                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                 UNITED STATES COURT OF APPEALS             January 12, 2004
                      FOR THE FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                 ______________________________                 Clerk


                          No. 02-21154
                              03-20056

                 ______________________________

                    DOUGLAS SPECTOR, ET AL.,

                                             Plaintiffs-Appellants,

                             versus


     NORWEGIAN CRUISE LINE LTD., doing business as Norwegian
                           Cruise Line,

                                               Defendant-Appellee.

                       ___________________

                    DOUGLAS SPECTOR, ET AL.,

                                             Plaintiffs-Appellees,

                             versus

     NORWEGIAN CRUISE LINE LTD., doing business as Norwegian
                           Cruise Line,
                                             Defendant-Appellant.



          Appeals from the United States District Court
                for the Southern District of Texas


Before REAVLEY, JONES, and CLEMENT, Circuit Judges.

EDITH H. JONES, Circuit Judge:
            This appeal presents the question whether Title III of

the Americans with Disabilities Act (“ADA”) applies to foreign-

flagged cruise ships.     See 42 U.S.C. § 12182 (2000) et. seq.    As

a matter of first impression in this circuit, we hold that it

does not.   We affirm in part and reverse in part the district

court’s interlocutory orders that formed the basis of this

§ 1292(b) appeal.

                            I. BACKGROUND

            At various times in 1998 and 1999, the plaintiffs took

cruises on Norwegian Cruise Line (“NCL”) ships, the Norwegian Sea

and the Norwegian Star.    The cruises originated in the Port of

Houston, Texas, and traveled to foreign ports of call.    Both

ships sail under the Bahamian flag.    Afterwards, the plaintiffs

filed suit asserting that they were discriminated against in

violation of Title III of the ADA.

            The plaintiffs comprise “disabled plaintiffs” and

“companion plaintiffs.”    The disabled plaintiffs allege that

physical barriers on the ships denied them access to:

(1) emergency evacuation equipment and emergency evacuation-

related programs; (2) facilities such as public restrooms,

restaurants, swimming pools, and elevators; and (3) cabins with a

balcony or a window.    The disabled plaintiffs also allege that

NCL charged them a premium for use of the four

handicapped-accessible cabins and the assistance of crew members.


                                   2
The companion plaintiffs allege that they were discriminated

against and denied access to the ships’ facilities and amenities

because of their “known association” with the disabled

plaintiffs.

            Alleging their intent to take future NCL cruises, the

plaintiffs sought a declaratory judgment, injunctive relief, and

reasonable attorneys’ fees and costs.          More specifically, the

plaintiffs sought injunctive relief requiring NCL to remove

certain barriers, some temporary and some permanent, that

obstructed their access to the ships’ facilities.             NCL moved to

dismiss for failure to state a claim.          FED. R. CIV. P. 12(b)(6).

After considering the motion, the district court:             (1) ruled that

foreign-flagged cruise ships are subject to Title III of the ADA;

(2) dismissed the plaintiffs’ claim concerning removal of

physical barriers because the federal government failed to

promulgate the necessary regulations; and (3) ruled that the

companion plaintiffs stated a claim for associational

discrimination.1     The district court certified the matter for

interlocutory appeal pursuant to 28 U.S.C. § 1292(b), and we

accepted the certification.2


      1
            The Government’s duty to promulgate regulations pertaining to cruise
ships, according to the district court, stemmed from 42 U.S.C. §§ 12186(a)(b).
      2
            The district court also ruled that the plaintiffs were not entitled
to attorneys’ fees and court costs. The parties have not addressed these issues
on appeal. Furthermore, because we conclude that Title III of the ADA does not
apply to foreign-flagged cruise ships, we do not reach the other issues decided
below and subsequently raised in this appeal (i.e., whether the federal
government had a duty to promulgate regulations and whether the non-disabled

                                       3
                         II. STANDARD OF REVIEW

           This court reviews de novo the district court’s grant

or denial of a Federal Rule of Civil Procedure 12(b)(6) motion to

dismiss.   See Frank v. Delta Airlines, Inc., 314 F.3d 195, 197

(5th Cir. 2002).     “The complaint must be liberally construed in

favor of the plaintiff, and all the facts pleaded in the

complaint must be taken as true to determine whether the

plaintiff has stated a valid claim for relief.”           Haynes v.

