence of the

Fifth Circuit’s opinion declares that the case “presents the

question whether Title III [of the ADA] applies to foreign-

flagged cruise ships.” (Pet. App. 2a.) The issue is described

in virtually the same terms throughout the opinion.® And

expansive view of Title III's scope — recognize this fundamental

proposition. See United States Department of Justice, ADA Title III

Technical Assistance Manual MIII-1.2000 (1993), available at

http://www.usdoj.gov/crt/ada/taman3.html (last visited July 2, 2004);

Stevens, 215 F.3d at 1241 & n.5. Conversely, an operator does not

become wholly exempt from Title II] merely because some of its

structures are not public accommodations as defined by the statute.

* Petitioners do not bring any claims relating to land-based

accommodations that NCL may own or operate, or to land-based

transportation services that NCL might have provided. All of the claims

relate to the accommodations and services on the Norwegian Star and

the Norwegian Sea. See also infra note 8 (discussing petitioners’

argument regarding NCL’s “on-land pricing policies”).

* See, e.g., Pet. App. 3a n.2 (“we conclude that Title III of the ADA

does not apply to foreign-flagged cruise ships”); id. 4a (“NCL challenges

the district court’s conclusion that Title III of the ADA applies to

foreign-flagged cruise ships.”); id. 4a (“no evidence that Congress

intended Title III to apply to foreign-flagged vessels”); id. 4a n.3 (“we

... limit this decision to foreign-flagged cruise ships”); id. 5a (describ-

ing the issue as whether “to apply domestic law to foreign vessels”); id.

8a (“Congress may enact legislation that governs foreign-flagged cruise

(Continued on following page)

10

in its Conclusion, the court of appeals summarizes its

holding with the statement that “[floreign- cruise

ships are not subject to Title III of the ADA unless and

until Congress clearly expresses its intention to do so.” (Id.

15a.)

There is no basis for petitioners’ contrary characteri-

zation of the Fifth Circuit’s decision. In the opening

paragraph of their argument, for example, petitioners

assert that the decision below applies “to foreign-flagged

cruise ships and their operating companies.” Pet. 9 (citing

Pet. App. 14a-15a) (emphasis added). The cited portion of

the opinion, however, mentions only “foreign-flagged

cruise ships” (three times); it says nothing about the

companies that operate these vessels. Petitioners then

assert without citation that this case involves not only

foreign cruise ships but also “their parent companies” (Pet.

11), “their operating companies” (id.), the “companies that

operate” them (id.), “a company that operates” them (id. at

12 n.2), and “foreign-flag cruise lines” (id. at 21) (emphasis

in original). But in fact the Fifth Circuit never mentions

“parent companies” or the companies that operate foreign

cruise ships, and it mentions a cruise line only when_it —

names NCL as a party to the action. (Pet. App. 2a.)

ships”); id. 14a-15a (“application of Title III to foreign-flagged cruise

ships is impermissible”). .

” The cited portion of the opinion includes six additional referen

to “cruise ships” without specifying their nationality (or mentioning

their operators). (Pet. App. 14a n.10.)

* Petitioners criticize the Fifth Circuit for having “dismissed [their]

claims that [NCL’s] on-land pricing policies violate Title III.” (Pet. 21.)

This criticism appears to be an indirect argument that the court of

appeals implicitly held that Title III does not apply to the operators of

foreign cruise ships. But petitioners misunderstand the scope of Title

(Continued on following page)

11

Even petitioners recognized the proper issue in the

court below. Petitioners’ argument on this issue appears

under the heading “THE ADA APPLIES TO NCL’S FOR-

EIGN-FLAGGED SHIPS” (Pet. CA5 Reply Br. 5), and they

consistently phrased their argument in these terms (see

id. at 5-25).

The district court was equally clear that the relevant

issue was whether Title III applied to foreign cruise ships.

Not only did its opinion characterize the issue as “whether

the ADA applies to foreign-flagged cruise ships” (Pet. App.

19a), but in its order permitting NCL to seek an interlocu-

tory appeal, it framed the relevant controlling question of

law as “whether Title III of the ADA applies to foreign-

flagged cruise ships.” (Resp. App. 4.)

