United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS January 12, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III ______________________________ Clerk
No. 02-21154 03-20056
______________________________
DOUGLAS SPECTOR, ET AL.,
Plaintiffs-Appellants,
versus
NORWEGIAN CRUISE LINE LTD., doing business as Norwegian Cruise Line,
Defendant-Appellee.
___________________
Plaintiffs-Appellees,
NORWEGIAN CRUISE LINE LTD., doing business as Norwegian Cruise Line, Defendant-Appellant.
Appeals from the United States District Court for the Southern District of Texas
Before REAVLEY, JONES, and CLEMENT, Circuit Judges.
EDITH H. JONES, Circuit Judge: This appeal presents the question whether Title III of
the Americans with Disabilities Act (“ADA”) applies to foreign-
flagged cruise ships. See 42 U.S.C. § 12182 (2000) et. seq. As
a matter of first impression in this circuit, we hold that it
does not. We affirm in part and reverse in part the district
court’s interlocutory orders that formed the basis of this
§ 1292(b) appeal.
I. BACKGROUND
At various times in 1998 and 1999, the plaintiffs took
cruises on Norwegian Cruise Line (“NCL”) ships, the Norwegian Sea
and the Norwegian Star. The cruises originated in the Port of
Houston, Texas, and traveled to foreign ports of call. Both
ships sail under the Bahamian flag. Afterwards, the plaintiffs
filed suit asserting that they were discriminated against in
violation of Title III of the ADA.
The plaintiffs comprise “disabled plaintiffs” and
“companion plaintiffs.” The disabled plaintiffs allege that
physical barriers on the ships denied them access to:
(1) emergency evacuation equipment and emergency evacuation-
related programs; (2) facilities such as public restrooms,
restaurants, swimming pools, and elevators; and (3) cabins with a
balcony or a window. The disabled plaintiffs also allege that
NCL charged them a premium for use of the four
handicapped-accessible cabins and the assistance of crew members.
2 The companion plaintiffs allege that they were discriminated
against and denied access to the ships’ facilities and amenities
because of their “known association” with the disabled
plaintiffs.
Alleging their intent to take future NCL cruises, the
plaintiffs sought a declaratory judgment, injunctive relief, and
reasonable attorneys’ fees and costs. More specifically, the
plaintiffs sought injunctive relief requiring NCL to remove
certain barriers, some temporary and some permanent, that
obstructed their access to the ships’ facilities. NCL moved to
dismiss for failure to state a claim. FED. R. CIV. P. 12(b)(6).
After considering the motion, the district court: (1) ruled that
foreign-flagged cruise ships are subject to Title III of the ADA;
(2) dismissed the plaintiffs’ claim concerning removal of
physical barriers because the federal government failed to
promulgate the necessary regulations; and (3) ruled that the
companion plaintiffs stated a claim for associational
discrimination.1 The district court certified the matter for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b), and we
accepted the certification.2
1 The Government’s duty to promulgate regulations pertaining to cruise ships, according to the district court, stemmed from 42 U.S.C. §§ 12186(a)(b). 2 The district court also ruled that the plaintiffs were not entitled to attorneys’ fees and court costs. The parties have not addressed these issues on appeal. Furthermore, because we conclude that Title III of the ADA does not apply to foreign-flagged cruise ships, we do not reach the other issues decided below and subsequently raised in this appeal (i.e., whether the federal government had a duty to promulgate regulations and whether the non-disabled
3 II. STANDARD OF REVIEW
This court reviews de novo the district court’s grant
or denial of a Federal Rule of Civil Procedure 12(b)(6) motion to
dismiss. See Frank v. Delta Airlines, Inc., 314 F.3d 195, 197
(5th Cir. 2002). “The complaint must be liberally construed in
favor of the plaintiff, and all the facts pleaded in the
complaint must be taken as true to determine whether the
plaintiff has stated a valid claim for relief.” Haynes v.