Prudential Health Care, 313 F.3d 330, 333 (5th Cir. 2002)

(citations and quotation omitted).         “The dismissal will be upheld

only if it appears beyond doubt that the plaintiff can prove no

set of facts that would entitle him to relief.”           Id.   The

district court’s interpretation of a statute, the primary issue

in this case, is also subject to de novo review.           Lara v.

Cinemark USA, Inc., 207 F.3d 783, 786 (5th Cir. 2000).

                             III. DISCUSSION

           NCL challenges the district court’s conclusion that

Title III of the ADA applies to foreign-flagged cruise ships.

NCL asserts that there is no evidence that Congress intended

Title III to apply to foreign-flagged vessels or that Congress

even considered the issue.       Although, as will be seen, arguments

can be made both ways concerning the interpretation of

congressional intent, we are persuaded that NCL is correct.


plaintiffs stated a claim for associational discrimination).


                                      4
            Title III of the ADA provides that: “[n]o individual

shall be discriminated against on the basis of disability in the

full and equal enjoyment of goods, services, facilities,

privileges, advantages, or accommodations of any place of public

accommodation.”     42 U.S.C. § 12182(a)(2000).        Title III also pro-

hibits discrimination against disabled individuals on “specified

public transportation services provided by a private entity that

is primarily engaged in the business of transporting people and

whose operations affect commerce.”         42 U.S.C. § 12184(a)(2000).

Both “public accommodations” and “specified public transportation

services” are subject to the barrier removal requirements of

Title III.    See 42 U.S.C. §§ 12182(b)(2)(A)-(C)(2000).3

            It is settled that “a ship voluntarily entering the

territorial limits of another country subjects itself to the laws

and jurisdiction of that country.”         Benz v. Compania Naviera

Hidalgo, S.A., 353 U.S. 138, 142, 77 S.Ct. 699, 701-02 (1957)

(citing Wildenhus’ Case, 120 U.S. 1, 7 S.Ct. 385 (1887)).

However, the local sovereign is under no obligation to exercise

its authority to the outer limits of its jurisdictional reach.

Benz, 353 U.S. at 142.       Since “the exercise of that jurisdiction

is not mandatory but discretionary,” id., the Supreme Court held,

      3
            The district court found that Title III applies to cruise ships as
both a “public accommodation” and a “specified public transportation service.”
NCL did not dispute this issue in the district court, and does not raise the
issue on appeal. Therefore, we assume, without deciding, that Title III applies
to cruise ships generally and limit this decision to foreign-flagged cruise
ships.   Whether Title III applies to domestic cruise ships remains an open
question in this circuit.

                                      5
to apply domestic law to foreign vessels entering United States

waters, “there must be present the affirmative intention of the

Congress clearly expressed.”   Id. at 147.    Absent an affirmative

intention, “such appeal should be directed to the Congress rather

than the courts.”   Id.

          In Benz, the Supreme Court considered whether the Labor

Management Relations Act of 1947 (“LMRA”) applied to a dispute

involving “a foreign ship operated entirely by foreign seamen

under foreign articles while the vessel is temporarily in an

American port.”   353 U.S. at 139.    The Court answered that

question in the negative.   Id.   If Congress had “so chosen, it

could have made the Act applicable to wage disputes arising on

foreign vessels between nationals of other countries when the

vessel comes within its territorial waters.”     Id. at 142.    But

given the dearth of legislative history evincing Congress’s

intent to apply the LMRA to foreign-flagged vessels, id. at 143-

147, the Court concluded that Congress had not “fashion[ed]

itself to resolve labor disputes between nationals of other

countries operating ships under foreign laws.”     Id. at 142.

