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Tomorrow’s Argument In Spector v. Norwegian Cruise Line

I’m arguing this case tomorrow at the Court. The question is the extent to which Title III of the Americans With Disabilities Act applies to cruise ships, and foreign-flagged cruise ships in particular. Title III is the statutory provision forbidding discrimination in public accommodations and specified forms of public transportation. We are litigating the case with the Stanford Supreme Court Litigation Clinic.

The plaintiff-petitioners (our clients) are persons with disabilities and their traveling companions. All took NCL cruises in 1998 and 1999 originating in Texas. They subsequently filed suit, alleging that NCL had violated the ADA. They contend that the statute applies in U.S. territory.

For example, petitioners contend that NCL violated the statute by failing to offer them a discount available to other passengers, by reserving the right to deny them passage if they disturb the “comfort” of other passengers, by failing to provide them with evacuation instructions, and by failing to remove barriers (such as barriers that prevent the use of public restrooms).

The district court held that the ADA applies to cruise ships, including foreign-flagged cruise ships. But it held that cruise ships were not subject to the statute’s barrier-removal requirement (both for new ships and old ships) because the government had not issued barrier removal regulations governing new ship construction and alterations.

Both sides appealed and the Fifth Circuit (per Edith Jones) ruled that the ADA does not apply to foreign-flagged ships. The court of appeals derived from the Supreme Court’s decisions a presumption that U.S. law does not apply to foreign-flagged vessels in our territory. It also concluded that the case implicated the presumption against the extraterritorial application of U.S. law, because structural changes on the ship would travel with it outside U.S. territory. The Fifth Circuit recognized that the Eleventh Circuit – which has jurisdiction over uber-cruise state Florida – had reached the opposite conclusion.

We petitioned for certiorari, and NCL acquiesced. It explained that it was currently subject to two conflicting legal regimes and needed clear guidance.

In the Supreme Court, we are supported by the following amici: the United States, various states led by Texas, disability groups including Paralyzed Veterans of America, additional groups led by AARP, and a maritime law professor. NCL is supported by the following amici: The Bahamas (where its ships are flagged), the cruise-industry trade association, an Italian cruise line, and the Chamber of Commerce.

As I mentioned, I’m arguing for the plaintiff-petitioners. David Salmons of the S.G.’s office will argue for 10 minutes supporting us. David Frederick will argue for NCL. Greg Garre will argue for The Bahamas as amicus curiae in support of NCL.

The parties’ briefs are available here.