IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
D. C. Docket No. 98-02140-CV-FAM
PREMIER CRUISES, INC., a
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.
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.
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 pay a fee in excess of the
advertised price to obtain a purportedly wheelchair-accessible
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
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 fail
to state a claim. Plaintiff appeals the district court's order
of dismissal and denial of Plaintiff's motion for reconsideration.
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).
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.
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
And, according to Plaintiff, that the 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.
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."
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,
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. § 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
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 inapplicable
as a matter of law to cruise ships, we turn now to the foreign-flag
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
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 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 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
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
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.
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.
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.
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 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.
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).
Some cruise ships may contain
none of the enumerated public accommodations; such cruise ships
would not be subject to the public accommodation provisions of
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 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
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.
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.
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