Amicus Curiae Brief — Spector v. Norwegian Cruise Line Ltd.

No. 03-1388

IN THE

Supreme Court of the United States

DOUGLAS SPECTOR, et al.,

Petitioners, ~

VS.

NORWEGIAN CRUISE LINE LTD.,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF AMICUS CURIAE

INTERNATIONAL COUNCIL OF CRUISE LINES

IN SUPPORT OF RESPONDENT

LAWRENCE W. KAYE

Counsel of Record

WILLIAM J. TUCKER

AKSANA MOSHA'V

KAYE, ROSE & MALTZ* AN, LLP

1801 Century Park Easi, Suite 1500

Los Angeles, California 90067

(310) 277-1200

Attorneys for Amicus Curiae

INTERNATIONAL COUNCIL OF CRUISE LINES

Lawyers Bret Service * Appellate Brief Printers ¢ (213) 613-1013 ¢ (949) 720-1510

IN THE

Supreme Court of the United States

DOUGLAS SPECTOR, et al.,

Petitioners,

vs.

NORWEGIAN CRUISE LINE LTD.,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF AMICUS CURIAE

INTERNATIONAL COUNCIL OF CRUISE LINES

IN SUPPORT OF RESPONDENT

LAWRENCE W. KAYE

Counsel of Record

WILLIAM J. TUCKER

AKSANA MOSHAIV

KAYE, ROSE & MALTZMAN, LLP

1801 Century Park East, Suite 1500

Los Angeles, California 90067

(310) 277-1200

Attorneys for Amicus Curiae

INTERNATIONAL COUNCIL OF CRUISE LINES

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .........cccccccccess ili

INTEREST OF AMICUS CURIAE ................. 1

SUMMARY OF ARGUMENT .................... 2

cane ceecocnceeccecccees 5

I. CONGRESS SHOULD DETERMINE

WHETHER AND WHEN TITLE III

APPLIES TO FOREIGN SHIPS OPER-

ATING INTERNATIONALLY ............ 5

A. Foreign Cruise Ships Are Built and

Operate Under a Pervasive System

of International Laws .............. 9

B. The Lack of Any Cruise Ship-

Specific Regulations, Caused by

the Complexity of Reconciling

Conflicting Laws, Underscores the

Need for Legislative Clarification ..... 12

II. REQUIRED UNIFORMITY UNDER

THE ADA AND IN MARITIME

MATTERS IS LOST UNLESS CON-

GRESS DEFINES THE REACH OF

TITLE Ill, AND THE REGULATORY

PROCESS, ONCE AUTHORIZED, IS

-ii-

Page

A. Bypassing Congressional and

Regulatory Clarification of Title

III’s Application to Foreign Ships

Creates Chaos in the Cruise

a rrr rr per 18

B. The Access Board’s Recent Publi-

cation of Draft Guidelines Does

Not Obviate the Need for a Con-

gressional Framework .............. 21

Ill. COURTS CANNOT APPLY THE

ACCESSIBILITY PROVISIONS OF

TITLE If TO FOREIGN CRUISE

SHIPS UNLESS CONGRESS FIRST

SE SE. és cavieeneceesneden 26

Se, GEE 6.0 4e seb cnnucceasendwras 30

TABLE OF AUTHORITIES

Cases

Access Now, Inc. v. Holland Am. Line-Westours, Inc.,

and Costa Crociere, S.P.A.,

147 F. Supp. 2d 1311 (S.D. Fla. 2001) ....

Assoc. for Disabled Americans, Inc. v.

Concorde Gaming Corp.,

158 F. Supp. 2d 1353 (S.D. Fla. 2001) ....

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

Be We BOERNE c occcescceccoseces

Deck v. American Hawaii Cruises, Inc..,

51 F. Supp. 2d 1057 (D. Haw. 1999) .....

Disabled Americans for Equal Access, Inc. v.

Ferries Del Caribe, Inc.,

329 F. Supp. 2d 209 (D.P.R. July 14, 2004)

Doe v. Mutual of Omaha Insurance Co.,

179 F.3d 557 (7 Cir. 1999) ............

EEOC v. Arabian American Oil Co. (“Aramco”)

GaP GB. BOOGIE) « cc cccvccccseceess

Grayned v. City of Rockford,

GES Uy SOG FE oc ccccccccccccsess

Offshore Logistics, Inc. v. Tallentire,

477 U.S. 207, 1986 AMC 2113 (1986) ....

-jv-

Page

Resnick v. Magical Cruise Co. Ltd.,

148 F. Supp. 2d 1298 (M.D. Fla. 2001) ........ 13

Sea-Land Servs., Inc. v. Gaudet,

414 U.S. 573, 1973 AMC 2573 (1974) ........ 17

Spector v. Norwegian Cruise Line Ltd.,

Se Pee ee CG BD ce ccccccccccceess 13

Stevens v. Premier Cruises, Inc.,

215 F.3d 1237 (11th Cir. 2000),

reh’g denied, reh’g, en banc, denied,

284 F.3d 1187 (11" Cir. 2002) ................ 8

The Lottawanna,

88 U.S. (21. Wall.) 558 (1874) ............... 17

Other Cases

Access Now, Inc. v. Carnival Corp.,

No. 98-3081 (S.D. Fla. 1998) ........-. 13, 18, 19

Access Now, Inc. v. Celebrity Cruises, Inc.,

No. 00-2254 (S.D. Fla. 2000) ............. 13, 19

Access Now, Inc. v. Costa Crociere S.P.A.

No. 00-7231 (S.D. Fla. 2000) ................ 18

Access Now, Inc. v. Cunard Line Ltd.,

No. 00-7233 (S.D. Fla. 2000) ............. 13, 19

Page

Access Now, Inc. v. Holland America

Line-Westours, Inc.

No. 00-7230(S.D. Fla. 2000) ................ 19

Access Now, Inc. v. Royal Caribbean Cruises, Ltd.,

No. 00-2255 (S.D. Fla. 2000) ............. 13, 19

Ernst-Rosenkrantz v. Carnival Corp.,

No. 99-0267 (S.D. Fla. 1999) ............. 13, 19

Giacopini v. Crystal Cruises, Inc.,

No. C-04-1089 (N.D. Cal. 2004) ............. 13

Resnick v. Walt Disney Co.

No. 00-898 (M.D. Fla. 2000) ................ 19

Walker v. Carnival Cruise Lines,

No. C-98-2926 (N.D. Cal. 1998) .......... 13, 18

Zetwick v. Carnival Corporation,

No. C-02-0740 (N.D. Cal. 2002) ............. 13

Statutes

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44 U.S.C. § GORGE) « ccc cc ccccccscccces 6

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Gs PEED oc viccccccvcecesccecoces 5, 24

SN EES nv consccccesescussensdeons 5

as Oe IED on ncoctocccteceeeussued 5

GSU BAL © UBIEE cc ccccvcccccccccccccceciesece 26

es ea eee easebaeneus 5

ic cei can éeues snseue en 28

42 U.S.C. § 12181(9)(A)-(D) ....s............ 24, 28

cn inc evieeenesenuennwe eter 26

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ne eee 6

Regulations and Public Law

PPG SERAEED escnuceeusebadoeuceeees 12

56 Fed. Reg. 45,584, 45,599 (Sept. 6, 1991) ......... 12

69 Fed. Reg. 69,247-69,2450 (Nov. 26, 2004)........ 22

106 P.L. 181, § 707(c), 114 Stat. 158,

Dy ¢iaceedsduegen neseueseiasnies 6

Constitution

Admiralty Clause, Article I], §2.................. 16

Conventions

Convention on the International Maritime

Organization in i982, Part I,

Asticis 10a), 9 US.T. G2E, occ ccc ccccccces 11

International Convention for the Safety of

Life at Sea (“SOLAS”) Nov. 1, 1974,

reprinted in SOLAS:

CONSOLIDATED EDITION 2001

(Int’] Mar. Org. ed., 2001) ............. 8, 15, 19

a

Page

International Convention on Load Lines,

Apr. 5, 1966, Ch. II. Reg. 12,

PE ST bk cen thkieed ce naseceaneeues 9

Other Authorities

Access Board’s Draft Plan for

Regulatory Assessment .................00- 22

Access Board’s Draft Guidelines for

Large Passenger Vessels ................. 23, 24

ADA TECHNICAL ASSISTANCE MANUAL,

U.S. DEP’T OF JUSTICE, § III-5.3000,

Se EL Sa Cadenncdebacsevesecsesncs 13

Australia’s Disability Standards for Accessible

§ Prey rT rrr rrr Terrie 11

Canada’s Code of Practice, Ferry Accessibility

for Persons with Disabilities ................. 11

Disability Rights Education and Defense

Ss PTT TT eee TT TTT TT TT TTC TT 11

DOJ’s letter to U.S. Congresswoman Roukema

SE SEED cdvduedeusssovcesedesdvcnes 7

DOJ’s Technical Assistance Manual ............... 29

House Comm. on Educ. & Labor, 101st Cong.,

Legislative History of Public

PE cc scdeorcnectonciseccces 5

-viii-

Page

IMO Maritime Safety Commission “Recommen-

dation on the Design and Operation of

Passenger Ships to Respond to Elderly

and Disabled Persons’ Needs” ............. 8, 23

PVAAC Recommendations for Accessibility

Guidelines for Passenger Vessels:

Final Report December 2000 ........... 9, 10, 14

United Kingdom’s, Design of Large Passenger

Ships and Passenger Infrastructure:

Guidance on Meeting the Needs of

Disabled People (DPTAC) ............ 11, 23, 24

_-—-_ Se. tee ee a

l

INTEREST OF AMICUS CURIAE'

The International Council of Cruise Lines (“ICCL”) is

the leading nonprofit trade association representing the

interests of its 16 member lines and more than 95 associate

member companies in a diverse array of domestic and

international forums. ICCL’s members include the largest

passenger cruise lines trading in ports worldwide. Among its

associate members are industry suppliers and strategic

business partners. Each year ICCL’s cruise ships carry over

ten million passengers on more than 115 ships, the largest of

which carry more than thirty-five hundred guests per voyage.

In addition to U.S. citizens, ICCL vessels embark many

foreign citizens, both in the U.S. and abroad. Of the more

than 100 foreign ships visiting U.S. ports annually, some

routinely embark or disembark their passengers. Others do so

occasionally o- only rarely. Some members’ vessels embark

and disembark passengers abroad but enter U.S. waters only

for port visits. The members’ ships vary in size, age,’ nation

of construction and registry.’ All but two are designed, built,

classed, certified and flagged abroad. All are subject to a

stringent and complex array of international shipbuilding and

operational laws.

' The parties’ letters of consent for the filing of this brief have been

lodged with the Clerk of the Court. Pursuant to Rule 37.6, Amicus Curiae

certifies that no counsel for a party authored this brief in whole or in part,

and no person or entity other than Amicus Curiae, its members or its

counsel has made a monetary contribution to this brief, preparation or

submission.

? Unlike shore side hotels and other buildings, the average life span of

an oceangoing ship is approximately 35 years. The average life of ICCL

members’ ships is considerably less.

> Respondent’s ship at issue in this case is registered in the Bahamas.

More than 75 ICCL ships are registered in the Bahamas, and some 85 in

U.K. Commonwealth countries.

2

ICCL member lines have diligently provided access for

guests with disabilities. Despite the unique challenges

inherent in the shipboard environment, all ICCL lines,

including Respondent, endeavor to accommodate

wheelchairs, electric mobility devices, service animals,

auxiliary aids and other special needs. All ICCL members,

including Respondent, have modified practices and

procedures in an effort to provide full access. However,

numerous technical issues are associated with reconciling the

need for accessibility on cruise ships with foreign and

international safety, shipbuilding and accessibility laws. Title

III injunctive actions have nonetheless been brought against

most foreign cruise ships, leaving ICCL’s members and the

courts in a legal quagmire as a result of the statutory and

regulatory void.

SUMMARY OF ARGUMENT

Unless Congress first determines whether and under

what circumstances Title III applies, lawsuits seeking

modifications aboard foreign ships are misguided. Congress,

and not the courts, should determine how to resolve conflicts

between U.S. accessibility standards and applicable foreign

and international laws. Congress has already amended Title

I of the ADA, governing employment of persons with

disabilities, to cover extraterritorial application and conflicts

with foreign law. Congress amended the Air Carrier Access

Act to include foreign aircraft and limit the authority of the

regulatory agencies to interfere with foreign laws. Foreign

cruise lines deserve an equally deliberate legislative process.

The confusion over whether and to what extent the

ADA applies to foreign ships has fomented litigation in many

jurisdictions. Regardless of their good intentions, advocacy

groups and individuals seek to impose their own accessibility

standards on this international industry. Federal courts are

3

being asked to guess what Congress and the regulators intend

to be the required level of accessibility when U.S. citizens

travel on foreign ships, resulting in forum shopping and

inconsistent rulings. This Court should not permit the removal

of architectural barriers on foreign ships unless and until a

statutory framework is created specifying the extent of Title

III’s application, and a clear mechanism is established for

resolving conflicts with other laws. The DOJ and DOT must

thereafter promulgate regulations that provide cruise lines

with the opportunity to voluntarily comply with specific

standards before being sued.

Nowhere has Congress stated or implied that Title III

applies to foreign facilities that either visit the U.S. or are

visited by Americans. The legislative history is devoid of any

such discussion. Congress evidently never considered the

potential for a foreign facility, such as a cruise ship, to

relocate to the U.S. on a long-term or only occasional basis.

Therefore, the legislature never addressed the reach of Title

III at sea. Absent an expression of Congress’s intent, ignoring

the well-established presumption against extraterritorial

application of U.S. laws in this situation is unprecedented and

unworkable. A ship’s design, operation and construction

certainly involve its “internal affairs.” Accordingly, the legal

presumption requiring an expression of congressicaal intent

is directly implicated. The adoption of an ad hoc common

law choice of law analysis to determine if the ADA applies to

each foreign ship, as urged by Petitioners and their amici,

wrongly usurps Congress’s authority to so specify. A case-

by-case approach by the courts, in lieu of any direction from

Congress, fosters even greater confusion over what standards

apply.

Congress directed the DOT and DOJ to enact specific

accessibility regulations for covered entities to give the Act

meaning. The effective date of the ADA was delayed to

allow time for voluntary compliance. Under the

4

Administrative Procedures Act (“APA”), adopting such

regulations requires public notice and comment by interested

parties. This process was duly completed for land-based

facilities by the DOT and DOJ within the congressionally-

prescribed deadline. Covered entities operating facilities on

land knew the precise requirements so they could comply. In

the cruise industry, no regulations addressing construction,

alteration, barrier removal, or policies and procedures have

been adopted for any ships, let alone those designed, built and

flagged abroad. The majority of cruise ships calling in the

U.S. are foreign, so the failure of the DOT or DOJ to enact

regulations points to the agencies’ own confusion over the

extent of Title III’s reach.

These federal agencies, with expertise to address access

issues, have consistently stated their land based ADA

Accessibility Guidelines for Buildings and Facilities

(“ADAAG” regulations) do not apply at sea, due to the

substantial differences between buildings and ships. In

addition to the obvious physical features, oceangoing vessels

must be self-sufficient in a marine casualty for the safety of

all passengers. Ships do not have recourse to the emergency

resources available to land based facilities. The vital

distinctions dictate particular design, operation and safety

considerations. Nonetheless, federal courts, ill-equipped for

the task, are being asked to reconcile conflicting proposals of

interested parties with international shipbuilding and safety

mandates. The resulting dilemma is amplified by the

continuous movement of cruise ships to foreign and domestic

jurisdictions, the unique legal and physical environments in

which they operate, and the Constitutional requirements of

maritime uniformity and due process.

5

ARGUMENT

I. CONGRESS SHOULD DETERMINE WHETHER

AND WHEN TITLE Ill APPLIES TO FOREIGN

SHIPS OPERATING INTERNATIONALLY

Neither Title III nor its legislative history includes a

single word applying the Act extraterritorially.‘ That

Congress never envisioned applying Title III beyond facilities

permanently located in the U.S. is corroborated by the lack of

reference to conflicts with foreign laws. Nor is there mention

of the impact of unilaterally extending U.S. accessibility

standards to international maritime commerce. For courts to

disregard these important considerations when foreign ships

enter U.S. waters, especially with regard to physical features

as Petitioners suggest, wrongly displaces the legislature’s role.

