Spector v. Norwegian Cruise Line Ltd. – Oral Argument – February 28, 2005

Media for Spector v. Norwegian Cruise Line Ltd.

Audio Transcription for Opinion Announcement – June 06, 2005 in Spector v. Norwegian Cruise Line Ltd.

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John Paul Stevens:

We’ll now hear argument in Spector against the Norwegian Cruise Line.

Mr. Goldstein.

Thomas C. Goldstein:

Justice Stevens, and may it please the Court:

The petitioners in this case are American citizens who took cruises to and from this country on tickets bought here that call for the application of U.S. law.

They were subject to discrimination by respondent, a U.S. based company on the land, in the ports, and in the waters of the United States.

The question presented is whether the Americans With Disabilities Act applies or instead whether respondent’s conduct is lawful because the case is controlled by Bahamian law, which freely permits cruise lines to discriminate against persons with disabilities.

Sandra Day O’Connor:

Mr. Goldstein, may I inquire of you whether other countries, for instance, in the EU area, have applied their own disability laws to some of the cruise ships that touch base in their courts?

Thomas C. Goldstein:

Justice O’Connor, our research does not reveal that the question has arisen in the EU.

I can, however, provide you some information, and that is that… two points I think.

The first is they subscribe… the members of the EU subscribe to the same conventions and to UNCLOS just the way we do, which gives the port state plenary authority within its ports and internal waters.

And I have a couple of case citations for you on this issue.

In the ECJ, the Diva Navigation case, 1992, ECR I-6019.

It has not arisen in the EU, but it has arisen in Australia.

Australia has a disability law.

It applies that law to cruise ships, and the rule in Australia is that the port state law applies rather than the flag state law.

And the citation for that is the Union Shipping case, 2002, NSWCA 124 CA 40379/01.

I don’t know what those numbers mean.

Sandra Day O’Connor:

Thank you.

And would you also address at some point how the treaty on Safety of Life at Sea would affect the resolution here?

For example, it has, as I understand it, requirements that there be watertight doors and those doors have to be set above the level of the floor so you couldn’t roll a handicapped wheelchair or something over it.

Now, do you anticipate that there would have to be structural changes if you were to prevail that would conflict with the treaty on Safety of Life at Sea?

Thomas C. Goldstein:

No, and you have put your finger on the point, and that is that there are no conflicts.

We know that for a couple of reasons.

The first is that there has been a detailed rule making underway in which the regulatory authorities charged by Congress with implementing the ADA have spent quite some time.

They have produced this single spaced, half inch thick document that is dedicated to making–

Sandra Day O’Connor:

Are they in effect yet?

Thomas C. Goldstein:

–They are not, but in terms of whether or not the statute, when it’s applied, would conflict, you would look to this document and they took as their regulatory mission to make sure there were no such conflicts.

What they did… let me take your example specifically and then put… place it within the statutory framework.

Within the ADA and a question of the combings, what they said is, that’s right.

In certain cases SOLAS requires that the coamings be a certain height.

Thomas C. Goldstein:

If the coamings are below the bulkhead level, where you would be worried about water coming in below, that is not an accessible route, and so you don’t have to worry about it at all.

Above there, you ramp up to the coaming and ramp down, unless that’s structurally infeasible.

So they… what they did is they… and this is the broader point.

they applied the rule of the ADA that a change to the structure of the vessel only has to be implemented if it’s readily achievable.

And what the regulatory authorities determined is that if there is any conflict with SOLAS at all, that change need not be made.

Now, you… Justice O’Connor, you also focused on the fact that there are some of our claims that implicate the structure of the ship.

They are, however, a distinct minority, and we ought not lose sight of this because I don’t think the other side has any good argument at all, under international law or anything else, that would explain why they can charge a person with a disability double.

Anthony M. Kennedy:

Can you tell me just a little bit about that, how it works?

Suppose that you prevail in this case… and it does seem to me that the… the charging the double doesn’t involve modification of the ship, obviously.

How does it work if you have, oh, say, an English passenger who buys an English ticket and is charged double… I don’t know if that’s the English law, but let’s assume… then he comes on a cruise ship and he goes to New York and Miami and… and New Orleans?

Can he… does he… could he then sue, if… if we rule for you in this case?

Thomas C. Goldstein:

I would think on the question of the charging double, the answer to that question would be no because it would present a traditional, not unique to the ADA, choice of law question, and that is, if you’re in England and you buy a ticket in England, your ticket is going to be subject to English common… in that case, the English disability law.

There is an English disability law.

It doesn’t discuss cruise ships.

It’s… but it’s broadly written.

But with respect to the structure of the ship, I think that English passenger with a disability… say that you come across to the United States and you want to get off in New York.

I think that Congress clearly intended that that person would be able to come off a… off the dock in a wheelchair, back onto the dock on the wheelchair; while you were in U.S. ports and you’re staying in your cabin, that you would be able to, in your accessible… your accessible rest room, have grab bars.

We are… and… and let me not pass too quickly by the fact that even when we talk about some structural changes in the ship, by and large we’re talking about things that have nothing to do with… Justice O’Connor, you focused the name of the treaty is the Safety of Life at Sea.

Whether the bathroom doors swing in and out has nothing to do with that.

Whether there is–

Ruth Bader Ginsburg:

Mr. Goldstein, may… may I take it from your answer that it doesn’t make any difference in your view, your answer to the question about the… the ship leaving from a port in England and going many places and touching base in New York, that kind of a voyage, or what this case seems to be where the vast majority of the passengers are from the United States, the port of departure is in the United States, the port of return is in the United States.

You don’t seem to distinguish those cases because you say in the New York port, it doesn’t matter if it’s really a U.S. centered cruise or a cruise centered in Italy or any place else.

Is that correct?

Thomas C. Goldstein:

–I think your formulation is exactly right, Justice Ginsburg.

It doesn’t matter to us where the cruise is centered.

We do, however, and this Court’s precedents do, however, leave room for a highly unusual cruise that I’m not aware exists.

Take, for example, a situation in which a cruise comes from England to the United States.

It doesn’t pick up any passengers here.

They just visit.

They stop in 15 other countries.

Thomas C. Goldstein:

They stop here.

The same passengers get up on the ship and leave.

This Court’s precedents involving maritime choice of law leave room for the conclusion that says, look, we just don’t think–

Ruth Bader Ginsburg:

But if we go back to what is the more usual situation–

Thomas C. Goldstein:

–Yes.

Ruth Bader Ginsburg:

–Then you are, in effect, saying that the U.S. rules the world.

Even if the home port, the place where this vessel is usually berthed, says we… we don’t require our ships to take care of the handicapped, you are, in effect, saying no matter what the other ports say, what the U.S. law is is going to govern because practically if you’re going to design the ship to meet the U.S. requirements, you’re not going to rip those out when the ship goes elsewhere.

Thomas C. Goldstein:

Justice Ginsburg, we disagree with the characterization that the U.S. rules the world, of course.

We’re talking about the fact Congress exercised its sovereign authority to control vessels in its ports and internal waters, just as in… take the Cunard example.

