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Judgment
Justice Kennedy
(announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II—A—1, and II—B—2, an opinion with respect to Parts II—A—2, II—B—1, II—B—3, and III—B, in which Justice Stevens and Justice Souter join, and an opinion with respect to Part III—A, in which Justice Stevens, Justice Souter, and Justice Thomas join.)
This case presents the question whether Title III of the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 353, 42 U.S.C. § 12181 et seq., applies to foreign-flag cruise ships in United States waters. The Court of Appeals for the Fifth Circuit held Title III did not apply because of a presumption, which it sought to derive from this Court’s case law, that, absent a clear indication of congressional intent, general statutes do not apply to foreign-flag ships. 356 F.3d 641, 644—646 (2004). The Court of Appeals for the Eleventh Circuit, on the other hand, has held that the ADA does apply to foreign-flag cruise ships in United States waters. See Stevens v Premier Cruises, Inc., 215 F.3d 1237 (2000). We granted certiorari to resolve the conflict. 542 U.S. ___ (2004).
Our cases hold that a clear statement of congressional intent is necessary before a general statutory requirement can interfere with matters that concern a foreign-flag vessel’s internal affairs and operations, as contrasted with statutory requirements that concern the security and well-being of United States citizens or territory. While the clear statement rule could limit Title III’s application to foreign-flag cruise ships in some instances, when it requires removal of physical barriers, it would appear the rule is inapplicable to many other duties Title III might impose. We therefore reverse the decision of the Court of Appeals for the Fifth Circuit that the ADA is altogether inapplicable to foreign vessels; and we remand for further proceedings.
I
The respondent Norwegian Cruise Line Ltd. (NCL), a Bermuda Corporation with a principal place of business in Miami, Florida, operates cruise ships that depart from, and return to, ports in the United States. The ships are essentially floating resorts. They provide passengers with staterooms or cabins, food, and entertainment. The cruise ships stop at different ports of call where passengers may disembark. Most of the passengers on these cruises are United States residents; under the terms and conditions of the tickets, disputes between passengers and NCL are to be governed by United States law; and NCL relies upon extensive advertising in the United States to promote its cruises and increase its revenues.
Despite the fact that the cruises are operated by a company based in the United States, serve predominately United States residents, and are in most other respects United States-centered ventures, almost all of NCL’s cruise ships are registered in other countries, flying so-called flags of convenience. The two NCL cruise ships that are the subject of the present litigation, the Norwegian Sea and the Norwegian Star, are both registered in the Bahamas.
The petitioners are disabled individuals and their companions who purchased tickets in 1998 or 1999 for round-trip cruises on the Norwegian Sea or the Norwegian Star, with departures from Houston, Texas. Naming NCL as the defendant, the petitioners filed a class action in the United States District Court for the Southern District of Texas on behalf of all persons similarly situated. They sought declaratory and injunctive relief under Title III of the ADA, which prohibits discrimination on the basis of disability. The petitioners asserted that cruise ships are covered both by Title III’s prohibition on discrimination in places of “public accommodation”, §12182(a), and by its prohibition on discrimination in “specified public transportation services”, §12184(a). Both provisions require covered entities to make “reasonable modifications in policies, practices, or procedures” to accommodate disabled individuals, §§12182(b)(2)(A)(ii), 12184(b)(2)(A), and require removal of “architectural barriers, and communication barriers that are structural in nature” where such removal is “readily achievable”, §§12182(b)(2)(A)(iv), 12184(b)(2)(C).
The District Court held that, as a general matter, Title III applies to foreign-flag cruise ships in United States territorial waters. Civ. Action No. H—00—2649 (SD Tex., Sept. 10, 2002), App. to Pet. for Cert. 35a. The District Court found, however, that the petitioners’ claims regarding physical barriers to access could not go forward because the agencies charged with promulgating architectural and structural guidelines for ADA compliance (the Architectural and Transportation Barriers Compliance Board, the Department of Transportation, and the Department of Justice) had not done so for cruise ships. In these circumstances, the court held, it is unclear what structural modifications NCL would need to make. Id., at 36a—42a. The District Court granted NCL’s motion to dismiss the barrier-removal claims, but denied NCL’s motion with respect to all the other claims. Id., at 47a.
The Court of Appeals for the Fifth Circuit affirmed in part and reversed in part. It reasoned that our cases, particularly Benz v Compania Naviera Hidalgo, S. A., 353 U.S. 138 (1957), and McCulloch v Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1963), stand for the proposition that general statutes do not apply to foreign-flag vessels in United States territory absent a clear indication of congressional intent. 356 F.3d, at 644 (“[T]o apply domestic law to foreign vessels entering United States waters, there must be present the affirmative intention of the Congress clearly expressed” (quoting Benz, supra, at 147 (internal quotation marks omitted)); 356 F.3d, at 646 (Benz and McCulloch “prohibit United States courts from applying domestic statutes to foreign-flagged ships without specific evidence of congressional intent”). As Title III does not contain a specific provision mandating its application to foreign-flag vessels, the Court of Appeals sustained the District Court’s dismissal of the petitioners’ barrier-removal claims on this alternative ground and reversed the District Court on the remaining Title III claims. 356 F.3d, at 650—651.
The action was ordered dismissed for failure to state a claim, Fed. Rule Civ. Proc 12(b)(6), before extensive discovery. We cannot then discuss the specific allegations in much detail but must confine our opinion to the relevant general principles. (On November 24, 2004, the responsible agencies finally did issue draft guidelines for large passenger vessels and a Notice of Proposed Rulemaking. See 69 Fed. Reg. 69244, 69249. These developments are not dispositive of the legal question on which we granted certiorari, and we do not address how they might affect the ultimate resolution of the petitioners’ claims.)
II
A
1
may not impose
“eligibility criteria” that tend to screen out disabled
individuals, §§12182(b)(2)(A)(i), 12184(b)(1);
must
make “reasonable modifications in polices, practices, or procedures, when such
modifications are necessary” to
provide disabled individuals full and equal enjoyment, §§12182(b)(2)(A)(ii), 12184(b)(2)(A);
must
provide auxiliary aids and services to disabled individuals, §§12182(b)(2)(A)(iii), 12184(b)(2)(B); and
must remove architectural
and structural barriers, or if barrier removal is not readily achievable, must
ensure equal access for the disabled through alternative methods, §§12182(b)(2)(A)(iv)—(v),
12184(b)(2)(C).
These specific requirements, in
turn, are subject to important exceptions and limitations. Eligibility criteria
that screen out disabled individuals are permitted when “necessary for the
provision” of the services or facilities being offered, §§12182(b)(2)(A)(i),
12184(b)(1). Policies, practices, and procedures need not be modified, and
auxiliary aids need not be provided, if doing so would “fundamentally alter”
the services or accommodations being offered. §§12182(b)(2)(A)(ii)—(iii).
Auxiliary aids are also unnecessary when they would “result in an undue burden”, §12182(b)(2)(A)(iii). As we have noted, moreover, the barrier
removal and alternative access requirements do not apply when these requirements
are not “readily achievable”, §§12182(b)(2)(A)(iv)—(v). Additionally,
Title III does not impose non-discrimination or accommodation requirements if, as
a result, disabled individuals would pose “a significant risk to the health or
safety of others that cannot be eliminated by a modification of policies,
practices, or procedures or by the provision of auxiliary aids or services”,
§12182(b)(3).