It is also noteworthy that in Stevens v. Premier

Cruises, Inc. — the case whose clear conflict with the

decision below justifies this Court’s grant of certiorari —

the Eleventh Circuit addressed only whether Title III

applies to foreign cruise ships.’ As with the decision below,

III. NCL’s so-called “on-land pricing policies” could not violate Title III

unless they relate to “place[s] of public accommodation,” 42 U.S.C.

§ 12182(a), or “specified public transportation services,” 42 U.S.C.

§ 12184(a), as those terms are defined by the statute. The only “on-land

pricing policies” that petitioners challenge in this case relate to NCL’s

foreign cruise ships. As the statutory language reveals, the correct

question is whether Title III applies to these foreign vessels.

In any event, petitioners did not argue below that NCL’s pricing

policies were unrelated to NCL’s foreign cruise ships because they were

“on-land.” As the courts below never had the opportunity to address this

argument, it has been waived.

* Indeed, the Eleventh Circuit was very clear that the question

before it was whether the “public accommodations” on a foreign cruise

ship are subject to Title III. The court carefully explained why parts of a

(Continued on following page)

12

there was no consideration of whether Title III applies to

the companies that operate foreign cruise ships.

Petitioners’ complaint demands an answer to the

question whether Title III applies to foreign cruise ships;

the case does not raise any issue about the applicability of

Title III to the companies that operate them. Throughout

the proceedings in the district court and the court of

appeals, everyone involved clearly understood the scope of

the fundamental question regarding the applicability of

the statute. This Court should now answer that question.

Petitioners should not be permitted to raise new issues

that were not mentioned or decided below, and that the

case does not present. NCL therefore respectfully requests

that certiorari be granted solely with respect to the ques-

tion that the case does present — whether Title III applies

to foreign cruise ships.”

II. The Acknowledged Conflict Between the Fifth

and Eleventh Circuits Unacceptably Subjects

Foreign Cruise Ships to Inconsistent Legal

Standards.

As petitioners observe, the majority of United States

cruises depart from ports in the Fifth and Eleventh

cruise ship that did not qualify as “public accommodations” were not

subject to Title III. See 215 F.3d at 1241 & n.5.

” This Court has not hesitated, in an appropriate case, to rephrase

the question presented by a petitioner. See, e.g., Clay v. United States,

536 U.S. 981 (2002); Miller-El v. Cockrell, 535 U.S. 903 (2002); Hope v.

Pelzer, 534 U.S. 1120 (2002); Becker v. Montgomery, 531 U.S. 1110

(2001). In order to focus the parties’ attention during briefing on the

actual question that this Court would be called upon to decide, the

Court should rephrase petitioners’ question here.

13

Circuits. (Pet. 12.) The circuit split between the Fifth and

Eleventh Circuits means that most foreign cruise ships,

including NCL’s ships, are subject to two different legal

regimes affecting their structure and onboard _policies.

When sailing to or from ports in the Fifth Circuit, foreign

cruise ships must comply with the law of the flag state. At

a bare minimum, this law includes the existing set of

design, operations, and equipment standards contained in

SOLAS, which has been ratified by nearly every seafaring

nation, including the Bahamas. See United States De-

partment of State, Treaties in Force 423-24 (2003); see

also, e.g., United States v. Locke, 529 U.S. 89, 102-03

(2000); Sundance Cruises Corp. v. American Bureau of

Shipping, 7 F.3d 1077, 1079 (CA2 1993).

In the Eleventh Circuit, by contrast, foreign cruise

ships must comply with flag-state obligations and with

Title III. Of course, the lack of any accessibility standards

under Title III for cruise ships makes it impossible to

know what may be required. Yet even playing the guessing

game necessitated by this vagueness, certain courts could

interpret the statute to require some form of accessibility-

related structural modifications to the ships. (Pet. App.

13a.) Title III may also be read to require cruise ships to

change crewmember duties and to implement, rescind, or

“ The United States District Court for the Northern District of

California recently considered the question presented in this case and,

like the Fifth Circuit below, held that Title III does not apply to foreign

ships. See Giacopini v. Crystal Cruises, Inc., Case No. C-04-1089MMC

(N. D. Cal. June 25, 2004). After reviewing the analysis in both Stevens

and Spector, the Giacopini court found “the detailed analysis set forth

in Spector to be persuasive and, for the reasons set forth in Spector,”

found “that Title III of the ADA has no applicability to foreign-flag

cruise ships.” (Slip Op. at 10.)