In the Cunard case, there were countries… and I understand it didn’t involve the structure of the ship, but the principle is the same.

There were countries that required alcoholic beverages to be on those vessels, and–

Antonin Scalia:

We… we could… we could require ships that are docked in the United States to pay their crews according to United States Jones Act requirements or United States minimum wage laws and so forth.

We don’t do that.

We could do it, but we don’t because it conflicts with… with the law of the flag and… and that’s the usual… it’s not a matter of our power to do it.

We could do it, of course, but it’s just not something we ordinarily do.

Thomas C. Goldstein:

–Well, Justice Scalia, I actually disagree with your characterization and would like to point you to a couple of precedents.

The Benz and McCulloch cases, which are very important to the respondents, were very important to the Fifth Circuit, embody the principle that you just described, to some extent, and that is that when you have a foreign ship in our waters, we will not apply the NLRA to the labor contract between the foreign crew and the foreign vessel.

But when Americans are involved, we do apply the NLRA, and that’s the Ariadne precedent that the… and… and in fact, Ariadne is the most on point case because it–

Antonin Scalia:

Was… was that the ship or was it longshoremen?

Thomas C. Goldstein:

–It was longshoremen working on the ship complaining about safety conditions on the ship.

Antonin Scalia:

Longshoremen.

Longshoremen based… based on shore.

Right?

Thomas C. Goldstein:

Based on shore, but so are the passengers.

Antonin Scalia:

That’s a different–

Thomas C. Goldstein:

But it is a different situation, but I think it’s more analogous.

Not only were the… the protests in Ariadne directed at the safety conditions on the foreign flagged vessel, but they were directed at the passengers.

If I could–

Stephen G. Breyer:

What’s… what’s the scope of what you’re talking about here?

I mean, are… it says cruise ships.

Stephen G. Breyer:

So I had assumed those are those big ships that carry people mostly around the Mediterranean from Florida.

But based on what you’re saying, now I think you’re talking about something more.

Are you talking, for example, about a merchant vessel that comes from, say, Saudi Arabia and has a few passengers?

What’s the… what’s the scope of the definition?

Thomas C. Goldstein:

–The… well, that… the definition… we would have to return to the ADA.

If a merchant ship has a few passengers, it would not be a specified form of public transportation or a public accommodation.

Stephen G. Breyer:

Because?

It… what it does is it carries oil, but a certain number of people like to be on a ship with oil, I guess.

And so every… every month they take 12 people and they put them in a cabin somewhere and they love it.

Antonin Scalia:

–It’s cheaper.

It’s cheaper too.

[Laughter]

Thomas C. Goldstein:

I’m not aware of… of–

Stephen G. Breyer:

No, no.

I… but all right.

Now, I’m… I’m being facetious.

Thomas C. Goldstein:

–Yes.

Stephen G. Breyer:

But I am aware of… of people who have certainly gone on cruises on what is a primarily merchant ship.

Now that… that I think is a common thing.

Thomas C. Goldstein:

If… let me–

Stephen G. Breyer:

Are you talking… because I think that makes a difference for the reason that once you talk about those, you’re talking about primarily foreign flagged vessels that are rarely but sometimes in the United States where the costs would be very high probably to change the ship and the benefit to Americans would be tiny.

All right.

So I… I want to know what you’re talking about.

Thomas C. Goldstein:

–Okay.

Let me first say… and just to… to lock the point down in that cost is accounted for in the definition of what is readily achievable.

But let’s go to the definition of specified public transportation because this will tell us what’s going to be covered by the ADA.

And just for the transcript, the citation is… this is section 12181(110).

It’s… it’s very short, but it’s at the middle of page 12 of the blue brief.

Specified public transportation means transportation by bus, rail, or any other conveyance other than by aircraft, which has its own statute, that provides the general public with general or special service on a regular and continuing basis.

That too would be covered.

Thomas C. Goldstein:

And only the public places on the ship would be covered by it.

Can I just return briefly to my Ariadne point?

Because I just wanted… that’s a case where the… the NLRA was applied.

And let me just read to you what the protest was that the NLRA was applied to because it fits perfectly with this case.

And again, for the transcript, this is in the lower court opinion at 215 So.

2d 53.

This was the handbill.

Warning.

Is your cruise ship a floating death trap?

Can a substandard foreign flagged cruise ship turn your holiday into a Holocaust?

They were very illiterate.

If thousands of unsuspecting Americans continue to place their lives in jeopardy every day on cruises aboard foreign flagged floating fire traps.

And that… that was a foreign flagged ship.

They we’re concerned about the passengers.

Justice Scalia, you also gave the example of the Jones Act, but remember that the Rhoditis case and the Uravic case, which involved injuries in the United States, then the Jones Act did apply.

And that was… and Rhoditis was a case in which someone was on the ship and a chain broke and they were injured as a result of it, and U.S. law applied.

This is a situation in which millions of people in the United States are spending billions of dollars on cruises, and it seems–

John Paul Stevens:

Yes, but I… if I understand you correctly, your case really isn’t limited to cruise ships.

It’s limited to ships that come into… passenger ships, which would include the Queen Mary and Queen Elizabeth, all the rest of them.

Wouldn’t it?

Thomas C. Goldstein:

–Yes, but I… I take it that the… you know–

John Paul Stevens:

And the fact that it’s based in Miami or it had mostly American customers really is not relevant to the legal issue.

Is it?

Thomas C. Goldstein:

–It… it is in the sense that it makes this the recurring scenario that Congress would have been aware of when it enacted the ADA in–

John Paul Stevens:

But, of course, they would have been aware of those that are also less American in their patronage and so forth.

Thomas C. Goldstein:

–That’s true.

In the very rare case, which I am not aware of, in which a cruise ship comes to the United States, doesn’t pick up passengers, then it’s possible that the… that the ADA would not apply.

John Paul Stevens:

No, but we’re not necessarily thinking of a cruise ship, just the transatlantic liner that goes from Liverpool to Miami or something.

That would be covered.

Thomas C. Goldstein:

It would in… in U.S. territory.

Thomas C. Goldstein:

That’s right.

Stephen G. Breyer:

But there’s no way they can change the ship structurally when it’s in New York and not have it changed structurally when it’s in Europe.

So the mystery to me at this moment is what is the universe of ships that I would not say fit the ordinary word cruise.

What they are are ships that go between Asia and San Francisco, Los Angeles, or New York and Europe, or maybe through the Suez Canal.

They’re only here a little bit of the time.

Their passengers are mostly not American.

Now, is that something I should worry about?

If that were your case, I would be very worried.

If that’s just a little bit of… of added significance, then I want to know what to do about it.

Thomas C. Goldstein:

Let me tell you what I know, and that is that the other side has not identified any problems of this… this type.

My research has not revealed some situation where we have a lot of these ships.

I did carefully study the… the itineraries of the major cruise lines, and 95 percent plus of all of their trips go out from the United States and come back to the United States.

Ruth Bader Ginsburg:

But you told me… and I want to make sure this is your answer… that it doesn’t matter, that as long as the ship comes to a U.S. port as part of this overall journey, you… you answered that question and I thought that was your candid answer, that it doesn’t matter that these… these particular cruise ships ply mostly U.S. waters and U.S. trade and are centered, even have their principal place of business in the United States.

