Sea of Litigation

Sailing away from the ADA?

Most of the oceangoing vacation boat industry is legally based in other countries, with mini-nations such as the Bahamas, Honduras, and Panama flying their flags proudly over Love Boats across the ocean blue. But around two-thirds of their passengers come from the United States, and some of them have a taste for litigation. Some aggrieved wheelchair-bound Americans and their companions have sued the Bahamas-registered Norwegian Cruise Lines, protesting a lack of access to emergency evacuation equipment, restaurants, swimming pools, and bathrooms on board.

In March the U.S. Supreme Court heard oral arguments in Spector v. Norwegian Cruise Ship Lines, which raises the question of whether the Americans with Disabilities Act (ADA) extends to foreign companies whose ships hit U.S. ports to pick up U.S. passengers. Lawyers for the cruise lines invoke a "canon of statutory construction almost as old as the Republic itself: that a congressional act shall not be construed to govern a foreign ship unless Congress clearly expresses its intent for that application." Congress, they insist, breathed not a word about the ships in the ADA. During oral arguments, Antonin Scalia suggested the law's reference to "any other conveyance" might extend to sea cruises.

Federal appeals courts have been split on the issue; the industry fears enormous expenses in retrofitting ships to ADA requirements. More than pleasure boats might be at issue: A decision against Norwegian Cruise Lines could also logically extend to all merchant marine vessels, which tend to register under foreign flags precisely to avoid this sort of U.S. regulation.?