Prudential Health Care, 313 F.3d 330, 333 (5th Cir. 2002)
(citations and quotation omitted). “The dismissal will be upheld
only if it appears beyond doubt that the plaintiff can prove no
set of facts that would entitle him to relief.” Id. The
district court’s interpretation of a statute, the primary issue
in this case, is also subject to de novo review. Lara v.
Cinemark USA, Inc., 207 F.3d 783, 786 (5th Cir. 2000).
III. DISCUSSION
NCL challenges the district court’s conclusion that
Title III of the ADA applies to foreign-flagged cruise ships.
NCL asserts that there is no evidence that Congress intended
Title III to apply to foreign-flagged vessels or that Congress
even considered the issue. Although, as will be seen, arguments
can be made both ways concerning the interpretation of
congressional intent, we are persuaded that NCL is correct.
plaintiffs stated a claim for associational discrimination).
4 Title III of the ADA provides that: “[n]o individual
shall be discriminated against on the basis of disability in the
full and equal enjoyment of goods, services, facilities,
privileges, advantages, or accommodations of any place of public
accommodation.” 42 U.S.C. § 12182(a)(2000). Title III also pro-
hibits discrimination against disabled individuals on “specified
public transportation services provided by a private entity that
is primarily engaged in the business of transporting people and
whose operations affect commerce.” 42 U.S.C. § 12184(a)(2000).
Both “public accommodations” and “specified public transportation
services” are subject to the barrier removal requirements of
Title III. See 42 U.S.C. §§ 12182(b)(2)(A)-(C)(2000).3
It is settled that “a ship voluntarily entering the
territorial limits of another country subjects itself to the laws
and jurisdiction of that country.” Benz v. Compania Naviera
Hidalgo, S.A., 353 U.S. 138, 142, 77 S.Ct. 699, 701-02 (1957)
(citing Wildenhus’ Case, 120 U.S. 1, 7 S.Ct. 385 (1887)).
However, the local sovereign is under no obligation to exercise
its authority to the outer limits of its jurisdictional reach.
Benz, 353 U.S. at 142. Since “the exercise of that jurisdiction
is not mandatory but discretionary,” id., the Supreme Court held,
3 The district court found that Title III applies to cruise ships as both a “public accommodation” and a “specified public transportation service.” NCL did not dispute this issue in the district court, and does not raise the issue on appeal. Therefore, we assume, without deciding, that Title III applies to cruise ships generally and limit this decision to foreign-flagged cruise ships. Whether Title III applies to domestic cruise ships remains an open question in this circuit.
5 to apply domestic law to foreign vessels entering United States
waters, “there must be present the affirmative intention of the
Congress clearly expressed.” Id. at 147. Absent an affirmative
intention, “such appeal should be directed to the Congress rather
than the courts.” Id.
In Benz, the Supreme Court considered whether the Labor
Management Relations Act of 1947 (“LMRA”) applied to a dispute
involving “a foreign ship operated entirely by foreign seamen
under foreign articles while the vessel is temporarily in an
American port.” 353 U.S. at 139. The Court answered that
question in the negative. Id. If Congress had “so chosen, it
could have made the Act applicable to wage disputes arising on
foreign vessels between nationals of other countries when the
vessel comes within its territorial waters.” Id. at 142. But
given the dearth of legislative history evincing Congress’s
intent to apply the LMRA to foreign-flagged vessels, id. at 143-
147, the Court concluded that Congress had not “fashion[ed]
itself to resolve labor disputes between nationals of other
countries operating ships under foreign laws.” Id. at 142.
Likewise, in McCulloch v. Sociedad Nacional de
Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671 (1963), which
addressed whether the National Labor Relations Act (“NLRA”)
applied to the “maritime operations of foreign-flag ships
employing alien seamen,” id. at 13, the Court again emphasized
that the decisive question was not whether Congress had the power
6 to apply the NLRA to foreign-flagged ships, but whether Congress
had chosen to do so. See id. at 17. The McCulloch plaintiffs
asserted that their case, unlike Benz, involved “a fleet of
vessels not temporarily in the United States waters but operating
in a regular course of trade between foreign ports and those of
the United States[.]” McCulloch, 372 U.S. at 19-20. The Court
found the distinction unavailing.
