HAVANA DOCKS CORPORATION v. ROYAL CARIBBEAN CRUISES, LTD.; NORWEGIAN CRUISE LINE HOLDINGS, LTD.; CARNIVAL CORPORATION; MSC CRUISES S.A. CO.; MSC CRUISES (USA), INC., et al.
No. 23-10151
No. 23-10171
United States Court of Appeals for the Eleventh Circuit
October 22, 2024
[PUBLISH]
D.C. Docket No. 1:19-cv-23590-BB
D.C. Docket No. 1:19-cv-23591-BB
JORDAN, Circuit Judge.
Title III of the Cuban Liberty and Democratic Solidarity Act, known as the Helms-Burton Act, provides a private cause of action for certain U.S. nationals against anyone who “traffics” in “property which was confiscated by the Cuban Government on or after January 1, 1959.”
In these consolidated cases, the district court entered Title III judgments of over $100 million against each of four cruise lines (Royal Caribbean Cruises, Norwegian Cruise Line Holdings, Carnival Corporation, and MSC Cruises) for trafficking in the confiscated property of Havana Docks at the Port of Havana (now known as the Havana Cruise Port Terminal) from 2016 to 2019. The court ruled at summary judgment that the cruise lines had engaged in trafficking by having their ships dock at the Terminal and one of its piers, by using that property to embark and disembark passengers, and by having that property serve as the starting and ending point for shore excursions for cruise travelers. See Havana Docks Corp. v. Carnival Corp., 592 F. Supp. 3d 1088, 1153-55 (S.D. Fla. 2022).
Havana Docks’ confiscated property, however, was not a fee simple ownership interest in real property at the Port of Havana. It was, instead, a 99-year usufructuary concession that would have expired in 2004 were it not for the Cuban Government‘s expropriation in 1960. So we must decide whether the cruise lines engaged in trafficking under Title III when they used the Terminal and one of its piers from 2016 to 2019.
After a review of the record, and with the benefit of oral argument, we hold that
I
These cases come to us in a summary judgment posture. That means we view the evidence in the light most favorable to the cruise lines and determine whether Havana Docks was entitled to summary judgment on its trafficking claims as a matter of law under
II
Title III allows a “[U.S.] national who owns the claim to [confiscated] property” to bring an action for trafficking. See
Under Title III a U.S. national is “(A) any United States citizen” or “(B) any other legal entity which is organized under the laws of the United States, or of any State, the District of Columbia, or any commonwealth, territory, or possession of the United States, and which has its principal place of business in the United States.”
Havana Docks was incorporated in Delaware in 1917 and was a U.S. national in 1960 when the Cuban Government expropriated its usufructuary concession. Indeed, its corporate nationality was a significant reason for the confiscation. See In re Havana Docks Corp., Foreign Cl. Settlement Comm’n No. 2492, Proposed Decision, at 2 (Apr. 21, 1971) (later finalized in In re Havana Docks Corp., Foreign Cl. Settlement Comm’n No. 2492, Final Decision (Sept. 28, 1971)); Carnival D.E. 73-8 at 6. See also Ada Ferrer, Cuba: An American History 347-48 (2021) (describing the Castro regime‘s expropriation of assets and property belonging to U.S. nationals and U.S. companies in the 1960s).
For purposes of diversity jurisdiction under
Although Hertz was a diversity jurisdiction case, we think its nerve-center test should apply to determine a company‘s principal place of business for purposes of
Here‘s how the district court described the record evidence on the issue of Havana Docks’ principal place of business:
The only corporate address associated with Havana Docks is in Lexington, Kentucky. Havana Docks has only two functions: to exist and manage its income-producing assets. Indeed, Havana Docks has no employees. [Jerry] Johnson, who operates out of Kentucky, is tasked with performing both of those functions. It is undisputed that [Mr.] Johnson has performed duties to, among other things, maintain Havana Docks’ corporate status active and in good standing; coordinate the filing of Havana Docks’ taxes; and maintain Havana Docks’ ledger, balance sheets, [and] income statements.