Although the statutory definitions
of “public accommodation” and “specified public transportation” do not
expressly mention cruise ships, there can be no serious doubt that the NCL
cruise ships in question fall within both definitions under conventional
principles of interpretation. §§12181(7)(A)—(B),(I),(L), 12181(10). The
Court of Appeals for the Fifth Circuit, nevertheless, held that Title III does
not apply to foreign-flag cruise ships in United States waters because the
statute has no clear statement or explicit text mandating coverage for these
ships. This Court’s cases, particularly Benz and McCulloch, do
hold, in some circumstances, that a general statute will not apply to certain
aspects of the internal operations of foreign vessels temporarily in United
States waters, absent a clear statement. The broad clear statement rule adopted
by the Court of Appeals, however, would apply to every facet of the business and
operations of foreign-flag ships. That formulation is inconsistent with the
Court’s case law and with sound principles of statutory interpretation. 2
This Court has long held that
general statutes are presumed to apply to conduct that takes place aboard a
foreign-flag vessel in United States territory if the interests of the United
States or its citizens, rather than interests internal to the ship, are at
stake. See Cunard S. S. Co. v Mellon, 262
U.S. 100, 127 (1923) (holding that the general terms of the National
Prohibition Act apply to foreign-flag ships in United States waters because
“[t]here is in the act no provision making it inapplicable” to such ships); Uravic v F. Jarka Co., 282
U.S. 234, 240 (1931) (holding that “general words” should be
“generally applied” and that therefore there is “no reason for limiting
the liability for torts committed [aboard foreign-flag ships in United States
territory] when they go beyond the scope of discipline and private matters that
do not interest the territorial power”). The general rule that United States
statutes apply to foreign-flag ships in United States territory is subject only
to a narrow exception. Absent a clear statement of congressional intent, general
statutes may not apply to foreign-flag vessels insofar as they regulate matters
that involve only the internal order and discipline of the vessel, rather than
the peace of the port. This qualification derives from the understanding that,
as a matter of international comity, “all matters of discipline and all things
done on board which affec[t] only the vessel or those belonging to her, and [do]
not involve the peace or dignity of the country, or the tranquility of the port,
should be left by the local government to be dealt with by the authorities of
the nation to which the vessel belonged.” Wildenhus’s Case, 120
U.S. 1, 12 (1887). This exception to the usual presumption, however, does
not extend beyond matters of internal order and discipline. “[I]f crimes are
committed on board [a foreign-flag vessel] of a character to disturb the peace
and tranquility of the country to which the vessel has been brought, the
offenders have never by comity or usage been entitled to any exemption from the
operation of the local laws.” Ibid.
The two cases in recent times in
which the presumption against applying general statutes to foreign vessels’
internal affairs has been invoked, Benz and McCulloch, concern labour relations. The Court held that the general terms of the National
Labour
Relations Act (NLRA), 49 Stat. 449, 29
U.S.C. § 151 et seq., did not govern the respective rights and
duties of a foreign ship and its crew because the NLRA standards would interfere
with the foreign vessel’s internal affairs in those circumstances. These cases
recognized a narrow rule, applicable only to statutory duties that implicate the
internal order of the foreign vessel rather than the welfare of American
citizens. McCulloch, 372 U.S., at 21 (holding that “the law of the flag
state ordinarily governs the internal affairs of a ship” (emphasis
added)); see also Benz, 353 U.S., at 146—147. The Court held the NLRA
inapplicable to labour relations between a foreign vessel and its foreign crew
not because foreign ships are generally exempt from the NLRA, but because the
particular application of the NLRA would interfere with matters that concern
only the internal operations of the ship. In contrast, the Court held that the
NLRA is fully applicable to labour relations between a foreign vessel and
American longshoremen because this relationship, unlike the one between a vessel
and its own crew, does not implicate a foreign ship’s internal order and
discipline. Longshoremen v Ariadne Shipping Co., 397
U.S. 195, 198—201 (1970).
This narrow clear statement rule is
supported by sound principles of statutory construction. It is reasonable to
presume Congress intends no interference with matters that are primarily of
concern only to the ship and the foreign state in which it is registered. It is
also reasonable, however, to presume Congress does intend its statutes to apply
to entities in United States territory that serve, employ, or otherwise affect
American citizens, or that affect the peace and tranquility of the United
States, even if those entities happen to be foreign-flag ships.
Cruise ships flying foreign flags of
convenience offer public accommodations and transportation services to over 7
million United States residents annually, departing from and returning to ports
located in the United States. Large numbers of disabled individuals, many of
whom have mobility impairments that make other kinds of vacation travel
difficult, take advantage of these cruises or would like to do so. To hold there
is no Title III protection for disabled persons who seek to use the amenities of
foreign cruise ships would be a harsh and unexpected interpretation of a statute
designed to provide broad protection for the disabled. §12101. The clear
statement rule adopted by the Court of Appeals for the Fifth Circuit, moreover,
would imply that other general federal statutes – including, for example, Title
II of the Civil Rights Act of 1964, 78 Stat. 243, 42
U.S.C. § 2000a et seq. – would not apply aboard foreign cruise ships
in United States waters. A clear statement rule with this sweeping application
is unlikely to reflect congressional intent.
The relevant category for which the
Court demands a clear congressional statement, then, consists not of all
applications of a statute to foreign-flag vessels but only those applications
that would interfere with the foreign vessel’s internal affairs. This
proposition does not mean the clear statement rule is irrelevant to the ADA,
however. If Title III by its terms does impose duties that interfere with a
foreign-flag cruise ship’s internal affairs, the lack of a clear congressional
statement can mean that those specific applications of Title III are precluded.
On remand, the Court of Appeals may need to consider which, if any, Title III
requirements interfere with the internal affairs of foreign-flag vessels. As we
will discuss further, however, Title III’s own limitations and qualifications
may make this inquiry unnecessary. B 1
The precise content of the category
“internal affairs” (or, as it is variously denoted in the case law,
“internal order” or “internal operations”) is difficult to define with
precision. There is, moreover, some ambiguity in our cases as to whether the
relevant category of activities is restricted to matters that affect only the
internal order of the ship when there is no effect on United States interests,
or whether the clear statement rule further comes into play if the predominant
effect of a statutory requirement is on a foreign ship’s internal affairs but
the requirement also promotes the welfare of United States residents or
territory. We need not attempt to define the relevant protected category with
precision. It suffices to observe that the guiding principles in determining
whether the clear statement rule is triggered are the desire for international
comity and the presumed lack of interest by the territorial sovereign in matters
that bear no substantial relation to the peace and tranquility of the port.
It is plain that Title III might
impose any number of duties on cruise ships that have nothing to do with a
ship’s internal affairs. The pleadings and briefs in this case illustrate, but
do not exhaust, the ways a cruise ship might offend such a duty. The petitioners
allege the respondent charged disabled passengers higher fares and required
disabled passengers to pay special surcharges, Plaintiffs’ First Amended
Original Complaint in No. H—00—2649 (SD Tex.), ¶32, App. 15 (hereinafter
Complaint); Brief for Petitioners 17—20; maintained evacuation programs and
equipment in locations not accessible to disabled individuals, Complaint ¶19,
App. 12; Brief for Petitioners 21; required disabled individuals, but not other
passengers, to waive any potential medical liability and to travel with a
companion, id., at 8, 17—18; and reserved the right to remove from the
ship any disabled individual whose presence endangers the “comfort” of other
passengers, id., at 8, 20. The petitioners also allege more generally
that respondent “failed to make reasonable modifications in policies,
practices, and procedures” necessary to ensure the petitioners’ full
enjoyment of the services respondent offered. Complaint ¶30, App. 15. These are
bare allegations, and their truth is not conceded. We express no opinion on the
factual support for those claims. We can say, however, that none of these
alleged Title III violations implicate any requirement that would interfere with
the internal affairs and management of a vessel as our cases have employed that
term.
At least one subset of the
petitioners’ allegations, however, would appear to involve requirements that
might be construed as relating to the internal affairs of foreign-flag cruise
ships. These allegations concern physical barriers to access on board. For
example, according to the petitioners, most of the cabins on the respondent’s
cruise ships, including the most attractive cabins in the most desirable
locations, are not accessible to disabled passengers. Brief for Petitioners
17—18; Complaint ¶16, App. 11. The petitioners also allege that the ships’
coamings – the raised edges around their doors – make many areas of the ships
inaccessible to mobility-impaired passengers who use wheelchairs or scooters.
Brief for Petitioners 24. Removal of these and other access barriers, the
petitioners suggest, may be required by Title III’s structural barrier removal
requirement, §§12182(b)(2)(A)(iv), 12184(b)(2)(C).
Although these physical barriers
affect the passengers as well as the ship and its crew, the statutory
requirement could mandate a permanent and significant alteration of a physical
feature of the ship – that is, an element of basic ship design and construction.
