1 125 S.Ct. 2169 (2005) [hereinafter SpectorII], reversing Spectov v. Norwegian Cruise Line Ltd., 356 F.3d 641 (5th Cir. 2004) [hereinafter Spector I].

2 42 U.S.C. §§12181-12189 (2000).

3 Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).

4 See Spector I, supra note 1, at 643.

5 Spector II, supra note 1, at 2175. NCL’s business model is typical for the U.S. cruise industry. Most companies that own and operate these cruise ships incorporate in foreign states, but actually base themselves in the United States (principally in Florida). Moreover, although foreign states flag these ships, they operate for much of the year through round-trip voyages from U.S. ports (again, principally those in Florida). See id. at 2178.

6 See 42USC §§12182(a), 12184(a); see also id. §12181(7), (10) (definitions).

7 See 42 USC §§12182(b)(2)(A)(ii), 12184(b)(2)(A) (“reasonable modifications”); id. §§12182(b)(2)(A)(iv), 12184(b)(2)(C) (“architectural barriers”).

8 See Brief for the Petitioners at 15 (Dec. 3, 2004), Spector II, supra note 1 [hereinafter Petitioners’ Brief].

9 See Petitioners’ Brief, supra note 8, at 17-25; Spector I, supra note 1, at 643.

10 Spector I, supra note 1, at 644; see also Brief for Respondent at 8 (Jan. 28,2005), Spector II, supranote 1 [hereinafter Respondent’s Brief].

11 See Spector II, supra note 1, at 2175 (citing Civ. Action No. H-00-2649 (S.D. Tex., Sept. 10, 2002)). The district court did dismiss petitioners’ claims seeking barrier removal where the government had not promulgated the requisite regulations. Id. at 2175-76.

12 Spector I, supra note 1, at 643. The Fifth Circuit affirmed the dismissal of petitioners’ claims regarding barrier removal. Id. at 650; see abo supra note 11.

13 Spector I, supra note 1, at 646 (citing 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)).

14 Id. at 650. The Fifth Circuit also cited the Charming Betsy canon and the presumption against extraterritoriality as justifying the same result. See id. at 646-48.

15 Justices Breyer, Ginsburg, Stevens, and Souter joined Parts I, II-A-1, and II-B-2 of Justice Kennedy’s opinion; Justices Stevens and Souter also joined parts II-A-2, II-B-1, II-B-3, and III-B; and Justices Stevens, Souter, and Thomas joined Part III-A. Spector II, supra note 1, at 2174.

16 Id. at 2177 (citing ADA definitions). The majority earlier described the ships as “floating resorts,” providing passengers “staterooms or cabins, food, and entertainment.” Id. at 2175.

17 Id. at 2177.

18 Id.

19 Ironically, although the majority did not apply the clear-statement rule to Title III, seven justices accepted the view that it could apply to Title III’s barrier-removal provisions. See id. at 2181 (Kennedy, joined by Stevens and Souter, reasoned that where a Title III requirement “does entail a permanent and significant structural modification, interfering with a foreign ship’s internal affairs . . . a court could sensibly invoke the clear statement rule”); id. at 2186 (Thomas, concurring in part, dissenting in part, agreed that the clear-statement rule “applies to any structural changes to a ship that Title III. . . might require”); id. at 2188 (Scalia, joined by Rehnquist, O’Connor, and Thomas in dissent, argued that all of Title Ill’s requirements are subject to the clear-statement rule with respect to foreign-flag cruise ships). No majority emerged on this point, however, given the contrasting views of justices Kennedy and Scalia on the issue of the clear-statement rule’s applicability to the remainder of Title III. Compare id. at 2179 (Kennedy, joined by Stevens and Souter, rejected the application of the clear-statement rule to certain Title III requirements that “have nothing to do with a ship’s internal affairs”) with id. at 2192-93 (Scalia, joined by Rehnquist and O’Connor, insisted that the clear-statement rule applied to all of Title III’s coverage of foreign-flag ships because some of its provisions plainly affect their internal order).

20 [Editor’s Note: International Convention for the Safety of Life at Sea, Nov. 1, 1974, 32 UST 47, 1184 UNTS 276 [hereinafter Solas].]