Mickael Behn, Havana Docks’ President, testified that “[a]ll decisions are executed by [Mr.] Johnson, and that Johnson could do “[p]retty much everything” without his input. [Mr.] Behn added that [Mr.] Johnson “has authority . . . to do what he needs to do for Havana Docks. It‘s a certified claim. And to keep the company running.” [Mr.] Johnson similarly testified that although he reports to [Mr.] Behn as President, [he] is “largely responsible” for “the day-to-day business decisions for Havana Docks.” [Mr.] Johnson further stated at deposition that [Mr.] Behn does not conduct any Havana Docks business in England.
Havana Docks, 592 F. Supp. 3d at 1163-64 (record citations omitted).
The cruise lines base their challenge on the fact that Mr. Behn lives in London, England. In their view, Mr. Behn directs Havana Docks’ corporate affairs from there—for example, approving Mr. Johnson‘s hiring of an accountant and counsel—and as a result the company‘s “nerve center” is located outside of the United States. See Joint Br. for RC, NCL, and MSC Cruises at 65-69; Br. for Carnival at 46-60. We see things differently.
We first consider the “nature of [Havana Docks‘] activities, as it is difficult to locate a corporation‘s brain without first identifying its body.” Johnson v. SmithKline Beecham Corp., 724 F. 3d 337, 356 n.21 (3d Cir. 2013). In this respect Havana Docks’ only purposes are to maintain its corporate existence and manage its income-producing assets (e.g., its Title III trafficking claims). We must therefore look to where those activities are “controlled and directed.” Id. Mr. Johnson, though an unpaid director, keeps Havana Docks’ corporate status active and in good standing, coordinates the filing of Havana Docks’ taxes, and maintains Havana Docks’ ledger, balance sheets, and income statements. And he does all of those things in Kentucky, the place where Havana Docks has its only corporate address.
That Mr. Behn made some strategic corporate decisions from London does not call for that location to be Havana Docks’ nerve center. Mr. Johnson made decisions about “paying taxes, investments, administration . . . [p]retty much everything.” Carnival D.E. 508-17 at 39. Indeed, Mr.
The cruise lines point to evidence indicating that Mr. Behn could override Mr. Johnson if the two disagreed, but there is no evidence that there has been any such disagreement on a matter of importance. The nerve center test, as articulated in Hertz, focuses on the actual management of a company and not theoretical possibilities. See Hertz, 559 U.S. at 80 (explaining that the focus is on the “place where the corporation‘s high-level officers direct, control, and coordinate the corporation‘s activities“). See also 13F Arthur R. Miller, Fed. Prac. & Pro. § 3625 (3d ed. & June 2024 update) (“If . . . managerial control, as well as the company‘s actual operations, is dispersed among several states or is located in the same state as the executive offices, then there is a substantial amount of judicial precedent for the proposition that the site of executive and administrative offices should be relied upon to determine a corporation‘s principal place of business for purposes of diversity jurisdiction.“).
The fact that Havana Docks is not registered or licensed to do business in Kentucky does not tip the scales in favor of England as the company‘s principal place of business. That is because Havana Docks does not do any substantive business and because it is also not registered or licensed to do business in England. At best, this matter is a wash.
In sum, Havana Docks is incorporated in Delaware and has its principal place of business—its nerve center—in Kentucky. On this record, no reasonable jury could have found otherwise. The district court correctly ruled that Havana Docks is a U.S. national under Title III.
III
Havana Docks is the owner of an interest in, and claim to, certain commercial waterfront real property in the Port of Havana (now known as the Havana Cruise Port Terminal). Here‘s what that property interest consists of and how it came to be.