If so, these applications of the barrier removal requirement likely would
interfere with the internal affairs of foreign ships. A permanent and
significant modification to a ship’s physical structure goes to fundamental
issues of ship design and construction, and it might be impossible for a ship to
comply with all the requirements different jurisdictions might impose. The clear
statement rule would most likely come into play if Title III were read to
require permanent and significant structural modifications to foreign vessels.
It is quite a different question, however, whether Title III would require this.
The Title III requirements that might impose permanent and substantial changes
to a ship’s architecture and design, are, like all of Title III’s
requirements, subject to the statute’s own specific limitations and
qualifications. These limitations may make resort to the clear statement rule
unnecessary. 2
Title III requires barrier removal
if it is “readily achievable”, §12182(b)(2)(A)(iv). The statute defines
that term as “easily accomplishable and able to be carried out without much
difficulty or expense”, §12181(9). Title III does not define “difficulty”
in §12181(9), but use of the disjunctive – “easily accomplishable and able to
be carried out without much difficulty or expense” – indicates that it extends
to considerations in addition to cost. Furthermore, Title III directs that the
“readily achievable” determination take into account “the impact .... upon
the operation of the facility”, §12181(9)(B).
Surely a barrier removal requirement
under Title III that would bring a vessel into noncompliance with the
International Convention for the Safety of Life at Sea (SOLAS), Nov. 1, 1974,
[1979—1980], 32 U.S. T. 47, T. I. A. S. No. 9700, or any other international
legal obligation, would create serious difficulties for the vessel and would
have a substantial impact on its operation, and thus would not be “readily
achievable.” This understanding of the statute, urged by the United States, is
eminently reasonable. Brief as Amicus Curiae 27—28; ADA Title III
Technical Assistance Manual III—1.2000(D) (Supp. 1994), available at
http://www.usdoj.gov/crt/ada/taman3up.html (as visited May 31, 2005, and
available in Clerk of Court’s case file); 56 Fed. Reg. 45600 (1991). If,
moreover, Title III’s “readily achievable” exemption were not to take
conflicts with international law into account, it would lead to the anomalous
result that American cruise ships are obligated to comply with Title III even if
doing so brings them into noncompliance with SOLAS, whereas foreign
ships – which unlike American ships have the benefit of the internal affairs
clear statement rule – would not be so obligated. Congress could not have
intended this result.
It is logical and proper to
conclude, moreover, that whether a barrier modification is “readily
achievable” under Title III must take into consideration the modification’s
effect on shipboard safety. A separate provision of Title III mandates that the
statute’s non-discrimination and accommodation requirements do not apply if
disabled individuals would pose “a significant risk to the health or safety of
others that cannot be eliminated by a modification of policies, practices, or
procedures or by the provision of auxiliary aids or services”, §12182(b)(3).
This reference is to a safety threat posed by a disabled individual, whereas
here the question would be whether the structural modification itself may pose
the safety threat. It would be incongruous, nevertheless, to attribute to
Congress an intent to require modifications that threaten safety to others
simply because the threat comes not from the disabled person but from the
accommodation itself. The anomaly is avoided by concluding that a structural
modification is not readily achievable within the meaning of §12181(9) if it
would pose a direct threat to the health or safety of others. 3
Because Title III does not require
structural modifications that would conflict with international legal
obligations or pose any real threat to the safety of the crew or other
passengers, it may well follow – though we do not decide the question
here – that Title III does not require any permanent and significant structural
modifications that interfere with the internal affairs of any cruise ship,
foreign flag or domestic. If that is indeed the case, recourse to the clear
statement rule would not be necessary.
Cases may arise, however, where it
is prudent for a court to turn first to the internal affairs clear statement
rule rather than deciding the precise scope and operation of the statute.
Suppose, for example, it is a difficult question whether a particular Title III
barrier removal requirement is readily achievable, but the requirement does
entail a permanent and significant structural modification, interfering with a
foreign ship’s internal affairs. In that case a court sensibly could invoke
the clear statement rule without determining whether Title III actually imposes
the requirement. On the other hand, there may be many cases where it is not
obvious that a particular physical modification relates to a vessel’s basic
architecture and construction, but it is clear the modification would conflict
with SOLAS or some other international legal obligation. In those cases, a court
may deem it appropriate to hold that the physical barrier modification in
question is not readily achievable, without resort to the clear statement rule. III A
In light of the preceding analysis,
it is likely that under a proper interpretation of “readily achievable”
Title III would impose no requirements that interfere with the internal affairs
of foreign-flag cruise ships. If Title III did impose a duty that required
cruise ships to make permanent and significant structural modifications that did
not conflict with international law or threaten safety, or if the statute
otherwise interfered with a foreign ship’s internal affairs, the clear
statement rule recognized in Benz and McCulloch would come into
play at that point. The Title III requirement in question, however, would still
apply to domestic cruise ships, and Title III requirements having nothing to do
with internal affairs would continue to apply to domestic and foreign ships
alike.
This application-by-application use
of the internal affairs clear statement rule is consistent with how the rule has
traditionally operated. In Benz and McCulloch, the Court concluded
that the NLRA did not apply to labour relations between a foreign-flag ship and
its foreign crew because of interference with the foreign ships’ internal
affairs. In Ariadne Shipping, however, the Court held that the NLRA does
apply to labour relations between a foreign-flag ship and American longshoremen. Ariadne
Shipping acknowledged the clear statement rule invoked in Benz and McCulloch
but held that the “considerations that informed the Court’s construction of
the statute in [those cases] are clearly inapplicable” to the question whether
the statute applies to foreign ships’ labour relations with American
longshoremen. 397 U.S., at 199. Ariadne Shipping held that the
longshoremen’s “short-term, irregular and casual connection with the
[foreign] vessels plainly belied any involvement on their part with the ships’
‘internal discipline and order.’” Id., at 200. Therefore, application of the NLRA to foreign ships’
relations with American longshoremen “would have threatened no interference in
the internal affairs of foreign-flag ships.” Ibid. If the clear
statement rule restricts some applications of the NLRA to foreign ships (e.g.,
labour relations with the foreign crew), but not others (e.g., labour
relations with American longshoremen), it follows that the case-by-case
application is also required under Title III of the ADA. The rule, where it is
even necessary to invoke it, would restrict some applications of Title III to
foreign ships (e.g., certain structural barrier modification
requirements), but not others (e.g., the prohibition on discriminatory
ticket pricing).
The internal affairs clear statement
rule is an implied limitation on otherwise unambiguous general terms of the
statute. It operates much like the principle that general statutes are construed
not to apply extraterritorially, EEOC v Arabian American Oil Co., 499
U.S. 244, 260 (1991), or the rule that general statutes are presumed not to
impose monetary liability on non-consenting States, Atascadero State Hospital v Scanlon, 473
U.S. 234 (1985). Implied limitation rules avoid applications of otherwise
unambiguous statutes that would intrude on sensitive domains in a way that
Congress is unlikely to have intended had it considered the matter. In these
instances, the absence of a clear congressional statement is, in effect,
equivalent to a statutory qualification saying, for example, “Notwithstanding
any general language of this statute, this statute shall not apply
extraterritorially”; or “.... this statute shall not abrogate the sovereign
immunity of non-consenting States”; or “.... this statute does not regulate
the internal affairs of foreign-flag vessels.” These clear statement rules
ensure Congress does not, by broad or general language, legislate on a sensitive
topic inadvertently or without due deliberation. An all-or-nothing approach,
under which a statute is altogether inapplicable if but one of its specific
applications trenches on the domain protected by a clear statement rule, would
convert the clear statement rule from a principle of interpretive caution into a
trap for an unwary Congress. If Congress passes broad legislation that has some
applications that implicate a clear statement rule – say, some extraterritorial
applications, or some applications that would regulate foreign ships’ internal
affairs – an all-or-nothing approach would require that the entire statute, or
some arbitrary set of applications larger than the domain protected by the clear
statement rule, would be nullified. We decline to adopt that posture. B
Our holding that the clear statement
rule operates only when a ship’s internal affairs are affected does not
implicate our holding in Clark v Martinez, 543 U.S. ___ (2005). Martinez
held that statutory language given a limiting construction in one context must
be interpreted consistently in other contexts, “even though other of the
statute’s applications, standing alone, would not support the same
limitation.” Id., at ___ (slip op., at 8). This was simply a rule of
consistent interpretation of the statutory words, with no bearing on the implementation of a clear statement rule
addressed to particular statutory applications.