As in Benz, the McCulloch plaintiffs were “unable to
point to any specific language in the Act itself or in its
extensive legislative history that reflect[ed] such a
congressional intent.” McCulloch, 372 U.S. at 20. Accordingly,
the Court held that the NLRA did not apply to foreign-flagged
ships, and it reiterated that the plaintiffs should petition “to
the Congress rather than to us.” Id. at 22 (citation omitted).
EEOC v. Arabian American Oil Co., 499 U.S. 244, 111
S.Ct. 1227 (1991) (“ARAMCO”), amplifies the Supreme Court’s
adherence to established principles of statutory construction and
fundamental tenets of international law. In ARAMCO, the Court
considered whether Title VII applied “extraterritorially to
regulate the employment practices of United States employers who
employ United States citizens abroad.” Id. at 247. The Court
stated that “[i]t is a longstanding principle of American law
that legislation of Congress, unless contrary intent appears, is
meant to apply only within the territorial jurisdiction of the
United States.” Id. at 248 (citations and quotations omitted).
7 “It serves to protect against unintended clashes between our laws
and those of other nations which could result in international
discord.” Id. (citing McCulloch, 372 U.S. at 20-22). Therefore,
“[w]e assume that Congress legislates against the backdrop of the
presumption against extraterritoriality.” ARAMCO, 499 U.S. at
248 (quoting Benz’s requirement of clear expression by Congress,
353 U.S. at 147).
The EEOC, relying on two statutory provisions,
contended that Congress did intend for Title VII to apply abroad.
First, the EEOC argued that Title VII’s definitions of “employer”
and “commerce” were sufficiently broad to include American
companies located beyond the United States. Despite conflicting
plausible interpretations of the relevant language, the Court
found that it “need not choose between these competing
interpretations as we would be required to do in the absence of
the presumption against extraterritorial application[.]” ARAMCO,
499 U.S. at 250. Moreover, under the EEOC’s interpretation,
“[t]he intent of Congress as to the extraterritorial application
of this statute must be deduced by inference from boilerplate
language which can be found in any number of Congressional acts,
none of which have ever been held to apply overseas.” Id. at
250-51 (citing Americans with Disabilities Act of 1990, 42 U.S.C.
§ 12101 et seq.) (other citations omitted).
Second, the Court rejected the contention that the
“alien exemption” provision created a negative inference
8 supporting application of Title VII abroad. “Without clearer
evidence of congressional intent to do so than is contained in
the alien-exemption clause, we are not willing to ascribe to that
body a policy which would raise difficult issues of international
law by imposing this country’s employment-discrimination regime
upon foreign corporations operating in foreign commerce.”
ARAMCO, 499 U.S. at 255.
The Court also found that other aspects of Title VII
belied the EEOC’s position. Title VII only addressed issues of
state sovereignty, and Congress failed to provide any mechanisms
for the statute’s overseas enforcement. Moreover, unlike the Age
Discrimination in Employment Act (“ADEA”), a parallel statute,
Congress did not address conflicts with laws of other nations.4
Together, Benz and McCulloch prohibit United States
courts from applying domestic statutes to foreign-flagged ships
without specific evidence of congressional intent. Under the
Supreme Court’s framework, Congress may enact legislation that
governs foreign-flagged cruise ships operating within United
4 After the passage of the ADEA several circuits determined that it could not be applied extraterritorially to “Americans employed outside the United States by American employers.” Cleary v. United States Lines, Inc., 728 F.2d 607, 610 (3d Cir. 1984); see also Thomas v. Brown & Root, Inc., 745 F.2d 279, 281 (4th Cir. 1984) (per curiam); Zahourek v. Arthur Young & Co., 750 F.2d 827, 828-29 (10th Cir. 1984). However, shortly thereafter, Congress amended the ADEA to allow extraterritorial application under certain circumstances. See generally 29 U.S.C. §§ 623 and 803. Consequently, after the ARAMCO decision, Congress conformed Title VII to the ADEA and included as “employees” United States citizens working “in a foreign country.” See 42 U.S.C. § 2000e(f)(2000). Title VII also now exempts American employers located abroad from compliance with Title VII if it would cause the employer “to violate the law of the foreign country in which such workplace is located.” 42 U.S.C. § 2000e-1(b)(2000).