A
In 1905, the Cuban Government issued Decree No. 467 granting a concession to Compañia del Puerto (as the successor to the interest of Sylvester Scovel) for a 50-year term. The concession, issued pursuant to the provisions of the Law of Public Works and the Law of Ports, allowed Compañia del Puerto to build at its own expense a pier at the Port of Havana—which constituted state property—under the control and supervision of the Cuban Government. The pier, which was to have mechanical installations, was to be used in the docking, loading, and unloading of vessels. Once the construction was completed, Compañia del Puerto could operate a cargo service on the premises subject to the regulations, fees, and tariffs of the Cuban Government. The concession granted Compañia del Puerto a “usufruct” in certain public areas on which the installed works were located, and in the public spaces between the streets that were established as public thoroughfares between certain jetties. See Havana Docks, 592 F. Supp. 3d at 1121 (quoting Carnival D.E. 73-3 at 3); Carnival D.E. 331-1 at 7-8, 10, 14 (Declaration of Ambar Diaz, Esq.); Decree No. 467, Condition No. 4 Nov. 29, 1905, Gaceta Oficial [G.O.] (Cuba). See also Carnival
In civil law or mixed law jurisdictions, a “concession” is a “franchise, license, permit, [or] privilege[.]” Henry Saint Dahl, Dahl‘s Law Dictionary 79 (3d ed. 1999). A “usufruct” is “the right to enjoy a thing owned by another person and to receive all the products, utilities, and advantages produced thereby, under the obligation of preserving its form and substance, unless the deed constituting [the] usufruct or the law otherwise decrees.” Id. at 496-97. Accord 2 Butterworths Spanish-English Legal Dictionary 659 (1991) (defining “usufruct” as a “right of enjoyment of or right to use another‘s property and to take the fruits therefrom without altering its substance,” and explaining that it is “[u]sually temporary and may be gratuitous or for consideration“); Black‘s Law Dictionary 1712 (4th ed. 1951) (defining “usufruct,” in “the civil law,” as the “right of enjoying a thing, the property of which is vested in another, and to draw from the same all the profit, utility, and advantage which it may produce, provided it be without altering the substance of the thing“).
In 1910, the Cuban Government issued Decree 1022. This law allowed Compañia del Puerto to build four piers and set an approved fee schedule for use of the piers once constructed. See Carnival D.E. 331-1 at 9; Decree No. 1022, Nov. 19, 1910, Gaceta Oficial [G.O.] (Cuba). See also Carnival D.E. 331-4 at 21-24 (English translation of Decree No. 1022).
Compañia del Puerto assigned its rights and interests under the concession to Port of Havana Docks Company. Decree No. 184 approved this assignment in 1911, with all of the terms of the initial concession remaining in place. See Carnival D.E. 331-1 at 9; Decree No. 184, Mar. 13, 1911, Gaceta Oficial [G.O.] (Cuba). See also Carnival D.E. 331-4 at 3 (English translation of Decree No. 184). In 1920, the Cuban Government issued Decree No. 1944, which amended the concession so that two of the piers would become a single pier of larger capacity for cargo handling. Decree No. 1944 also extended the term of the concession from 50 years to 99 years (with the term beginning in 1905). See Decree No. 1944, Dec. 13, 1920, Gaceta Oficial [G.O.] (Cuba); Carnival D.E. 331-1 at 18-19. See also Royal Caribbean D.E. 31-4 at 2-4 (English translation of Decree No. 1944).3
Under the Law of Public Works, concessions could only be granted for a maximum term of 99 years, and any rights granted to the beneficiary would expire when the fixed term ended. This meant, effectively, that the beneficiary‘s property at the Port of Havana would revert back to the Cuban Government at the end of the 99-year term. See Carnival D.E. 331-1 at 11, 18-19. See also Ley General de Obras Públicas de la Isla de Cuba y Reglamento Para Su Ejecucion 15 (1891), translated in General Law of Public Works of the Island of Cuba and Regulations for its Execution 15 (U.S. Customs and Insular Affs., War Dep‘t,
In 1928, Port of Havana Docks Company sold all of its corporate stock to Havana Docks, which as noted was and is a Delaware corporation. The deed was notarized in Cuba that same year, and Havana Docks thereby acquired the concession at the Port of Havana. The construction of the piers finished in 1930, and four years later the Cuban Government approved the assignment of the concession from Port of Havana Docks Company to Havana Docks. In doing so, the Cuban Government noted that the concession‘s purpose was to serve the public interest. See Carnival D.E. 331-1 at 10.
B
Shortly after coming to power in 1959, the Castro regime began nationalizing and expropriating property owned or held by U.S. nationals and U.S. companies. See generally Ferrer, Cuba: An American History, at 347-48. In 1960, through Resolution No. 3 and pursuant to Law No. 851, the Castro regime confiscated (i.e., expropriated) the concession held by Havana Docks and forcibly took possession of its premises at the Port of Havana. See Carnival D.E. 73-6 at 7 & D.E. 337 at 6; NCL D.E. 367 at 29-30; Law No. 851, Oct. 24, 1960, Gaceta Oficial [G.O.] (Cuba). Havana Docks has never received any compensation from the Cuban Government for the expropriation of its concession or the taking of its property. See Carnival D.E. 318-1 at 17.
