                                                                                    [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS
                         FOR THE ELEVENTH CIRCUIT
                                                                                    FILED
                            -------------------------------------------
                                                                          U.S. COURT OF APPEALS
                                          No. 98-5913                       ELEVENTH CIRCUIT
                           --------------------------------------------           JUNE 22 2000
                                                                              THOMAS K. KAHN
                          D. C. Docket No. 98-02140-CV-FAM                         CLERK



TAMMY STEVENS,
                                                            Plaintiff-Appellant,

       versus

PREMIER CRUISES, INC., a
Canadian Corporation,
                                                            Defendant-Appellee.


                 ----------------------------------------------------------------
                      Appeal from the United States District Court
                            for the Southern District of Florida
                 ----------------------------------------------------------------
                                        (June 22, 2000)


Before EDMONDSON and BARKETT, Circuit Judges, and COHILL*, District
Judge.


_______________
     *Honorable Maurice B. Cohill, Jr., United States District Judge for the Western District
of Pennsylvania, sitting by designation.



PER CURIAM:
      Tammy Stevens (“Plaintiff”) brought this suit in district court against

Premier Cruises, Inc. (“Defendant”). Plaintiff’s complaint alleged claims under the

Americans with Disabilities Act (“ADA”) and under state law. The district court

dismissed Plaintiff’s complaint with prejudice under Fed. R. Civ. P. 12. Plaintiff

appeals, and we vacate and remand.



                                          I.



      Plaintiff, who is largely confined to a wheelchair, decided to take a vacation

aboard a cruise ship.1 Plaintiff saw an advertisement in a Florida newspaper for a

cruise aboard a Bahamian-flag ship – the S.S. Oceanic – owned and operated by

Defendant. The advertisement offered a four-day, three-night cruise aboard the ship

for $349 per person. Plaintiff contacted her travel agent about the cruise, and the

travel agent made the necessary arrangements for Plaintiff to take the cruise vacation.

The travel agent, when making the arrangements for Plaintiff, was assured that

Plaintiff’s cabin would be wheelchair-accessible. Plaintiff, however, was required to



      1
        Because this case comes before us at the pleading stage, we accept, for the
purposes of this appeal, the truth of Plaintiff’s factual allegations. See Blackston v.
State of Ala., 30 F.3d 117, 120 (11th Cir. 1994).
                                           2
pay a fee in excess of the advertised price to obtain a purportedly wheelchair-

accessible cabin.

      Plaintiff boarded the ship in Florida for her cruise. After the ship sailed,

however, Plaintiff discovered that her cabin was not, in fact, wheelchair-accessible.

Plaintiff also found that many public areas of the cruise ship were inaccessible to

persons in wheelchairs. As a consequence, Plaintiff was “denied the benefits of

services, programs, and activities of the vessel and its facilities.”

      Plaintiff then brought this suit against Defendant. Plaintiff’s complaint alleged

that the inaccessibility of the ship to persons in wheelchairs violated Title III of the

ADA. In particular, the complaint said that Defendant had violated the ADA by

failing to: (1) “provide accessible paths of access . . . from entrances of rooms

throughout the public areas of the vessel;” (2) “provide ADA approved signs at

inaccessible routes and locations indicating the accessible route into and throughout

the vessel;” (3) “modify numerous interior and exterior doors [to accommodate

persons in wheelchairs];” (4) “modify and provide the requisite cabins accessible for

persons with disabilities;” and (5) provide proper emergency exit signs for persons in

wheelchairs. The complaint also alleged – under state law – that Defendant had

engaged in fraud, unfair and deceptive trade practices, and intentional infliction of

emotional distress.


                                            3
      Defendant moved the district court to dismiss Plaintiff’s complaint under Fed.

R. Civ. P. 12(b). The district court concluded that dismissal was warranted on two

grounds. First, the district court – noting that Plaintiff’s ADA claim only sought

injunctive relief – concluded that, because Plaintiff’s complaint did not allege a threat

of future injury, Plaintiff had not pleaded properly her standing to pursue the ADA

claim. Second, the district court determined that, because the ADA – as a matter of

law – does not apply to foreign-flag cruise ships, Plaintiff’s complaint failed to state

a claim. The district court accordingly granted Defendant’s motion and dismissed

Plaintiff’s complaint with prejudice.2

      Plaintiff then filed a motion for reconsideration.           In the motion for

reconsideration, Plaintiff – to cure the failure to plead standing to pursue injunctive

relief – sought leave to amend her complaint. Plaintiff, in fact, proffered an amended

complaint to the district court. In the submission, Plaintiff alleged that, in the near

future, she would take another cruise aboard Defendant’s ship. The district court,

however, denied Plaintiff’s request for leave to amend. The district court concluded

that Plaintiff’s proposed amendment would be futile because, even if the amended

complaint properly pleaded Plaintiff’s standing, the amended complaint still would



      2
         The district court’s order of dismissal does not discuss the merits of
Plaintiff’s state law claims. Those claims are not at issue in this appeal.
                                           4
fail to state a claim. Plaintiff appeals the district court’s order of dismissal and denial

of Plaintiff’s motion for reconsideration.