21 Spector II, supra note 1, at 2180 (citations omitted); see also Brief for United States as Amicus Curiae Supporting Petitioners at 26-27 (Dec. 3, 2004), Spector II, supra note 1 [hereinafter U.S. Amicus Brief],

22 See Solas, supra note 20, ch. II-l, Regulation 20(2); 42 USC §§12182(b)(2)(A)(iv), 12184(b)(2)(C) (Tide III requirements on removal of structural barriers to access).

23 Spector II, supra note 1, at 2180.

24 Id. at 2181.

25 Id. at 2177 (Kennedy, J.) (citing Cunard S.S. Co. v. Mellon, 262 U.S. 100, 127 (1923); Uravic v. F. Jarka Co., 282 U.S. 234, 240 (1931)). Kennedy viewed the cases cited by the Fifth Circuit—Benz and McCulloch (see supra note 13)—as consistent with the internal affairs rule. He explained that the Supreme Court had not applied U.S. law— namely, the National Labor Relations Act (NLRA)—in those cases because they involved a foreign ship’s “internal” labor relations with its crew. He noted, however, that the Court had applied the NLRA to a foreign ship’s labor relations with U.S. longshoremen since those relations did not implicate the ship’s internal order. See Spector II, supra note 1, at 2178.

26 See Spector II, supra note 1, at 2177-79 (citing Wildenhus’s Case, 120 U.S. 1,12 (1887)). Recognizing the possible need for further judicial elaboration, Kennedy declined to decide whether the rule applied to matters that affect “only” the ship’s internal order (that is, with no effect on U.S. interests), or if the rule covered all matters with an effect predominantly on the ship. Id. at 2179, 2184.

27 Id. at 2178. The majority had already noted NCL’s extensive U.S. advertising and its choice of U.S. law in its tickets’ dispute resolution clauses. Id. at 2175.

28 Id. at 2178. The majority made the same characterization. Id. at 2175.

29 Id. at 2179. Kennedy also expressed concern with interpreting Title III to imply that U.S. racial discrimination statutes do not apply to foreign-flag ships in U.S. waters. Id. at 2178.

30 Id. at 2179, 2181.

31 Id. at 2180.

32 Id. In a section of his opinion, in which Justices Souter, Stevens, and Thomas joined, Justice Kennedy recognized that courts could avoid the internal affairs rule if the majority’s interpretation of “readily achievable” imposed “no requirements that interfere with the internal affairs of foreign-flag cruise ships.” Id. at 2181. Alternatively, Kennedy, joined by Justices Souter and Stevens, suggested the internal affairs rule and the “readily achievable” limitation could operate interchangeably, depending on the circumstances. See id.

33 Id. at 2182 (Kennedy, J., joined by Souter, Stevens, & Thomas, JJ.). Justice Ginsburg favored an application-by-application approach to the rule when appropriate. Id. at 2184 n.l (Ginsburg, J., concurring in part and concurring in the judgment).

34 Id. at 2184.

35 Id; see also supra notes 16, 21, and accompanying text.

36 Spector II, supra note 1, at 2184.

37 Id. (quoting Hartford Fire Ins. Co. v. California, 509 U.S. 764, 815 (1993) (Scalia, J., dissenting)). Unlike Kennedy, Ginsburg viewed the NLRA decisions as cases decided by the potential for international discord in applying U.S. law, not by the level of interference with a vessel’s internal affairs. See id. at 2184-85; see also supra note 25.

38 See Spector II, supra note 1, at 2184-85; id. at 2185 n.3 (rejecting idea that, absent a conflict with international legal obligations, Title III’s application would ever generate diplomatic protests).

39 See id. at 2185. Ginsburg viewed Title Hi’s application to merchant ships sailing between U.S. and foreign ports as a different issue than for the U.S.-centered cruise industry. Id. at 2186 n.4.

40 Id. at 2188 (Scalia, J., dissenting). Justice Thomas joined part I-A of Scalia’s dissent and also issued a separate opinion. Id. at 2186 (Thomas, J., concurring in part, dissenting in part, and concurring in the judgment in part). Thomas agreed that Tide III would apply to foreign ships for matters “that do not pertain to internal affairs” but rejected the plurality’s suggestion that it could operate interchangeably with the “readily achievable” limitation. Id. at 2186-87.