          Likewise, in McCulloch v. Sociedad Nacional de

Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671 (1963), which

addressed whether the National Labor Relations Act (“NLRA”)

applied to the “maritime operations of foreign-flag ships

employing alien seamen,” id. at 13, the Court again emphasized

that the decisive question was not whether Congress had the power

                                  6
to apply the NLRA to foreign-flagged ships, but whether Congress

had chosen to do so.     See id. at 17.   The McCulloch plaintiffs

asserted that their case, unlike Benz, involved “a fleet of

vessels not temporarily in the United States waters but operating

in a regular course of trade between foreign ports and those of

the United States[.]”    McCulloch, 372 U.S. at 19-20.      The Court

found the distinction unavailing.

          As in Benz, the McCulloch plaintiffs were “unable to

point to any specific language in the Act itself or in its

extensive legislative history that reflect[ed] such a

congressional intent.”     McCulloch, 372 U.S. at 20.      Accordingly,

the Court held that the NLRA did not apply to foreign-flagged

ships, and it reiterated that the plaintiffs should petition “to

the Congress rather than to us.”       Id. at 22 (citation omitted).

          EEOC v. Arabian American Oil Co., 499 U.S. 244, 111

S.Ct. 1227 (1991) (“ARAMCO”), amplifies the Supreme Court’s

adherence to established principles of statutory construction and

fundamental tenets of international law.      In ARAMCO, the Court

considered whether Title VII applied “extraterritorially to

regulate the employment practices of United States employers who

employ United States citizens abroad.”       Id. at 247.    The Court

stated that “[i]t is a longstanding principle of American law

that legislation of Congress, unless contrary intent appears, is

meant to apply only within the territorial jurisdiction of the

United States.”   Id. at 248 (citations and quotations omitted).

                                   7
“It serves to protect against unintended clashes between our laws

and those of other nations which could result in international

discord.”    Id. (citing McCulloch, 372 U.S. at 20-22).   Therefore,

“[w]e assume that Congress legislates against the backdrop of the

presumption against extraterritoriality.”     ARAMCO, 499 U.S. at

248 (quoting Benz’s requirement of clear expression by Congress,

353 U.S. at 147).

            The EEOC, relying on two statutory provisions,

contended that Congress did intend for Title VII to apply abroad.

First, the EEOC argued that Title VII’s definitions of “employer”

and “commerce” were sufficiently broad to include American

companies located beyond the United States.    Despite conflicting

plausible interpretations of the relevant language, the Court

found that it “need not choose between these competing

interpretations as we would be required to do in the absence of

the presumption against extraterritorial application[.]” ARAMCO,

499 U.S. at 250.    Moreover, under the EEOC’s interpretation,

“[t]he intent of Congress as to the extraterritorial application

of this statute must be deduced by inference from boilerplate

language which can be found in any number of Congressional acts,

none of which have ever been held to apply overseas.”     Id. at

250-51 (citing Americans with Disabilities Act of 1990, 42 U.S.C.

§ 12101 et seq.) (other citations omitted).

            Second, the Court rejected the contention that the

“alien exemption” provision created a negative inference

                                  8
supporting application of Title VII abroad.             “Without clearer

evidence of congressional intent to do so than is contained in

the alien-exemption clause, we are not willing to ascribe to that

body a policy which would raise difficult issues of international

law by imposing this country’s employment-discrimination regime

upon foreign corporations operating in foreign commerce.”

ARAMCO, 499 U.S. at 255.