You’re not concentrating on that category.

You are saying that the ADA applies so long as the ship puts in at… at a U.S. port, picks up passengers.

It applies not only while it’s in the port, but practically for every other place the ship goes.

That’s why I asked isn’t this the United States rules the world on what… your argument you made.

Thomas C. Goldstein:

Justice Ginsburg, here I think is the difference, and that is, that while U.S. law may have an extraterritorial consequence, just like our maritime tort law and the like, you cannot in Europe enforce the ADA.

The fact that the structural changes–

David H. Souter:

Well, you can enforce the… the discrimination provisions, but the structural provisions don’t have to be enforced.

Once the step is changed, they’re not going to change it when they get 3 miles out.

Thomas C. Goldstein:

–That’s right.

But Justice… Justice Ginsburg’s point… I take it to be a more particular one.

It’s true that our law will have consequences abroad, but it is not the case that the U.S. rules the world.

David H. Souter:

Well, it rules the world unless the world does not want to use the United States ports as ports of call.

Thomas C. Goldstein:

Justice… Justice Souter, I… I simply disagree, and that is, when you talk about the U.S. ruling the world, in a… in the context, say, of ARAMCO, we talked about the enforceability of U.S. law abroad.

When the United States has tort standards or vehicle manufacturing standards and the like, all of those have consequences abroad for how devices are made and brought into the country.

But that doesn’t mean that… what’s going on is the plenary authority of the United States to enforce its laws in its ports and in its internal waters.

That very rule always will have extraterritorial consequences.

Antonin Scalia:

We’re not questioning the authority.

Antonin Scalia:

We’re questioning whether Congress intended that to be the case.

We have a rule that… that requires a clear statement when it has effects of this sort.

Thomas C. Goldstein:

Justice Scalia, we disagree, and let me just take you to your cases.

I did that, I think, in the Jones Act and the NLRA context.

But let’s just state the rule, and that is, from the Wildenhus’s Case and that’s at page 12.

Foreign law governs matters of discipline and all things done on board which affected only the vessel and those belonging to her and did not involve the peace or dignity of the country or the tranquility of the port.

And what we’re talking–

John Paul Stevens:

But, Mr. Goldstein, there’s another aspect that troubles me.

Your view, as I understand, only applies while the ship is in American waters so that if, for example, you complain about the training for a safety drill, if they conducted those after they’d gone out 20 miles to sea, there would be… there would be no violation of the… the statue.

Would there?

Thomas C. Goldstein:

–That is… that is a difficult question.

We have not… we have not pleaded such a claim.

John Paul Stevens:

In other words, I’m trying to understand.

You don’t know what your position is–

Thomas C. Goldstein:

No.

John Paul Stevens:

–with respect to what would otherwise be violations of the statute that occur on the high seas.

Thomas C. Goldstein:

We do believe it would be covered because the accommodation was purchased here, although we haven’t raised the claim in this Court.

If I could reserve the remainder–

John Paul Stevens:

Yes, but I think we should… the cruise ships are entitled to know whether they may freely discriminate against people in the casinos and so forth when they’re on the high seas.

Thomas C. Goldstein:

–We–

John Paul Stevens:

You don’t know the answer to that.

Thomas C. Goldstein:

–Justice Stevens, our position is that because of the definition of commerce in the ADA, when you purchase a public accommodation in the United States, that is an agreement to provide a public accommodation and it doesn’t–

John Paul Stevens:

So your view is not limited to what happens in the territorial waters.

Thomas C. Goldstein:

–That is right, although we have… we would win the case on the internal waters and the territorial waters, and we haven’t asserted in this Court a claim relating to the high seas.

If I could reserve the remainder of my time.

John Paul Stevens:

Mr. Salmons, may I ask before you begin whether the United States agrees that the statute would apply to the activities of these ships when they’re on the high seas?

David B. Salmons:

Justice Stevens, and may it please the Court:

We do not think that title III of the ADA was intended to apply extraterritorially.

That said, we think there is a question that would need to be resolved as to whether applying the ADA to a public accommodation that was entered into in the United States, that began in the United States, a necessary term of which we believe would be nondiscrimination, would in fact be an extraterritorial application of U.S. law.

Antonin Scalia:

When… when the ship is out on the high seas?

David B. Salmons:

That’s correct, Justice Scalia.

Antonin Scalia:

You think that’s a hard question–

David B. Salmons:

No.

We think the better view–

Antonin Scalia:

–whether that’s an extraterritorial application of U.S. law?

David B. Salmons:

–No.

We think the better view, in fact, Justice Scalia, is that that would not be an extraterritorial application of U.S. law.

But if the Court were to disagree, then we would say title III does not apply at that time.

Ruth Bader Ginsburg:

Do you–

Antonin Scalia:

I don’t know what extraterritorial application means if it doesn’t mean that, that a ship that is not in the United States is bound by United States law.

What… why isn’t that extraterritorial application?

David B. Salmons:

The reason, Justice Scalia, would be because the accommodation that was offered, that was entered into, and that began in the United States… and… and I would point out… I think this is important to keep in mind–

David H. Souter:

What you’re saying is it would… I thought you were saying that it would be the enforcement of the domestic contract of which the… the statutory provisions would be an implied term.

Isn’t that it?

David B. Salmons:

–Yes.

Yes, that’s correct.

David H. Souter:

It does not apply of its own force.

It applies because two parties in the United States contracted that it would apply.

Is that it?

David B. Salmons:

That’s correct.

Now… now, I… I would just add that I think it… you could characterize a public accommodation, you know, five nights lodging, for example.

If that’s entered into in the United States and… and that begins in the United States, that a necessary term of that is nondiscrimination, and–

John Paul Stevens:

Well, then if you–

David B. Salmons:

–if you have an ADA claim that governs that even if the discrimination occurred abroad, that would only relate to those things tied into the accommodation.

John Paul Stevens:

–But if you’re on a round trip ticket from Liverpool to Miami and back, it would depend on where you bought the ticket.

David B. Salmons:

Well, again, we… we think that if accommodation begins here in the United States, that… that a necessary term of that is nondiscrimination.

Now, whether you characterize that as a contract claim or as a substantive application of the ADA, I’m not sure there’s much of a difference.

David H. Souter:

Yes, but Justice Stevens’ question is you buy the ticket in Liverpool.

Is the ADA… an… an American buys the ticket in Liverpool to come to the United States.

David B. Salmons:

To come to the United States.

David H. Souter:

Is the ADA an applied term of that contract?

David B. Salmons:

I would… I would assume not, although the question then would be whether or not it’s a public accommodation that’s been offered in the United States.

Antonin Scalia:

Don’t… don’t all–

Anthony M. Kennedy:

Even in U.S. waters?

That wouldn’t make sense.

An American buys a ticket in… in Liverpool.

He’s disabled.

He goes to New York, Miami, New Orleans, and he’s discriminated at… at each step.

No… no coverage just because of where he bought the ticket?