Congress had no difficulty expressing its intention to

extend portions of the ADA extraterritorially when it chose to

do so. Title I of the same Act, governing employment, was

amended in 1991 to include several provisions addressing

extraterritorial application.’ Congress limited the reach of

Title I by specifying discrimination claims could not be

brought for actions required by foreign law. (42 U.S.C.

-§ 12112(c)(1)). These amendments evidence Congress’s

* Although the statute contains an exhaustive list of “public

accommodations” and “specified public transportation,” it does not

mention ships, let alone foreign ships. 42 U.S.C § 12181(7), (10). See

also House Comm. on Educ. & Labor, 101st Cong., Legislative History

of Public Law 101-336 (1990). In over 3000 pages of published

legislative history no mention is made of cruise ships.

* — The definition of “employee” includes U.S. citizens working abroad.

(42 U.S.C. § 12111 (4)). Congress extended Title | to “covered entities

in foreign countries” (42 U.S.C. § 12112(c)), and “control of [a foreign]

corporation” by an American employer (/d, subsection (2)). Title |

prescribes criteria for determining whether an American employer controls

a foreign corporation (/d., subsection (2)(C)).

6

intent to apply Title I only to Americans working in foreign

countries for companies controlled by Americans. Congress

was also careful to recognize the obligations imposed on

covered entities by foreign laws.

In the 2000 amendments to the Air Carrier Access Act

(“ACAA”), prohibiting discrimination against disabled

passengers traveling by air, Congress specifically included

foreign aircraft. (49 U.S.C. § 41705(a)).° Lawmakers

recognized the potential for conflicts with foreign laws and

the need for uniform accessibility standards. Congress

therefore required the DOT to “act consistently with

obligations of the United States Government under an

international agreement,” “consider applicable laws and

requirements of a foreign country,” and “not limit compliance

by an air carrier with obligations or liabilities imposed by the

government of a foreign country ” 41 USC.

§ 40105(b)(1 (a), (b), and (c).

These amendments to Title I and the ACAA

demonstrate Congress knows how to apply U.S. law

extraterritorially in situations strikingly similar to the present

case. Title II] demonstrates just as clearly the absence of any

intent to apply the ADA to accommodations operated beyond

the U.S., such as foreign cruise ships.’ The DOJ long ago

6

Congress further required the DOT to “work with appropriate

international organizations and the aviation authorities of other nations to

bring about the establishment of higher standards for accommodating

handicapped passengers in air transportation, particularly with respect to

foreign air carriers that code-share with air carriers.” (106 P.L. 181,

§ 707(c), 114 Stat. 158, April 5, 2000).

? In response to this Court’s holding in EEOC v. Arabian American Oil

Co. (“Aramco”), 499 U.S. 244 (1991), that Title VII did not apply

extraterritorially, Congress amended both Title VII and only Title | of the

ADA, providing limited foreign application. Title II] was not amended, even

after the potential of international implication was brought to Congress’s

attention through the Aramco decision. Aramco noted: “Congress’s

awareness of the need to make a clear statement that a statute applies

overseas is amply demonstrated by the numerous occasions on which it

a —— a tne ma

me a: Ag: em a

7

conceded Title III does not have extraterritorial reach because

of the lack of congressional expression for such application.*

Congress must determine whether Title III applies to

foreign cruise ships at all, and if so, to every ship embarking,

disembarking or entering the U.S., only those that do so with

regularity, based upon the percentage of U.S. passengers

carried, or according to other criteria. Most of the world’s

cruise ships reposition among multiple jurisdictions

throughout each year, both in the U.S. and abroad. A typical

ship might spend the winter months cruising the Caribbean on

voyages originating in Florida or Texas, embark passengers

throughout the spring in Italy or Spain for Mediterranean

cruises, and transfer to Canada for summer cruises embarking

in Vancouver and stopping at ports ir Alaska. Longstanding

has expressly legislated the extraterritorial application of a statute.” 499

U.S. at 258. Aramco listed various examples and concluded “Congress,

should it wish to do so, may similarly amend Title VII and in doing so will

be able to calibrate its provisions in a way that we cannot.” 499 U.S. at

259.

* In its June 29, 1999 letter to U.S. Congresswoman Marge Roukema,

the DOJ recognized:

Title II] of the ADA does not contain any express provisions

extending the law to extraterritorial activities. Moreover,

although Title III of the ADA applies to public accommodations

and commercial facilities whose operations ‘affect commerce’

and the statute defines commerce, in part, as ‘travel, trade,

traffic, commerce, transportation or communication . . . between

any foreign country or any territory or possession and any State,”

such broad language, found in many laws, is not generally

considered sufficient, by itself, to overcome the presumption

against extraterritoriality. . . Furthermore, Congress, in passing

the Civil Rights Act of 1991, amended sections 101(4) and 102

of the ADA, to broaden the ADA to protect extraterritorial

employment. . . No comparable, explicit expression has been

made with respect to extraterritorial coverage of public

accommodations and commercial facilities under title III.

(Internal citations omitted), available at

<http://www.usdoj.gov/crt/foia/tal792.htm>.

U.S. cabotage laws prohibit foreign vessels from engaging in

coastwise trade, thus mandating travel to foreign ports. See

Passenger Services Act, 46 U.S.C. § 289, and Jones Act, 46

U.S.C. § 883. Were every foreign nation to apply its own

accessibility standards to international cruise ships embarking

passengers in its territorial waters, as was done in Stevens v.

Premier Cruises, Inc., 215 F.3d 1237 (11" Cir. 2000), reh'g

denied, reh'g en banc denied 284 F.3d 1187 (11 Cir. 2002),

it would result in a clear operational dilemma.’

Before imposing vague and undelineated ADA

requirements on foreign cruise ships, Congress must also

consider the existing international maritime regime. Among

the most important of these laws are the IMO

recommendations for vessel design and operation with regard

to accessibility,"° the technical, structural, safety and

operational mandates of SOLAS,"' and the International

For illustration purposes, ICCL member cruise lines will embark

passengers in all of the following foreign nations within the next year:

Africa, Argentina, Aruba, Australia, Bahamas, Barbados, Brazil, Canada,

Chile, China, Costa Rica, Denmark, Ecuador, Egypt, England, France,

Greece, Iceland, India, Italy, Japan, Malta, Mexico, Monaco, Netherlands,

New Zealand, Norway, Panama, Peru, Portugal, Russia, Seychelles, South

Africa, Spain, Sweden, Tahiti, Thailand, Turkey, United Arab Emirates,

and Vietnam.

'° The IMO is a United Nations agency that reviews current maritime

issues and sets international law by adopting conventions and treaties

among its 164 member nations, including the United States. The IMO and

its member states comprise 98% of the world’s shipping tonnage and is

responsible for establishing global standards for cruise ship safety, design

and construction. The IMO Maritime Safety Commission (“MSC”)

published its “Recommendation on the Design and Operation of Passenger

Ships to Respond to Elderly and Disabled Persons’ Needs” on June 24,

1996. See IMO’s MSC Circular 735.

'! — International Convention for the Safety of Life at Sea(SOLAS), Nov.

1, 1974, reprinted in SOLAS: CONSOLIDATED EDITION 2001 (Int’!

Mar. Org. ed., 2001).

9

Convention on Load Lines governing watertight integrity

aboard oceangoing vessels."

A. Foreign Cruise Ships Are Built and Operate

Under a Pervasive System of International

Laws

All foreign ships are built in foreign shipyards pursuant

to worldwide shipbuilding standards, in compliance with

several international treaties. The ships are inspected and

certified by international bodies before commencing

operation. Buildings in the U.S. are constructed according to

domestic engineering standards that take into account

longstanding ADAAG regulations for accessibility. U.S.

building codes, including ASME, ANSI and BHMA,” were

developed so entities covered by the ADA could comply with

existing standards. These land based U.S. standards neither

apply to cruise ships built abroad nor are readily transferable

to a marine environment.'* No vessel built in a U.S. shipyard

12

Among the requirements of the Convention on Load Lines, also

ratified by the United States, is the installation of watertight doors in

specified compartments, necessitating raised sills and thresholds

(International Convention on Load Lines, Apr. 5, 1966, Ch. II, Regulation

12, 18 U.S.T. 1857), which plaintiffs’ counsel have argued violates the

ADA.

