Cruise Lines Respond To Plaintiff In Libertad Act Title III Lawsuit Before Court Of Appeals. New Word: "usufruct" And Definition Of "necessary" And Significance Of 26 Times.
/HAVANA DOCKS CORPORATION VS. CARNIVAL CORPORATION D/B/A/ CARNIVAL CRUISE LINES [Consolidated to 1:19-cv-23591; 1:19-cv-21724; Southern Florida District; 23-10171, 11th Circuit Court of Appeals]
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Jones Walker (defendant)
Boies Schiller Flexner LLP (defendant)
Akerman (defendant)
HAVANA DOCKS CORPORATION V. MSC CRUISES SA CO, AND MSC CRUISES (USA) INC. [Consolidated to 1:19-cv-23591; 1:19-cv-23588; Southern Florida District]; Judgement Entered 12/30/22; 23-10171, 11th Circuit Court of Appeals].
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Venable (defendant)
HAVANA DOCKS CORPORATION V. NORWEGIAN CRUISE LINE HOLDINGS, LTD. [Consolidated to 1:19-cv-23591; 1:19-cv-23588; Southern Florida District]; Judgement Entered 12/30/22; 23-10171, 11th Circuit Court of Appeals].
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Hogan Lovells US LLP (defendant)
HAVANA DOCKS CORPORATION VS. ROYAL CARIBBEAN CRUISES, LTD. [Consolidated to 1:19-cv-23591; 1:19-cv-23588; Southern Florida District]; Judgement Entered 12/30/22; 23-10171, 11th Circuit Court of Appeals].
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Holland & Knight (defendant)
LINKS:
Reply Brief Of Defendant-Appellant Carnival Corporation (11/20/23)
Brief Of Daniel W. Fisk As Amicus Curiae In Support Of Appellee And Affirmance (10/6/23)
Libertad Act Title 3 Lawsuit Filing Statistics
10/10/2023- Received paper copies of EAppendix filed by Appellee Havana Docks Corporation in 23-10151, Appellee-Cross Appellant Havana Docks Corporation in 23-10171. 10 VOLUMES - 2 COPIES [23-10151, 23-10171] [Entered: 10/11/2023 11:15 AM]
10/10/2023- Received 4 paper copies of EBrief, filed by DANIEL W. FISK AS AMICUS CURIAE IN SUPPORT OF APPELLEE AND AFFIRMANCE in 23-10151, 23-10171. [23-10151, 23-10171] [Entered: 10/12/2023 04:09 PM]
11/13/2023- TIME SENSITIVE MOTION for excess words/pages filed by RCL. Motion is Opposed. [120] [23-10171] (ECF: Paul Clement) [Entered: 11/13/2023 10:05 AM]
11/20/2023- Reply Brief filed by Appellant-Cross Appellee CCL. [23-10171] (ECF: Kannon Shanmugam) [Entered: 11/20/2023 11:44 AM]
Excerpts From Reply Brief Of Defendant-Appellant Carnival Corporation
Pursuant to Federal Rule of Appellate Procedure 28(i) and 11th Circuit Rule 28-1(f), Carnival Corporation adopts and joins in full the arguments made by Royal Caribbean Cruises, Ltd.; MSC Cruises S.A.; MSC Cruises S.A. Co.; MSC Cruises (USA), Inc.; and Norwegian Cruise Line Holdings, Ltd., includ[1]ing their arguments that (1) the cruise lines did not traffic in “property” that was “confiscated”; (2) the cruise lines’ activities were “incident” and “neces[1]sary” to “lawful travel”; (3) Havana Docks is not a “United States national”; (4) the cruise lines did not “knowingly” and “intentionally” traffic in confis[1]cated property; (5) the damages award violates the one-satisfaction rule and the Due Process Clause of the Fifth Amendment to the United States Consti[1]tution; and (6) the district court erred by trebling the interest it awarded.
Havana Docks also argues that, even if a court could revisit the non-conclusive aspects of the certified claim, the historical facts prove that it had a right to conduct passenger operations. See Br. 44-46. It contends that, because the concession granted usufruct rights “greater than the rights granted by a simple lease” and the Helms-Burton Act “specifically recognizes that ‘any leasehold interest’ is a protected property interest within the scope of the Act,” “so too are the usufruct rights” in the concession. Havana Docks Br. 45-46. But even if its legal citations concerning usufruct rights under American law were somehow relevant to the question of Cuban law, that merely establishes the undisputed proposition that the usufruct rights granted by the concession constitute a cognizable interest under the Helms-Burton Act.
Fourth, even if Carnival could be held liable to Havana Docks, the award of approximately $109 million in damages should be vacated and remanded as contrary to the one-satisfaction rule and the Due Process Clause. With respect to the one-satisfaction rule, Havana Docks musters no persuasive reason to permit infinite recoveries under a statute designed to place traffickers in the shoes of the Cuban government. And with respect to the Due Process Clause, neither the age of the relevant precedents nor the need for deterrence justifies the exorbitant award.
Carnival did exactly what the Executive Branch intended American businesses to do. And the result of Carnival’s cruises was to expose Cubans to Americans, and vice versa. The judgment below should be reversed.1
There is no dispute that the Helms-Burton Act places a plaintiff with a certified claim in “a privileged position” in some respects. Havana Docks Br. 40. The question is the extent of that privileged position, and Ha[1]vana Docks’ reliance on the limited presumption in favor of holders of certified claims is at odds with the statutory text and the canon of constitutional avoid[1]ance. See 22 U.S.C. § 6083(a)(1).
