The U.S. Court of Appeals for the Eleventh Judicial Circuit sided with several major cruise lines in closely watched litigation involving Havana docks in a 2-1 decision that lawyers say helps with interpreting the Helms-Burton Act.
The plaintiff/appellant, Havana Docks Corp., a U.S. national, alleges the cruise lines “trafficked in stolen property” by using their docks to drop off and pick up cruise ship passengers in Havana, Cuba.
The docks had been confiscated by the Cuban communist government.
The cruise lines won most of the arguments on appeal. However in his dissent, Judge Andrew Brasher noted his support of the lower court ruling favoring Havana Docks.
The cruise lines—Carnival Corp., Royal Caribbean Group, MSC Cruises, and Norwegian Cruise Line Holdings Ltd.—are named as defendants/appellees in the suits.
This case, one of the first suits under Title III of the Helms-Burton Act, has undergone a lengthy judicial process since the Trump administration lifted the suspension of Title III of the act in 2019, which protects the property rights of U.S. Nationals.
The government defines the act-also known as the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of1996-as the following:
The plaintiff, Havana Docks, initially sought approximately $439.2 million in damages, alongside $10.7 million in attorney fees and nearly $1 million in associated expenses, claiming entitlement to compensation for the docks’ use from 2016 to 2019.
In March 2022, a Miami federal judge ruled that the four major cruise lines violated a ban on tourism and engaged in “trafficking” of confiscated property by allowing passengers to disembark at a port terminal in Havana that was confiscated decades ago by the communist government in Cuba following the Cuban Revolution.
On Tuesday, the appellate court’s majority opinion centered on the interpretation of Havana Docks’ property rights finding in favor of the cruise lines.
Chief Judge William Pryor Jr., Judge Andrew Brasher and Judge Adalberto Jordan heard the appeal.
Pryor wrote, “After a review of the record, and with the benefit of oral argument, we hold that Havana Docks’ limited property interest had expired, for purposes of Title III, at the time of the alleged trafficking by the cruise lines. We therefore set aside the judgments in favor of Havana Docks and remand for further proceedings as to its other claims against Carnival.”
Additionally, Pryor concluded, “We affirm the district court’s ruling that Havana Docks is a US national under Title III of the Helms-Burton Act but reverse the judgments in favor of Havana Docks and against the cruise lines for conduct taking place between 2016 and 2019. We remand for further proceedings as to the trafficking claims against Carnival based on conduct taking place from 1996 to 2001.”
But in his dissent, Brasher sided with the lower court ruling, saying Havana Docks established that it meets the statutory elements posed in the lawsuit.
“Did the cruise lines benefit commercially from ‘property which was confiscated by the Cuban Government?’ Of course, they did,” Brasher found. “They used the docks and piers that Havana Docks built and had the right to operate when they were taken in 1960. Does Havana Docks own a ‘claim to such property?’ Of course, it does.”
Brasher detailed his disagreement with his judicial colleagues in 12 pages.
“I believe the district court correctly interpreted the Act in this respect, and I would go on to address the other issues in the appeal. Because the majority opinion instead reverses on this ground, I respectfully dissent,” Brasher wrote.
The appeal court concluded Havana Docks held only a concession right to operate the docks, and that this expired in 2004. It also found the company did not own the real property.
As such, the court reasoned any claims of “trafficking” by the cruise lines were untenable since the property interest had lapsed before the cruise lines’ operations began.
Top-Notch Lawyers
The attorneys for the cruise lines read like a who’s-who of law firms.
Dozens of lawyers appeared in both the trial court and the appeal court phases.
Hogan Lovells is at the helm for Norwegian Cruise Lines, with attorneys Allen Pegg as head of litigation in the Miami office and Daniel Balmori fronting the litigation.
Venable represents MSC lines with Andrew Hernacki as counsel.