'' American Society of Mechanical Engineers (ASME); American

National Standards Institute (ANSI); Builders Hardware Manufacturers

Association (BHMA).

'* The Passenger Vessel Access Advisory Committee (“PVAAC”),

created by the U.S. Access Board to formulate recommendations for

accessibility on large passenger ships, issued its final report in December

2000. Its recommendations were based on U.S. engineering standards and

urged that the “competent regulatory drafting authorities . . . specifically

review all referenced industry standards to determine their suitability in

designing equipment for use onboard ships in the marine environment”

and that final regulations recognize international standards used in foreign

shipyards. See Recommendations for Accessibility Guidelines for

Passenger Vessels: Final Report December 2000, available at

10

for international commerce would be constructed according

to land based building codes of another nation.

Comprehensive treaties already govern ship design,

construction and operation. Perhaps the most important,

SOLAS, deals with safety at sea.'° International treaties are

instrumental in establishing consistent standards for all

nations participating in maritime commerce, including the

United States. Uniform application avoids conflicts among

varying national standards that could-frustrate commerce and

heighten tensions in foreign relations.

Other important maritime compliance safeguards, used

by all flag nations including the United States, are certificates

issued by classification societies.'° Uniformity among these

societies is maintained by the International Association of

Classification Societies, whose members are bound not only

by a code of ethics but also a quality systems certification

scheme. The U.S. Coast Guard depends upon the

classification societies to ensure compliance with

international standards for design, operation and construction

of ships entering U.S. waters.

<http://www.access-board.gov/pvaac/commrept/index.htm>., Ch. 1, notes.

'S SOLAS was adopted in 1914 in response to the Titanic disaster and

has since been amended and adopted by signatory nations, including the

United States, four additional times. The 1960 SOLAS amendment was

the first major task tackled by the IMO. Over 40 conventions and

protocols have been drafted and adopted by IMO members along with 800

codes and sets of recommendations that complement the treaties.

'° Classification Societies are privately owned, operate separately from

any nation’s control and are generally non-profit organizations. They date

back more than 200 years and determine the international regulations

applicable to the construction and operation of commercial maritime

vessels, including cruise ships, and certify, through periodic inspections,

each vessel’s design and construction. The United States, like other flag

nations, inspects vessels for class certifications, and routinely relies upon

the largest classification societies to certify U.S. and foreign flag vessels,

including Lloyd’s Register of Shipping, Nippon, Kaiji Kyokei, American

Bureau of Shipping, Det Norske Veritas of Norway, and Bureau Veritas

of France.

11

Congress must evaluate the impact of U.S. accessibility

standards on this complex system of laws governing foreign

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

138, 147 (1957). Further, a number of other nations have

proposed or enacted their own laws establishing accessibility

standards for transporting passengers with disabilities on

vessels flagged in their countries.'’ The blanket imposition of

domestic standards on international carriers destroys the

concept of uniformity and defeats the goal of national

administrations to develop consistent standards.'"* The

legislature must first consider the implication of exercising

'7 See United Kingdom’s Disabled Persons Transport Advisory

Committee’s Design of Large Passenger Ships and Passenger

Infrastructure: Guidance on Meeting the Needs of Disabled People

(“DPTAC”), modeled after IMO’s guidelines of MSC Circular 735,

available at <http://www.dptac.gov.uk/pubs/guideship/index.htm>;

Canada’s Code of Practice, Ferry Accessibility for Persons with

Disabilities, available at <http://www.cta-

otc.gc.ca/access/codes/ferry/index_e.html>; Australia’s Disability

Standards for Accessible Public Transport, available at:

<http://law.gov.au/www/civiljusticehome.nsf/AllDocs/R WP2D7CECE

1EA698DC4CA256C1D00001E0B? OpenDocument>. See also the

Disability Rights Education and Defense Fund A to Z list of all nations

with laws protecting individuals with disabilities, available at

<http://www.dredf.org/international/lawindex.html>.

'* The international goal of achieving uniformity in maritime commerce

was long ago recognized with the creation of the IMO, the purpose of

which was in part “to provide machinery for co-operation among

Governments in the field of governmental regulation and practices relating

to technical matters of all kinds affecting shipping engaged in international

trade, and to encourage the general adoption of the highest practicable

standards in matters concerning maritime safety and efficiency of

navigation,” and “to encourage the removal of discriminatory action and

unnecessary restrictions by Governments affecting shipping engaged in

international trade so as to promote the availability of shipping services to

the commerce of the world without discrimination.” Convention

Establishing the Inter-Governmental Maritime Consultative Organization,

(March 6, 1948) (renamed Convention on the International Maritime

Organization in 1982), Part I, Article 1(a) and (b), 9 U.S.T. 621.

12

national power on the maritime community. To presume U.S.

laws should apply to all foreign ships entering U.S. waters, or

that all foreign registries are shams, as urged by Petitioners

and their amici, creates a dangerous precedent based on an

erroneous premise. Such a view encourages other nations to

unilaterally apply their laws to American interests abroad.

B. The Lack of Any Cruise Ship-Specific

Regulations, Caused by the Complexity of

Reconciling Conflicting Laws, Underscores the

Need for Legislative Clarification

The DOT and DOJ were directed by Congress to enact

ADA regulations for all covered entities, but have

acknowledged cruise ships require special consideration and

are exempt from shore side regulations.'"? Meanwhile, no

regulations have been adopted addressing vessels, nor any of

their appurtenances or features. These include, for example,

the number of accessible cabins, routes of ingress or egress

(i.e., gangways), accessibility standards for life boats, tenders,

passageways, raised door thresholds or shipboard lifts, or any

of the numerous other shipboard structures. The DOJ in its

own ADA Title III] Technical Assistance Manual, states:

“Because of the unique structure of ships, none of the

'* In 1991, the DOT observed that “at the present time, the Department

lacks sufficient information to determine what are reasonable accessibility

requirements for various kinds of passenger vessels. . . [The DOT]

anticipates working with the Access Board and DOJ on further rulemaking

to define requirements for passenger vessels.” 56 Fed. Reg. 45,584,

45,599 (Sept. 6, 1991). The DOT also noted that before promulgating

specific requirements for foreign ships it would need to determine whether

any treaty provisions, such as SOLAS, might conflict with the ADA and_

its regulations. Jd At 45,600. Likewise, the DOJ declared it “will not

interpret the new construction and alterations provisions of Subpart D” to

apply to cruise ships “pending further development of specific

requirements.” 28 C.F.R. PT. 36, App. B at 664.

13

ADAAG technical or scoping standards are appropriate.

Until such time as the [Access Board] issues specific

standards applicable to ships, there is no requirement that

ships be constructed accessibly.””°

Notwithstanding the absence of any statutes or

regulations tied to foreign cruise ships, numerous lawsuits

have been filed against ICCL members seeking injunctions

under the ADA to cease operations pending physical

reconstruction of their ships.”' These actions have demanded

compliance with ADAAG, applicable solely to land based

*” ADA TECHNICAL ASSISTANCE MANUAL, U.S. DEP’T OF

JUSTICE, § III-5.3000, illus. 3 (1993). Even if the DOT and DOJ

promulgate regulations for cruise ships, their applicability to foreign

vessels would remain unclear unless Congress amends Title III.

