793
July 13, 1999
Mr. Hermann Paul Schlander
Cruise Ship Consultant
42-980 Massachusetts Court
Palm Desert, California 92211
Dear Mr. Schlander:
This letter is in response to your inquiries whether the
Americans with Disabilities Act of 1990 (ADA) applies to foreign
flag cruise ships. Please excuse the delay.
The ADA authorizes the Department of Justice to provide
technical assistance to individuals and entities that have rights
or responsibilities under the Act. Pursuant to that authority,
this letter provides informal guidance to assist you in
understanding the ADA. However, this technical assistance does
not constitute a legal interpretation of the statute, and is not
binding on the Department.
Cruise ships are subject to the requirements of title III of
the ADA. Section 301 of the ADA prohibits discrimination against
persons with disabilities by private entities in their operation
of places of public accommodation. A place of public
accommodation is defined as a facility whose operations affect
commerce and fall within one or more of the twelve broad
categories of facilities listed in the statute. These categories
include places of lodging, establishments serving food or drink,
places of exhibition or entertainment, and places of exercise or
recreation. Cruise ships, which typically contain guest cabins,
restaurants, snack bars, movie theaters, lounges, health clubs,
and pool areas, function as one or more of these types of places
of public accommodation.
Cruise ships are also covered by section 304 of the ADA.
Section 304 prohibits discrimination on the basis of disability
in "specified public transportation services provided by a
private entity that is primarily engaged in the business of
transporting people and whose operations affect commerce."
Specified public transportation is defined as "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."
42 U.S.C. 12181(10)
Nothing in the plain language of the ADA excludes from
coverage foreign flag cruise ships that do business in the United
States. The ADA does not exempt from coverage public
accommodations or transportation services operated by foreign
corporations. Absent a statutory exemption, corporations doing
business in the United States must comply with all generally
applicable laws, including laws that prohibit discrimination.
The fact that a cruise ship sails under a foreign flag and is
registered in a foreign country does not exempt it from generally
applicable laws of the countries in which it does business.
Because foreign flag vessels generally are subject to the
laws of the United States when they are in United States ports or
other internal waters, the Department of Justice has determined
that foreign flag cruise ships are subject to the requirements of
the ADA when they are in the ports or internal waters of the
United States. The Department of Justice Technical Assistance
Manual provides that foreign flag ships "that operate in United
States ports may be subject to domestic law, such as the ADA,
unless there are specific treaty prohibitions that preclude
enforcement." Title III Technical Assistance Manual III-1.2000(D) (1994 Supp.) The Department of Transportation has
similarly determined that the United States "appears to have
jurisdiction to apply ADA requirements to foreign-flag cruise
ships that call in U.S. ports" except to the extent that
enforcing ADA requirements would conflict with a treaty. 56 Fed.
Reg. 45,584, 45,600 (1991). Therefore, unless there is a showing
that the application of the ADA to a foreign flag cruise ship
would conflict with an international convention to which the
United States is a party, the ADA applies.
The Department of Justice has recently filed a brief as
amicus curiae, or "friend of the court," in the United States
Court of Appeals for the Eleventh Circuit in support of an
individual with a disability who is appealing the dismissal of
her ADA suit against a foreign flag cruise ship. The
Department's amicus brief sets forth our position that the ADA
applies to foreign flag cruise ships when they are in the ports
or other internal waters of the United States.
I hope that this information is helpful to you.
Sincerely,
John L. Wodatch
Chief
Disability Rights Section
Updated 2008-07-25