Havana Docks Corp. v. MSC Cruises SA Co.

• Decision Date: 07 September 2020
• Docket Number: Case No. 19-cv-23588-BLOOM/Louis
• Citation: 484 F.Supp.3d 1177
• Parties: HAVANA DOCKS CORPORATION, Plaintiff, v. MSC CRUISES SA CO. and MSC Cruises (USA) Inc., Defendants.
• Court: U.S. District Court — Southern District of Florida

484 F.Supp.3d 1177

HAVANA DOCKS CORPORATION, Plaintiff,

v.MSC CRUISES SA CO. and MSC Cruises (USA) Inc., Defendants.

Case No. 19-cv-23588-BLOOM/Louis

United States District Court, S.D. Florida.

Signed September 7, 2020

Entered September 8, 2020

Aziza F Elayan-Martinez, Roberto Martinez, Zachary Andrew Lipshultz, Stephanie Anne Casey, Colson Hicks Eidson, Coral Gables, FL, Rodney Stuart Margol, Margol, Margol, PA, Jacksonville Beach, FL, for Plaintiff.

Andrew T. Hernacki, Pro Hac Vice, Justin B. Nemeroff, Pro Hac Vice, James Douglas Baldridge, Venable LLP, Washington, DC, for Defendants.

ORDER

BETH BLOOM, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Defendants MSC Cruises SA Co. and MSC Cruises (USA) Inc. (collectively, "MSC") Motion to Dismiss Amended Complaint, ECF No. [69] ("Motion"). Plaintiff Havana Docks Corporation ("Havana Docks" or "Plaintiff") filed its Response in Opposition, ECF No. [73] ("Response"), to which MSC filed a Reply, ECF No. [77] ("Reply"). MSC also submitted two Notices of Supplemental Authority in Support of its Motion to Dismiss Amended Complaint, ECF Nos. [82] & [85], and Plaintiff submitted an additional Notice of Supplemental Authority, ECF No. [89]. The Court has carefully considered the Motion, all opposing and supporting submissions, the record in this case, and the applicable law, and is otherwise fully advised. For the reasons set forth below, MSC's Motion is denied.

I. BACKGROUND

A. The LIBERTAD Act

Since Fidel Castro seized power in Cuba in 1959, Cuba has been plagued by "communist tyranny and economic mismanagement," that has substantially deteriorated the welfare and health of the Cuban people. See 22 U.S.C. §§ 6021(1)(A), (2). The communist Cuban Government has systematically repressed the Cuban people through, among other things, "massive and systemic violations of human rights" and deprivations of fundamental freedoms, see id. §§ 6021(4), (24), and the United States has consistently sought to impose effective international sanctions for these violations against the Castro regime, see id. §§ 6021(8) - (10).

In 1996, Congress passed the Title III of the Cuban Liberty and Democratic Solidarity Act of 1996, 22 U.S.C. § 6021, et seq. (the "LIBERTAD Act," "Title III," or the "Act"), commonly referred to as the Helms-Burton Act, "to strengthen international sanctions against the Castro government" and, relevant to the instant case, "to protect United States nationals against confiscatory takings and the wrongful trafficking in property confiscated by the Castro regime." 22 U.S.C. §§ 6022(2), (6). Under Title III of the Act, Congress denounced the Cuban Government's history of confiscating property of Cuban citizens and U.S. nationals, explaining that "[t]he wrongful confiscation or taking of property belonging to United States nationals by the Cuban Government, and the subsequent exploitation of this property at the expense of the rightful owner, undermines the comity of nations, the free flow of commerce, and economic development." 22 U.S.C. §§ 6081(2) - (3). The Act explains that foreign investors who traffic in confiscated properties through the purchase of equity interests in, management of, or entry into joint ventures with the Cuban Government to use such properties "complicate any attempt to return [these expropriated properties] to their original owners." Id. §§ 6081(5), (7). The LIBERTAD Act cautions that:

[t]his "trafficking" in confiscated property provides badly needed financial benefit, including hard currency, oil, and productive investment and expertise, to the current Cuban Government and thus undermines the foreign policy of the United States—

(A) to bring democratic institutions to Cuba through the pressure of a general economic embargo at a time when the Castro regime has proven to be vulnerable to international economic pressure; and

(B) to protect the claims of United States nationals who had property wrongfully confiscated by the Cuban Government.

Id. §§ 6081(6)(A)-(B).

Further, the lack of effective international remedies for the wrongful confiscation of property and for unjust enrichment from the use of that property by foreign governments at the expense of the rightful owners left U.S. citizens without protection against wrongful confiscations by foreign nations and their citizens. Id. § 6081(10). Congress therefore concluded that, "[t]o deter trafficking in wrongfully confiscated property, United States nationals who were the victims of these confiscations should be endowed with a judicial remedy in the courts of the United States that would deny traffickers any profits from economically exploiting Castro's wrongful seizures." Id. § 6081(11); see also 22 U.S.C. § 6082(a)(1)(A). As a result, in passing Title III of the LIBERTAD Act, "Congress 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) ).