In effect, Havana Docks contends that Article III courts must ac[1]cept every stray description of a property interest in a certified claim. See Havana Docks Br. 40-42. But the Helms-Burton Act requires only that a court “accept as conclusive proof of ownership of an interest in property a certifica[1]tion of a claim to ownership of that interest.” 22 U.S.C. § 6083(a)(1). As ex[1]plained in Carnival’s opening brief (at 30-31), that presumption is limited to (1) the existence of an interest and (2) the value of that interest.
In its statement of the facts, Havana Docks cites a handful of financial records indicating that Havana Docks collected a small amount of fees related to passengers during a brief period of time. See Br. 9-10. But Havana Docks never actually argues that those cryptic records prove it had a legal right to conduct passenger operations. Because Havana Docks had no interest in “property” that allowed it to conduct passenger operations at the terminal, the judgment below should be reversed.
Even if Havana Docks had the right to conduct passenger operations, that right would have expired in 2004. See Carnival Br. 32-35; Royal Carib[1]bean Br. 35-45. Havana Docks argues that it can recover for conduct that oc[1]curred between 2016 and 2019 because the certified claim has no time limit and the concession is indefinitely tolled. Neither point is correct. 1. The certified claim (which has no time limit) does not replace the concession (which does) for all purposes.
This Court’s decision in Glen v. Club Méditerranée, S.A., 450 F.3d 1251 (2006), is not to the contrary. See Havana Docks Br. 52. As Carnival explained in its opening brief (at 35), the Court did not hold that a plaintiff acquires a limitless interest in property when its limited interest is confiscated.
And Havana Docks argues that Carnival’s use of the ter[1]minal was not “necessary” to any lawful travel because it was not strictly nec[1]essary. See Br. 88-91. All of those arguments are unavailing.
Section 102(h) of the Helms-Burton Act provides that “[t]he eco[1]nomic embargo of Cuba, as in effect on March 1, 1996, including all restrictions under [the Cuban Assets Control Regulations], shall be in effect upon the en[1]actment of this Act, and shall remain in effect, subject to section 6064 of this Act.” 22 U.S.C. § 6032(h). Havana Docks argues that the foregoing provision is a “one-way ratchet” that allowed the Executive Branch to tighten, but not loosen, the regulations as they existed in 1996. Br. 61-62, 65-67. The district court correctly rejected that argument. See Doc. 477, at 118.
Section 102(h) merely clarifies that the Helms-Burton Act does not dis[1]turb the existing regulations. It provides that the regulations are “in effect” on the day of the Helms-Burton Act’s enactment and “shall remain in effect” thereafter. That language simply prevented any inference that the new stat[1]ute had superseded the existing regulations. Accordingly, there is no reason to conclude that Congress “alter[ed] the fundamental details of a regulatory scheme in vague terms” by freezing the existing regulations in place. Whit[1]man v. American Trucking Associations, 531 U.S. 457, 468 (2001).
Five administrations have modified the relevant regulations without ob[1]jection from the courts or Congress. OFAC has modified its Cuba regulations at least 26 times over the last three decades, see OFAC, Cuba Sanctions (last visited Nov. 20, 2023), including 13 re[1]visions to the travel provision alone, see 31 C.F.R. § 515.560; see also Kucik Br. 6. This Court has recognized that “the regulations have been alternately loos[1]ened and tightened in response to specific circumstances.” Odebrecht Con[1]struction, Inc. v. Secretary, 715 F.3d 1268, 1276 n.1 (2013) (internal quotation marks and citation omitted). And since the passage of the Helms-Burton Act, Congress has acknowledged—without any objection—an amended version of the regulations. See Trade Sanctions Reform and Export Enhancement Act of 2000, Pub. L. No. 106-387, § 910, 114 Stat. 1549A-67, 1549A-71-72. The Court should not abandon 30 years of practice on the theory that Havana Docks has “discover[ed] in a long-extant statute an unheralded power.” Util[1]ity Air Regulatory Group v. EPA, 573 U.S. 302, 324 (2014).
For similar reasons, it is irrelevant how the Cuban government charac[1]terized Carnival’s activities in Cuba. See Havana Docks Br. 74. All that mat[1]ters is whether the shore excursions actually complied with the terms of OFAC’s general licenses.
Carnival’s use of the terminal was also “necessary to” the conduct of its lawful travel. In ordinary speech and in context, “necessary” means “im[1]portant, helpful, or appropriate.” And even if “necessary” meant “indispensa[1]ble,” docking at the terminal was indispensable for Carnival’s voyages to Ha[1]vana.
In any event, Carnival’s use of the terminal was strictly necessary because it was impossible for Carnival to dock anywhere else in Havana. See Carnival Br. 45-46. Havana Docks repeats the district court’s reasoning that, if docking somewhere else in Cuba were possible, then docking at the terminal was not “necessary.” See Br. 90-91. But like the district court, Havana Docks has identified nothing in the statute or regulations restricting the category of lawful travel to specific Cuban cities. Nor does Havana Docks address Carni[1]val’s argument that the statute refers to the use of property that is “necessary to the conduct of such travel,” 22 U.S.C. § 6023(13)(B)(iii) (emphasis added), which most naturally refers to the travel that Carnival actually undertook. See Carnival Br. 45-46. If the Helms-Burton Act prohibited the use of confiscated property simply because a defendant could travel somewhere else in Cuba, it is hard to imagine what transaction or use of property would ever be necessary to lawful travel.
Even if Carnival were liable under the Helms-Burton Act, the damages award would be excessive for two reasons. First, the one-satisfaction rule pre[1]vents multiple recoveries for the same injury, which is what Havana Docks has obtained here. See Carnival Br. 50-54; Royal Caribbean Br. 78-82. Second, the damages award is unconstitutionally excessive under the Due Process Clause. See Carnival Br. 54-55; Royal Caribbean Br. 84-85.