9 States waters, but it must clearly indicate its intention to do
so. See Benz, 353 U.S. at 147. ARAMCO applies the same clear-
statement requirement to gauge the extraterritorial application
of statutes.
There is no indication, either in the statutory text or
in the ADA’s extensive legislative history, that Congress
intended Title III to apply to foreign-flagged cruise ships. If
Congress had so intended, “it would have addressed the subject of
conflicts with foreign laws and procedures.” ARAMCO, 499 U.S. at
256. Congress’s silence cannot be read to express an intent to
legislate where issues touching on other nations’ sovereignty are
involved.5
Furthermore, an act of Congress “ought never to be
construed to violate the law of nations, if any other possible
construction remains[.]” Murray v. The Schooner Charming Betsy,
6 U.S. 64, 118 (1804); see also Weinberger v. Rossi, 456 U.S. 25,
32, 102 S.Ct. 1510, 1516 (1982); Sampson v. Federal Republic of
Germany, 250 F.3d 1145, 1152 (7th Cir. 2001)(recognizing that the
“Charming Betsy canon . . . has traditionally justified a narrow
interpretation of ambiguous legislation to avoid violations of
Under international law, the flag state is responsible for adopting and enforcing laws to protect the welfare of the crew and passengers aboard a ship and to maintain good order thereon, and for ensuring that activities aboard the ship do not endanger other ships or the marine environment. This responsibility continues at all times, wherever the ship is located.
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 502 cmt. a (1987).
10 international law”). Thus “[b]ecause Congress legislates against
the backdrop that includes those international norms that guide
comity analysis, absent a contrary legislative direction the
doctrine may properly be used to interpret any statute.” In re
Maxwell Communication Corp., 93 F.3d 1036, 1047 (2d Cir. 1996).
Because the Title III barrier removal provisions may govern the
finest details of maritime architecture in the quest to render
ships fully accessible to disabled passengers, those provisions
pose a stark likelihood of conflicts with the standards set out
in the International Convention for Safety of Life at Sea
(“SOLAS”).6 Therefore, as a matter of statutory construction,
Title III must be narrowly construed in a manner that avoids
these potential conflicts. See Trans World Airlines, Inc. v.
Franklin Mint Corp., 466 U.S. 243, 252, 104 S.Ct. 1776, 1782
(1984) (“There is, first, a firm and obviously sound canon of
construction against finding an implicit repeal of a treaty in
ambiguous congressional action.”).
Nevertheless, the plaintiffs offer several counter-
arguments. First, the plaintiffs contend that because the ADA
6 The Passenger Vessel Access Advisory Committee (“PVAAC”), a government-created body, identifies apparent conflicts between the Title III barrier removal standards and SOLAS in its recent report. See PVACC Report at Chapter 13, Parts I-II available at http://www.access-board.gov/news/pvaac- rept.htm (referencing potential conflicts between SOLAS and the guidelines announced by the ADAAG Review Advisory Committee — the governmental body tasked by Congress with formulating the Title III barrier removal guidelines). Thus, there is little, if any, dispute that Title III barrier removal requirements potentially conflict with SOLAS, a treaty the United States has ratified and honors. See United States v. Locke, 529 U.S. 89, 102-03 (2000).
