Cruising in American Waters: Spector, Maritime Conflicts, and Choice of Law
35 Pages Posted: 19 May 2006
This Article discusses the extent to which the Americans with Disabilities Act (ADA) and similar statutes apply to foreign-flag ships that carry passengers to and from United States ports and have other U.S. contacts, at least while the ships are within U.S. waters.
The answer to this question - which a divided Supreme Court answered equivocally in Spector v. Norwegian Cruise Line Ltd., 125 S.Ct. 2169 (2005) - depends in part on whether the statute's application implicates the ship's internal affairs and on the presence of a clear statement evidencing congressional intent regarding such application.
This Article contends that:
(1) Cases like Spector should not be subject to the clear statement canon because: (a) they do not really involve the ship's internal affairs properly defined; and (b) they do implicate significant U.S. interests, a factor that normally triggers an established exception to the internal affairs doctrine;
(2) If cases like Spector are subject to the clear statement canon, the canon should be downgraded to a presumption of non-applicability, which can be rebutted by showing either actual or constructive congressional intent to that end;
(3) Under this test, one could reasonably infer that Congress intended the ADA to apply to foreign ships like the one involved in Spector because the application of the ADA: (a) would serve the purpose for which Congress enacted it; and (b) would not unduly interfere with the ship's internal affairs properly defined; and
(4) Spector does not materially differ from cases involving the applicability of the Jones Act or general maritime law to disputes with foreign elements. Under the choice-of-law approach followed in those cases, Spector would easily fall within the reach of U.S. law. The dichotomy between these two categories of cases is no longer necessary or defensible. A new, unified choice-of-law approach for both categories would be highly preferable. This Article outlines such an approach.
Keywords: Admiralty, Maritime law, Choice of law, Conflict of laws, Extraterritoriality, Americans with Disabilities Act, ADA, Disabilities law, Jurisdiction, Prescriptive jurisdiction, Law of the sea, International law
Suggested Citation: Suggested Citation