14

modify onboard policies and procedures. (Id.) If the current

circuit split is unresolved, whether a cruise ship must

account for these unknown potential requirements de-

pends solely upon the court that decides the case.

A circuit split is particularly intolerable in this case

because cruise ships move from jurisdiction to jurisdiction

as cruise lines change their itineraries. For example, the

ship primarily at issue in this case — the Norwegian Sea —

left the Houston market in December 2000, sailed other

itineraries in other jurisdictions, and then returned to

Houston in November 2003. See Harry Shattuck, NCL’s

Texarribean Cruises Will Resume in November, Houston

Chronicle, October 26, 2003, Travel section, at 6. As a

practical matter, most, if not all, of the modifications that

could be sought by plaintiffs under Title III are likely to

remain in place even when the ship sails to another

jurisdiction. To the extent that Title III requires structural

modifications, ships would have little choice but to comply

with this aspect of Title III at all times, whether in domes-

tic or foreign jurisdictions, if there is any chance that they

might sail to the Eleventh Circuit.

Ill. This Court Should Overrule the Eleventh

Circuit’s Erroneous Decision in Stevens in

Favor of the Fifth Circuit’s Ruling Below.

This case provides the Court with the ideal opportu-

nity to overrule the erroneous Stevens decision. Until

Stevens is overruled, it will continue to create intolerable

problems for the cruise line industry.

As the Fifth Circuit correctly recognized, the flag state

presumptively determines the law onboard a ship, even

when the ship calls in the ports of other nations. See, e.g.,

ee

15

Restatement (Third) of the Foreign Relations Law of the

United States §§ 501, 502 cmt. a. This well-established

principle of maritime and international law prevents

unintended clashes between port states and flag states

over the governance of oceangoing ships. See, e.g.,

Lauritzen v. Larsen, 345 U.S. 571, 578-82 (1953). It also

furthers maritime commerce by protecting ships from

becoming subject to multiple, and perhaps conflicting, sets

of laws. See, e.g., id. at 585.

The legislature, not the courts, decides whether and

under what circumstances the United States will disre-

gard this principle when foreign ships enter U.S. waters.

In deference to Congress, courts do not apply U.S. law to

foreign ships unless Congress has specifically expressed

its intent that the statute apply to such ships. See Benz v.

Compania Naviera Hidalgo, S.A., 353 U.S. 138 (1957);

McCulloch v. Sociedad Nacional de Marineros de Hondu-

ras, 372 U.S. 10 (1963).

The Fifth Circuit correctly found no evidence that

Congress intended Title III to apply to foreign ships. (Pet.

App. 8a.) It also found a potential for conflict between the

requirements of Title III and SOLAS, the international

convention governing ship structure and design. (Id. 8a-

9a.) Further, the court correctly observed that the applica-

tion of Title III to foreign ships would necessitate an

impermissible extraterritorial application of the statute

when those ships left U.S. waters. (Jd. 10a-1la, 13a, citing

EEOC v. Arabian Am. Oil Co. (ARAMCO), 499 U.S. 244

(1991).) For these reasons, the court properly declined to

adopt petitioners’ expansive reading of Title III to regulate

foreign ships.

16

The contrary Stevens decision reached the wrong” —

result and should be overruled. The Eleventh Circuit first

erred by finding the canon of construction in Benz and

McCulloch — requiring “specific language” and a “clear

express|[ion]” of congressional intent to apply a statute to

foreign ships — to be inapplicable in the context of Title III.

According to the Eleventh Circuit, Benz and McCulloch

apply only to statutes that affect the “internal manage-

ment and affairs” of the ship. Stevens, 215 F.3d at 1242. A

ship’s “internal affairs,” according to the Stevens court,

include labor relations between the crew and the ship-

owner, but remarkably not the ship’s structure, policies,

and crewmember duties. Jd.