                                             II.



      Plaintiff – conceding that her original complaint did not properly plead her

standing to seek injunctive relief – contends that the district court erred in denying her

request for leave to amend her complaint. Plaintiff says that her proffered amended

complaint would have cured the original complaint’s failure to plead standing.

Plaintiff argues that the district court should have given Plaintiff one opportunity to

cure her pleading defect before the district court dismissed with prejudice. We agree.

       That Plaintiff – to pursue injunctive relief in federal court – must plead a

genuine threat of imminent injury seems clear. See generally Lujan v. Defenders of

Wildlife, 112 S. Ct. 2130, 2136-37 (1992). And, that Plaintiff’s original complaint

failed to allege a genuine threat of future injury seems equally clear. But we are

satisfied that Plaintiff’s proffered amended complaint would have cured the defect

about standing in the original complaint. See Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs., Inc., 120 S. Ct. 693, 705-06 (2000).




                                             5
      A district court, before dismissing a complaint with prejudice because of a mere

pleading defect, ordinarily must give a plaintiff one opportunity to amend the

complaint and to cure the pleading defect. See Isbrandtsen Marine Servs., Inc. v. M/V

Inagua Tania, 93 F.3d 728, 734 (11th Cir. 1996). Leave to amend, however, need not

be granted where amendment would be futile. See Galindo v. ARI Mut. Ins. Co., 203

F.3d 771, 777 n.10 (11th Cir. 2000).           Here, the district court concluded that

amendment would be futile because, even if Plaintiff could plead her standing to

pursue the ADA claim, the complaint still would fail to state a claim. We, therefore,

turn to Plaintiff’s second contention on appeal.



                                          III.



      Plaintiff contends that the district court’s construction of Title III – that Title

III does not apply to foreign-flag cruise ships in United States waters – was erroneous.

Plaintiff argues that a cruise ship is a “public accommodation” under 42 U.S.C. §

12181(7) and, therefore, is subject to Title III.3 And, according to Plaintiff, that the


      3
        Plaintiff also argues on appeal that Title III applies to cruise ships because
cruise ships constitute “specified public transportation.” See 42 U.S.C. §
12181(10). We note that Plaintiff’s complaint does not allege that Defendant’s
cruise ship is “specified public transportation;” Plaintiff just alleged in her
complaint that Defendant’s cruise ship is a public accommodation. And, in any
                                           6
cruise ship happens to fly a foreign flag is unimportant; Plaintiff says that Title III

applies to cruise ships in United States waters regardless of their nationality. We

conclude that Plaintiff’s complaint does state a claim under Title III of the ADA.



                                          A.



      We first consider whether Title III applies to cruise ships at all.4 Title III

prohibits discrimination “on the basis of disability in the full and equal enjoyment of

the goods, services, facilities, privileges, advantages, or accommodations of any place

of public accommodation.” 42 U.S.C. § 12182(a). The pertinent issue, therefore, is

whether a cruise ship may be a “public accommodation.”




event, we need not consider Plaintiff’s alternative argument because we conclude
that a cruise ship may be a public accommodation subject to Title III. We,
therefore, decline in this case to decide whether a cruise ship also constitutes
“specified public transportation” under Title III.
      4
        The district court did not address this issue. The district court concluded
that, even if Title III applies to cruise ships generally, Title III does not apply to
foreign-flag cruise ships (like Defendant’s cruise ship). Nonetheless, Defendant
does argue on appeal that Title III does not apply to cruise ships at all. We
accordingly address the question. See United States v. White, 27 F.3d 1531, 1535
(11th Cir. 1994) (noting that court of appeals may address fully-briefed issue of
law not addressed by district court).
                                           7
      Our consideration of this question begins, of course, with the plain language of

the statute. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

104 S. Ct. 2778, 2781 (1984). And, “[i]f the intent of Congress is clear” from the

plain language of the statute, our inquiry also ends with the statutory language. See

id. In examining the statutory language, we bear in mind that a statute is not vague

or ambiguous just because it is broad. See Sedima, S.P.R.L. v. Imrex Co., 105 S. Ct.

3275, 3286 (1985).