41 Id. at 2188-89 (using term “internal order” in lieu of “internal affairs”). In fact, applying the internal affairs rule, Scalia found no evidence that Congress had intended any of Tide III to cover foreign cruise ships, especially since Congress had explicitly legislated with respect to such ships in the past. Id. at 2194-95.

42 Id. at 2189 n.2.

43 Id. at 2188 (quoting McCulloch, 372 U.S. at 21).

44 Id. at 2189.

45 Id. at 2190.

46 Id. at 2190-91; see also Hartford Fire Ins. Co., 509 U.S. at 820-21 (Scalia, J., dissenting).

47 Spector II, supra note 1, at 2191 n.4. Scalia noted that the Court’s “expansive en passant interpretation” of Tide III’s “readily achievable” exception would likely have significant effects on future interpretations of Title III’s requirements for domestic entities and services. Id. at 2190.

48 Id. at 2192.

49 Id.

50 Id. at 2193-94.

51 See generally Agora: The United States Constitution and International Law, 98 AJIL 42 (2004).Google Scholar

52 See Spector II, supra note 1, at 2180 (Kennedy, joined by Souter and Stevens, interpreted “readily achievable” to exclude provisions that would bring vessel into noncompliance with Solas or any other international legal obligation); id. at 2185 (Ginsburg, joined by Breyer, noted Charming Betsy canon served by Court’s interpretation of “readily achievable”); id. at 2191 (Scalia, joined by Rehnquist and O’Connor, noted that Tide III’s possibility of subjecting foreign ships to conflicting international obligations mandates presumption that Tide III does not apply to such vessels absent a clear statement from Congress); see also U.S. Amicus Brief, supra note 21, at 27 n.4 (citing Whitney v. Robertson, 124 U.S. 190, 194 (1888), for proposition that when a treaty and statute “relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either”).

53 It appears unlikely that NCL’s ships will be the object of such clarifications. NCL has decided to remove both vessels at issue in Spector from U.S. waters and announced its intention to have “the most accessible” ships in the industry. See Greenhouse, Linda, Supreme Court Rules That Disabilities Act, in Part, Applies to Foreign Cruise Ships, N.Y. Times, June 7, 2005.Google Scholar

54 Spector II, supra note 1, at 2180.

55 For example, although the United States recognizes and accepts much of the Law of the Sea Convention’s substantive provisions as codifying customary international law, it has not accepted the authority of the Convention’s International Tribunal for the Law of the Sea (ITLOS). See, e.g., President Reagan’s Statement on United States Ocean Policy, 19 Weekly Comp. Pres. Doc. 383 (Mar. 10, 1983)Google Scholar, 22ILM 461, 464 (1983). As such, one can envision a scenario where a flag state has an obligation to abide by an ITLOS decision under the Law of the Sea Convention, but the United States would not accept that decision as binding on it in any way. See, e.g., UN Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Arts. 286-99, Annex VI, 1833 UNTS 396 [hereinafter LOS Convention] .

56 See LOS Convention, supra note 55, Art. 94; Spector II, supra note 1, at 2180. Spector leaves open a separate question: whether Title III requirements that would bring the United States, rather than the vessel, into noncompliance with international law are not “readily achievable.” For example, can foreign vessels who only transit U.S. waters avoid Title Ill’s application entirely by invoking the U.S. obligation to provide innocent passage? See, e.g., Geneva Convention on the Territorial Sea and Contiguous Zone, Apr. 29, 1958, Arts. 14-17, 15 UST 1606; LOS Convention, supra note 55, Arts. 17-26.

57 See U.S. Amicus Brief, supra note 21, at 27.

58 See Spector II, supra note 1, at 2180.

59 Only Justice Scalia explicitly discussed whether conflicts with SOLAS existed under the proposed federal rules for implementing Tide III, either because those guidelines contain standards that directly conflict with the SOLAS standard (for example, coaming heights) or require vessels to take additional measures under Title III beyond those they would have to take under Solas alone (for example, providing an elevator as a means of egress). Id. at 2190.