David B. Salmons:

No, no, Justice Kennedy, that’s not our position.

Let me… let me try and be clear.

We think that any vessel that comes into the internal waters and ports of the United States and offers a public accommodation or a specified public transportation service to our residents is subject to the ADA.

Ruth Bader Ginsburg:

–Do you–

Stephen G. Breyer:

Well, that means–

David B. Salmons:

If… if you had a situation… I’m sorry.

Stephen G. Breyer:

–No, go ahead.

David B. Salmons:

If you had a situation where you had a ship that… let’s say, that began in… in Great Britain and came here, it didn’t pick up passengers here in the United States, I think that the better view would be, sure, United States law could apply to it because it’s in our internal waters, but that as a substantive matter, with regard to the ADA, I don’t know why that would be a public accommodation within the meaning of the ADA because it’s not an accommodation that’s offered–

Ruth Bader Ginsburg:

–But do you–

David B. Salmons:

–or available to United States residents.

Ruth Bader Ginsburg:

–Do you agree with Mr. Goldstein that nothing turns on… one might characterize this kind of cruise as U.S. centered, but his answer was as long as they put in, a regular cruise stop, they pick up, unload passengers, they take them back again on the ship, so long as they touch base at a U.S. port, letting off and picking up passengers, the ADA applies?

Do you agree with that interpretation?

David B. Salmons:

As I understand what Your Honor just said, I think that I would.

Let me just clarify, though.

We think the relevant question is whether that ship would… has offered a public accommodation or a specified public transportation service–

Ruth Bader Ginsburg:

This is my–

David B. Salmons:

–in the United States, and if the answer is yes–

Ruth Bader Ginsburg:

–Let… let me ask you the same question that I asked Mr. Goldstein.

Even in the Cunard case, the prohibition case, they couldn’t have liquor in the U.S. port, but when they leave and they go to Jamaica, they could pick up rum there.

They could have liquor all the rest of the time so long as, when they enter and leave the U.S. port, they didn’t have the liquor aboard.

Here what you’re saying is what goes in the… for the New York port goes for every other place where this ship puts in.

David B. Salmons:

–Well, again, I… not as a matter of… not as a matter of extraterritorial application of U.S. law, but that is our position with regard to a public accommodation that begins in the United States.

I… I think the… the important–

Ruth Bader Ginsburg:

Suppose it doesn’t begin in the United States in that it… it starts in, say, The Bahamas, and stops at–

David B. Salmons:

–I should probably should not have said begin, Your Honor.

What I mean is if it… if the public accommodation is provided for in the United States, that would be covered by the terms of the ADA, we think the ADA applies.

Stephen G. Breyer:

Then you’re saying exactly what everybody is worried about.

I take it there is no way really for a ship to… they either have the right door or they don’t have the right door.

And we’re interested in the set of cases in which they’re going to have to change their doors.

And what I came in here thinking was we’re talking about ships that pick up people and sail in Florida and sail around the Caribbean.

That’s the… now, I’ve heard nothing but we’re not talking just about those.

We are talking about ships like I’m the last human being alive that went on a Swiss ship to Europe.

Okay?

[Laughter]

50 years ago.

And… and we’re talking about those ships, or we’re talking about merchant ships that also say to the public, come as a passenger.

Now, I would like to… not what you’re arguing.

You’re going to say, yes, we are arguing it.

I want to know… say something to relieve my concern about that set, which was Justice Ginsburg’s concern.

We are trying to rule the world in respect to those ships that only come here occasionally or it isn’t a big part of their business, but they want to come to pick up American passengers.

David B. Salmons:

Sure.

And what I would say with regard to that is that you’re right that our broad view is that the ADA applies if that… if they’re offering public accommodation here in the United States.

But if you reject that, I think there are several ways you could approach that.

One would be to apply traditional choice of law factors that are… that are applicable in maritime, and you could conclude, you know, based on sort of whether or not there are sufficient contacts here and whether or not–

Anthony M. Kennedy:

Well, you’re saying that this is your position, but don’t worry about it because we’ll reject your position?

David B. Salmons:

–No, no.

He asked me to say something that… that would… would help his concerns.

What I’m trying to say–

Stephen G. Breyer:

One thing might be true, what you’re not saying, is there really aren’t very many of those ships, or another thing you might say, which you’re not saying because maybe isn’t true, is almost all of those ships that there are are already subject to tougher… tougher rules, say, in Europe.

But you don’t say either of those.

David B. Salmons:

–No.

David B. Salmons:

No–

Stephen G. Breyer:

Since you don’t you say either of those, I think neither may be true.

David B. Salmons:

–Well, I don’t know the specific number.

I would think that there are not many that the… that this… what you’re concerned with primarily here are cruise ships that are in the business of providing public accommodations.

But I would add as well… and I think this is very important that the Court keep in mind… that the clear statement rule, as it’s… as it’s posited by respondent here, would not just apply to the ADA.

It would apply to all U.S. laws, and that would include title II of the Civil Rights Act of 1964 in its prohibition of racial discrimination, and I would find that that would be a remarkable construction.

Antonin Scalia:

–It depends on what… what kind of laws you’re talking about.

Laws that require the crew to be treated differently are… are quite different from law… laws that… that require a passenger to be treated a certain way in the United States.

David B. Salmons:

Justice Scalia, you’re correct, and that’s precisely why they have–

Antonin Scalia:

And laws… laws that require structural alteration of a ship are quite different from laws that say while you’re in United States waters, you won’t discriminate on the basis of race.

David B. Salmons:

–If… two… two responses, if I may, Your Honor.

And that is, if you… if that is the conclusion you reach, then you still need to remand this case because there are an awful number of claims that are precisely those kinds of claims that the Fifth Circuit would not allow.

Secondly, I think you’re wrong with regard to the scope of the clear statement requirement.

There is no requirement that you have to have a clear statement to apply a U.S. law to a foreign vessel.

There is only a requirement that you need a clear statement if the conduct at issue would relate only to the internal matters of that vessel.

And here you’re dealing with public accommodation–

Antonin Scalia:

If we haven’t expressed it yet, we ought to express it then.

David B. Salmons:

–Well, I disagree, Your Honor.

And what I would point you to is… is that the long… every time this Court has spoken with regard to the clear statement requirement relating to foreign flagged ships, it has referred to the internal order doctrine.

And that is embodied in a number of bilateral agreements that go back for centuries.

The… the treaty that was at issue in the Wildenhus’s Case expressly said that if the… if the conduct did not relate to members of the crew but to passengers or other members of the port state or otherwise affected the interests of the port state, that the port state law would apply.

And that is the general rule.

The international regime that governs this area by its terms provide minimum standards and leaves it available to port states and to flag states to add additional requirements.

That would mean–

David H. Souter:

Mr. Salmons, one of the alternatives you threw out, not as a response to clear statement, but as a… a response to the issue that was being raised by it, was the provision of the statute that it was intended to exercise the… the fullest extent of the… of the commerce power.

And The… The Bahamas respond to that by saying you could have said exactly… or argued exactly the same thing in McCulloch.

What is your response to that?