11 applies to cruise ships generally, it presumptively applies to
foreign-flagged cruise ships, absent a specific exemption.
Plaintiffs rely primarily on Cunard S.S. Co. v. Mellon, 262 U.S.
100, 43 S.Ct. 504 (1923), to support this argument.7
In Cunard, the Supreme Court held that the National
Prohibition Act, enacted to enforce the Eighteenth Amendment,
applied to foreign-flagged vessels in United States ports. Id.
at 124-26. Based on the statute’s terms, the Court found that
Congress intended the Act to “be operative throughout the
territorial limits of the United States” including “all merchant
vessels, whether foreign or domestic,” when within those limits.
Id. at 129. The Court noted that the Act “contains no exception
of ships in either class and the terms in which it is couched
indicate that none is intended.” Id. at 126. Any exception for
foreign-flagged ships, the Court said, would defeat the
attainment of the Act’s obvious purpose — to prevent the use of
intoxicating liquor as a beverage. See 27 U.S.C. § 12 (1919).
Last, the Act’s specific exemption for transportation of liquor
through the Panama Canal expressed Congress’s intent to apply the
7 Plaintiffs also point to Pennsylvania Dep’t of Corrections v. Yeskey, 534 U.S. 206, 122 S.Ct. 708 (1998), to support their claim that congressional silence is not dispositive. In Yeskey, a Title II ADA case, the Supreme Court interpreted the term “public entity” to include state prisons. Yeskey, unlike the instant case, found Congress’s intent from the express statutory language, and not from its silence. Id. at 210. The Court’s axiomatic observation that statutes may have unanticipated applications does not alter the presumption against extraterritorial application.
12 statute to all vessels within the territorial waters of the
United States. Id. at 128-29.
Cunard does not control. First, the Supreme Court
premised Cunard on the all-pervasive reach of the Eighteenth
Amendment and its enforcing statute on specific inferences from
the Panama Canal provision. Second, unlike Benz, McCulloch, and
ARAMCO, Cunard did not involve the possibility of
extraterritorial application, but instead regulated only the
commercial transport of liquor into United States ports. As the
Court noted, “the National Prohibition Act discloses that it is
intended only to enforce the Eighteenth Amendment and limits its
field of operation, like that of the Amendment, to the
territorial limits of the United States.” Cunard, 262 U.S. at
129.
This second distinction is significant.
Extraterritorial application of any statute is impermissible
absent “the affirmative intention of the Congress clearly
expressed[.]” Benz 353 U.S. at 147; ARAMCO, 499 U.S. at 248;
Smith v. United States, 507 U.S. 197, 204 n.5, 113 S.Ct. 1178,
1183 (1993) (recognizing that “the presumption is rooted in a
number of considerations, not the least of which is the
commonsense notion that Congress generally legislates with
domestic concerns in mind”). This well-founded clear-statement
rule serves “to protect against unintended clashes between our
13 laws and those of other nations which could result in
international discord.” ARAMCO, 499 U.S. at 248.
In the present case, many of the structural changes
required to comply with Title III would be permanent, investing
the statute with extraterritorial application as soon as the
cruise ships leave domestic waters. The plaintiffs insist,
however, that Title III need not be enforced beyond United States
waters. They argue that this suit seeks enforcement within the
United States only, or in the alternative, that courts can choose
to enforce those aspects of Title III that do not conflict with
international law or are not permanent in nature. This approach
is inconsistent with the Supreme Court’s pronouncements in Benz,
McCulloch, and ARAMCO. In none of those cases did the Court
examine each proposed application of domestic law to determine
whether it might conflict with other nations’ laws. Whether
Title III’s barrier removal provision, if applied to foreign-
flagged cruise ships, would have extraterritorial impact is a
matter of statutory construction, not a fact-intensive inquiry.
