The US Supreme Court will today test the power of US law to reach across borders, in a case that asks whether foreign-registered cruise ships must comply with the nation's stringent disability law.
The case is being closely watched by business groups, which argue that the plaintiff-friendly US civil justice system is being increasingly used to regulate the activities of foreign businesses in the area of human rights law, bankruptcy, antitrust and now disability law.
The justices must decide whether the Americans with Disabilities Act (ADA), which requires most businesses to be accessible to the disabled, applies to cruise ships sailing under a foreign flag.
The plaintiffs, a group of Americans who sailed on Bahamian-flagged ships of Norwegian Cruise Lines, say the ADA should apply to such ships while in US territory. They say they were charged more for accessible cabins and were unable to use amenities such as swimming pools and public bathrooms.
"It is impossible to believe - and contrary to centuries of this court's precedents to presume - that Congress intended that cruise lines that engage in the façade of foreign flagging would be free to discriminate against Americans when operating in US territory," their lawyers argue in their brief.
The US government agrees with the disabled plaintiffs and has filed a friend-of-the-court brief on their behalf.
But a federal appeals court found that "there is no indication that Congress intended [the act] to apply to foreign-flagged cruise ships", adding that "Congress's silence cannot be read to express an intent to legislate where issues touching on other nations' sovereignty are involved".
According to Robert Jarvis, an expert in admiralty law at Nova Southeastern University in Florida, "under international law, governments are required to avoid meddling in the 'internal affairs' of foreign-flagged vessels".
Writing in an American Bar Association preview of the case, he pointed out that, nevertheless, it was also widely agreed that "a local sovereign can make certain demands on a foreign ship entering its waters to preserve the 'peace of the port' ".
But the cruise lines counter that, in the interests of international legal harmony, US courts normally avoid giving US statutes an extraterritorial interpretation unless Congress made clear it intended cross-border application.
"For centuries, the law of nations has recognised that the law of the flag state generally governs the structure and design of the ship," the Bahamas argues in a friend-of-the-court brief.
"Maritime commerce would be stifled if the internal affairs of a ship were governed by a different set of laws every time it called on a new foreign port."
The US Chamber of Commerce argues that if the plaintiffs prevail, any passenger (including non-Americans) could sue a cruise line for an ADA violation if even one of its ships ever docked in the US.