David B. Salmons:

–Well, I… I would disagree with that on… on a couple of respects.

The first is that the definition of commerce here is broader than it was and specifically refers to travel between the United States and foreign countries.

The only other statute we’re aware of that says that is title II of the Civil Rights Act of 1964.

David B. Salmons:

In addition–

David H. Souter:

Well, may I just ask you a… a factual question?

I didn’t go back to the text to check this.

Does the text of this statute say in these words basically we are exercising the fullest possible extent of the commerce power?

David B. Salmons:

–Absolutely, Justice Souter.

What… what the text of the statute says–

David H. Souter:

And it’s not in McCulloch.

David B. Salmons:

–That’s correct.

What the text of this statute says is that… in fact, this is the definition of commerce that relates only to title III of ADA.

And it says precisely that it includes travel between foreign countries and the United States and that Congress was intending to… to reach the full sweep of its… its constitutional authority.

John Paul Stevens:

Thank you, Mr. Salmons.

Mr. Frederick.

David C. Frederick:

Thank you, Justice Stevens, and may it please the Court:

This case is about congressional intent not congressional power.

Congress undoubtedly has the power–

Sandra Day O’Connor:

Could you address the last point?

David C. Frederick:

–Yes.

It was not the fullest extent of the commerce power.

That statute was at issue in this Court’s case concerning the Lanham Act where the Court said that a violation of the Lanham Act that occurred in Mexico but had an effect in the United States was intended to be covered by Congress because that commerce clause, Justice Souter, did state to the fullest extent of Congress’ power under the Commerce Clause of the Constitution.

This statute does not say that.

This statute talks about commerce in and between States and territories, and it is much closer to the statute language that this Court addressed in the ARAMCO case where–

David H. Souter:

So it… it doesn’t have the fullest extent language then.

David C. Frederick:

–That’s correct.

That’s correct.

Ruth Bader Ginsburg:

How does it compare to title II of the Civil Rights Act of 1964?

David C. Frederick:

Well, there are slight differences in the language, but I don’t think that’s dispositive because title VII of the Civil Rights Act, which this Court addressed in the ARAMCO case, the Court… the Chief Justice’s opinion there said that that language was not enough to express the intent.

Ruth Bader Ginsburg:

So that would be the same for title II, which is the public accommodations part of the Civil Rights Act of 1964.

So I take it that you are saying that on these foreign flagged vessels, just as the ADA would be inapplicable, so title II, the public accommodations part of the Civil Rights Act of 1964, would be inapplicable.

David C. Frederick:

It’s all a question of congressional intent, Justice Ginsburg, and there’s no indication of an intent that Congress needed to address any problem that arose with respect to that form of discrimination.

Ruth Bader Ginsburg:

So your… but your answer is, there being no such indication, that a ship putting in at a U.S. port was free to discriminate among its passengers on the basis of race.

David C. Frederick:

Well, there would be no U.S. congressional statute that would address that, Justice Ginsburg.

There would be a violation of the Bahamian constitution which prohibits–

Ruth Bader Ginsburg:

I’m asking about the U.S. law and policy which says no segregation, no discrimination in places of public accommodation.

David C. Frederick:

–As I said, I’m not aware that there has ever been an instance of that in the cruise industry.

Congress has not addressed that.

We’re talking about foreign ships here.

And I want to get back to the structural features of the ship because the ADA fundamentally–

Sandra Day O’Connor:

Well, but this is a good question, and what is your position?

That the ship could engage in racial discrimination while in U.S. ports on the selling of tickets and the provision of accommodations while in U.S. ports and within the 3–

David C. Frederick:

–Justice O’Connor, our position is that Congress has not spoken to the question, and so there is no congressional statute that is on point.

David H. Souter:

Then your answer, I take it, is yes, it can discriminate and it can discriminate because Congress has not told it not to.

Is that it?

David C. Frederick:

No.

Our position is that it can’t discriminate because a different law proscribes that–

David H. Souter:

So far as United States law is concerned, it could.

David C. Frederick:

–Yes.

Ruth Bader Ginsburg:

And the same answer for 1981?

David C. Frederick:

Justice Ginsburg, as I said, Congress has not extended its laws to the full reach of U.S. territorial power, and this Court has maintained that position ever since the Charming Betsy case 200 years ago, The Schooner Exchange case, and Brown v. Duchesne.

Anthony M. Kennedy:

Well, let’s put it this way.

So my understanding of your answer is that we could write an opinion ruling for you but leaving these other questions open?

I don’t see how we can do that.

David C. Frederick:

What you say, Justice Kennedy, is that the clear statement canon requires Congress to say when it intends to apply a law to a foreign vessel.

Congress didn’t do that.

Anthony M. Kennedy:

But if I’m writing the opinion and I put that down and rule for you, it seems to me that I then answered necessarily Justice Ginsburg’s question in the negative.

David C. Frederick:

You do, Justice Kennedy.

And just as this Court in the ARAMCO case said that title VII doesn’t apply to the foreign… work in a foreign land by an American company of an American–

Anthony M. Kennedy:

But these–

David C. Frederick:

–Justice Kennedy, Congress hasn’t extended criminal laws of the United States to the full reach of U.S. power.

It is only proscribed 15 offenses that will apply in the special maritime jurisdiction.

Ruth Bader Ginsburg:

Mr. Frederick, this is… this is what concerns me about your answer.

Ruth Bader Ginsburg:

I know that Mr. Goldstein took the position that it doesn’t matter what kind of operation this is, but the operation that we’re dealing with, it sells tickets mainly to… what percentage of its passengers are from the U.S.A.?

David C. Frederick:

Approximately two thirds to three quarters in any given year.

Ruth Bader Ginsburg:

And does it normally start the voyage and end it in U.S. ports?

David C. Frederick:

The majority of them do.

Ruth Bader Ginsburg:

And how much of its advertising budget is pitched at U.S. customers?

David C. Frederick:

Justice Ginsburg, there… all of those questions are going to be answered as a predominant marketing effort, et cetera is directed to the U.S. market.

Ruth Bader Ginsburg:

Well, this is the anomaly.

You’re asking us to buy an interpretation.

An enterprise is U.S. centered in terms of where it gets its business and that enterprise, nonetheless, is not bound by what is our bedrock anti discrimination law both with regard to customers, passengers, and employment.

David C. Frederick:

And the reason, Justice Ginsburg, is that that law imposes structural changes on vessels that go to other ports.

Antonin Scalia:

Why don’t you… why don’t you try to draw that line?

Why don’t you say that just as the applicability or not may depend upon whether you’re dealing with a crew of a foreign ship or whether you’re dealing with an American who happens to be injured on board that ship, so also it may depend upon whether the antidiscrimination law in question is one that at least in some of its applications requires structural changes or not?

That would enable you to say the ADA doesn’t apply, but would not compel you to say that title II doesn’t apply.

David C. Frederick:

We are talking–

Antonin Scalia:

You’re not willing to take such a limited position.

David C. Frederick:

–Well, Justice Scalia, I think the Court could certainly carve out in its clear… articulation of the clear statement principle some of these lines.

