Saturday, September 26, 2020

Litigating Cuba: Havana Docks Corp. v. Carnival Corporation and the LIBERTAD Act


(Pix © Larry Catá Backer 2017 (Havana Harbor from Regla))

Title III of the LIBERTAD Act, “created a private right of action against any person who ‘traffics’ in confiscated Cuban property.” Garcia-Bengochea v. Carnival Corp., 407 F. Supp. 3d 1281, 1284 (S.D. Fla. 2019) (citing 22 U.S.C. §6082(a)(1)(A); 22 U.S.C. §6023(13)(A)). That private right f action was suspended by authority given to the executive, exercised religiously every six months from 1996 to 2019 when the U.S. Department of State announced that the federal government “will no longer suspend Title III.” (U.S. Department of State, Secretary of State Michael R. Pompeo’s Remarks to the Press (Apr. 17, 2019), effective May 2, 2019.

As expected, a number of lawsuits were filed against U.S. and other companies alleging trafficking in such property.  One of the most interesting may be Havana Docks Corp. v. Carnival Corporation (USDC S Dist Fla; CaseNo. 19-cv-21724-BLOOM/McAliley). 

The case is in its preliminary phase, with Carnival Corporation ably seeking to end the litigation before substantial discovery and the prospect of a trial become more of a reality.  Most recently they moved to dismiss the action against them "on two primary grounds: (1) Plaintiff lacks Article III standing to sue because it cannot allege an invasion of a legally protected interest or any injury fairly traceable to Defendant; and (2) Plaintiff’s allegations of pre-2004 trafficking are time-barred under 22 U.S.C. § 6084 because such claims were brought “more than two years” after the alleged trafficking “ceased to occur.” Havana Docks Corp v. Carnival Corp., Omnibus Order 14 September 2020, p. 7.  The motion was denied.  The Order denying the motion makes for fascinating reading not just with respect to the strategies for litigating Cuba and its post revolutionary confiscations--whose effects continue to haunt US-Cuba relations, but also for their potentially important effect on American jurisprudence in other fields. 

The Omnibus Order follows below, and may be accessed HERE

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