Thus, potential conflicts with transnational or international law
mandate that we construe the statute narrowly to avoid
international discord.8
8 McCulloch did not examine individual applications of the NLRA to reach its result. Instead, the Court pointed to the prospective conflict that would result from “the concurrent application of the Act and the Honduran Labor Code[.]” 372 U.S. at 21. This impending conflict exemplified the strong basis for its cannon of construction mandating a clear congressional statement. As a result, the Court ruled, as a matter of statutory construction, that the statute could not be applied extraterritorially based on the “possibility of inter-
14 The plaintiffs next rely upon the Eleventh Circuit’s
decision in Stevens v. Premier Cruises, Inc., 215 F.3d 1237 (11th
Cir. 2000), reh’g denied, 284 F.3d 1187 (11th Cir. 2002). In
Stevens, the court found that Title III applies to those aspects
of cruise ships (restaurants, retail stores, health spas, etc.)
that qualify as public accommodations. Id. at 1241. Further,
since Congress did not exclude coverage of foreign-flagged cruise
ships while in domestic waters, the court reasoned that the ADA
must apply to them. In this connection, the court viewed
ARAMCO’s presumption against “extraterritorial” application of
domestic law as inapposite, because it did not consider Title
III’s requirements to apply outside United States waters. Id. at
1242.9
Stevens limited the Benz and McCulloch presumption
against application of American law strictly to the “internal
management and affairs,” specifically labor-management relations,
of a foreign-flag ship. Given Congress’s intent to apply Title
III broadly, the Stevens court concluded instead that Cunard
controlled.
national discord[.]” Id. 9 The Stevens court attempted to clarify its position in its order denying the request for rehearing. Stevens, 284 F.3d at 1187. The court stated that it did not foreclose the possibility of specific conflicts between inter- national laws and Title III, but that those specific questions could not be addressed at the motion to dismiss stage. Id. However, as discussed above, the court’s approach is misguided. The conflicts with international law has statu- tory construction implications, above and beyond any factual dispute that may exist. The Stevens court failed to account for these implications, and therefore erred in its construction of Title III.
15 With due respect, we find Stevens unpersuasive. In
Stevens, the court maintained that Congress’s silence as to
cruise ships meant not only that Title III applied to cruise
ships, a contention we do not comment upon, but that the coverage
of cruise ships necessarily implied coverage of foreign-flag
cruise ships. This latter inference disregards the Supreme
Court’s admonition that before applying domestic law in the
“delicate field of international relations,” Congress must
clearly express its intent. McCulloch, 372 U.S. at 21.
That Congress intended Title III to have “broad reach”
is insufficient to warrant application to foreign-flagged cruise
ships. Title VII and the ADEA, remedial statutes comparable in
breadth and purpose to the ADA, were also intended to have “broad
reach.” See Miller v. Pub. Storage Mgmt., Inc., 121 F.3d 215,
218 (5th Cir. 1997) (recognizing that the “ADA is part of the
same broad remedial framework as the ADEA and Title VII, and that
all the anti-discrimination acts have been subjected to similar
analysis”). Nevertheless, Congress’s failure specifically to
address extraterritorial implications and conflicts with inter-
national law proved fatal to both Title VII and the ADEA in this
regard. The Supreme Court’s decision in Cunard, by contrast,
turned on more specific statutory language and the nationally
pervasive reach of the Eighteenth Amendment and implementing
statutes.
16 Ultimately, the Stevens court’s attempt to distinguish
Benz and McCulloch is unpersuasive. Like those cases, the
present case deals with the “internal management and affairs” of
a foreign-flagged ship. See McCulloch, 372 U.S. at 20. As noted
above, the plaintiffs’ proposed accommodations, if applicable,
would require NCL to adjust evacuation procedures and
responsibilities of the crew, and would mandate structural
changes to the ships. Thus, it is incorrect to suggest, as
Stevens does, that such modifications do not involve the
“internal management and affairs” of the ship merely because they
were requested by a passenger rather than an employee. Further,
the court’s order on rehearing essentially concedes that portions
of Title III will apply extraterritorially, but it sidesteps the
obvious implication in terms of Benz, McCulloch, and ARAMCO.