It becomes very–

Sandra Day O’Connor:

–Well, the ADA itself makes an exception for things that aren’t readily achievable.

I mean, you could certainly lean on that because a structural change probably isn’t readily achievable.

David C. Frederick:

–Justice O’Connor, Congress, when it talked about readily achievable, did so in terms of cost.

It didn’t do so in terms of conflict with the laws of other nations or–

Stephen G. Breyer:

Well, is there… is there… I mean, you’re giving me the answer I thought the other side would give me.

All right?

And I appreciate it actually.

[Laughter]

You say that two thirds of these people, the customers, are American.

So we’re dealing with a business that is primarily American, not a business like the Swiss ship except in exceptional cases.

Then you say, all right, still it’s a problem because of structural changes we’ll have to make.

What changes?

That is to say, I would have thought I could have read, but I haven’t, that other countries like Europe also have discrimination laws against disabled people, and therefore, given that fact and given the document that Mr. Goldstein produced, it is highly unlikely that your clients will have to make any significant structural change that they wouldn’t have had to make anyway.

David C. Frederick:

–That’s–

Stephen G. Breyer:

Now, what’s the response to that?

David C. Frederick:

–Well, that’s completely false.

In… in the year 2000, the United States Government issued a report that contained an extensive appendix, which we’ve cited in our brief, that details in laborious detail the conflicts between land based ADA standards and SOLAS.

Now, I can give you some specifics, if you would… that are fairly practical, such as the ADA requires under the interpretation advanced by the petitioners that there be a disabled access cabin on every level of the ship, but SOLAS requires that passengers with disabilities be placed near evacuation points.

Anthony M. Kennedy:

–Why… why can’t you just fight that battle by battle on what’s reasonably achievable?

Because in order to avoid that problem, what you’re telling us is that a cruise line can charge a… a disabled person double the price–

David C. Frederick:

As a matter of fact–

Anthony M. Kennedy:

–because they’re a nuisance.

And that’s your position.

David C. Frederick:

–Justice Kennedy, as a matter of fact, we categorically deny the claims of discrimination here.

We’re having to fight this on the basis of assuming the… the allegations are true, but they are categorically false.

And–

Ruth Bader Ginsburg:

But it doesn’t matter what you want to do as a matter of good will.

The question is what the law requires you to do, and you’re saying it’s up to us, we govern.

You’re not governed by U.S. antidiscrimination law.

David C. Frederick:

–Justice Ginsburg, what the other side wants is a case by case method of decision making in which a district judge becomes the special master of the cruise industry so that each claim of discrimination that would require some modification to the ship–

Anthony M. Kennedy:

That happens to every employer under… in the United States under the reasonably achievable standard.

David C. Frederick:

–And that’s why, Justice Kennedy, it’s a question of congressional intent.

The very same Congress debated extensively about whether to impose design requirements on foreign ships in the Oil Pollution Act of 1990, and it decided to buck the international system knowingly by imposing a design requirement that double hulls be imposed on oil tankers, foreign oil tankers.

John Paul Stevens:

Mr. Frederick, that brings up a question I’ve been meaning to ask you.

To what extent was this whole problem of the application of this statute to the foreign vessels discussed in the legislative history of these statutes?

David C. Frederick:

Zero.

There is not one word about vessel–

Stephen G. Breyer:

All right.

If… if that’s so and if you look at the earlier cases… but all I could get out it is that those earlier cases… the Court tries to do what it really would have thought Congress would have intended in the circumstances.

And if that’s so, why wouldn’t Congress really have intended that a business that’s two thirds American has to abide by American law?

David C. Frederick:

–Because it was encroaching on an area of foreign sovereignty.

Foreign ships are governed by foreign laws.

Stephen G. Breyer:

Does… does Britain… or does Britain or does the European Union, for example, forbid you to charge this double price?

David C. Frederick:

I don’t–

Stephen G. Breyer:

Does European law… I’d be surprised if it doesn’t forbid it, but do you know?

David C. Frederick:

–I… I don’t know the answer to European law on charging of an additional price, but I would point out that pricing, like evacuation procedures, do go to the structure of the vessel.

And we’re talking here fundamentally in the ADA about structural changes that they want to impose that go… when ships travel, they can’t dismantle those structural changes when they leave U.S. waters.

John Paul Stevens:

Mr…. may I ask this question to you?

What about a… an American-flagged ship?

Does the statute apply or not?

David C. Frederick:

Well, the Fifth Circuit reserved that question.

John Paul Stevens:

What is your view?

David C. Frederick:

Our view is that there are arguments that can be made that it does not because Congress didn’t–

John Paul Stevens:

Not what arguments can be made.

What is your view?

David C. Frederick:

–Well, I think–

[Laughter]

No.

I think our view is that it doesn’t.

John Paul Stevens:

It does not apply.

David C. Frederick:

It does not apply because Congress didn’t express the intent.

John Paul Stevens:

So really, we’re not concerned with the fact this is a foreign flagged ship.

You’re concerned with the fact it’s a ship.

David C. Frederick:

The… there’s a difference and… and there are about 1,000 U.S. flagged ships that carry passengers, so that if Congress had given any thought to the question, it is reasonable to suppose it might have distinguished between U.S. ships for which U.S. law directly governs and foreign ships that are governed by a different law.

The fact–

Antonin Scalia:

Do we need… do we need a clear statement for United States ships?

I thought your case rested on a clear statement requirement.

Is there any clear statement requirement for U.S. ships?

David C. Frederick:

–No, no, Justice Scalia.

Antonin Scalia:

So why… why isn’t there a clear difference between the two?

David C. Frederick:

Because there aren’t any words in the statute that go to ships.

The best they can do is a catchall phrase at the end of bus, rail, and any other means of conveyance.

Antonin Scalia:

Well, that’s pretty good.

David C. Frederick:

Well, it’s not–

[Laughter]

Antonin Scalia:

If you don’t require a clear statement, that’s… that’s good enough, it seems to me.

David C. Frederick:

Well–

Antonin Scalia:

Your… your case hangs on the fact that, you know, when Congress wants to… to rule the world and say all ships in the… in the world that touch at our ports have to have this kind of a thing, it says so clearly.

It doesn’t have to say so with perfect clarity with respect to American ships.

David C. Frederick:

–With respect to foreign ships, there is a clear statement rule and that clear statement rule is embodied in the fact that a foreign ship is governed by the law of the flag state where it is registered.

That’s been the rule for 200 years.

And the other side’s position–

Sandra Day O’Connor:

Well, is that limited, though, just to things that affect the internal order of the ship?

Is that the context in which we’ve articulated that rule?

David C. Frederick:

–Well, it’s been articulated in several different contexts.

In the Brown v. Duchesne case, the Court 150 years ago articulated in a patent case where the Court said that a patented device on the ship, which was the French ship in Boston Harbor infringing an American patentholder, would not apply U.S. patent law.

And the Court said, because we can’t conceive that Congress would have imagined this general language to encroach on the sovereignty of a foreign ship.

Now, the other side has exactly two sentences to say about that case, but that is the case that is directly on point because that case says that when you are dealing with American laws that are generally written, you would not ordinarily apply them to a foreign ship unless Congress said so specifically.

