'Twas the Night Before Regulations: Foreign-Flag Cruise Ships and the ADA

In June 2000, the United States Court of Appeals for the Eleventh Circuit ruled that Title III of the Americans with Disabilities Act (ADA) applies to foreign-flag cruise ships that carry U.S. passengers and embark at U.S. ports. Stevens v. Premier Cruises, Inc. held that application of the ADA to a foreign-flag cruise ship under such circumstances does not violate the usual presumption against extraterritorial application of U.S. laws, but the case failed to address the important question of whether courts can now compel shipowners to modify the physical features of existing vessels to enhance accessibility, and if so, to what extent.
This Article focuses on several critical and practical problems with civil lawsuits imposing construction or renovation standards on cruise ships prior to the enactment of relevant regulations by the federal agencies to which Congress delegated sole authority under the ADA. Although detailed regulations are being enacted, final accessibility standards for ships are not expected for approximately eighteen months and the notice-and-comment rulemaking procedures required by the Administrative Procedure Act have not yet been initiated. Thus, any interim exercise of jurisdiction by courts to enter injunctive relief in various venues, in order to compel shipowners to renovate vessels to as-yet-unspecified standards, would be premature. Such lawsuits violate constitutional due process and endanger the long-settled tradition of maritime uniformity. Attorneys prosecuting these suits prior to the enactment of controlling regulations should not be awarded attorney's fees, as generally provided for the “prevailing party” under the ADA, until the responsible agencies promulgate a comprehensive regulatory scheme for vessels and shipowners are given an opportunity to comply.