The statute in Martinez,
8
U.S.C. § 1231(a)(6), authorized detention of aliens pending their removal.
In Zadvydas v Davis, 533
U.S. 678, 696—699 (2001), the Court had interpreted this statute to impose
time limits on detention of aliens held for certain reasons stated in the
statute. The Court held that an alternative interpretation, one allowing
indefinite detention of lawfully admitted aliens, would raise grave
constitutional doubts. Having determined the meaning of §1231(a)(6)’s text in
Zadvydas, we were obliged in Martinez to follow the same
interpretation even in a context where the constitutional concerns were not
present. Martinez, 543 U.S., at ___ (slip op., at 5—9). As already made
clear, the question was one of textual interpretation, not the scope of some
implied exception. The constitutional avoidance canon simply informed the choice
among plausible readings of §1231(a)(6)’s text: “The canon of
constitutional avoidance”, Martinez explained, “comes into play only
when, after the application of ordinary textual analysis, the statute is found
to be susceptible of more than one construction; and the canon functions as a
means of choosing between them.” Id., at ___ (slip op., at 13)
(emphasis deleted).
Martinez gives full respect
to the distinction between rules for resolving textual ambiguity and implied
limitations on otherwise unambiguous text. Indeed, Martinez relies on the
distinction to reconcile its holding with two cases which did involve a clear
statement rule, Raygor v Regents of Univ. of Minn., 534
U.S. 533 (2002), and Jinks v Richland County, 538
U.S. 456 (2003). Raygor had held that the tolling provision in the
supplemental jurisdiction statute, 28
U.S.C. § 1367(d), does not apply to non-consenting States because the
statute lacks the required clear statement that States are within its coverage.
Later, in Jinks, we held that the §1367(d) tolling provision does apply
to suits against counties. The counties were not protected by a clear statement
rule analogous to the one applicable to States. See Martinez, 543 U.S.,
at ___ (slip op., at 11—12, and n 6); see also id., at ___ (slip
op., at 6—8) (Thomas, J., dissenting). “This progression of decisions”, we
held in Martinez, “does not remotely establish that §1367(d) has two
different meanings, equivalent to the unlimited-detention/limited-detention
meanings of §1231(a)(6) urged upon us here. They hold that the single and
unchanging disposition of §1367(d) .... does not apply to claims against States
that have not consented to be sued in federal court.” Id., at ___ (slip
op., at 12). The distinction between Zadvydas and Martinez, on the
one hand, and Raygor and Jinks, on the other, is the distinction
between a canon for choosing among plausible meanings of an ambiguous statute
and a clear statement rule that implies a special substantive limit on the
application of an otherwise unambiguous mandate.
The internal affairs clear statement
rule is an implied limitation rule, not a principle for resolving textual
ambiguity. Our cases, then, do not compel or permit the conclusion that if any
one application of Title III might interfere with a foreign-flag ship’s
internal affairs, Title III is inapplicable to foreign ships in every other
instance. * The Court of Appeals for the Fifth
Circuit held that general statutes do not apply to foreign-flag ships in United
States waters. This Court’s cases, however, stand only for the proposition
that general statutes are presumed not to impose requirements that would
interfere with the internal affairs of foreign-flag vessels. Except insofar as
Title III regulates a vessel’s internal affairs – a category that is not
always well defined and that may require further judicial elaboration – the
statute is applicable to foreign ships in United States waters to the same
extent that it is applicable to American ships in those waters.
Title III’s own limitations and
qualifications prevent the statute from imposing requirements that would
conflict with international obligations or threaten shipboard safety. These
limitations and qualifications, though framed in general terms, employ a
conventional vocabulary for instructing courts in the interpretation and
application of the statute. If, on remand, it becomes clear that even after
these limitations are taken into account Title III nonetheless imposes certain
requirements that would interfere with the internal affairs of foreign
ships – perhaps, for example, by requiring permanent and substantial structural
modifications – the clear statement rule would come into play. It is also open
to the court on remand to consider application of the clear statement rule at
the outset if, as a prudential matter, that appears to be the more appropriate
course.
We reverse the judgment of the Court
of Appeals and remand the case for further proceedings.
It is so ordered. Justice Ginsburg (with whom Justice
Breyer joins, concurring in part and concurring in the judgment)
I agree with the Court’s holding
that Title III of the Americans with Disabilities Act of 1990 covers cruise
ships, ante, at 6, and allows them to resist modifications “that would
conflict with international legal obligations”, ante, at 12—13. I
therefore join Parts I, II—A—1, and II—B—2 of the Court’s opinion. I
would give no wider berth, however, to the “internal affairs” clear
statement rule in determining Title III’s application to respondent’s cruise
ships, the Norwegian Sea and Norwegian Star. But see ante, at 14. That
rule, as I understand it, derives from, and is moored to, the broader guide that
statutes “should not be interpreted to regulate foreign persons or conduct if
that regulation would conflict with principles of international law.” Hartford
Fire Ins. Co. v California, 509
U.S. 764, 815 (1993) (Scalia, J., dissenting); see also id., at 816
(describing McCulloch v Sociedad Nacional de Marineros de Honduras, 372
U.S. 10 (1963), as applying this principle); Murray v Schooner
Charming Betsy, 2 Cranch 64, 118 (1804). Title III is properly read to avoid
such conflict, but should not be hemmed in where there is no potential for
international discord.[1]
The first of the modern cases to
address the application of a domestic statute to a foreign-flag ship in U.S.
waters, Benz v Compania Naviera Hidalgo, S A., 353
U.S. 138 (1957), did not resort to the tag, “internal affairs” rule, to
explain the Court’s decision.[2]
Benz held that the Labour Management Relations Act did not reach relations
between “a foreign employer and a foreign crew operating under an agreement
made abroad under the laws of another nation.” Id., at 142. As we
concluded in Benz, before reading our law to “run interference in such
a delicate field of international relations”, “where the possibilities of
international discord are so evident and retaliative action so certain”, the
Court should await Congress’ clearly expressed instruction. Id., at
147.
Six years later, in
McCulloch v Sociedad Nacional de Marineros de Honduras, 372
U.S. 10 (1963), the Court relied on Benz to hold that the National Labour Relations Act does not regulate the representation of alien seamen
recruited in Honduras to serve aboard vessels under Honduran flags. Applying our
law “to the internal management and affairs” of the vessels in question, we
observed, McCulloch, 372 U.S., at 20, would produce a “head-on
collision” with the regulatory regime installed under the Honduran labour code,
id., at 21. “[S]uch highly charged international circumstances”, we
said, called for adherence to the venerable interpretive guide that “
‘an act of Congress ought never to be construed to violate the law of nations
if any other possible construction remains.’” Ibid.
(quoting Schooner Charming Betsy, 2 Cranch, at 118). Cf.
Longshoremen v Ariadne Shipping Co., 397
U.S. 195, 200 (1970) (applying U.S. law to foreign ships’ labour relations
with longshore workers employed at U.S. ports is proper because doing so “would
.... threate[n] no interference in the internal affairs of foreign-flag ships
likely to lead to conflict with foreign or international law”).
The
non-interference principle
underlying the internal affairs clear statement rule is served in this case by
the Court’s interpretation of Title III’s “readily achievable”
provision, 42
U.S.C. § 12182(b)(2)(A)(iv). See ante, at 12—13. Construing this
language to allow ships to resist modifications “that would conflict with
international legal obligations”, ante, at 13, the Court ensures that
Title III will not provoke “international discord” of the kind Benz
and McCulloch sought to avoid. I agree with this interpretation, but
would create no larger space for the internal affairs rule.