2! Reported cases include: Deck v. American Hawaii Cruises, Inc., 51

F. Supp. 2d 1057 (D. Haw. 1999) [rejecting claims under ADA’s

construction and alteration provisions when no regulations exist]; Resnick

v. Magical Cruise Co. Ltd., 148 F. Supp. 2d 1298 (M.D. Fla. 2001) [no

relief available under ADA’s construction and barrier removal provisions

in the absence of cruise line regulations]; Access Now, Inc. V. Holland

Am. Line-Westours, Inc., and Costa Crociere, S.P.A., 147 F. Supp. 2d

1311 (S.D. Fla. 2001) [denying motions to dismiss and permitting cases

to proceed despite absence of applicable cruise line regulations]; Assoc.

for Disabled Americans, Inc. v. Concorde Gaming Corp., 158 F. Supp. 2d

1353 (S.D. Fla. 2001) [applying Title III's barrier removal provisions to

casino cruise ship]; Disabled Americans for Equal Access, Inc. v. Ferries

Del Caribe, Inc., 329 F. Supp. 2d 209 (D.P.R. July 14, 2004). See also

Spector v. Norwegian Cruise Line Ltd., No. H-00-2649 (S.D. Tex. Sept.

10, 2002) [enforcement of Title III’s barrier removal provisions barred

absent regulatory guidelines], affirmed on other grounds, Spector v.

Norwegian Cruise Line Lid., 356 F.3d 641, 650 (Sth Cir. 2004), and

complaints filed in the following actions: Access Now, Inc. v. Cunard Line

Lid, No. 00-7233 (S.D. Fla. 2000); Access Now, Inc. v. Royal Caribbean

Cruises, Ltd., No. 00-2255 (S.D. Fla. 2000); Access Now, Inc. v. Celebrity

Cruises, Inc., No. 00-2254 (S.D. Fla. 2000); Access Now, Inc. v. Carnival

Corp., No. 98-3081 (S.D. Fla. 1998); Ernst-Rosenkrantz v. Carnival

Corp., No. 99-0267 (S.D. Fla. 1999); Giacopini v. Crystal Cruises, Inc.,

No. C-04-1089 (N.D. Cal. 2004); Walker v. Carnival Cruise Lines, No.

C-98-2926 (N.D. Cal. 1998); Zetwick v. Carnival Corporation, No. C-02-

0740 (N.D. Cal. 2002).

14

facilities.” The DOJ has intervened in many of these suits,

advancing the view Title III applies. Paradoxically, DOJ

simultaneously concedes ADAAG cannot be applied. Even

the PVAAC, established by the U.S. Access Board to study

passenger vessel access, has agreed special regulations are

essential. Throughout its deliberations and in its Final

Report, the PVAAC identified nuserous instances of direct

conflict between ADAAG on the one hand, and SOLAS and

U.S. Coast Guard requirements on the other.”

The ADAAG regulations provide twenty-one

recommended examples of steps to remove barriers in land

based buildings. However, very different considerations are

involved at sea. For example, placement of grab bars and

handrails can be affected by the movement of a vessel on the

high seas. Installing offset hinges to widen doorways

conflicts with SOLAS requirements for specific hardware to

* Upon publishing the Draft Guidelines for Passenger Vessels, the

Access Board noted with regard to ADAAG “The standards currently used

to enforce ADA’s transportation provisions cover access to buses, vans,

rail cars and other vehicle types but do not address passenger vessels.”

Available at <http://www.access-board.gov/news/pvag.htm>.

* The PVAAC identified approximately 90 Code of Federal

Regulations sections for ship safety that conflict with ADAAG and need

to be reconciled so that shipowners do not violate Coast Guard regulations

when complying with accessibility requirements. See Recommendations

for Accessibility Guidelines for Passenger Vessels: Final Report

December 2000, available at <http://www.access-

board.gov/pvaac/commrept/index.htm>, Ch. 13 and ADAAG/Coast Guard

Comparison Index. The PVAAC also identified conflicts with 11 SOLAS

provisions including those concerning watertight integrity and the required

“coamings of ample heights,” means of escape, signage, alarm systems and

public address systems. /d. The PVAAC recommended that the

appropriate regulatory bodies reconcile the SOLAS conflict relating to

audible alarms. /d. Ch. 4 § 702.2 Advisory Note. The PVAAC recognized

that the necessary economic and physical data required to further develop

gangway standards were not readily available, and that such standards will

be impacted by high and low water situations at a given location. /d. at

Ch. 2, § 1005 (Gangways), Advisory note.

15

ensure doors are watertight and fire safe in a marine

emergency.”* Accessible hardware, required in buildings

under the ADA, conflicts with SOLAS’ requirement that

doors operate electronically from a central location, as well as

manually, to prevent internal flooding and the spread of fire.

Id.

The impossibility of applying the ADAAG regulations

onboard ships is not surprising. At the most basic level,

buildings do not move, while ships are constantly affected by

six degrees of motion — pitch, roll, heave, surge, sway and

yaw. Ships are complex and carefully designed to integrate

fire safe zones, watertight and automatic fire doors, muster

stations, lifeboats, stabilizers, extensive fire fighting and other

safety systems, all of which require design elements different

from those applicable to land based facilities. The deck

capacity, weight restrictions, steel tensile strength, stability

considerations, bulkheads, walls, ceilings, fittings and

hardware are all unique on ships because they must float;

withstand flooding, listing, or movement in seaways; combat

fires in the middle of the ocean; connect with piers around the

world; navigate through canals; sail through shallow or deep

waters; and move at sea without injuring passengers.

Buildings are constructed of easily moveable drywall

facilitating physical alteration. Patrons can be readily

evacuated to adjacent structures, surrounding property,

hospitals and shelters. By contrast, ship bulkheads are

constructed of solid steel to ensure watertight and fire safe

integrity. Vessels and their lifeboats must function as places

of safe refuge while at sea. The design and function of

modern international passenger ships demand extensive

coordination among experts in marine architecture,

engineering, operation, safety and disability accommodations,

to determine what accessibility standards can be achieved on

the oceans. This effort must ensure any regulations do not

** See SOLAS, supra fn. 11, Ch. Il-1, Regulation 15.

16

conflict with shipbuilding standards, international

conventions, and classification society requirements adopted

by flag states.

II. REQUIRED UNIFORMITY UNDER THE ADA

AND IN MARITIME MATTERS IS LOST

UNLESS CONGRESS DEFINES THE REACH OF

TITLE III, AND THE REGULATORY PROCESS,

ONCE AUTHORIZED, IS COMPLETED

Courts are not equipped to fashion injunctive relief in

Title III] actions brought against foreign cru:se ships because

neither Congress nor the federal agencies hav. addressed the

issue. Cruise operators cannot determine what constitutes

legal compliance. An injunction issued by one court has no

preclusive effect upon another plaintiff suing the same cruise

line in a different jurisdiction, even with respect to the same

ship. These dilemmas undermine the required uniformity

embodied in the ADA” and fundamental to maritime law.

The need for a statutory scheme and regulations is critical for

cruise ships traveling to multiple jurisdictions, repositioning

seasonally to various parts of the world, and carrying citizens

from many nations.

The legal morass concerning Title III has scuttled any

notion of uniformity in the cruise industry. Congress’s goal

of uniform accessibility standards, along with the venerable

doctrine of maritime uniformity expressed in the Constitution

as an integral part of American law”, are intended to avoid

*° Congress expressed its desire for a consistent nationwide application

of the ADA, the purpose of which was to “provide a clear and

cemprehensive national mandate for the elimination of discrimination

against individuals with disabilities.” 42 U.S.C. 12101(b). To effectuate

its intent, Congress required the DOT and DOJ to enact accessibility

regulations that would create uniform standards for covered entities.

2° See U.S. CONST. art. III, § 2. The importance of national and

international uniformity in maritime law is well-established in the

17

such quagmires. Yet plaintiffs prosecuting ADA lawsuits

against cruise operators, including Petitioners, have asked the

lower courts to decide how foreign ships should be rebuilt,

altered or operated to accommodate special needs. The

results have varied in each jurisdiction. Judges must rely

solely upon the opinions of paid experts to determine how

claims by passengers with disabilities should be reconciled

with the unique requirements of oceangoing ships. Cruise

lines complying with court orders may be required to undo

structural changes upon the enactment of final regulations,

assuming the responsible agencies are so authorized.’

Foreign ships sailing to or from U.S. ports routinely

reposition from one part of the country or world to another

with each season. A typical cruise ship could sail from New

York, Florida, Texas, California, Washington, Alaska, and

Hawaii in one year. Injunctive actions against cruise lines

have already been initiated in most of these states. The

decisions of this Court. See Ojjshore Logistics, Inc. v. Tallentire, 477

U.S. 207, 221, 1986 AMC 2113, 2124 (1986); Sea-Land Servs., Inc. v.

