Wednesday, June 21, 2006

Symeonides on Spector

New on SSRN: Symeon Symeonides, Cruising in American Waters: Spector, Maritime Conflicts, and Choice of Law (Journal of Maritime Law and Commerce, forthcoming 2006). The abstract:

This Article discusses the extent to which the Americans with Disabilities Act (ADA) and similar statutes apply to foreign-flag ships that carry passengers to and from United States ports and have other U.S. contacts, at least while the ships are within U.S. waters.

The answer to this question - which a divided Supreme Court answered equivocally in Spector v. Norwegian Cruise Line Ltd., 125 S.Ct. 2169 (2005) - depends in part on whether the statute's application implicates the ship's internal affairs and on the presence of a clear statement evidencing congressional intent regarding such application.

This Article contends that:

(1) Cases like Spector should not be subject to the clear statement canon because: (a) they do not really involve the ship's internal affairs properly defined; and (b) they do implicate significant U.S. interests, a factor that normally triggers an established exception to the internal affairs doctrine;

(2) If cases like Spector are subject to the clear statement canon, the canon should be downgraded to a presumption of non-applicability, which can be rebutted by showing either actual or constructive congressional intent to that end;

(3) Under this test, one could reasonably infer that Congress intended the ADA to apply to foreign ships like the one involved in Spector because the application of the ADA: (a) would serve the purpose for which Congress enacted it; and (b) would not unduly interfere with the ship's internal affairs properly defined; and

(4) Spector does not materially differ from cases involving the applicability of the Jones Act or general maritime law to disputes with foreign elements. Under the choice-of-law approach followed in those cases, Spector would easily fall within the reach of U.S. law. The dichotomy between these two categories of cases is no longer necessary or defensible. A new, unified choice-of-law approach for both categories would be highly preferable. This Article outlines such an approach.


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