The plurality, however, suggests
that the clear statement rule has a further office: It may block structural
modifications prompted by Title III that are “readily achievable” – because
they do not conflict with international legal obligations – but nonetheless
“interfer[e] with a foreign ship’s internal affairs.” Ante, at 14.
I disagree with this conception of the rule. In positing an extended application
of the internal affairs rule, the plurality cuts the rule loose from its
foundation. As Benz and McCulloch demonstrate, the clear statement
rule is an interpretive principle counselling against construction of a statute
in a manner productive of international discord. When international relations
are not at risk, and there is good reason to apply our own law, asserted
internal affairs of a ship should hold no greater sway than asserted management
prerogatives of a landlocked enterprise.[3]
As the plurality rightly notes,
Title III is a broad remedial statute designed to protect persons with
disabilities in a variety of activities and settings. See ante, at 8—9;
§12101(b). The United States has a strong interest in ensuring that U.S.
resident cruise passengers enjoy Title III’s protections on both domestic and
foreign ships. See §12101; Brief for United States as Amicus Curiae 10.[4]
Once conflicts with international legal obligations are avoided, I see no reason
to demand a clearer congressional statement that Title III reaches the vessels
in question, ships that regularly sail to and from U.S. ports and derive most of
their income from U.S. passengers. In sum, I agree that §12182(b)
(2)(A)(iv), properly read, does not require ship-owners to make modifications
that would conflict with international legal obligations. But I would attribute
to the internal affairs clear statement rule no further limitation on Title
III’s governance in this case. Justice Scalia (with whom The Chief
Justice and Justice O’Connor join, and with whom Justice Thomas joins as to
Part I—A, dissenting)
I respectfully dissent. The
plurality correctly recognizes that Congress must clearly express its intent to
apply its laws to foreign-flag ships when those laws interfere with the ship’s
internal order. Its attempt to place Title III of the Americans with
Disabilities Act of 1990 (ADA), outside this rule through creative statutory
interpretation and piecemeal application of its provisions is unsupported by our
case law. Title III plainly affects the internal order of foreign-flag cruise
ships, subjecting them to the possibility of conflicting international
obligations. I would hold that, since there is no clear statement of coverage,
Title III does not apply to foreign-flag cruise ships. I A
As the plurality explains, where a
law would interfere with the regulation of a ship’s internal order, we require
a clear statement that Congress intended such a result. See ante, at 6.
This rule is predicated on the “rule of international law that the law of the
flag ship ordinarily governs the internal affairs of a ship”, McCulloch v
Sociedad Nacional de Marineros de Honduras, 372
U.S. 10, 21 (1963), and is designed to avoid “the possibilit[y] of
international discord”, Benz v Compania Naviera Hidalgo, S. A., 353
U.S. 138, 147 (1957); see also McCulloch, supra, at 19.
The clear-statement rule finds support not only in Benz
and McCulloch, but in cases like Cunard S. S. Co. v Mellon, 262
U.S. 100, 128—129 (1923), where we held that the National Prohibition Act,
41 Stat. 305, forbade foreign-flag ships from carrying or serving alcohol in
United States territorial waters. Though we did not say so expressly in that
case, prohibiting the carrying and serving of alcohol in United States waters
cannot be said to affect the “internal order” of the ship, because it does
not in any way affect the operation or functioning of the craft.[5]
Similarly, in Lauritzen v Larsen, 345
U.S. 571 (1953), and Hellenic Lines Ltd. v Rhoditis, 398
U.S. 306 (1970), we did not employ a clear-statement rule in
determining whether foreign seamen injured aboard foreign-flag ships could
recover under the Jones Act, 41 Stat. 1007, 46 U.S.C. App. §688. We
distinguished these cases in McCulloch, explaining that a clear statement
is not required “in different contexts, such as the Jones Act .... where the
pervasive regulation of the internal order of a ship may not be present.”
372 U.S., at 19, n 9 (emphasis added).[6]
As the plurality concedes, ante,
at 10—11, the structural modifications that Title III of the ADA requires
under its barrier-removal provisions, see 42
U.S.C. § 12182(b)(2)(A)(iv), 12184(b)(2)(C), would plainly affect the
ship’s “internal order.” Rendering exterior cabins handicapped-accessible,
changing the levels of coamings, and adding public restrooms – the types of
modifications petitioners request – would require alteration of core physical
aspects of the ship, some of which relate to safety. (Safety has, under
international law, traditionally been the province of a ship’s flag state.)
This is quite different from prohibiting alcohol in United States waters or
imposing tort liability for injuries sustained on foreign ships in port – the
laws at issue in Cunard and the Jones Act cases. Those restrictions
affected the ship only in limited circumstances, and in ways ancillary to its
operation at sea. A ship’s design and construction, by contrast, are at least
as integral to the ship’s operation and functioning as the bargaining
relationship between ship-owner and crew at issue in Benz and McCulloch.
Moreover, the structural changes
petitioners request would be permanent. Whereas a ship precluded from serving or
carrying alcohol in United States waters may certainly carry and serve alcohol
on its next trip from Italy to Greece, structural modifications made to comply
with American laws cannot readily be removed once the ship leaves our waters and
ceases to carry American passengers. This is again much like the situation
presented in Benz and McCulloch, where the application of American
labour laws would have continued to govern contracts between foreign ship-owners
and their foreign crews well beyond their time in our waters.
The purpose of the “internal
order” clear-statement requirement is to avoid casually subjecting oceangoing
vessels to laws that pose obvious risks of conflict with the laws of the
ship’s flag state, the laws of other nations, and international obligations to
which the vessels are subject. That structural modifications required under
Title III qualify as matters of “internal order” is confirmed by the fact
that they may already conflict with the International Convention for the Safety
of Life at Sea (SOLAS), Nov. 1, 1974, [1979—1980] 32 U.S. T. 47, T. I. A. S.
No. 9700. That treaty, which establishes the safety standards governing the design and maintenance of oceangoing ships, has been ratified by 155
countries. See International Maritime Organization, Summary of Status of Conventions,
http://www.imo.org/Conventions/mainframe.asp?topic_id=247 (all Internet materials as visited June 2, 2005, and available in Clerk of
Court’s case file). The ADA Accessibility Guidelines (ADAAG) Review Advisory
Committee – the Government body Congress has charged with formulating the Title
III barrier-removal guidelines – has promulgated rules requiring at least one
accessible means of egress to be an elevator, whereas SOLAS, which requires at
least two means of escape, does not allow elevators to be one of them. See
Passenger Vessel Access Advisory Committee, Final Report: Recommendations for
Accessibility Guidelines for Passenger Vehicles, ch. 13, pt. I (Dec. 2000),
http://www.access-board.gov/news/pvaac-rept.htm (hereinafter PVAAC Report)
(explaining potential conflicts between ADAAG regulations and SOLAS). The ADAAG
rules set coaming heights for doors required to be accessible at one-half inch;
SOLAS sets coaming heights for some exterior doors at three to six inches to
ensure that those doors will be watertight. Ibid.
Similar inconsistencies may exist
between Title III’s structural requirements and the disability laws of other
countries. The United Kingdom, for example, is considering the promulgation of
rules to govern handicapped accessibility to passenger vehicles, including
cruise ships. The rules being considered currently include exact specifications,
down to the centimeter, for the height of handrails, beds and electrical
switches, and the width of door openings. See Disabled Persons Transport
Advisory Committee, The design of large passenger ships and passenger
infrastructure: Guidance on meeting the needs of disabled people (Nov. 2000),
http://www.dptac.gov.uk/pubs/guideship/pdf/dptacbroch.pdf. Though many of these regulations may be
compatible with Title III, it is easy to imagine conflicts arising, given the
detailed nature of ADAAG’s regulations. See PVAAC Report, chs. 1—11. As we
have previously noted, even this “possibility of international
discord” with regard to a seagoing vessel’s internal order, McCulloch,
372 U.S., at 21 (emphasis added), gives rise to the presumption of non-coverage
absent clear statement to the contrary.