            The Court also found that other aspects of Title VII

belied the EEOC’s position.         Title VII only addressed issues of

state sovereignty, and Congress failed to provide any mechanisms

for the statute’s overseas enforcement.            Moreover, unlike the Age

Discrimination in Employment Act (“ADEA”), a parallel statute,

Congress did not address conflicts with laws of other nations.4

            Together, Benz and McCulloch prohibit United States

courts from applying domestic statutes to foreign-flagged ships

without specific evidence of congressional intent.              Under the

Supreme Court’s framework, Congress may enact legislation that

governs foreign-flagged cruise ships operating within United


      4
             After the passage of the ADEA several circuits determined that it
could not be applied extraterritorially to “Americans employed outside the United
States by American employers.” Cleary v. United States Lines, Inc., 728 F.2d
607, 610 (3d Cir. 1984); see also Thomas v. Brown & Root, Inc., 745 F.2d 279, 281
(4th Cir. 1984) (per curiam); Zahourek v. Arthur Young & Co., 750 F.2d 827,
828-29 (10th Cir. 1984). However, shortly thereafter, Congress amended the ADEA
to allow extraterritorial application under certain circumstances. See generally
29 U.S.C. §§ 623 and 803. Consequently, after the ARAMCO decision, Congress
conformed Title VII to the ADEA and included as “employees” United States
citizens working “in a foreign country.”       See 42 U.S.C. § 2000e(f)(2000).
Title VII also now exempts American employers located abroad from compliance with
Title VII if it would cause the employer “to violate the law of the foreign
country in which such workplace is located.” 42 U.S.C. § 2000e-1(b)(2000).

                                       9
States waters, but it must clearly indicate its intention to do

so.    See Benz, 353 U.S. at 147.            ARAMCO applies the same clear-

statement requirement to gauge the extraterritorial application

of statutes.

               There is no indication, either in the statutory text or

in the ADA’s extensive legislative history, that Congress

intended Title III to apply to foreign-flagged cruise ships.                          If

Congress had so intended, “it would have addressed the subject of

conflicts with foreign laws and procedures.”                   ARAMCO, 499 U.S. at

256.       Congress’s silence cannot be read to express an intent to

legislate where issues touching on other nations’ sovereignty are

involved.5

               Furthermore, an act of Congress “ought never to be

construed to violate the law of nations, if any other possible

construction remains[.]”            Murray v. The Schooner Charming Betsy,

6 U.S. 64, 118 (1804); see also Weinberger v. Rossi, 456 U.S. 25,

32, 102 S.Ct. 1510, 1516 (1982); Sampson v. Federal Republic of

Germany, 250 F.3d 1145, 1152 (7th Cir. 2001)(recognizing that the

“Charming Betsy canon . . . has traditionally justified a narrow

interpretation of ambiguous legislation to avoid violations of

       5


       Under international law, the flag state is responsible for adopting
       and enforcing laws to protect the welfare of the crew and passengers
       aboard a ship and to maintain good order thereon, and for ensuring
       that activities aboard the ship do not endanger other ships or the
       marine environment. This responsibility continues at all times,
       wherever the ship is located.

RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 502 cmt. a (1987).

                                           10
international law”).      Thus “[b]ecause Congress legislates against

the backdrop that includes those international norms that guide

comity analysis, absent a contrary legislative direction the

doctrine may properly be used to interpret any statute.”              In re

Maxwell Communication Corp., 93 F.3d 1036, 1047 (2d Cir. 1996).

Because the Title III barrier removal provisions may govern the

finest details of maritime architecture in the quest to render

ships fully accessible to disabled passengers, those provisions

pose a stark likelihood of conflicts with the standards set out

in the International Convention for Safety of Life at Sea

(“SOLAS”).6    Therefore, as a matter of statutory construction,

Title III must be narrowly construed in a manner that avoids

these potential conflicts.        See Trans World Airlines, Inc. v.

Franklin Mint Corp., 466 U.S. 243, 252, 104 S.Ct. 1776, 1782

(1984) (“There is, first, a firm and obviously sound canon of

construction against finding an implicit repeal of a treaty in

ambiguous congressional action.”).

            Nevertheless, the plaintiffs offer several counter-

arguments.    First, the plaintiffs contend that because the ADA



      6
            The Passenger Vessel Access Advisory Committee (“PVAAC”), a
government-created body, identifies apparent conflicts between the Title III
barrier removal standards and SOLAS in its recent report. See PVACC Report at
Chapter 13, Parts I-II available at http://www.access-board.gov/news/pvaac-
rept.htm (referencing potential conflicts between SOLAS and the guidelines
announced by the ADAAG Review Advisory Committee — the governmental body tasked
by Congress with formulating the Title III barrier removal guidelines). Thus,
there is little, if any, dispute that Title III barrier removal requirements
potentially conflict with SOLAS, a treaty the United States has ratified and
honors. See United States v. Locke, 529 U.S. 89, 102-03 (2000).