Gaudet, 414 U.S. 573, 601, 1973 AMC 2573, 2593-94 (1974) (Powell, J.,

dissenting); The Lottawanna, 88 U.S. (21 Wall.) 558, 575 (1874).

27 Petitioners’ reliance on litigation settlements by some cruise lines is

neither relevant nor helpful to this Court’s analysis. These settlements,

reached in the absence of any standards, underscore the need for a

congressional framework and comprehensive scheme for applying Title

III. As a matter of public policy, the level of accessibility on cruise ships

should not depend on the negotiating prowess of private litigants. Such ad

hoc adjudication, through varying court orders and private settlements, not

only fosters confusion, but leads to conflicting results and forum shopping

in an industry most in need of national and international uniformity.

Moreover, the government has not approved the settlements, and the

settling lines are not immunized from subsequent regulatory enforcement

of different standards, or compliance with later-developed regulations.

* Congressional action and uniform regulations are essential

prerequisites for application of Title III’s accessibility provisions to

foreign cruise ships, as exemplified by injunctive suits simultaneously

brought against the world’s largest cruise line, Carnival Cruise Lines, in

California and Florida. Courts in both jurisdictions were asked to issue

18

following year the same vessel might be based in Europe and

never touch a U.S. port. The legal whirlpool created by

individual lawsuits is not only unworkable, but also results in

great difficulty ascertaining any discernable level of

accessibility in the cruise industry. Assuming Congress

clarifies the circumstances under which Title III applies to

foreign ships, cruise lines can participate in the rule making

process and voluntarily comply with meaningful regulations.

A. Bypassing Congressional and Regulatory

Clarification of Title III’s Application to

Foreign Ships Creates Chaos in the Cruise

Industry

The complaints brought against cruise lines under Title

III typically contain only vague allegations that operators have

violated the Act by failing to provide “appropriate” access.”

injunctions regarding accessibility and vessel operations and to determine,

in lieu of the responsible federal agencies and in the absence of any

Statutory framework, what modifications should be made to the line’s

foreign ships. Both prosecuting law firms sought awards of attorney’s fees

and each retained different “access experts” to render opinions on what

modifications were “proper.” See Complaint, Walker v. Carnival Cruise

Lines (N.D. Cal. 1998) (No 98-2926); Complaint, Access Now, Inc. v.

Carnival Corp. (S.D. Fla. 1998) (No. 98-3081). Ironically, these are

among the cases that have been settled and which, according to

Petitioners, demonstrate why Title III can be applied with ease.

% See, e.g., Complaint, Access Now, Inc. v. Costa Crociere S.P.A. (S.D.

Fla. 2000) (No. 00-7231) [seeking injunction for “appropriate” slopes,

handrails, landing areas, signage, routes, or telecommunication devices;

to reposition telephones to “appropriate” levels; to provide elevators with

“appropriate” visual and auditory indicators and call buttons at

“appropriate” heights; to widen doors and doorways (to unspecified

widths); to provide “proper” door hardware or “appropriate” opening

resistance and/or closing delay, with “appropriate” and “proper” access

throughout the rooms, bathrooms, and around furniture; to provide

“appropriate” life safety devices, or provide the “requisite” electrical

outlets and shelf space, “requisite” signage throughout the ship for all

19

Congress has not specified whether, when or to what extent

Title III governs foreign ships. No regulations specify the

number of accessible cabins required on any vessel, or the

“proper” width of doorways, “appropriate” height and type of

handrails, switches, service counters, or other facilities.

Cruise operators have no guidance on how to reconcile

requested changes with foreign and international standards.

SOLAS governs the placement of bulkheads, main

vertical zones and stairtowers; water tight doors with raised

thresholds and automatic fire doors; and affects the extent to

which ships can be made as accessible as buildings, buses or

trains in the United States.” Signage requirements applicable

to land based buildings conflict with those for cruise ships

under SOLAS, directing the flow of passengers to lifeboats

and muster stations in an emergency.*' SOLAS dictates

unobstructed emergency egress and doors, mandatory

participation in fire drills and musters, and proper design and

use of life rafts, boats and tenders.” All of these laws, to

which foreign cruise ships must adhere, place necessary

accessible routes; and the “requisite” number of guest rooms in all price

categories for disabled individuals]. See also, Complaint, Access Now,

Inc. v. Cunard Line Ltd., (S.D. Fla. 2000) (No. 00-7233); Complaint,

Access Now, Inc. v. Royal Caribbean Cruises, Ltd. (S.D. Fla. 2000)(No.

00-2255); Complaint, Resnick v. Walt Disney Co. (M.D. Fla. 2000) (No.

00-898); Complaint, Access Now, Inc. v. Holland America Line-Westours,

Inc. (S.D. Fla. 2000) (No. 00-7230); Complaint, Access Now, Inc. v.

Celebrity Cruises, Inc. (S.D. Fla. 2000) (No 00-2254); Complaint, Ernst-

Rosenkrantz v. Carnival Corp. (S.D. Fla. 1999) (No 99-0267); Complaint,

Access Now, Inc. v. Carnival Corp. (S.D. Fla. 1998)(NO 98-3081).

© SOLAS requires that vessels be equipped with watertight bulkhead

doors which can be closed remotely. SOLAS, supra fn 11, Ch. Il-1,

Regulation 15. The Convention also requires that such doors be equipped

with manual opening devices and hardware. /d. Recent lawsuits against

cruise lines claim the lines have violated the ADA by complying with

these requirements.

3! See SOLAS, supra fn. 11, Ch. II-2, Regulation 28.

2 See SOLAS, supra fn. 11, Ch. II-2 Regulation 28-1, Ch. III,

Regulations 8, 11, 19, 21, 23, 25, 30.

20

limitations on shipboard accessibility for disabled patrons.

Countless questions are therefore unanswered. Are

accessibility modifications required for muster stations,

lifeboats, all or only some public restrooms, decks, or cabin

categories? Are ramps required at all doorways, cabin

doorways, restroom doorways, emergency doorways, or only

in cabins designated as “wheelchair accessible?” How do

space constraints in life boats and the traditional safety duties

of the crew in maritime emergencies affect the number of

wheelchair passengers who may be carried on board? Should

the lack of rapid availability of shore-based resources limit

the number of accommodations for guests with special needs

as compared to hotels, busses or trains? Where should

accessible cabins be located in relation to exits (which change

from port-to-port depending upon tides and local facilities),

and where should patrons with communication impairments

be situated? What is the effect of tidal changes in ports

around the globe on gangway accessibility? Under what

c'rcumstances can tenders be modified and used by

passengers with various disabilities?

Undoubtedly, many such questions led the Access

Board, DOT, and DOJ to defer application of the structural

aspects of the ADA to cruise ships. Under these

circumstances, and because Congress has yet to address the

reach of Title III at sea, application of a case-by-case “readily

achievable” standard destroys maritime uniformity and is

untenable and unfair. In case of a shipboard emergency at

sea, it could jeopardize lives.

21

B. The Access Board’s Recent Publication of

Draft Guidelines Does Not Obviate the Need

for a Congressional Framework

Plaintiffs in ADA lawsuits have asserted landside

ADAAG regulations provide adequate guidance to foreign

cruise ships for necessary barrier removal. Others have

argued the PVAAC Final Report supplies the requisite

standards. Petitioners now contend the Access Board’s draft

guidelines published on November 26, 2004 should be

applied. The very fact that Petitioners and their amici assert

differing “guidelines” should be followed underscores the

conundrum cruise lines face with respect to Title III.

The PVAAC Final Report recommendations are not

regulations. Indeed, they have been changed in various

respects by the Access Board in the “draft guidelines.” The

DOJ has indicated draft guidelines are of no legal

consequence.” Ordering foreign ships to be modified at this

juncture, based on draft guidelines alone, in the absence of

any congressional authorization, improperly subjects cruise

operators to a multiplicity of lawsuits, regulatory action and

modifications.