David H. Souter:

But… but in that case, there was… as I understand it, there was no legal relationship of any sort between the supplier of the patent infringing object and the ship in the United States.

So it at least made sense to classify that with internal order as opposed to external relationships arguably involving… or implicating American law.

You’ve got exactly the opposite situation here.

You’ve got contracts made in the United States with the foreign cruise line.

You didn’t have that in your patent case.

David C. Frederick:

Well, Justice Souter, you have a foreign ship owned by a foreign corporation built in a foreign country under foreign engineering standards–

Ruth Bader Ginsburg:

With its principal place of business in the United States.

David C. Frederick:

–For a time before that ship moves into another market.

David H. Souter:

Its significant external… its significant commercial relationships are in the United States with people in the United States performed partially in the United States.

David C. Frederick:

In just the same way that McCulloch the Court said that labor standards for a course of business that is regular between Honduras and the United States is not going to be sufficient to apply–

Ruth Bader Ginsburg:

The crew members were Honduran in that case.

David C. Frederick:

–They were.

Ruth Bader Ginsburg:

This… if you just look at it, suppose you were not a lawyer and you look at this operation.

You’d say that’s got U.S.A. written all over it.

The passengers are from the U.S.A..

Ruth Bader Ginsburg:

The company is centered in Florida.

And then you have this flag of convenience that it flies which can legitimately govern the relationship with its crew.

But to say that it governs the relationship with passengers, it seems to me very strange.

And also the ticket says, passenger, if you’re going to sue us, it’s got to be in the United States and under U.S. law to boot.

David C. Frederick:

But a choice of law clause, Justice Ginsburg, has never been held to incorporate law in the sense that laws that don’t apply are going to be incorporated.

I’m not aware of any choice of law clause that… that simply takes in every domestic statute.

Ruth Bader Ginsburg:

Just… it’s just one other indicia that one looks at this operation and says this belongs to the U.S.A..

A practical judgment, I think, would come down there.

David C. Frederick:

And… and you would have… under their theory, you would have the Consumer Products Safety Act, the Food and Drug Act, OSHA, all sorts of other statutes of general application that are now going to be imposed on foreign vessels simply because they do a lot of business in the United States.

The problem here, as a matter of congressional intent, is we don’t know what Congress thought about this, and because Congress–

Anthony M. Kennedy:

Well, we… we do… we do have the rule if it… if it applies to the internal operations of the ship, and so far as the crew is concerned, the Jones Act and OSHA, it seems to me, may well be governed by the law of the flag.

David C. Frederick:

–And the internal operations of the ship, Justice Kennedy, is part and parcel of how it is designed, what are the evacuation points, how are the cabins laid out, what ramps are placed where, how… everything about the ship’s design–

Anthony M. Kennedy:

That’s a part of the case I’m not sure about, and it seems to me, again, it can be fought out under the reasonably achievable–

David C. Frederick:

–It doesn’t… Justice Kennedy, the problem with that theory is it just doesn’t comport with the language of… of the statute.

Congress didn’t think in terms of… as it did in the Oil Pollution Act, it said, if there’s a conflict with international law, work it out.

Get the Coast Guard with the foreign nations and work out the conflict.

It didn’t put anything like that in this statute, which is a further indication that if Congress wants to extend this kind of disability protection, it can do that, but it ought to do so willingly.

And the Government has had 13 years to come up with rules that would govern cruise ships, and the best they’ve done, a few days before the top side briefs in this case were filed, is to issue proposed draft guidelines for ferries, not cruise ships.

Most of the regulations that they are pointing to wouldn’t have an application to a large passenger cruise ship.

If Congress wants to change this, it certainly has the power, but this Court need not open up a Pandora’s box of domestic legislation to apply to foreign ships where Congress has not expressed the intent to do that.

David H. Souter:

Could you go back to Justice Breyer’s question about the number of foreign ships?

Once we get beyond cruise lines, does it… would… would the… the application on your view cover the… the dozen passengers who decide they want to take a trip on a… on a cargo boat?

David C. Frederick:

Yes.

I don’t perceive a limiting principle to the other side’s position.

In fact, there’s an amicus brief written where there’s only one or two stops in the United States a year, and under their view, that ship would be governed by the ADA as well.

If… if Congress wants to enact these limits, it’s certainly free to do so, but this is a highly complex area and ships are different from land based accommodations because you have to be able to evacuate people within 30 minutes.

And so when we train people, we have–

John Paul Stevens:

But doesn’t it… on the other… on the other side of the coin, apart from the structural problem… and I understand the arguments on both sides there.

With respect to things like safety drills and access to gambling tables and all that, it seems to me that your answer to that would be, well, we’ll just do that once we’re on the high seas so there’s no conflict with the statute when we’re out there.

David C. Frederick:

–As a matter of fact, Justice Stevens, we give evacuation drills to the disabled in a different way.

David C. Frederick:

We have special access and assistance squads that go to persons with physical challenges to get them off the vessel in an event of a… a need for evacuation.

That’s a different procedure than most passengers, but it’s… it is one that is in place.

John Paul Stevens:

Thank you, Mr. Frederick.

Mr. Garre.

Gregory G. Garre:

Thank you, Justice Stevens, and may it please the Court:

Applying title III of the Americans With Disabilities Act to foreign flagged vessels would invite precisely the sort of international discord, conflict, and confusion that Congress presumably seeks to avoid when it writes American laws.

Ruth Bader Ginsburg:

Do you agree with Mr. Frederick’s answer about title II of the Civil Rights Act of 1964?

I mean, a lot of countries don’t prohibit discrimination.

Gregory G. Garre:

Justice Ginsburg, first let me make clear that the Bahamian Government does and all of its cruise vessels are governed by that prohibition.

Ruth Bader Ginsburg:

I’m asking about the application of U.S. law.

Gregory G. Garre:

We think that that question can be resolved along the lines that Justice Scalia suggested, which is that when you’re dealing with a matter that goes to the internal affairs of the ship… and there… we would suggest that there is more central to the internal affairs of the ship than its construction and design.

Under international law, article 94 of the Law of… Law of the Sea Convention, which the Bahamian Government has ratified… and by the way, the United States has not, and that’s an important principle for this Court to keep in mind… foreign flagged states may be bound by different international treaties than the United States.

Simply trying to draw some conflict resolution device that would deal with treaties that the United States has entered into, international nations have not will not address that problem.

Ruth Bader Ginsburg:

So before you go on to that, I want to be clear on your answer to title II of the Civil Rights Act of ’64.

There’s… you say, well, that’s easier to comply with.

But that’s not the principle under which you’re operating.

Gregory G. Garre:

No.

With respect, Justice Ginsburg, our principle is that when it comes to the matters that under international law have been traditionally governed by the flag state, then when Congress writes its laws, we presume that unless Congress clearly indicates an affirmative intention to address those matters, it did not intend to.

When Congress wrote the ADA, not a word of the statute indicates that it considered the international repercussions of applying that law to foreign flagged vessels.