                                      11
applies to cruise ships generally, it presumptively applies to

foreign-flagged cruise ships, absent a specific exemption.

Plaintiffs rely primarily on Cunard S.S. Co. v. Mellon, 262 U.S.

100, 43 S.Ct. 504 (1923), to support this argument.7

            In Cunard, the Supreme Court held that the National

Prohibition Act, enacted to enforce the Eighteenth Amendment,

applied to foreign-flagged vessels in United States ports.                Id.

at   124-26.    Based on the statute’s terms, the Court found that

Congress intended the Act to “be operative throughout the

territorial limits of the United States” including “all merchant

vessels, whether foreign or domestic,” when within those limits.

Id. at 129.     The Court noted that the Act “contains no exception

of ships in either class and the terms in which it is couched

indicate that none is intended.” Id. at 126.             Any exception for

foreign-flagged ships, the Court said, would defeat the

attainment of the Act’s obvious purpose — to prevent the use of

intoxicating liquor as a beverage.          See 27 U.S.C. § 12 (1919).

Last, the Act’s specific exemption for transportation of liquor

through the Panama Canal expressed Congress’s intent to apply the




      7
            Plaintiffs also point to Pennsylvania Dep’t of Corrections v. Yeskey,
534 U.S. 206, 122 S.Ct. 708 (1998), to support their claim that congressional
silence is not dispositive. In Yeskey, a Title II ADA case, the Supreme Court
interpreted the term “public entity” to include state prisons. Yeskey, unlike
the instant case, found Congress’s intent from the express statutory language,
and not from its silence. Id. at 210. The Court’s axiomatic observation that
statutes may have unanticipated applications does not alter the presumption
against extraterritorial application.

                                       12
statute to all vessels within the territorial waters of the

United States.   Id. at 128-29.

          Cunard does not control.     First, the Supreme Court

premised Cunard on the all-pervasive reach of the Eighteenth

Amendment and its enforcing statute on specific inferences from

the Panama Canal provision.    Second, unlike Benz, McCulloch, and

ARAMCO, Cunard did not involve the possibility of

extraterritorial application, but instead regulated only the

commercial transport of   liquor into United States ports.   As the

Court noted, “the National Prohibition Act discloses that it is

intended only to enforce the Eighteenth Amendment and limits its

field of operation, like that of the Amendment, to the

territorial limits of the United States.” Cunard, 262 U.S. at

129.

          This second distinction is significant.

Extraterritorial application of any statute is impermissible

absent “the affirmative intention of the Congress clearly

expressed[.]”    Benz 353 U.S. at 147; ARAMCO, 499 U.S. at 248;

Smith v. United States, 507 U.S. 197, 204 n.5, 113 S.Ct. 1178,

1183 (1993) (recognizing that “the presumption is rooted in a

number of considerations, not the least of which is the

commonsense notion that Congress generally legislates with

domestic concerns in mind”).   This well-founded clear-statement

rule serves “to protect against unintended clashes between our



                                  13
laws and those of other nations which could result in

international discord.”       ARAMCO, 499 U.S. at 248.

            In the present case, many of the structural changes

required to comply with Title III would be permanent, investing

the statute with extraterritorial application as soon as the

cruise ships leave domestic waters.          The plaintiffs insist,

however, that Title III need not be enforced beyond United States

waters.    They argue that this suit seeks enforcement within the

United States only, or in the alternative, that courts can choose

to enforce those aspects of Title III that do not conflict with

international law or are not permanent in nature.             This approach

is inconsistent     with the Supreme Court’s pronouncements in Benz,

McCulloch, and ARAMCO.       In none of those cases did the Court

examine each proposed application of domestic law to determine

whether it might conflict with other nations’ laws.              Whether

Title III’s barrier removal provision, if applied to foreign-

flagged cruise ships, would have extraterritorial impact is a

matter of statutory construction, not a fact-intensive inquiry.