      Congress has provided, in Title III of the ADA, a comprehensive definition of

“public accommodation.” See 42 U.S.C. § 12181(7). “Public accommodations”

include: “an inn, hotel, motel, or other place of lodging,” 42 U.S.C. § 12181(7)(A);

“a restaurant, bar, or other establishment serving food or drink,” 42 U.S.C. §

12181(7)(B); “a motion picture house, theater, concert hall, stadium, or other place of

exhibition or entertainment,” 42 U.S.C. § 12181(7)(C); “an auditorium, convention

center, lecture hall, or other place of public gathering,” 42 U.S.C. § 12181(7)(D); “a

bakery, grocery store, clothing store, hardware store, shopping center, or other sales

or rental establishment,” 42 U.S.C. § 12181(7)(E); “a laundromat, dry-cleaner, bank,

barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas

station, office of an accountant or lawyer, pharmacy, insurance office, professional

office of a health care provider, hospital, or other service establishment,” 42 U.S.C.


                                          8
§ 12181(7)(F); and “a gymnasium, health spa, bowling alley, golf course, or other

place of exercise or recreation.” 42 U.S.C. § 12181(7)(L). Because Congress has

provided such a comprehensive definition of “public accommodation,” we think that

the intent of Congress is clear enough.

      That a cruise ship may contain some of the enumerated public accommodations

is not in doubt. Cruise ships, in fact, often contain places of lodging, restaurants, bars,

theaters, auditoriums, retail stores, gift ships, gymnasiums, and health spas. And, a

public accommodation aboard a cruise ship seems no less a public accommodation

just because it is located on a ship instead of upon dry land. In other words, a

restaurant aboard a ship is still a restaurant. Very important, Congress made no

distinctions – in defining “public accommodation” – based on the physical location

of the public accommodation. We conclude, therefore, that those parts of a cruise ship

which fall within the statutory enumeration of public accommodations are themselves

public accommodations for the purposes of Title III.5


      5
        Some cruise ships may contain none of the enumerated public
accommodations; such cruise ships would not be subject to the public
accommodation provisions of Title III.
       That a cruise ship contains some public accommodations does not mean that
the entire cruise ship necessarily is subject to Title III. Only those portions of the
cruise ship that come within the statutory definition of “public accommodation”
are subject to the public accommodation provisions of Title III. Other parts of a
ship, such as the bridge, the crew’s quarters, and the engine room, might not
constitute public accommodations. And, if those portions of a ship are not “public
                                            9
      That Congress might not have specifically envisioned the application of Title

III to ships does not compel a different conclusion. Congress did intend that the ADA

have a broad reach. See Florida Paraplegic Ass’n v. Miccosukee Tribe of Indians of

Fla., 166 F.3d 1126, 1128 (11th Cir. 1999) (noting breadth of Title III); see also 42

U.S.C. § 12101(b) (noting that Congress intended – by enacting the ADA – to

“provide a clear and comprehensive national mandate for the elimination of

discrimination against individuals with disabilities” and invoked “the sweep of

congressional authority”). And, both the Supreme Court and this Court have

concluded previously that the ADA is applicable to contexts that may not have been

particularly envisioned by Congress. See, e.g., Pennsylvania Dep’t of Corrections v.

Yeskey, 118 S. Ct. 1952, 1956 (1998) (applying ADA to alleged discrimination

against disabled inmates in state prison system); Florida Paraplegic Ass’n, 166 F.3d

at 1128-29 (applying Title III of ADA to Indian reservations). Because Title III is not




accommodations,” they are not subject to Title III’s public accommodation
provisions.
      Which parts of a ship, if any, are “public accommodations” is a mixed
question of law and fact. It is usually a question that requires fact-finding and that
must be answered, in the first instance, in the district court.
                                          10
inapplicable as a matter of law to cruise ships, we turn now to the foreign-flag issue.6



                                           B.



      The district court determined that, as a matter of law, Title III of the ADA does

not apply to foreign-flag cruise ships in United States waters. Plaintiff contends that

the district court’s conclusion was erroneous. We agree with Plaintiff.

      The district court based its determination about foreign-flag cruise ships on the

presumption against extraterritoriality set out in EEOC v. Arabian Am. Oil Co., 111

S. Ct. 1227, 1230 (1991) (“Aramco”). In Aramco, the Supreme Court announced a

presumption that, in the absence of a clearly expressed intention to the contrary,

legislation does not apply extraterritorially. Id. The district court – finding no clearly

expressed intent to apply Title III outside the borders of the United States – invoked



      6
         We recognize that the Justice Department – which is charged with primary
enforcement of Title III, see 42 U.S.C. §§ 12186(b), 12188 – has said that a cruise
ship, for the purposes of Title III, may constitute a “public accommodation.”
See 28 C.F.R. pt. 36, app. B. Plaintiff urges this Court to defer to the Justice
Department’s interpretation of Title III. We need not address the question of
deference because we conclude that the plain language of Title III makes
Congress’s intent sufficiently clear. See Chevron, 104 S. Ct. at 2781. But, we do
note that, in the light of the Justice Department’s position, our ultimate conclusion
-- that Plaintiff’s complaint states a claim under Title III -- would remain the same,
even if the language of Title III were vague and ambiguous.
                                           11
the presumption and concluded that Title III, as a matter of law, did not apply to

Defendant’s Bahamian-flag cruise ship.