Not a word–

David H. Souter:

What about the… what about the full sweep argument?

Let’s sort of come full circle on that.

You… you say the full sweep argument is no good because the same thing could have been made in McCulloch.

The response was there is–

Antonin Scalia:

What’s… what’s the full sweep argument?

I don’t–

David H. Souter:

–Full sweep of the commerce power.

Gregory G. Garre:

–Justice Souter, first of all, it’s… it… the statute doesn’t say full sweep.

It says sweep, and that’s in the findings of the ADA.

It’s reprinted on page 32 of petitioners’ brief.

Gregory G. Garre:

And second of all, the definition of Congress, which doesn’t contain that sweep language, is almost identical to the definition of commerce in McCulloch, which is on page 15, note 3 of that decision, and that definition, the United States argued in the McCulloch case, was not sufficient to extend U.S. labor laws to foreign flagged vessels.

It’s important to understand the… the potential international conflicts that extending the ADA to foreign flagged vessels could create.

There are more than 40 nations that have adopted anti discrimination laws for the disabled.

Three nations have… have adopted laws for domestic vessels: Britain, Canada, and Australia.

If a country like the United States extended its laws to foreign vessels that entered its ports, then other nations may well follow suit.

And if you take a simple hypothetical example, the Queen Mary II traveling from South Hampton to New York, if you look at the guidelines that Britain has adopted for domestic vessels, those guidelines contain different structural and design requirements than the draft guidelines that the United States have promulgated.

There are different requirements for door widths.

There are different requirements for sloping.

There’s different requirements for the watertight compartments.

There are different requirements about whether vessels have to be… have accessible cabins all throughout the ship.

Antonin Scalia:

–When you say different, you mean you cannot comply with both.

Gregory G. Garre:

Well–

Antonin Scalia:

Is that what you mean?

Or… or are those just minimums and… and the United States would… would comply with those minimums?

Gregory G. Garre:

–Justice Scalia, I think in some you could and in others you couldn’t.

And… and that’s an important… important point.

Anthony M. Kennedy:

And incidentally just for the… are… this ship has… these are regulations that help the disabled?

Gregory G. Garre:

Yes, Your… yes, Your Honor.

And… and in many cases, it’s not going to be clear which regulation is going to be more accommodating to the disabled and which is not.

Stephen G. Breyer:

Could they work that out?

That is, if two thirds of our universe really is American-based, in terms of customers, and we’re now only talking about conflicts in… real conflicts that… that affect, say, one third of the universe, that’s also true in areas like antitrust or others where the enforcement authorities get together and they try to write memoranda that… that work this out in a reasonable way.

Could… could the same thing happen here if such real conflicts did emerge?

Gregory G. Garre:

We don’t think so, Justice Breyer.

Stephen G. Breyer:

Because?

Gregory G. Garre:

We would take the same approach that this Court emphasized in… in the McCulloch case, which is that kind of ad hoc balancing analysis would wreak havoc for the question whether a significant regulation like the ADA would apply to a vessel.

How would foreign vessels know, when they enter U.S. ports, whether they have to undertake the extraordinary changes–

Stephen G. Breyer:

The answer would be yes, you do.

You do have to, and then if there’s some other authority that wants to get involved in this, the two authorities would work it out.

Gregory G. Garre:

–Justice Breyer, the way that those issues are worked out in the international shipping context is through the International Maritime Organization.

This organization has been responsible for crafting scores of conventions, hundreds of shipping codes, and it’s already begun to address the issue of accessibility on ships for the disabled and the elderly.

Gregory G. Garre:

We cite the 1996 guidelines in our brief.

Those guidelines right now are… are not binding guidelines, but they could well become binding guidelines.

And when an organization like the IMO addresses this question, it resolves–

Stephen G. Breyer:

That’s perfect because then the Government says that once it becomes a matter of binding international rule, anything that conflicts with that will be viewed as not reasonably achievable.

So all you have to do is that and then there’s no longer a problem with American law, according to them.

Gregory G. Garre:

–Well, we don’t think the readily achievable language in the first case in any way contemplates conflicts with international law.

This Court has a separate canon that’s almost as old as the country that it presumes Congress doesn’t intend to interfere with international obligations or international laws, including customary international law, as you wrote for the Court last term in… in the Empagran case.

We presume that American legislatures give respect to the interests of sovereign nations when they write their laws, and we don’t assume that Congress intends to intrude on the sovereign interests of other nations.

And that’s what extending the ADA to foreign flagged ships would do.

The Bahamian Government has a solemn responsibility under international law and under its own law to govern the construction and design of all flags of all ships that fly… fly its flags.

Article 10 of the Geneva Convention on the High Seas recognizes that flag states have responsibility for the construction and design of ships.

Article 94 of the Law of the Sea Conventions specifies that flag states have responsibility over administrative, technical, and labor matters, including construction and design matters.

These are precisely the sorts of matters that for centuries the flag state has been responsible for.

And in the Brown v. Duchesne case, this Court recognized that, a case that dealt with the application of patent laws to the construction and design of a foreign flagged vessels.

There are going to be conflicts within… between international law and the requirements of the ADA, but first of all, there’s going to be confusion.

It’s been more than a decade since the ADA was passed, and we don’t even have final regulations as to what rules apply.

And in the meantime, foreign flagged vessels are going to have to be reviewing the case law in the United States courts, determining on a vessel by vessel, design specification by design specification as to what standards apply.

That’s only going to create additional international discord and confusion.

Petitioners proposed solution to this problem we think is telling.

They urge this Court in their reply brief if there is a problem after the ADA is extended to foreign flagged ships and other nations begin to follow suit and you have a crazy made… maze of different regulations applying to construction and design, then at that point, the United States can go to the IMO and ask it to clean up the mess.

With respect, we think they have it backwards.

The purpose of the IMO and the international framework that exists for governing regulation of shipping is to establish a uniform set of rules in the first instance.

The IMO has already begun to address the problem at issue in this case, accessibility for the disabled.

They are available to address that in a multilateral fashion.

And Congress, in enacting the ADA, gave no indication that it weighed any of the international repercussions of the action that petitioners urges the case… petitioners urge the Court to take in this case.

And we would urge this Court to return this matter to Congress.

Congress is in the position to weigh the risk of international confusion, to weigh the potential for international discord and to address those matters as it sees… sees fit.

If there are no further questions.

John Paul Stevens:

Thank you, Mr. Garre.

Mr. Goldstein, you have about 40 seconds.

Thomas C. Goldstein:

Justice Breyer and Justice Ginsburg, our position is the one that can accommodate your concerns.

Theirs cannot.

Just like in Empagran, where this Court built in comity considerations, relying on cases like Lauritzen that involved foreign flagged ships, it said, look, even if the text of the Sherman Act or the FTAIA could literally reach it, in these cases that we don’t think Congress could have conceived of, we’re not going to apply the statute.

But here, we have a situation in which this company has 95 percent of its cruises going in and out from the United States.

Millions of people, and billions of dollars in commerce are affected by this statute and Americans that Congress had to have in mind.

John Paul Stevens:

Thank you, Mr. Goldstein.

The case is submitted.