Thus, potential conflicts with transnational or international law

mandate that we construe the statute narrowly to avoid

international discord.8

      8
            McCulloch did not examine individual applications of the NLRA to
reach its result. Instead, the Court pointed to the prospective conflict that
would result from “the concurrent application of the Act and the Honduran Labor
Code[.]” 372 U.S. at 21. This impending conflict exemplified the strong basis
for its cannon of construction mandating a clear congressional statement. As a
result, the Court ruled, as a matter of statutory construction, that the statute
could not be applied extraterritorially based on the “possibility of inter-

                                      14
            The plaintiffs next rely upon the Eleventh Circuit’s

decision in Stevens v. Premier Cruises, Inc., 215 F.3d 1237 (11th

Cir. 2000), reh’g denied, 284 F.3d 1187 (11th Cir. 2002).               In

Stevens, the court found that Title III applies to those aspects

of cruise ships (restaurants, retail stores, health spas, etc.)

that qualify as public accommodations.           Id. at 1241.     Further,

since Congress did not exclude coverage of foreign-flagged cruise

ships while in domestic waters, the court reasoned that the ADA

must apply to them.        In this connection, the court viewed

ARAMCO’s presumption against “extraterritorial” application of

domestic law as inapposite, because it did not consider Title

III’s requirements to apply outside United States waters.               Id. at

1242.9

            Stevens limited the Benz and McCulloch presumption

against application of American law strictly to the “internal

management and affairs,” specifically labor-management relations,

of a foreign-flag ship.        Given Congress’s intent to apply Title

III broadly, the Stevens court concluded instead that Cunard

controlled.


national discord[.]” Id.
      9
            The Stevens court attempted to clarify its position in its order
denying the request for rehearing. Stevens, 284 F.3d at 1187. The court stated
that it did not foreclose the possibility of specific conflicts between inter-
national laws and Title III, but that those specific questions could not be
addressed at the motion to dismiss stage. Id. However, as discussed above, the
court’s approach is misguided. The conflicts with international law has statu-
tory construction implications, above and beyond any factual dispute that may
exist. The Stevens court failed to account for these implications, and therefore
erred in its construction of Title III.

                                      15
            With due respect, we find Stevens unpersuasive.    In

Stevens, the court maintained that Congress’s silence as to

cruise ships meant not only that Title III applied to cruise

ships, a contention we do not comment upon, but that the coverage

of cruise ships necessarily implied coverage of foreign-flag

cruise ships.   This latter inference disregards the Supreme

Court’s admonition that before applying domestic law in the

“delicate field of international relations,” Congress must

clearly express its intent.    McCulloch, 372 U.S. at 21.

            That Congress intended Title III to have “broad reach”

is insufficient to warrant application to foreign-flagged cruise

ships.    Title VII and the ADEA, remedial statutes comparable in

breadth and purpose to the ADA, were also intended to have “broad

reach.”    See Miller v. Pub. Storage Mgmt., Inc., 121 F.3d 215,

218 (5th Cir. 1997) (recognizing that the “ADA is part of the

same broad remedial framework as the ADEA and Title VII, and that

all the anti-discrimination acts have been subjected to similar

analysis”).   Nevertheless, Congress’s failure specifically to

address extraterritorial implications and conflicts with inter-

national law proved fatal to both Title VII and the ADEA in this

regard.    The Supreme Court’s decision in Cunard, by contrast,

turned on more specific statutory language and the nationally

pervasive reach of the Eighteenth Amendment and implementing

statutes.



                                 16
          Ultimately, the Stevens court’s attempt to distinguish

Benz and McCulloch is unpersuasive.      Like those cases, the

present case deals with the “internal management and affairs” of

a foreign-flagged ship.     See McCulloch, 372 U.S. at 20.      As noted

above, the plaintiffs’ proposed accommodations, if applicable,

would require NCL to adjust evacuation procedures and

responsibilities of the crew, and would mandate structural

changes to the ships.   Thus, it is incorrect to suggest, as

Stevens does, that such modifications do not involve the

“internal management and affairs” of the ship merely because they

were requested by a passenger rather than an employee.        Further,

the court’s order on rehearing essentially concedes that portions

of Title III will apply extraterritorially, but it sidesteps the

obvious implication in terms of Benz, McCulloch, and ARAMCO.