The Court asserts that Title III
would not produce conflicts with the requirements of SOLAS and would not
compromise safety concerns. This argument comes at the expense of an expansive en
passant interpretation of the exceptions to the barrier-removal requirements
of Title III – which interpretation will likely have more significant nationwide
effects than the Court’s holding concerning Title III’s application to
foreign-flag vessels. Assuming, however, that the argument is even correct,[7]
it is entirely beside the point. It has never been a condition for application
of the foreign-flag clear-statement rule that an actual conflict with foreign or
international law be established – any more than that has been a condition for
application of the clear-statement rule regarding extraterritorial effect of
congressional enactments. The reason to apply the rule here is that the
structure of a ship pertains to the ship’s internal order, which is a matter
presumably left to the flag state unless Congress indicates otherwise. The basis
for that presumption of congressional intent is principally (though perhaps not
exclusively) that subjecting such matters to the commands of various
jurisdictions raises the possibility (not necessarily the certainty) of
conflict among jurisdictions and with international treaties. Even if the Court
could, by an imaginative interpretation of Title III, demonstrate that in this
particular instance there would be no conflict with the laws of other nations or
with international treaties,[8]
it would remain true that a ship’s structure is pre-eminently part of its
internal order; and it would remain true that subjecting ship structure to
multiple national requirements invites conflict. That is what triggers
application of the clear-statement rule.
Safety concerns – and specifically
safety as related to ship structure – are traditionally the responsibility of
the flag state. Which is to say they are regarded as part of the ship’s
internal order. And even if Title III makes ample provision for a safety
exception to the barrier-removal requirements, what it considers
necessary for safety is not necessarily what other nations or international
treaties consider necessary.
The foregoing renders quite
unnecessary the Court’s worry that Title III might require American cruise
ships to adhere to Congress’s prescription in violation of SOLAS. See ante,
at 12. If and when that possibility presents itself, the Court remains free to
do what it does here: to interpret Title III so as to avoid any conflict. But
the availability of such an interpretation has no bearing upon whether the
structural features of an oceangoing vessel are part of its internal order. (I
must observe, however, that it seems much more plausible that Congress intended
to require American cruise ships to adhere to Title III regardless of SOLAS,
than that – what the Court apparently believes – Congress intended Title III to
be interpreted with an eye to SOLAS.) In any event, the application of Title III
to oceangoing vessels under American flag is not at issue here. I would
therefore hold that, because Title III’s barrier-removal provisions clearly
have the possibility of subjecting foreign-flag ships to conflicting
international obligations, no reading of Title III – no matter how
creative – can alter the presumption that Title III does not apply to
foreign-flag ships without a clear statement from Congress.[9] B
The plurality holds that, even
“[i]f Title III did impose a duty that required [foreign-flag] cruise ships to
make permanent and significant structural modifications[,] or .... otherwise
interfered with a foreign ship’s internal affairs .... Title III requirements
having nothing to do with internal affairs would continue to apply to domestic
and foreign ships alike.” Ante, at 14. I disagree. Whether or not Title
III’s prescriptions regarding such matters implicate the “internal order”
of the ship, they still relate to the ships’ maritime operations and are part
of the same Title III.[10]
The requirements of that enactment either apply to foreign-flag ships or they do
not. It is not within our power to design a statute some of whose provisions
apply to foreign-flag ships and other of whose provisions do not – any more than
it is within our power to prescribe that the statute applies to foreign-flag
cruise ships 60% of whose passengers are United States citizens and does not
apply to other foreign-flag cruise ships.
The plurality’s assertion that
those portions of Title III that do not implicate a ship’s internal
order apply to foreign-flag ships displays a confusion between a principle of
interpretation based upon a true-to-fact presumption of congressional intent,
and a court-made rule. The plurality seems to forget that it is a matter of
determining whether Congress in fact intended that its enactment
cover foreign-flag ships. To believe that there was any such intent
section-by-section and paragraph-by-paragraph is delusional. Either Congress
enacted Title III only with domestic entities (and not foreign-flag ships) in
mind, or it intended Title III to apply across-the-board. It could not possibly
be the real congressional intent that foreign-flag cruise ships be considered
“place[s] of public accommodation” or “specified public transportation”
for purposes of certain provisions but not for others. That Congress had
separate foreign-flag intent with respect to each requirement – and would
presumably adopt a clear statement provision-by-provision – is utterly
implausible. And far from its being the case that this creates “a trap for an
unwary Congress”, ante, at 16, it is the plurality’s disposition
that, in piecemeal fashion, applies to foreign-flag ships provisions never
enacted with foreign-flag vessels in mind.[11]
We recently addressed a similar question in Clark v Martinez, 543
U.S. ___ (2005), where we explained that a statutory provision must be
interpreted consistently from case to case. “It is not at all unusual to give
a statut[e] .... a limiting construction called for by one of the statute’s
applications, even though other of the statute’s applications, standing alone,
would not support the same limitation.” Id., at ___ (slip op., at 8).
That principle should apply here. Since some applications of Title III plainly
affect the internal order of foreign-flag ships, the absence of a clear
statement renders the statute inapplicable – even though some applications of
the statute, if severed from the rest, would not require clear statement.
This does not mean that a clear
statement is required whenever a court applies Title III to any entity – only
that a clear statement is required to apply any part of Title III to
foreign-flag ships. Raygor v Regents of Univ. of Minn., 534
U.S. 533 (2002), and Jinks v Richland County, 538
U.S. 456 (2003), do not dictate otherwise. Raygor held that 28
U.S.C. § 1367(d) does not include, in its tolling of the limitations
period, claims against States, because it contains no clear statement that
States are covered. Jinks held that §1367(d)’s tolling provision does
apply to claims against political subdivisions of States, because no
clear-statement requirement applies to those entities. In other words, a clear
statement is required to apply §1367(d) to States, just as a clear statement is
required to apply Title III to foreign-flag ships. A clear statement is not
required to apply §1367(d) to political subdivisions of States, just as a clear
statement is not required to apply Title III to domestic ships or other
domestic entities. The question in each of these cases is whether the statute
at issue covers certain entities, not whether some provisions of a
statute cover a given entity.
The fine-tuning of legislation that
the plurality requires would be better left to Congress. To attempt it through
the process of case-by-case adjudication is a recipe for endless litigation and
confusion. The plurality’s resolution of today’s case proves the point. It
requires this Title III claimant (and every other one who brings a claim against
a foreign ship-owner) to show that each particular remedy he seeks does not
implicate the internal order of the ship. That showing, where structural
modification is involved, would not only require the district court to determine
what is “readily achievable”, ante, at 12—14, and what would
“pose ‘a significant risk to the health or safety of others,’” ante, at 13 (quoting §12182(b)(3)), but would also require it to
determine the obligations imposed by foreign law and international treaties.[12]
All this to establish the preliminary point that Title III applies and the claim
can proceed to adjudication. If Congress desires to impose this time-consuming
and intricate process, it is certainly able to do so – though I think it would
likely prefer some more manageable solution.[13]
But for the plurality to impose it as a novel consequence of the venerable
clear-statement rule seems to me unreasonable. I would therefore decline to
apply all of Title III to foreign-flag ships without a clear statement from
Congress. II
As the Court appears to concede,
neither the “public accommodation” provision nor the “specified public
transportation” provision of Title III clearly covers foreign-flag cruise
ships. The former prohibits discrimination “on the basis of disability in the
full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by any person
who owns, leases (or leases to), or operates a place of public accommodation.”
42
U.S.C. § 12182(a). Though Congress gave a seemingly exhaustive list of
entities constituting “public accommodation[s]” – including inns, hotels,
restaurants, theatres, banks, zoos, and laundromats – it failed to mention
ships, much less foreign-flag ships. See §12181(7). Particularly where Congress
has provided such detailed specification, this is not a clear statement that
foreign-flag ships are covered. Petitioners also claim that, because cruise
ships are essentially floating hotels that contain restaurants and other
facilities explicitly named in §12181(7), they should be covered. While this
may support the argument that cruise ships are “public accommodations”, it does not support the position that Congress intended to
reach foreign-flag cruise ships.