Shortly after Helms-Burton was passed, however, the President invoked Title III's [suspension] provision, and "Title III has since been waived every six months, ... and has never effectively been applied." Odebrecht Const., Inc. v. Prasad , 876 F. Supp. 2d 1305, 1312 (S.D. Fla. 2012). That changed on April 17, 2019, when the U.S. Department of State announced that the federal government "will no longer suspend Title III." See U.S. Department of State, Secretary of State Michael R. Pompeo's Remarks to the Press (Apr. 17, 2019), https://www.state.gov/remarks-to-the-press-11/.

Id. ; see also 22 U.S.C. § 6085(c) (presidential power to suspend the right to bring a cause of action under Title III). On May 2, 2019, the suspension of claimants’ rights to bring actions under Title III was lifted, enabling them to file suit against alleged traffickers.

B. This Case

On August 27, 2019, Havana Docks initiated this action against MSC pursuant to Title III of the LIBERTAD Act for MSC's alleged trafficking in property that was confiscated from Plaintiff by the Cuban Government in 1960. ECF No. [1]. On April 20, 2020, Plaintiff filed an Amended Complaint, ECF No. [56],¹ which alleges the following facts:

Havana Docks is a U.S. national, as defined by 22 U.S.C. § 6023(15), and "is the rightful owner of an interest in and certified claim to certain commercial waterfront real property in the Port of Havana, Cuba," identified as the Havana Cruise Port Terminal (the "Subject Property"). ECF No. [56] ¶ 7. Plaintiff continuously owned, possessed, managed, and used the Subject Property from 1917 until the Cuban Government confiscated it in 1960, id . ¶ 8, and that, since the confiscation, the Subject Property has not been returned, nor has Havana Docks received adequate or effective compensation for the confiscation of the Subject Property, id . ¶¶ 9-10. Havana Docks’ claim to the Subject Property has never been settled pursuant to any international claim settlement agreement or other settlement procedure. Id. ¶ 10.

Plaintiff's ownership interest in and claim to the Subject Property has been certified by the Foreign Claims Settlement Commission (the "FCSC") pursuant to the International Claims Settlement Act of 1949, 22 U.S.C. § 1621, et seq. (the "Claims Settlement Act"). Id. ¶ 12.² In the Certified Claim, a copy of which is attached to Plaintiff's Amended Complaint, the FCSC found, based on the record before it, that:

[Havana Docks] obtained from the Government of Cuba the renewal of a concession for the construction and operation of wharves and warehouses in the harbor of Havana, formerly granted to its predecessor concessionaire, the Port of Havana Docks Company; that claimant acquired at the same time the real property with all improvements and appurtenances located on the Avenida del Puerto between Calle Amargura and Calle Santa Clara in Havana, facing the Bay of Havana; ... and that claimant corporation also owned the mechanical installations, loading and unloading equipment, vehicles and machinery, as well as furniture and fixtures located in the offices of the corporation.

ECF No. [56-1] at 7. "The concession granted the Plaintiff a term of 99 years for the use of, improvement, construction upon, operation and management of the Subject Property," from which Havana Docks benefitted until 1960, when the Subject Property was confiscated by the Cuban Government, along with all of its other property interests. ECF No. [56] ¶ 15. "The concession never expired by its term." Id. Rather, when the Subject Property was confiscated, "Havana Docks still had a balance of 44 years of concessionary rights remaining ... [and] Plaintiff has never received any compensation nor been indemnified for the expropriation of the Subject Property, including for the concession or any other property interests." Id. ¶¶ 15, 18.

Moreover, according to the Amended Complaint, beginning on or about December 2018, MSC "knowingly and intentionally commenced, conducted, and promoted their commercial cruise line business to Cuba using the Subject Property by regularly embarking and disembarking their passengers on the Subject Property without the authorization of Plaintiff or any U.S. national who holds a claim to the Subject Property." Id. ¶ 21. MSC has had constructive knowledge of Plaintiff's publicly available Certified Claim to the Subject Property since the FCSC completed the Cuban Claims Program on July 6, 1972. Id. ¶ 23. Moreover, MSC has "had actual knowledge of Plaintiff's [Certified Claim] ... since at least February 11, 2019, due to a notice letter sent by Plaintiff to [MSC] pursuant to 22 U.S.C. § 6082(a)(3)(D)." Id. ¶ 24. "On information and belief, [MSC] trafficked in the Subject Property until June 2019." Id. ¶ 25. Thus, MSC is alleged to have knowingly and intentionally participated in, and profited from, the Cuban Government's confiscation and possession of the Subject Property without Plaintiff's...