Roberto Martinez of Colson Hicks Eidson. Photo: J. Albert Diaz/ALM
Carnival has Boies Schiller Flexner attorneys Stuart Singer, Pascual Oliu, Evan Ezray, Meredith Schultz, and Corey Gray in charge.
Most of firms deferred to their cruise line clients for comment.
Attorney Scott Ponce, who is in charge of the case for Holland & Knight, said, “My client, Royal Caribbean, is pleased with the appellate court’s decision and thanks the court for its thorough consideration of the case.”
Roberto Martinez of Colson Hicks Eidson represents Havana Docks. For comment, he referred to a statement issued by the plaintiffs/appellants.
A joint statement issued by the cruise lines was summarized in one sentence: “We are pleased with the appellate court’s decision and thank the court for its thorough consideration of the case.”
A Carnival Corp. spokesperson said: ‘We are pleased with the outcome and will not comment further on pending litigation.’
‘A Very Significant Decision’
Ed Mullins is a partner at Reed Smith LLP and is board-certified in international litigation and arbitration. He is not personally involved with this appeal but has counseled clients closely watching these and other proceedings.
“The Eleventh Circuit’s decision, if it becomes final, is a very significant decision interpreting Helms-Burton in closely followed litigation,” Mullins said. “Generally, the decision makes clear that any interests in property that is allegedly trafficked will need to be extant during the alleged trafficking. In other words, if your leasehold was over during the alleged trafficking, you will not have a claim, even if, as here, it was certified.
Ed Mullins of Reed Smith. (Courtesy photo)
Mullins said this decision would go beyond the cruise lines to apply to other Helms-Burton claimants whose legal rights to the properties at issue were no longer viable or in operation at the time of the alleged trafficking.
“The decision is a common-sense approach to a significant issue and rejects an illogical cold application of the statute,” Mullins said. “Otherwise, as the court noted, the rights at issue would be “to infinity and beyond,” to quote everyone’s favorite spaceman, Toy Story’s Buzz Lightyear.
The decision is not yet final, and there is a dissent, Mullins said.
“Given that the decision is not unanimous and its significance, it is possible that the plaintiff will seek a rehearing before the deciding panel, a rehearing en banc to the entire Eleventh Circuit, or even seek review before the Supreme Court,” Mullins said, noting the comment was purely speculation.
The Disney Connection
As Mullins mentioned, Judge Pryor took a whimsical approach to explain his reasoning on appeal.
“We do not believe that Congress, in enacting Title III, meant to convert property interests which were temporally limited at the time of their confiscation into fee simple interests in perpetuity such that the holders of such limited interests could assert trafficking claims through what Buzz Lightyear called “infinity and beyond.” A phrase coined by the animated cowboy hero in Disney’s Toy Story.
“In the words of the district court, ‘there is nothing to suggest that Congress intended to grant victims of property confiscations more rights to the property than they would otherwise have simply by virtue of the confiscation,'” Pryor said.
A Cuban-American attorney’s personal reflection on the ruling
Attorney Dax Bello is a past Cuban American Bar Association president and shareholder at the law firm of Stewart Tilghman Fox Bianchi & Cain in South Florida.
He said the Helms-Burton Act provides the only legal avenue for Americans to seek justice for the loss of property and businesses that were seized by the Castro regime following the 1959 Cuban Revolution.
A. Dax Bello, with Stewart Tilghman Fox Bianchi & Cain. (Credit: Courtesy photo)
“Unfortunately, Helms-Burton has become highly politicized, with debates over its enforcement often reflecting broader tensions in US-Cuba relations,” Bello said.
“The prolonged suspension of Title III prior to its recent activation has left many claims weakened or extinguished by the passage of time, further impeding the path to justice,” Bello said. “The dissenting opinion correctly spotlights those practical struggles for claimants.”
Bello said it is now far more difficult for victims under Helms-Burton to obtain justice if bad actors are in play.
Bello said, “I, as a member of the Cuban American community in South Florida whose family lost everything following the 1959 Cuban revolution, wholeheartedly agree with the dissent.”