60 See Petitioners’ Brief, supra note 8, at 43; Reply Brief for the Petitioners at 17 (Feb. 18, 2004), Spector II, supra note 1; Respondent’s Brief, supra note 10, at 21; Brief for the Commonwealth of the Bahamas and the Bahamas Maritime Authority as Amici Curiae in Support of Respondent at 20-22 (Jan. 28, 2005), Spector II, supra note 1 [hereinafter Bahamas Amici Brief].

61 Justice Scalia seemed to see a conflict here, whereas the executive branch did not. Compare Specter II, supra note 1, at 2190 (Scalia, J., dissenting), with U.S. Amicus Brief, supra note 21, at 28-29.

62 Indeed, all of the parties accepted the United States’ right to exercise jurisdiction within its territorial waters. See, e.g., Bahamas Amici Brief, supra note 60, at 6 (“Bahamas recognizes that the [U.S.] government, like the governments of all seafaring nations, has the sovereign authority to apply its own laws to the foreign-flagged ships that enter its territorial waters or ports.”).

63 See supra note 44 and accompanying text. Scalia’s view comports most closely with the concerns that led the Court to deny the NLRA’s application in Benz and McCulloch. See Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 146-47 (1957) (declining to supplant British law with the NLRA, because of possibilities of international discord and retaliative action from foreign states); McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10,20-21 (1963) (declining to apply NLRA when Honduran law already regulated labor relations in question).

64 See Spector II, supra note 1, at 2190 (Scalia expressing concern with the potential for conflict between the ADA and other states’ disability laws); see also Respondent’s Brief, supra note 10, at 41 (noting that forty-two countries have human rights laws for the disabled); Bahamas Amici Brief, supra note 60, at 24 (noting that the countries with disability laws include many “major maritime powers”).

65 See supra note 37 and accompanying text.

66 Although Ginsburg did not accept a foreign law limitation on Title III, she did cite cases (for example, McCulloch) that involved foreign law conflicts. See Spector II, supra note 1, at 2185.

67 See supra notes 25-26 and accompanying text. This approach parallels that taken by the Court in the Jones Act cases. See, e.g., Lauritzen v. Larsen, 345 U.S. 571, 582 (1953) (seeking to avoid international conflicts by weighing “the significance of one or more connecting factors between the shipping transaction regulated and the national interest served by the assertion of authority”).

68 See LOS Convention, supra note 55, Arts. 17, 19 (all states enjoy a right of innocent passage, which is defined to involve continuously and expeditiously transiting a coastal state’s territorial sea in a manner that is not prejudicial to the peace, good order, or security of the coastal state).

69 See, e.g., id., Art. 2 (“the sovereignty of a coast state extends, beyond its land territory and internal waters .. . to an adjacent belt of sea, described as the territorial sea”); The Schooner Exchange v. M’Faddon, 11 U.S. (7 Cranch) 116, 136 (1812) (“[T]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself”); Restatement (Third) of the Foreign Relations Law of the United States §512 (subject to the right of innocent passage, “the coastal state has the same sovereignty over its territorial sea . . . as it has in respect of its land territory”).

70 See, e.g., LOS Convention, supra note 55, Art. 94 (flag state has duty to “effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag”).

71 Compare Cunard S.S. Co. v. Mellon, 262 U.S. 100, 124 (1923) (“ship of one country voluntarily entering the territorial limits of another subjects herself to the jurisdiction of the latter”), with Lauritzen, 345 U.S. at 585 (“This Court has said that the law of the flag supersedes the territorial principle,” in part because “there must be some law on shipboard, that it cannot change at every change of waters, and no experience shows a better rule than that of the state that owns her.”) and McCulloch, 372 U.S. at 21 (“our attention is called to the well-established rule of international law that the law of the flag state ordinarily governs the internal affairs of a ship”).

72 See, e.g., McDorman, Ted, Port State Enforcement: A Comment on Article 218 of the 1982 Law of the Sea Convention, 28 Mar. L. & Com. 305 (1997).Google Scholar

73 Unlike the Oil Pollution Act of 1990,46 U.S.C. §§9101-9102, which explicitly covers foreign tankers, the Spector Court presumed Title III generally applied in the face of Congress’s silence.