Last, the plaintiffs rely on the opinions of the
Department of Justice (“DOJ”) and the Department of
Transportation (“DOT”) that Title III applies to foreign-flagged
cruise ships. The opinions of DOJ and DOT are presented in
technical assistance manuals and public comments, not formal
adjudications or rulemaking. See DOJ TITLE III TECHNICAL ASSISTANCE
MANUAL III-1.2000(d); See 56 FED. REG. 45,584, 45,600 (1991).
Nonetheless, the plaintiffs argue that these opinions are
entitled to Chevron deference.
These informal administrative opinions are not entitled
to Chevron deference. See Christensen v. Harris County, 529 U.S.
17 576, 587, 120 S.Ct. 1655, 1662-63 (2000). “Interpretations such
as those in opinion letters — like interpretations contained in
policy statements, agency manuals, and enforcement guidelines,
all of which lack the force of law — do not warrant Chevron-style
deference.” Id. (citing Reno v. Koray, 515 U.S. 50, 61, 115
S.Ct. 2021, 2027 (1995)). “Instead, interpretations contained in
formats such as opinion letters are ‘entitled to respect’ . . .
but only to the extent that those interpretations have the ‘power
to persuade[.]’” Christensen, 529 U.S. at 587 (quoting Skidmore
v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164 (1944))
(citing ARAMCO, 499 U.S. at 256-58). For the reasons discussed
above, the respective positions of DOJ and DOT are not
persuasive.10
In the end, “when it desires to do so, Congress knows
how to place the high seas within the jurisdictional reach of a
10 We must also note that Title III directs DOJ and DOT to issue regulatory guidelines with respect to both new construction and barrier removal. See 42 U.S.C. § 12186(b). Both agencies promulgated regulations pertaining to barrier removal. See 28 C.F.R. 36.304 (2003). DOJ and DOT also promulgated regulations concerning new construction and alterations. See 28 C.F.R. § 36.406(a)-(d)(2003). However, DOJ and DOT specifically exempted cruise ships, which demanded - because of unique concerns - separate new construction and alteration regulations. See 28 C.F.R. PT. 36, APP. B, at 664 (2003)(stating that DOJ “will not interpret the new construction and alterations provisions of Subpart D” to apply to cruise ships “pending further development of specific requirements”). Amazingly, now more than a decade since the ADA’s passage, DOJ and DOT have yet to issue new construction and alteration regulations specific to cruise ships. Nevertheless, these agencies continue to demand that existing cruise ships meet the rigors of the barrier removal guidelines, even though newly constructed cruise ships remain altogether unregulated. The DOJ and DOT maintain this curious position despite their self-imposed regulatory mandate that “requirements for barrier removal under § 36.304 shall not be interpreted to exceed the standards for [new construction and] alteration[.]” 28 C.F.R. § 36.304(g)(1). However, because we hold that Title III may not be applied to foreign-flagged cruise ships, we need not reach this thorny regulatory issue.
18 statute.” ARAMCO, 499 U.S. at 258 (quoting Argentine Republic v.
Amerada Hess Shipping Corp., 488 U.S. 428, 440, 109 S.Ct. 683,
691 (1989)). Congress, in enacting Title III of the ADA, failed
to express any intention to subject foreign-flagged cruise ships
to its dictates. Thus, application of Title III to foreign-
flagged cruise ships is impermissible.
IV. CONCLUSION
Foreign-flagged cruise ships are not subject to Title
III of the ADA unless and until Congress clearly expresses its
intention to do so. We therefore sustain, albeit on different
grounds, the district court’s dismissal of the disabled
plaintiffs’ barrier removal claims. However, we reverse the
district court to the extent that any Title III ADA claims
remained, including those of the non-disabled plaintiffs, and
remand for further proceedings consistent herewith.
AFFIRMED in part, REVERSED in part, and REMANDED.