“In response to the takings of American property in Cuba by the Castro regime, Congress amended the International Claims Settlement Act of 1949 with the Cuban Claims Act of 1964,
Havana Docks filed a claim with the Foreign Claims Settlement Commission. The Commission issued a proposed decision on the claim in April of 1971. It then rendered a final decision September of 1971 which affirmed the proposed decision except for an increase in some land values. See In re Havana Docks Corp., Foreign Cl. Settlement Comm’n No. 2492, Proposed Decision (Apr. 21, 1971); In re Havana Docks Corp., Foreign Cl. Settlement Comm’n No. 2492, Final Decision (Sept. 28, 1971); Carnival D.E. 73-8.
First, the Commission found that Havana Docks was a U.S. national within the meaning of the Cuban Claims Act. This was because more than 50% of its stock
Second, the Commission made a number of findings about Havana Docks’ concession and the Cuban Government‘s expropriation. It found that (a) Havana Docks had a concession which was renewed in 1934 for the construction and operation of wharves and warehouses in the Port of Havana and which was set “to expire in 2004, at which time [it] had to deliver the piers to the [Cuban Government] in good state of preservation;” (b) Havana Docks acquired at the same time certain real property facing the Bay of Havana; (c) Havana Docks owned certain installation machinery, loading and unloading equipment, vehicles, furniture, and fixtures at the Port of Havana and at its corporate offices; (d) in June of 1946 Havana Docks’ property was encumbered with a $1.6 million mortgage in favor of certain bondholders; and (e) in 1960 the Cuban Government nationalized and expropriated Havana Dock‘s property and assets in Cuba. See id. at 3.
Third, the Commission certified that Havana Docks suffered a loss as a result of the Cuban Government‘s actions and valued its “concession and tangible assets” at $8.684 million and its securities, accounts receivable, and government debts collectively at $495,340. The certified loss, then, totaled $9.179 million with interest to accrue at 6% per year from the respective dates of loss to the date of settlement. See In re Havana Docks Corp., Foreign Cl. Settlement Comm’n No. 2492, Final Decision, at 3 (Sept. 28, 1971).
C
Title III establishes a private right of action for “any United States national who owns the claim to [confiscated] property” against “any person that . . . traffics in [such] property.”
Under Title III, a certification by the Foreign Claims Settlement Commission pursuant to the International Claims Settlement Act,
1
The issue presented here is one of first impression, and it is not easy. Indeed, the district court was of two minds about the effect of the concession‘s 99-year term on Havana Docks’ trafficking claims against the cruise lines.
The district court first denied a motion to dismiss by Carnival and rejected the argument that Havana Docks could not sue because it no longer had a property interest at the time of the alleged trafficking from 2016 to 2019. The court explained that Title III “does not expressly make any distinction whether [the] trafficking needs to occur while a party holds a property interest in the property at issue,” and agreed with Havana Docks that Carnival was “incorrectly conflat[ing] a claim to a property and a property interest.” Havana Docks Corp. v. Carnival Corp., No. 19-cv-21724, 2019 WL 8895241, at *4 (S.D. Fla. Aug. 28, 2019).
Then the district court reversed course and granted motions to dismiss filed by MSC Cruises and NCL on the ground that Havana Docks’ concession had expired in 2004, well before the alleged trafficking by the cruise lines. See Havana Docks Corp. v. MSC Cruises SA Co., 431 F. Supp. 3d 1367, 1371-74 (S.D. Fla. 2020); Havana Docks v. Norwegian Cruise Line Holdings, Ltd., 431 F. Supp. 3d 1375, 1378-80 (S.D. Fla. 2020). The court noted that Havana Docks admitted that its concession “expired in 2004.” MSC, 431 F. Supp. 3d at 1372. Havana Docks, moreover, “d[id] not appear to dispute that the Cuban Government‘s confiscation extinguished [its] property rights.” NCL, 431 F. Supp. 3d at 1379. The court ruled that a property interest “involving a time-limited concession . . . does not give [Havana Docks] the right to sue for activities that took place years after it no longer has an interest in the property.” MSC, 431 F. Supp. 3d at 1373. A cruise line “could only ‘traffic’ in [Havana Docks‘] confiscated property if it undertook one of the prohibited activities before [Havana Docks‘] interest in the property expired.” NCL, 431 F. Supp. 3d at 1380. Turning to the purposes of Title III—to deter trafficking and to provide a remedy for trafficking—the court explained that “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.” MSC, 431 F. Supp. 3d at 1374.