Despite consultation with an advisory committee and

over six years of review, the efforts of the Access Board and

responsible agencies have resulted in only partial draft

recommendations. These draft guidelines raise numerous

engineering issues caused by peculiar vessel design. A

multitude oi unanswered questions are posed to cruise

The DOJ stated when publishing the Advance Notice of Proposed

Rulemaking for Revised ADAAG: “The ADA requires the Department to

publish regulations that include accessibility standards that are consistent

with the Access Board’s guidelines. Until the Department’s rulemaking

is complete, the revised ADA Guidelines are effective only as guidance to

the Department (and to the Department of Transportation). The revised

guidelines have no legal effect on the public.” (Emphasis added).

Available at <http://www.ada.gov/proposal.htm>.

22

operators.* The Board, in its “Draft Plan for Regulatory

Assessment,” is now seeking comments from designers,

shipyards and vessel operators regarding the impact of

scoping and technical provisions on newly constructed

ships.** The Board has identified 36 instances in which the

draft guidelines require additional space or new features on a

vesscl, or raise other aes: gn challenges.*© The complexity of

issues, remaining procedural steps before final regulations can

be promulgated, and the pending question of congressional

intent concerning foreign ships, preclude reliance on draft

guidelines to support Petitioners’ claims.””

** The Notice of Availability of Draft Guidelines (“NADG”) presents

more than 100 questions of scoping, generai application and qualification.

The draft guidelines indicate the Access Board, DOJ and DOT are not

prepared to implement regulations for passenger vessels without a great

deal of research and a comprehensive cost benefit analysis. Among the

questions posed by the Access Board are: “What should be considered a

new vessel, triggering the requirement that the vessel be built to fully

comply with the Access Board’s guidelines?” “Is it feasible to require that

these vessels provide an accessible means of embarking and disembarking

passengers with disabilities at all foreign ports of call despite the

allocation of responsibility for providing such services in the U.S.? What

additional consideration should be made in addressing foreign ports of

call?” “Are there reasons to treat accessibility requirements for on-board

amenities any differently on vessels than elsewhere?” “Should ‘readily

achievable’ barrier removal concepts apply ‘unaltered’ to passenger

vessels?” (See 69 Fed. Reg. 69,247-69,2450 (Nov. 26, 2004)). Clearly

the Access Board is concerned about extraterritorial application, has not

“worked through the issues” and has not issued draft guidelines that “are

fully consistent with SOLAS” as advanced in Amicus Brief of the Solicitor

General of the United States, p 28.

** Available at <http://www.access-board.gov/pvaac/assess-plan.htm>.

* Id

* Not until four years after the PVAAC issued its Final Report did the

Access Board issue its NADG, on November 26, 2004, immediately after

this Court granted review. As required by the APA (5 U.S.C. § 553), the

next step in the process is a period during which the public, including

cruise lines and other interested parties, may comment on the draft.

Subsequently, there will still be the ANPRM (Advanced Notice of —

23

The Access Board’s latest inquiries also illustrate the

draft guidelines have not eliminated conflicts with SOLAS, as

asserted by Petitioners and their amici.* Neither Petitioners

nor their supporting amici mention existing conflicts between

the draft guidelines and other international and foreign

standards. For instance, IMO guidelines, adopted by

individual nations, sensibly require accessible cabins to be

located “in the proximity of” the embarkation deck to ease life

boat use and emergency evacuation.*? Conversely, the Access

Board’s draft guidelines call for dispersion of accessible

cabins throughout all levels ofa ship.“ The United Kingdom,

hardly a “flag of convenience,” has adopted the IMO

standard. Actual conflicts therefore exist between British law

and the U.S. draft guidelines.“' The famous QE2, for

Proposed Rule Making) and NPRM (Notice of Proposed Rule Making),

each to be followed by the required comment period and hearings. Then

the OMB (Office of Management and Budget) will be required to perform

a cost-benefit analysis. After this extensive process, fina! guidelines will

be published. The DOT and DOJ will later issue regulations based on the

guidelines, and after a period for voluntary compliance, final regulations

become binding. The process of promulgating regulations applicable to

cruise ships is still in its infancy. The question of extraterritorial

application is unresolved, so the applicability of Title III remains entirely

unclear.

** See Brief of Petitioners 45-46. Rather than providing a solution to

one of the most basic accessibility issues — boarding and disembarking

ships, affected by weather, tides, terminal facilities, gangways and

mechanical devices, the Access Board has advised vessel and pier

operators to “negotiate an allocation of responsibility for compliance.” See

Draft Guidelines, “Discussion of Provisions” § 208, available at

http://www.access-board.gov/pvaac/guidelines.htm.

** MSC Circular 735, supra fn. 10, at § 4.1.

“ Draft Guidelines § V224.2, available at <http://www.access-

board.gov/pvaac/guidelines.htm>.

“The British DPTAC guidelines, available at

<http://www.dptac.gov.uk/pubs/guideship/index.htm>.(See fn. 17, supra)

require unisex wheelchair-accessible bathrooms, (DPTAC § 2.28),

whereas U.S. draft guidelines require wheelchair accessible facilities in

both the men’s and women’s restrooms in newly constructed vessels

24

example, duly registered in the U.K., constructed to meet

U.K. standards and only rarely calling in U.S. ports, cannot

determine how to follow both structural approaches.

According to the Stevens criteria, this ship which in 2005 will

spend less than 48 hours in U.S. ports, would have to be

retrofitted to meet U.S. law, only to have these physical

changes dismantled after leaving U.S. waters.

Congress expressly provided in Title I that foreign law

would control in the event of conflicts with the ADA. See 42

U.S.C. § 12112 (c)(1).” Title III is silent on this point. No

provision reconciles barrier removal with other laws. The

government nonetheless opines, without statutory support,

that any barrier removal in conflict with an international

treaty would not be deemed “readily achievable.” (See,

Amicus Brief of the Solicitor General of the United States, p.

27.) Neither Title III nor the draft guidelines state or imply

that barrier removal is not readily achievable if inconsistent

with international law.” As one court observed, “Such a brief

[of the government] in such circumstances cannot claim much

(V213.2); the U.K. requires elevator doors to have clear opening of at

least 900mm (DPTAC § 5.7), whereas the U.S. requires a minimum of

915mm (V407.4.1); U.K. requires minimum bathroom doors of 900mm

with a maximum opening force of 15 newtons (DPTAC § 2.29), whereas

the U.S. requires a minimum of 815mm and maximum force of 22.2

(V404.2.3, V404.2.9); U.K. requires a maximum of 1:12 ramp slope

(DPTAC § 5.19), whereas the U.S. allows a slope of 1:8 (V405.2) (thus

compliance with U.S. standards as to bathroom door size, opening force

and ramp slope would actually violate U.K. standards).

“ Section 12112 (c) (1) provides “It shall not be unlawful under this

section for a covered entity to take any action that constitutes

discrimination. ..if compliance with this section would cause such covered

entity to violate the law of the foreign country in which the workplace is

located.” Title II] contains no comparable provision.

“ The “readily achievable” criteria of Title II] include only: the cost of

the remedial action, financial resources of the facility and covered entity,

and type of operation, including composition and functions of the

workforce and relationship of the facility and covered entity. 42 U.S.C.

§ 12181 (9) (A) through (D).

25

democratic legitimacy to set over against the intent of

Congress so far as it can be gleaned from the usual

interpretive sources — which do not include the brief of one of

the parties!” Doe v. Mutual of Omaha Insurance Co., 179

F.3d 557, 563 (7" Cir. 1999). Congress, not the Solicitor

General, must state how a Title III covered entity and the

courts should deal with conflicts between applicable laws.

The Solicitor General’s opinion that Title III barrier

removal in conflict with international conventions would not

-be “readily achievable” fails to address conflicts with foreign

law. Conceding the existence of conflicts between U.S.

accessibility standards and those promulgated abroad, the

government overlooks the existence of conflicts with

standards imposed by other flag states, port states, or nations

where ships are constructed or classed. That the U.S.

contends its accessibility standards should apply to ships

entering U.S. ports acknowledges the potential for the

application of other nations’ standards to the same ships.

Cruise operators with global operations must have reliable

guidance, apart from the government’s amicus brief, to enable

them to determine which laws govern. A clear mechanism for

conflict resolution, addressing applicable foreign and

international law, must be established, particularly in an

international industry in which uniformity is paramount and

passenger safety of overriding concern.

