Spector v. Norwegian Cruise Line
In this case, the United States Supreme Court addressed the issues whether Title III of the Americans with Disabilities Act ("ADA") applies to foreign-flag cruise ships in U.S. waters. The Fifth Circuit, which encompasses Texas, Louisiana and Mississippi, had concluded that Title III did not apply because under the judicially created rule of statutory construction known as the "clear statement rule," "general statutes do not apply to foreign-flag vessels in United States territory absent a clear indication of congressional intent." Notably, an earlier decision in the Eleventh Circuit, covering Alabama, Florida and Georgia, had held that the ADA does apply to foreign flag vessels. The Supreme Court held, by a majority, that the approach of the Fifth Circuit was incorrect and that ADA does apply, at least in some respects, to foreign-flag cruise ships in US waters.
DMC Category: Developed
This case note has been prepared by David Jensen of Healy
& Baillie, LLP in New York. Healy & Baillie are the International
Contributors to the website for the USA
The plaintiffs contended that NCL was not complying with ADA provisions requiring the accommodation of disabled persons by "reasonable modifications in policies, practices and procedures" and the removal of architectural and communication barriers. The plaintiffs sought a declaratory judgment and an injunction. While the United States District Court for the Southern District of Texas concluded that the ADA applies to foreign-flag vessels in U.S. waters, the Court of Appeals for the Fifth Circuit reversed. According to the Fifth Circuit, the ADA does not apply to foreign-flag vessels at all because it "does not contain a specific provision mandating its application to foreign-flag vessels."
The Supreme Court’s Ruling
The five-Justice majority noted that the ADA’s "readily achievable" standard would likely preclude any applications of the statute that conflicted with international law, such as the International Convention for the Safety of Life at Sea (SOLAS). A vessel modification that would place the ship in violation of an international legal obligation "would create serious difficulties for the vessel and would have a substantial impact on its operation, and thus would not be ‘readily achievable.’" Beyond this point, however, the Justices - already closely divided on the question of whether the clear statement rule precluded any application of the ADA to foreign-flag ships - diverged on the question of exactly what requirements the ADA places on foreign-flag cruise ships. Because none of the Justices’ viewpoints commanded a majority of the Court’s votes, the balance of the decision is not binding on future court decisions. Nonetheless, the Justices’ divergent views are almost certain to be influential in future decisions on the matter.
The remaining two Justices from the majority opinion -- Ginsburg and Breyer -- felt that Title III of the ADA did not apply to foreign-flag vessels at all, but they did not attach independent significance to the "clear statement rule." According to the two Justices, the clear statement rule only applies to the extent there are "conflicts with international legal obligations." In their view, the clear statement rule is an application of a larger "non-interference principle" and has no application when a legal requirement does not produce "international discord." Justices Ginsburg and Breyer relied in part on prior Supreme Court decisions that had construed statutes to avoid foreign or international law conflicts to reason that the Court’s construction of the "readily achievable" ADA exception "served" the goal of "non-interference." In contrast with the other three Justices joining Justice Kennedy’s majority opinion, the Justices Ginsburg and Breyer concluded that whether an ADA requirement pertained to "internal order" was irrelevant: the only aim of the clear statement rule was avoiding international law conflicts, and the ADA applied to the extent that no such conflict resulted.
However, the dissenting Justices felt that once a law reaches the internal order of a ship, the clear statement rule applies to make that law inapplicable, even if in a particular instance no conflict of law results. In other words, the clear statement rule should apply to all laws that reach the subject matter of "internal order," regardless of whether they conflict with international obligations or foreign law. The dissenting Justices placed importance on the power of the flag jurisdiction to affirmatively regulate the internal conduct of the ship; "even if Title III makes ample provision for a safety exception to the barrier-removal requirements, what it considers necessary for safety is not necessarily what other nations or international treaties consider necessary." A U.S. statute simply should not reach the internal affairs of a foreign-flag ship. The dissenting Justices thus found it unnecessary to attempt to construe the ADA in a manner that would avoid international conflicts; the "presumption that Title III does not apply to foreign-flag ships without a clear statement from Congress" was sufficient to dispose of the case.
The dissenting Justices disagreed, however, on the extent to which the clear statement rule should operate to invalidate the ADA. Justices Scalia and O’Connor and Chief Justice Rehnquist felt that the ADA could not be selectively applied; the question was simply "whether Congress in fact intended that its enactment cover foreign-flag ships." "Since some applications of Title III plainly affect the internal order of foreign-flag ships, the absence of a clear statement renders the statute inapplicable--even though some applications of the statute, if severed from the rest, would not require clear statement."
Justice Thomas, in contrast, felt that certain portions of Title III could be severed from the rest of the statute. According to Justice Thomas, the clear statement rule should preclude any application of a statute that "pertain[s] to internal affairs" of foreign-flag ships. However, any application that does not pertain to internal affairs is not within the rule. Otherwise stated, Justice Thomas agreed with the other dissenting Justices that the clear statement rule precluded application of a general statute to the internal affairs of a ship, but disagreed that this defect made the statute wholly inapplicable. Because Justice Thomas thus felt that some applications of the ADA - which did not pertain to internal order issues - were valid, he joined the portion of the opinion of Justices Kennedy, Stevens and Souter requiring application of the clear statement rule on a case-by-case basis. But Justice Thomas did not join in the majority’s call to construe the ADA’s readily achievable standard so as to avoid any clear statement rule issues.
While it is clear the Court rejected the position that the clear statement rule should apply to totally invalidate any law that implicates internal order, however the Court made no clear holding with respect to how the rule should operate. It does appear that the rule has continued vitality in U.S. law as only Justices Ginsburg and Breyer felt that it had no application apart from avoiding international conflicts. Moreover, it is evident that the clear statement rule should apply on a case-by-case basis. The Court gave no clear guidance, however, as to when and how the rule should be applied going forward.
It is important to note that the scope of this decision extends beyond the ADA and beyond cruise ships, and similar statutory construction issues could come into play in any number of contexts and in respect of any foreign-flag vessel. Indeed, in his concurring opinion Justice Kennedy suggests that the clear statement rule should not act to invalidate Title II of the Civil Rights Act of 1964, which generally prohibits discrimination in places of public accommodation, indicating that the Justices were well aware that the Court’s ADA decision would have ramifications for the application of other general statutes in respect of foreign-flag vessels
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