SCOTUS Considers Application of ADA to Foreign-Flagged Vessels

In a case argued this morning at the Supreme Court, the Department of Justice has sided with a group of disabled cruise passengers who sued Norwegian Cruise Lines for failing to provide the kinds of accommodations required on public transportation under the Americans with Disabilities Act. NCL argues that, because their ships fly under the Bahamian flag, extraterritoriality doctrines should be applied, which would exempt them from ADA regulation in the same way that they are exempt from federal labor laws. (NCL’s brief is here.) DOJ and the plaintiffs’ argue that the ADA can be applied to foreign flagged vessels operating in US waters precisely because they come in and out of US jurisdiction and operate as a public accommodation. (Plaintiffs’ brief is here.)

This is a close and interesting question. Under international law, ships are generally only subject to the jurisdiction of the state under whose flag they sail. But NCL and other cruise lines routinely invoke US jurisdiction in contracts of adhesion (e.g., passenger tickets) for torts and other disputes that arise onboard their cruises. Further, it seems that NCL would have a tough time arguing that the US cannot insist, for example, that civil rights laws banning racial discrimination in public accommodations be extended to cruise ships embarking from US ports. On the other hand, cruiselines choose to register under foreign flags precisely to avoid certain regulatory restrictions and costs (i.e., taxation, labor and employment laws), and broad application of the ADA to foreign-flagged vessels might conceivably apply not only to cruise ships, but also to every merchant marine vessel that ever enters US waters. As was noted in this morning’s oral argument, compliance with the ADA in those circumstances would be extraordinarily expensive and a burden on trade.

Like earlier extraterritoriality cases (See, e.g, EEOC v. Aramco), whatever the Court decides –and it may confine its ruling to the narrow circumstance of ships that offer public accommodation — this one may prompt Congress to go back and define when and how it thinks the ADA should apply to foreign-flagged vessels.

Georgetown Law is hosting a panel discussion on the case tomorrow.