The government’s “argument” that barrier removal

would not likely be required if in conflict with international

(but not foreign) law overlooks a more basic problem — the

lack of any regulations for barrier removal on any ships. To

properly determine whether a requested barrier removal is

“readily achievable,” a court, like a cruise line, must be able

to identify the applicable legal standards. No guidance exists

for addressing barrier removal on cruise ships. No court can

properly reach, let alone answer, the question of whether any

requested modification is “readily achievable.”

26

Hil COURTS CANNOT APPLY THE

ACCESSIBILITY PROVISIONS OF TITLE III

TO FOREIGN CRUISE SHIPS UNLESS

CONGRESS FIRST AMENDS THE ADA

Petitioners and their amici urge this Court to extend the

accessibility provisions of Title III to foreign cruise ships

under the “readily achievable” standard in the absence of any

statutory directive or applicable regulations. They ignore the

legislature’s mandate to delay the effective date of the Act

until rule making was complete.** They maintain that court

imposed, after-the-fact decisions on accessibility constitute an

appropriate application of the Act.

Permitting Title III suits under these circumstances

raises serious administrative and constitutional law concerns.

Should this Court accept Respondent’s arguments, it need not

reach these concerns. However, should this Court accept

Petitioners’ arguments, several significant corollary issues

will necessarily remain in this action on remand and will be

present in any other action involving a Title III claim against

4s

The unambiguous language of Title III proves Congress intended that

accessibility regulations be created, with notice to covered entities and

opportunity for compliance, before liability for barrier removal would be

triggered. Congress delayed the effective date of the ADA until eighteen

months after it was passed, (42 U.S.C. § 12181) and directed that the

regulatory agencies “shall” adopt specific standards for covered entities

to give the Act meaning ( 42 U.S.C. § 12186). The DOT and DOJ were

to issue regulations to carry out the provisions of Title ITI] within one year

of enactment. (42 U.S.C. § 12186). Thus, covered entities had six months

after regulations were adopted to comply with the standards established.

Had Congress intended barrier removal to be accomplished without any

regulatory direction. it could have required immediate compliance and

included that section in those having immediate effect. The DOJ has

further announced the “requirement for barrier removal . . . shall not be

interpreted to exceed the standards for alteration in Subpart D of this

Part.” The Justice Department thus believes Congress intended barrier

removal to be limited by the scope of existing regulations.

27

a cruise line. Chief among these is the practical difficulty

cruise lines and courts will face in understanding how to

apply Title III in the absence of any congressionally required

regulatory direction. In that instance, this Court should

provide appropriate guidance to lower courts adjudicating

Title II] claims against cruise lines.

ICCL asks the Court to clarify that no Title III claim

involving a foreign cruise ship can become viable until

Congress amends Title III and the appropriate regulatory

agencies discharge their statutory responsibility to promulgate

regulations, providing cruise lines the opportunity for

voluntarily compliance. Otherwise, the result is that two

classes of covered entities would be created under the Act.

The first would encompass those U.S. facilities on land, for

which Congress expressly extended Title III and specific

standards were created to allow compliance. The second

would consist solely of foreign cruise ships, subject to a case-

by case choice of law analysis and “readily achievable”

criteria with no specific standards. Only owners of facilities

on land would receive advance notice of what must be done

to avoid being sued. Petitioners and their amici apparently

believe neither Congress nor the regulatory authorities should

provide operators of foreign cruise ships equal

consideration.”

Clear legislative direction, with specific regulations, is

required to extend extraterritorial application of Title III to

foreign ships. Presently, as conceded by Petitioners, operators

“* Ignoring the statutory scheme, the Solicitor General contends cruise

operators must remove barriers in the absence of any standards. On the

one hand the government concedes a ship need not be constructed

accessibly (see discussion at footnotes 19, and 44, supra), but on the other

hand argues operators should be liable for failing to guess what barriers

must be removed before the ship is launched. Requiring shipowners to

reconstruct vessels to meet unspecified levels of accessibility, when not

requiring the same shipowners to construct or renovate ships according to

any standard, epitomizes circular logic.

28

of foreign cruise ships are left with only two words to assess

whether their conduct violates the law: “readily achievable.”

The lack of any discernable standards or regulatory guidance,

from the very agencies now contending application of Title III

to foreign ships is essential, highlights the weakness of

Petitioners’ contentions. The only “standard” is whether an

individual judge or regulator will deem a _ requested

modification “accomplishable without much difficulty or

expense.” 42 U.S.C. § 12181 (9). To guess accurately, a

cruise operator must speculate how to factor in such

parameters as the cost of the modification, the resources of

the facility and operator, and the relationship of the facility to

the operator. Jd, §9(A)-—(D). The cruise operator is left to

speculate over conflicts between the undefined standard of

accessibility, foreign and international laws, and concerns for

passenger safety. If the operator's analysis later conflicts

with a judge’s post facto determination, liability attaches

merely because the operator guessed wrong. No other entity

covered by the ADA, let alone an entire industry, is placed in

such a precariously vague predicament.”

The extension of the ADA to foreign ships advanced Sy

Petitioners delegates basic policy matters to judges and juries

“This Court aptly observed in Grayned v. City of Rockford, 408 U.S.

104, 108-109 (1972):

It is a basic principle of due process that an enactment is void for

vagueness if its prohibitions are not clearly defined. Vague laws

offend several important values. First, because we assume that

man is free to steer between lawful and unlawful conduct, we

insist that laws give the person of ordinary intelligence a

reasonable opportunity to know what is prohibited, so that he

may act accordingly. Vague laws may trap the innocent by not

providing fair warning. Second, if arbitrary and discriminatory

enforcement is to be prevented, laws must provide explicit

standards for those who apply them. A vague law impermissibly

delegates basic policy matters to policemen, judges, and juries

for resolution on an ad hoc and subjective basis, with the

attendant dangers of arbitrary and discriminatory application. . .

29

for resolution, after the fact, on an ad hoc and subjective

basis. The attendant dangers of arbitrary and discriminatory

application become apparent. Certainly, foreign cruise ships

are entitled to a more deliberative, public and systematic

procedure than the ad hoc, post facto determinations urged by

Petitioners.‘

Title III is silent on its application to foreign cruise

ships. The agencies directed to promulgate regulations have

not done so. Congress stayed enforcement of Title III’s

barrier removal provision until after regulations were enacted.

Under these circumstances, the only statutory interpretation

consistent with congressional intent, and which avoids

subjecting foreign cruise ships to a different standard than

land-based facilities, is that Title III does not yet apply to

foreign cruise ships.

The lower courts should. not interfere in the legally

required legislative and regulatory process by holding cruise

operators liable for failing to comply with the PVAAC

Report, draft guidelines, inapplicable ADAAG standards, or

a vague notion of what is otherwise “readily achievable.”

Rather, this Court should defer to Congress to specify the

extent of the ADA’s reach. Assuming an amendment is duly

enacted, then the DOT and DOJ should complete the rule

making process of and create final cruise ship regulations.

“7 In Doe v. Mutual of Omaha Insurance Co., supra, plaintiff alleged

defendant violated the ADA by capping insurance benefits for AIDS

patients. The DOJ’s Technical Assistance Manual expressly prohibited

discrimination by insurers in the conditions contained in insurance

contracts, and the DOJ filed an amicus brief arguing defendant’s conduct

violated the ADA. However, as in the present situation, the DOJ had not

promulgated regulations governing coverage limits at issue in Doe. The

court rejected the ADA claim, holding: “Displacing the regulation of the

insurance industry into the federal courts is a sufficiently far-reaching

interpretive stride to justify us in requiring the Department to invite

deference by a more deliberative, public, and systematic procedure than

the filing of an amicus curiae brief.” /d. at 563.

30

IV. CONCLUSION

For all the foregoing reasons, the decision of the Fifth

Circuit Court of Appeal should be affirmed.

DATED: January 27, 2005

Respectfully submitted,

KAYE, ROSE & MALTMAN, LLP

LAWRENCE W. KAYE

Counsel of Record

WILLIAM J. TUCKER

AKSANA MOSHAIV

Attorneys for Amicus Curiae

International Council of Cruise Lines