The Stevens court misunderstood and misread Benz

and McCulloch. The purpose of the presumption that this

Court announced in those cases is to reserve to Congress

the exclusive authority to determine whether and when

the United States will interfere with another nation’s

exercise of its sovereign power over its ships. Benz, 353

U.S. at 144; McCulloch, 372 U.S. at 20. The Stevens court

erred by failing to recognize that the potential to interfere

with matters governed by the flag state exists not only

with respect to labor relations, but also to modifications of

a foreign ship’s structure, policies, and crewmember

duties. (Pet. App. 13a.)

The Eleventh Circuit also erred by dismissing EEOC

v. ARAMCO as inapplicable. See Stevens, 215 F.3d at

1242. It overlooked the obvious fact that the plaintiff’s

requested relief — which included permanent structural

modifications and policy changes — would require enforce-

ment of Title III outside United States waters, including in

foreign ports of call. This relief plainly would require an

extraterritorial application of the statute. ARAMCO

~

SL ee a eee er 8 -

17

controls and, like Benz and McCulloch, holds the statute

inapplicable. (Cf. Pet. App. 10a-11a.)

Further, the Eleventh Circuit misunderstood the

effect of the potential conflicts between application of

Title III and other law. As a matter of statutory construc-

tion, statutes should be interpreted to minimize potential

conflicts with international and foreign laws. Thus,

consistent with the presumptions articulated in Benz,

McCulloch, and ARAMCO, Title III should be narrowly

construed to exclude foreign ships.

In sum, the Stevens decision is poor law for many

reasons. It requires courts to ignore congressional silence

and thus disregard comity principles that might otherwise

call for restraint; it risks a conflict of laws between Title

III and international and foreign laws; and it subjects

cruise lines to significant potential liability without the

guidance from Congress that would have, and should

have, been provided had the statute been intended to

regulate foreign ships.

18

CONCLUSION

The petition for a writ of certiorari should be granted

solely with respect to the question whether Title III

applies to foreign cruise ships.

Respectfully submitted,

THOMAS H. WILSON

Counsel of Record

MICHAEL J. MUSKAT

VINSON & ELKINS, L.L.P.

1001 Fannin Street

Houston, Texas 77002

(713) 758-2222

MICHAEL F. STURLEY

727 E. Dean Keeton Street

Austin, Texas 78705

(512) 232-1350

Counsel for Respondent

July 6, 2004

eS

5 ae ile a

7 eben ee

App. 1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

DOUGLAS SPECTOR, efal., §

Plaintiffs, ;

” § CIVIL ACTION

NORWEGIAN CRUISE LINE $ NO. H-00-2649

LIMITED d/b/a NORWEGIAN °

CRUISE LINE, :

Defendant. §

ORDER

Pending before the Court are Plaintiffs’ motion for

entry of final judgment (Dkt. #35), Defendant’s motion to

certify order for appeal and stay the remaining litigation

(Dkt. #37), and Defendant’s motion to stay the remaining

litigation pending resolution of Plaintiffs’ appeal (Dkt.

#39). After careful consideration of the parties’ arguments

and the applicable law, the Court hereby DENIES Plain-

tiffs’ motion and GRANTS Defendant’s motions, for the

reasons explained below.

Discussion

On September 10, 2002, this Court entered a Memo-

randum & Oraer (Dkt. #32) granting in part and denying

in part Defendant’s motion to dismiss Plaintiffs’ claims.

Specifically, the Court dismissed Plaintiffs’ claim for

injunctive relief against Defendant seeking removal of

physical barriers to existing facilities on Defendant’s

ships. The Court denied Defendant’s motion to dismiss

App. 2

Plaintiffs’ remaining claims. On September 24, 2002,

Plaintiffs asked the Court to enter final judgment as to the

dismissed claim pursuant to Federal Rule of Civil Proce-

dure 54(b). Defendant timely filed its response asking the

Court to deny the motion, or, in the alternative, certify the

Court’s September 10th order for appeal under 28 U.S.C.

§ 1292(b) and stay the litigation pending appeal. On

October 8, 2002, Plaintiffs notified the Court that they

were pursuing an appeal under 28 U.S.C. § 1292(a)(1) of

the Court’s dismissal of the claim for injunctive relief. As a

result, Defendant has asked the Court to stay the pending

litigation until resolution of the 28 U.S.C. § 1292(a)(1)

appeal.