The “specified public
transportation” provision prohibits discrimination on the basis of disability
“in the full and equal enjoyment of specified public transportation services
provided by a private entity that is primarily engaged in the business of
transporting people and whose operations affect commerce.” §12184(a). The
definition of “specified public transportation” includes “transportation
by bus, rail, or any other conveyance (other than by aircraft) that provides the
general public with general or special service (including charter service) on a
regular and continuing basis.” §12181(10). “[A]ny other conveyance”
clearly covers ships. But even if the statute specifically mentioned ships,
that would not be a clear statement that foreign-flag ships are
included – any more than the reference to “employer” in the NLRA constituted
a clear statement that foreign-flag ship employers were covered, see McCulloch,
372 U.S., at 19—21.
Title III of the ADA stands in
contrast to other statutes in which Congress has made clear its intent to
extend its laws to foreign ships. For example, the Maritime Drug Law Enforcement
Act, 94 Stat. 1159, 46 U.S.C. App. §1901 et seq., which permits the
inspection and apprehension of vessels suspected of possessing controlled
substances, applies to “vessel[s] subject to the jurisdiction of the United
States”, §1903(a), which includes vessels “located within the customs
waters of the United States”, §1903(c)(1)(D), and “vessels registered in a
foreign nation where the flag nation has consented or waived objection” to
United States jurisdiction, §1903(c)(1)(C). Section 5 of the Johnson Act, 64
Stat. 1135, as amended, 106 Stat. 61, 15
U.S.C. § 1175(a), restricts the use of gambling devices “on a vessel ....
documented under the laws of a foreign country.” See also 14
U.S.C. § 89(a) (Coast Guard may engage in searches on “waters over which
the United States has jurisdiction” of “any vessel subject to the
jurisdiction, or to the operation of any law, of the United States”); 18
U.S.C. § 2274 (making it unlawful for “the owner, master or person in
charge or command of any private vessel, foreign or domestic .... within the
territorial waters of the United States” wilfully to cause or permit the
destruction or injury of their vessel in certain circumstances).
That the Department of Justice and
the Department of Transportation – the Executive agencies charged with enforcing
the ADA – appear to have concluded that Congress intended Title III to apply to
foreign-flag cruise ships does not change my view. We “accept only those
agency interpretations that are reasonable in light of the principles of
construction courts normally employ.” ARAMCO, 499
U.S. 244, 260 (1991) (Scalia, J., concurring in part and concurring in
judgment) (declining to adopt the Equal Employment Opportunity Commission’s
determination that Title VII applied to employers abroad); see also id.,
at 257—258 (opinion of the Court) (same). In light of our longstanding
clear-statement rule, it is not reasonable to apply Title III here.
I would therefore affirm the Fifth
Circuit’s judgment that Title III of the ADA does not apply to foreign-flag
cruise ships in United States territorial waters. Justice Thomas (concurring in part,
dissenting in part, and concurring in the judgment in part)
When a law regulates the internal
order of ships, Congress must clearly express its intent to apply the law to
foreign-flag ships. Ante, at 6—8 (plurality opinion); post, at
1—2 (Scalia, J., dissenting). I agree with Justice Scalia that this rule
applies to any structural changes to a ship that Title III of the Americans with
Disabilities Act of 1990 (ADA) might require, for such changes to a ship’s
physical structure pertain to its internal affairs. Post, at 2—4
(Scalia, J., dissenting); see ante, at 11 (plurality opinion). I further
agree with Justice Scalia that this clear statement rule applies once the
possibility, rather than the certainty, of international discord arises; and
that the clear statement rule therefore does not require or permit the kind of
express conflicts-of-law analysis that the plurality demands. Post, at
4—6 (Scalia, J., dissenting); ante, at 12—13 (majority opinion).
Moreover, I do not think that courts should (as the plurality permits) employ
the rule selectively, applying it when “prudent” but declining to apply it
when “appropriate.” Ante, at 13—14 (plurality opinion); see also post,
at 10, n 8 (Scalia, J., dissenting); Small v United States,
544 U.S. 385, (2005) (slip op., at 11) (Thomas, J., dissenting) (“Whatever the
utility of canons as guides to congressional intent, they are useless when
modified in ways that Congress could never have imagined”). For those reasons,
I join part I—A of Justice Scalia’s dissent. While I conclude that the rule
applies to certain aspects of Title III, I agree with the plurality that it does
not require an “all-or-nothing approach.” Ante, at 16. Consequently,
those applications of Title III that do not pertain to internal affairs apply to
foreign-flag vessels. For that reason, I join part IIIA of the plurality
opinion. Clark.
I reach this result, however, only
because I continue to reject the “lowest common denominator” principle the
Court articulated for the first time in Clark v Martinez, 544
U.S. ___ (2005). See id., at ___ (slip op., at 9—11) (Thomas, J.,
dissenting). The Court, by contrast, accepts Clark. Moreover, it claims
that applying Title III of the ADA to matters that are not within the realm of a
ship’s internal order is consistent with Clark. The plurality’s
efforts to distinguish Clark are implausible.
The plurality says that today’s
case differs from Clark because it invokes a clear statement rule to
interpret unambiguous text. According to the plurality, Clark concerned
the application of a previously adopted limiting construction of ambiguous text,
which this Court imposed to ameliorate unrelated constitutional doubts. Ante,
at 16—17. As an initial matter, however, the statute at issue in Zadvydas v
Davis, 533
U.S. 678 (2001) and Clark was not ambiguous. Clark, supra,
at ___ (slip op., at 16—17) (Thomas, J., dissenting). Even assuming for the
sake of argument that it was ambiguous, the distinction the plurality draws has
no basis in Clark. In Clark, this Court addressed the period of
detention 8
U.S.C. § 1231(a)(6) authorized for inadmissible aliens. This was a question
left open by Zadvydas, supra, which had addressed the period of
detention under the same statute but with respect to a different class of
aliens – those who had been admitted into the country. In Zadvydas, this
Court had concluded that the possibility of indefinite detention of admitted
aliens raised significant constitutional doubts and, in light of those doubts,
it limited the Attorney General’s power to detain admitted aliens. 533 U.S.,
at 689—690, 699. Section 1231(a)(6) does not distinguish between the two
classes of aliens. Thus, this Court in Clark concluded it was compelled
to apply that same construction, which was warranted only by the specific
constitutional concerns arising for admitted aliens, to the unadmitted aliens
before it. 543 U.S., at __ (slip op., at 8). Clark’s conclusion stemmed
from the narrowing construction adopted in Zadvydas, not the type of rule
or canon that gave rise to that construction. 543 U.S., at ___ (slip op.,
at 6—7).
The plurality’s reasoning cannot
be squared with Clark’s “lowest common denominator” principle.
Under Clark, “[t]he lowest common denominator, as it were, must
govern.” Id., at ___ (slip op., at 8). Just as in Zadvydas and Clark,
this Court is called upon to interpret the same statutory text with respect to
two different classes of cases – those that implicate the internal affairs of a
vessel and those that do not. And just like the statute at issue in Zadvydas and Clark, Title III “applies without differentiation” to the internal and
external affairs of foreign-flag vessels, as well as the internal and external
affairs of domestic-flag ships. 543 U.S., at ___ (slip op., at 6). Thus, the
limiting construction of Title III’s definitions excluding foreign cruise
ships from those definitions must govern all applications of the statute,
not just those applications that pertain to internal affairs. According
to Clark, the Court may not narrow Title III on a case-by-case basis,
depending on whether a particular application of Title III interferes with a
ship’s internal order. In fact, it may not apply Title III to any ship or, for
that matter, any entity at all, because Title III does not distinguish between
any of the covered entities. This demonstrates why the principle Clark established
is flawed.
Today’s decision, then, cabins the
Clark principle to apply only when the canon of constitutional avoidance
is invoked to choose among ambiguous readings of a statute. But even here Clark
will continue to make mischief. As I explained in Clark, the lowest
common denominator principle requires courts to search out a single hypothetical
constitutionally doubtful case to limit a statute’s terms in the wholly
different case actually before the court, lest the court fail to adopt a reading
of the statute that reflects the lowest common denominator. Id., at ___
(slip op., at 14) (dissent). This requires a reverse - Salerno analysis
that upends our facial challenge requirements. See Clark, supra,
at ___ (slip op., at 10); see also United States v Salerno, 481
U.S. 739, 745 (1987) (for a facial challenge to succeed, there must be no
circumstance in which the statute is constitutional). For this and other reasons
I have explained, the Clark analysis allows much havoc to be wrought from
the canon of constitutional avoidance. See Clark, supra, at __
(slip op., at 10—15) (dissent).