Havana Docks moved for reconsideration. The district court changed its mind again and reverted to the rationale it employed in denying Carnival‘s motion to dismiss in 2019. The court explained that it had made a factual error in the MSC and NCL cases by determining, at the Rule 12(b)(6) stage, that Havana Docks’ concession expired in 2004. According to the court, Havana Docks had a 99-year concession, and not a concession which was to end in 2004. The court also stated that its finding that the concession ended in 2004 was contrary to the language in the certified claim because the Foreign Claims Settlement Commission only stated that the concession was set to expire in 2004. See Havana Docks Corp. v. Norwegian Cruise Line Holdings, Ltd., 454 F. Supp. 3d 1259, 1271-72 (S.D. Fla. 2020). The court noted as well that Havana Docks had more than the concession itself; it owned the fixtures
In its summary judgment order, the district court adopted the reasoning set out in NCL, 454 F. Supp. 3d at 1272-73. It rejected the cruise lines’ argument that because Havana Docks’ concession would have expired in 2004 there could be no trafficking from 2016 to 2019. See Havana Docks, 592 F. Supp. 3d at 1255.
2
We conclude that the district court correctly assessed the limited nature of Havana Docks’ property interest when it granted the motions to dismiss filed by MSC Cruises and NCL. See MSC, 431 F. Supp. 3d at 1373; NCL, 431 F. Supp. 3d at 1379. Havana Docks’ usufructuary concession ended, for purposes of Title III, in 2004 when the 99-year term would have expired by its own terms. As a result, when the cruise lines used the Terminal and one of its
piers from 2016 to 2019, they did not traffic in property that had been confiscated by the Cuban Government.5
No one disputes that the 1960 expropriation by the Cuban Government extinguished Havana Docks’ usufructuary concession under Cuban law. See Glen, 450 F.3d at 1255. The district court correctly noted in one of its orders that a Title III plaintiff, following expropriation, no longer owns property that can be trafficked because that property now belongs to the Cuban Government (or whomever else it has conveyed the property to). See NCL, 454 F. Supp. 3d at 1274.
There is a reasonable argument that the Cuban Government‘s expropriation of Havana Docks’ usufructuary concession—i.e., the taking of the property of a national of another country—without payment of compensation violated international law. See Comparelli v. Republica Bolivariana de Venezuela, 891 F.3d 1311, 1326 (11th Cir. 2018) (“[U]nder the third prong of the [expropriation] exception [of the Foreign Sovereign Immunities Act,
In our view, the way to give effect to the statutory language (“traffics in property which was confiscated“), and to acknowledge that not all property rights are the same, is to view the property interest at issue in a Title III action as if there had been no expropriation and then determine whether the alleged conduct constituted trafficking in that interest. We set out our reasoning below.
“A common idiom describes property as a ‘bundle of sticks‘—a collection of individual rights which, in certain combinations, constitute property.” United States v. Craft, 535 U.S. 274, 278 (2002). An “interest in real property is defined by the metes and bounds that describe its geographic dimensions and the term of years that describes the temporal aspect of the owner‘s interest.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg‘l Plan. Agency, 535 U.S. 302, 331-32 (2002).
Interests in real property are as varied as the colors and shades on a paint wheel. At one end are freehold estates like an estate in fee simple absolute, which is ownership “not subject to a special limitation . . . or a condition subsequent . . . or an executory limitation.” Restatement (First) of Property § 15 (Am. Law Inst. 1936). “If one conceives of property as likened thus to a bundle of rights, privileges, immunities and liabilities adaptable to any physical thing, the fee simple absolute is the largest segment thereof that the political philosophy of the time and place permits any private individual to obtain.” 2 David A. Thomas, Thompson on Real Property, Thomas Editions § 14.04(c)(1) (Matthew Bender Apr. 2024 update). At the other end are limited possessory rights like those created by a tenancy at will, which endures “only so long as both the landlord and the tenant desire.” Restatement (Second) of Property—Landlord and Tenant § 1.6 (Am. Law Inst. 1977).