          Last, the plaintiffs rely on the opinions of the

Department of Justice (“DOJ”) and the Department of

Transportation (“DOT”) that Title III applies to foreign-flagged

cruise ships.   The opinions of DOJ and DOT are presented in

technical assistance manuals and public comments, not formal

adjudications or rulemaking.     See DOJ TITLE III TECHNICAL ASSISTANCE

MANUAL III-1.2000(d); See 56 FED. REG. 45,584, 45,600 (1991).

Nonetheless, the plaintiffs argue that these opinions are

entitled to Chevron deference.

          These informal administrative opinions are not entitled

to Chevron deference.     See Christensen v. Harris County, 529 U.S.

                                  17
576, 587, 120 S.Ct. 1655, 1662-63 (2000).            “Interpretations such

as those in opinion letters — like interpretations contained in

policy statements, agency manuals, and enforcement guidelines,

all of which lack the force of law — do not warrant Chevron-style

deference.”     Id. (citing Reno v. Koray, 515 U.S. 50, 61, 115

S.Ct. 2021, 2027 (1995)).        “Instead, interpretations contained in

formats such as opinion letters are ‘entitled to respect’ . . .

but only to the extent that those interpretations have the ‘power

to persuade[.]’”      Christensen, 529 U.S. at 587 (quoting Skidmore

v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164 (1944))

(citing ARAMCO, 499 U.S. at 256-58).           For the reasons discussed

above, the respective positions of DOJ and DOT are not

persuasive.10

            In the end, “when it desires to do so, Congress knows

how to place the high seas within the jurisdictional reach of a


      10
            We must also note that Title III directs DOJ and DOT to issue
regulatory guidelines with respect to both new construction and barrier removal.
See 42 U.S.C. § 12186(b). Both agencies promulgated regulations pertaining to
barrier removal. See 28 C.F.R. 36.304 (2003). DOJ and DOT also promulgated
regulations concerning new construction and alterations. See 28 C.F.R. §
36.406(a)-(d)(2003). However, DOJ and DOT specifically exempted cruise ships,
which demanded - because of unique concerns - separate new construction and
alteration regulations. See 28 C.F.R. PT. 36, APP. B, at 664 (2003)(stating that
DOJ “will not interpret the new construction and alterations provisions of
Subpart D” to apply to cruise ships “pending further development of specific
requirements”). Amazingly, now more than a decade since the ADA’s passage, DOJ
and DOT have yet to issue new construction and alteration regulations specific
to cruise ships. Nevertheless, these agencies continue to demand that existing
cruise ships meet the rigors of the barrier removal guidelines, even though newly
constructed cruise ships remain altogether unregulated. The DOJ and DOT maintain
this curious position despite their self-imposed regulatory mandate that
“requirements for barrier removal under § 36.304 shall not be interpreted to
exceed the standards for [new construction and] alteration[.]” 28 C.F.R. §
36.304(g)(1). However, because we hold that Title III may not be applied to
foreign-flagged cruise ships, we need not reach this thorny regulatory issue.

                                       18
statute.”   ARAMCO, 499 U.S. at 258 (quoting Argentine Republic v.

Amerada Hess Shipping Corp., 488 U.S. 428, 440, 109 S.Ct. 683,

691 (1989)).   Congress, in enacting Title III of the ADA, failed

to express any intention to subject foreign-flagged cruise ships

to its dictates.   Thus, application of Title III to foreign-

flagged cruise ships is impermissible.

                           IV.   CONCLUSION

            Foreign-flagged cruise ships are not subject to Title

III of the ADA unless and until Congress clearly expresses its

intention to do so.   We therefore sustain, albeit on different

grounds, the district court’s dismissal of the disabled

plaintiffs’ barrier removal claims.    However, we reverse the

district court to the extent that any Title III ADA claims

remained, including those of the non-disabled plaintiffs, and

remand for further proceedings consistent herewith.

            AFFIRMED in part, REVERSED in part, and REMANDED.




                                  19