Defendant maintains that it would be improper for

the Court to enter final judgment as to Plaintiffs’ dis-

missed claim for injunctive relief. Federal Rule of Civil

Procedure 54(b) provides in relevant part:

When more than one claim for relief is presented

in an action . . . the court may direct the entry of

a final judgment as to one or more but fewer

than all of the claims ... oaly upon an express

determination that there is no just reason for de-

lay and upon an express direction for the entry of

judgment.

Under this Rule, a district court may enter final judgment

if it determines both that there is no just reason for delay

and that it is “dealing with a ‘final judgment.’” Curtiss-

Wright Corp. v. General Electric Co., 446 U.S. 1, 7 (1980).

In making this determination, i district court must

consider “whether the claims under review [are] separable

from the others remaining to be adjudicated.” Id. at 8. It

should be the goal of the district court to prevent an

—_ -

App. 3

appeals court from having “to decide the same issues more

than once even if there were subsequent appeals.” Jd.

The Court is of the opinion that entry of final judg-

ment would be improper in this case. In dismissing Plain-

tiffs’ claim for injunctive relief, the Court determined that

federal agencies’ failure to create guidelines for new

construction or alterations of cruise ships bars enforce-

ment of Title III of the ADA’s’ existing barrier removal

guidelines. The Court’s determination with respect to

barrier removal was predicated on a finding that Title III

of the ADA applies to foreign-flagged cruise ships, such as

those owned and operated by Defendant. Accordingly, the

Court finds that Plaintiffs’ claim seeking barrier removal

of Defendant’s ships is not entirely separable from the

remaining claims in this case. Rather, all of Plaintiffs’

claims are connected by the underlying assertion that

Title III of the ADA applies to foreign-flagged cruise ships.

Accordingly, the Court denies Plaintiffs’ motion for entry

of final judgment.

The Court, however, does believe that an immediate

appeal is appropriate in this case. The Court is of the

opinion that 28 U.S.C. §1292(b) provides the proper

mechanism for such an appeal. That statute states:

When a district judge, in making in a civil action

an order not otherwise appealable in this section,

shall be of the opinion that such an order involves

a controlling question of law as to which there is

substantial ground for difference of opinion and

* Title III of the Americans with Disabilities Act, 42 U.S.C.

§ 12181, et seq.

App. 4

that an immediate appeal from the order may

materially advance the ultimate termination of

the litigation, he shall state so in writing in such

order.

In its September 10th Order, the Court admitted that

Defendant’s motion to dismiss presented difficult issues,

which various district courts have resolved in different

ways. In particular, the Court believes that there is

substantial ground for difference of opinion on two of the

Court’s findings in this case: (1) whether federal agencies’

failure to create guidelines for new construction or altera-

tions of cruise ships bars enforcement of Title III of the

ADA’s existing barrier removal guidelines; and (2)

whether Title III of the ADA applies to foreign-flagged

cruise ships.

The Court is of the opinion that an appeal of the

unsettled questions of law described above “may materi-

ally advance the ultimate termination of the litigation” in

this case. See 28 U.S.C. § 1292(b). Therefore, the Court

finds that an immediate appeal under Section 1292(b)

would be appropriate. The Court believes that such an

appeal is the most efficient way to achieve the correct legal

result in this case. Accordingly, the Court grants Defen-

dant’s motion to certify the Court’s September 10, 2002

Order for immediate appeal under 28 U.S.C. § 1292(b).

Conclusion

For the foregoing reasons, Plaintiffs’ motion for entry

of final judgment is DENIED. Defendant’s motion to

certify the Court’s September 10, 2002 order for appeal

and to stay the litigation is GRANTED. Defendant’s

App. 5

motion to stay the litigation pending resolution of Plain-

tiffs’ Section 1292(a)(1) appeal is GRANTED. It is there-

fore ORDERED that all litigation in this cause of action

shall be STAYED pending resolution of Plaintiffs’ Section

1292(a)(1) appeal and any Section 1292(b) appeals of the

Court’s September 10, 2002 Order.

It is so ORDERED.

Signed this 26th day of November, 2002.

/s/ John D. Rainey

JOHN D. RAINEY

UNITED STATES DISTRICT JUDGE