In sum, I believe that Title III of
the ADA, insofar as it requires structural changes, lacks a sufficiently clear
statement that it applies to the internal affairs of foreign vessels. In my view
the clear statement rule does not render Title III entirely inapplicable to
foreign vessels; instead, Title III applies to foreign ships only to the extent
to which it does not bear on their internal affairs. I therefore would remand
for consideration of those Title III claims that do not pertain to the structure
of the ship. Accordingly, I concur in part III A of the plurality opinion, join
part I A of Justice Scalia’s dissent, and concur in the judgment in part.
[1] Were a clear statement rule in order, I would agree with the plurality’s application-by-application approach.
[2] Only in a footnote describing a National Labour Relations Board decision did the Court make a synonymous reference to the “internal economy of a vessel of foreign registry and ownership.” Benz, 353 U.S., at 143, n. 5.
[3] One could hardly anticipate that, absent conflict with international legal obligations, the application of Title III sought in this case would generate a “storm of diplomatic protest.” Id., at 146 (noting “storm of diplomatic protest” against proposal to apply U.S. law to prohibit advance payments by a foreign vessel to foreign seamen in foreign ports).
[4] As the Court notes, the ships at issue here “are operated by a company based in the United States, serve predominantly United States residents, and are in most other respects United States-centered ventures.” Ante, at 2. Merchant ships sailing between U.S. and foreign ports would present a different question.
[5] The plurality also appears to have found that the National Prohibition Act contained a clear statement of intent to reach foreign-flag vessels, because the Act had been amended to state that it applied to “all territory subject to [the] jurisdiction” of the United States. Cunard S S. Co. v Mellon, 262 U.S. 100, 127 (1923) (internal quotation marks omitted).
[6] The plurality intimates that the clear-statement rule might be inapplicable in situations where, as here, the foreign-flag ships have a number of contacts with the United States. See ante, at 8. McCulloch, 372 U.S., at 19, expressly rejected this approach, explaining that any attempt to weigh the ship’s contacts with the United States “would inevitably lead to embarrassment in foreign affairs and would be entirely infeasible in actual practice.”
[7] This is by no means clear. Title III defines “readily achievable” as “easily accomplishable and able to be carried out without much difficulty or expense.” §12181(9). It is, at best, ambiguous whether a barrier removal can be rendered not “easily accomplishable” or not “able to be carried out without much difficulty” by factors extrinsic to the removal itself. Conflict of an easily altered structure with foreign laws seems to me not much different from the tendency of an easily altered structure to deter customers. That is why, as suggested in text, the Court’s unexpected Title III holding may be the most significant aspect of today’s foreign-flag decision.
[8] The Court, of course, has not even shown that Title III is consistent with the laws of the cruise ships’ flag state; much less has it undertaken the Herculean task – which its theory of presumed coverage by domestic law would require – of showing Title III consistent with the laws of all the cruise ships’ ports of call.
[9] Of course this clear-statement rule would not apply to the onshore operations of foreign cruise companies, which would be treated no differently from the operations of other foreign companies on American soil.
[10] This includes the pricing and ticketing policies, which are intimately related to the ships’ maritime operations (and perhaps to internal order) because they are designed to defray the added cost and provide the added protection that the cruise-ship companies deem necessary for safe transport of disabled passengers.
[11] The plurality’s discussion of Longshoremen v Ariadne Shipping Co., 397 U.S. 195 (1970), is misleading. Although Ariadne clearly recognized the existence of an internal-order rule in our case law, see id., at 200, Ariadne did not hold, similarly to what the plurality holds here, that application of the foreign-flag clear-statement rule prevented some provisions of the National Labour Relations Act (NLRA) from being applied to foreign-flag ships but allowed others to be applied. Rather, it held that the clear-statement rule did not apply at all to activities that were not “within the ‘maritime operations of foreign-flag ships.’ ” Ibid. The case is relevant only to questions the Court does not decide here – namely, application of Title III to onshore operations of the foreign-flag ships. It is not relevant to the question whether all maritime activities are exempt from Title III for lack of a clear statement.
[12] The plurality attempts to simplify this inquiry by explaining that, if it is “a difficult question whether a particular Title III barrier removal requirement is readily achievable, but the requirement does entail a permanent and significant structural modification, interfering with a foreign ship’s internal affairs[,] a court sensibly could invoke the clear statement rule without determining whether Title III actually imposes the requirement.” Ante, at 14. It is impossible to reconcile this with the plurality’s rationale, which excludes the clear-statement rule when there is no actual conflict with foreign law. On the plurality’s own analysis, significant structural modifications are least likely to pose an actual conflict with foreign law, since they are most likely to be regarded as (under the plurality’s new Title III jurisprudence) not “readily achievable” and hence not required. I am at a loss to understand what the plurality has in mind.
[13] After this Court concluded, in EEOC v Arabian American Oil Co., 499 U.S. 244, 260 (1991), (ARAMCO), that Title VII of the Civil Rights Act of 1964, does not protect American citizens working for American employers in foreign countries, Congress amended Title VII. Unlike what would have been this Court’s only available resolution of the issue had it come to the opposite conclusion in ARAMCO – that Title VII applies to all American employers operating abroad – Congress was able to craft a more nuanced solution by exempting employers if compliance with Title VII would run afoul of the law in the country where the workplace was located. See 42 U.S.C. § 2000e—1(b); cf. §12112(c)(1) (same disposition for Title I of the ADA).
Cases
Stevens v Premier Cruises, Inc., 215 F.3d 1237 (2000)
Benz v Compania Naviera Hidalgo, S. A., 353 U.S. 138 (1957)
McCulloch v Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1963)
Cunard S. S. Co. v Mellon, 262 U.S. 100 (1923)
Uravic v F. Jarka Co., 282 U.S. 234 (1931)
Wildenhus’s Case, 120 U.S. 1 (1887)
Longshoremen v Ariadne Shipping Co., 397 U.S. 195 (1970)
EEOC v Arabian American Oil Co., 499 U.S. 244 (1991)
Atascadero State Hospital v Scanlon, 473 U.S. 234 (1985)
Clark v Martinez, 543 U.S. ___ (2005)
Zadvydas v Davis, 533 U.S. 678 (2001)
Raygor v Regents of Univ. of Minn., 534 U.S. 533 (2002)
Jinks v Richland County, 538 U.S. 456 (2003)
Hartford Fire Ins. Co. v California, 509 U.S. 764 (1993)
Murray v Schooner Charming Betsy, 2 Cranch 64, 118 (1804)
Schooner Charming Betsy, 2 Cranch
Lauritzen v Larsen, 345 U.S. 571 (1953)
Hellenic Lines Ltd. v Rhoditis, 398 U.S. 306 (1970)
Small v United States, 544 U.S. 385, (2005)
United States v Salerno, 481 U.S. 739 (1987)
Legislations
Americans with Disabilities Act of 1990, 104 Stat. 353, 42 U.S.C. § 12181
Authors and other references
International Maritime Organization, Summary of Status of Conventions, http://www.imo.org/Conventions/mainframe.asp?topic_id=247
ADA Accessibility Guidelines (ADAAG) Review Advisory Committee
Passenger Vessel Access Advisory Committee, Final Report: Recommendations for Accessibility Guidelines for Passenger Vehicles, ch. 13, pt. I (Dec. 2000), http://www.access-board.gov/news/pvaac-rept.htm (hereinafter PVAAC Report)
Disabled Persons Transport Advisory Committee, The design of large passenger ships and passenger infrastructure: Guidance on meeting the needs of disabled people (Nov. 2000), http://www.dptac.gov.uk/pubs/guideship/pdf/dptacbroch.pdf
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