       The district court’s conclusion, however, was grounded in an inaccurate legal

assumption: that foreign-flag ships in United States waters are “extraterritorial.”7 “By

definition, an extraterritorial application of a statute involves the regulation of conduct

beyond U.S. borders.” Environmental Defense Fund, Inc. v. Massey, 986 F.2d 528,

531 (D.C. Cir. 1993) (emphasis added). Accordingly, a foreign-flag ship sailing in

United States waters is not extraterritorial. See Hartford Fire Ins. Co. v. California,

113 S. Ct. 2891, 2919 (1993) (Scalia, J., dissenting). The presumption against

extraterritoriality, therefore, is inapposite to this case.

       We recognize that a separate and different presumption exists against the

application of American law to the “internal management and affairs” of a foreign-flag

ship in United States waters. See McCulloch v. Sociedad Nacional de Marineros de

Honduras, 83 S. Ct. 671, 677 (1963) (noting “well-established rule” that “the law of

the flag state ordinarily governs the internal affairs of a ship”); see also Benz v.

Compania Naviera Hidalgo, S.A., 77 S. Ct. 699, 702 (1957). But, this presumption

generally has been applied where application of American law would interfere with


       7
         In Aramco, the Supreme Court invoked the presumption against
extraterritoriality in deciding whether Title VII applies to a U.S. company’s work
site in Saudi Arabia. 111 S. Ct. at 1230.
                                            12
the relations between the ship’s foreign owner and the ship’s foreign crew. See Dowd

v. International Longshoremen’s Ass’n, 975 F.2d 779, 788-89 (11th Cir. 1992)

(presumption governs applicability of statute to “the practices of owners of foreign

vessels which are temporarily present in an American port with regard to foreign

employees working on these vessels”).

        In our view, this case does not involve the “internal management and affairs”

of a foreign-flag ship; this case is about whether Title III requires a foreign-flag cruise

ship reasonably to accommodate a disabled, fare-paying, American passenger while

the ship is sailing in American waters. We conclude, therefore, that the presumption

for the “internal management and affairs” of foreign-flag ships does not apply in this

case.

        We think, instead, that this case is like Cunard S.S. Co. v. Mellon, 43 S. Ct. 504

(1923). In Cunard, the Supreme Court decided – without invoking presumptions

about foreign-flag vessels – that the National Prohibition Act applied to foreign-flag

ships in United States waters. Id. at 509. The Cunard Court noted that Congress

intended the Prohibition Act to have broad reach and to apply “throughout the

territorial limits of the United States.” Id. And, the Court observed that Congress had

drawn no distinction in the statute between domestic and foreign-flag ships. See id.




                                            13
      As we already have explained, Title III – like the Prohibition Act – was

intended to have a broad reach. See Florida Paraplegic Ass’n, 166 F.3d at 1128; see

also 42 U.S.C. § 12101(b). In addition, Congress made no distinction between

domestic cruise ships and foreign-flag cruise ships in the statute. This factor seems

especially important because, as we already have concluded, Congress intended Title

III to apply to at least some parts of some cruise ships. And, according to the

Department of Transportation, “[v]irtually all cruise ships serving U.S. ports are

foreign flag vessels.” See 56 Fed. Reg. 45,584, 45,600. The idea that Congress

intended to apply Title III to only domestic cruise ships, in the light of the breadth of

the ADA, seems strange. We, therefore, conclude that Title III of the ADA is not

inapplicable, as a matter of law, to foreign-flag cruise ships in United States waters.8




                                          IV.




      8
        Defendant points to no inconsistency between application of Title III in this
case and international treaties and conventions governing shipping. We, therefore,
do not address whether the treaty obligations of the United States might, in some
cases, preclude or limit application of Title III.
                                           14
      The district court erred in concluding that Title III of the ADA, as a matter of

law, does not apply at all to foreign-flag cruise ships sailing in United States waters.

The district court, accordingly, erred in dismissing Plaintiff’s complaint for failure to

state a claim. As such, Plaintiff’s proffered, amended complaint would not have been

futile, and the district court should have granted Plaintiff leave to amend her

complaint and to plead properly her standing to pursue injunctive relief. We,

therefore, VACATE the judgment of the district court and REMAND for further

proceedings consistent with this opinion.

      VACATED and REMANDED.




                                           15