Congress, we think, understood the varied nature of property interests when it drafted Title III. For example,
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.” Toy Story (Pixar Animation Studios/Walt Disney Pictures 1995). 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
For purposes of Title III, therefore, we treat Havana Docks’ property interest—the concession—as if the Cuban Government had never expropriated it, i.e., without the distorting effect of the confiscation. To recap, Havana Docks did not have any fee simple ownership rights in any real property at the Port of Havana; it had only a usufructuary concession, i.e., a “personal servitude granting the right to use another‘s property and take its ‘fruits’ or profits.” 8 Thompson on Real Property, Thomas Editions § 64.03 n.23. By its own terms the concession had a 99-year term and was to end in 2004. Havana Docks, moreover, had no option for unilateral renewal of the concession and had to return the property and piers to the Cuban Government in a state of good preservation when the term expired.
In statutory terms, what the Cuban Government confiscated from Havana Docks in 1960 was its “control” and enjoyment of the property at the Port of Havana through a time-limited usufructuary concession. See
Imagine that in October of 1965 the Cuban Government confiscated a private airport for small aircraft which was owned (land and all) by a corporation that was (and remains) a U.S. national. Imagine also that the Cuban Government has since been operating the airport as its own and collecting fees for its use. If the corporation owned the airport in fee simple at the time of its expropriation, an airline which landed its planes on that airport today and paid the Cuban Government a fee for the privilege of doing so would be engaged in trafficking and the corporation could (assuming other statutory requisites were satisfied) sue that airline under Title III. That is because a fee simple interest, if not for the expropriation, would have continued unabated into the future without any inherent temporal limitation.
On the other hand, imagine that the same U.S. corporation had only a five-year lease to operate the same airport, which was owned (land and all) by a Cuban national. Imagine also that the Cuban Government confiscated the corporation‘s leasehold interest and took over the airport in October of 1965, when the lease had only two months left to go in its five-year term. If an airline landed its planes on the airport today and paid the Cuban Government a fee for the privilege of doing so, the corporation could not sue the airline for trafficking under Title III. The reason is that its leasehold interest, if not for the expropriation, would have expired by its own terms in December of 1965. The airline would not have trafficked in the corporation‘s confiscated property by using the airport today.
Havana Docks, defending the district court‘s final decisions on this issue, see NCL, 454 F. Supp. 3d at 1271-74, and Havana Docks, 592 F. Supp. 3d at 1255, maintains that it can assert trafficking claims against the cruise lines for conduct taking place from 2016 to 2019. At the end of the day, we are not convinced by its arguments.
First, Havana Docks is wrong in asserting that the certified claim from the Foreign Claims Settlement Commission in 1971 establishes that the cruise lines trafficked in its confiscated property. See Br. for Appellee at 39-45. Title III provides that a certification of a claim by the Commission constitutes “conclusive proof of ownership of an interest in property,”
Though a U.S. national with a certified claim has a basis for seeking compensation in any future settlement proceedings between the United States and Cuba, and has to some degree monetized the value of the property (or property interest) confiscated by the Cuban Government, the certified claim is not a means for expanding the nature of a limited property interest in a Title III action. And to the extent that its decision is relevant to the issue before us, the Commission recognized that Havana Docks’ concession was set to expire in 2004, at which point Havana Docks had to return the property and piers to the Cuban Government in a good state of preservation. See In re Havana Docks Corp., Foreign Cl. Settlement Comm‘n No. 2492, Proposed Decision, at 5 (Apr. 21, 1971) (later finalized in In re Havana Docks Corp., Foreign Cl. Settlement Comm‘n No. 2492, Final Decision (Sept. 28, 1971)).
Second, we disagree with Havana Docks that the nature of its usufructuary concession allows it to assert trafficking claims against the cruise lines for conduct which took place from 2016 to 2019. See Br. for Appellee at 45-46. Havana Docks cites Boggs v. Boggs, 520 U.S. 833, 836 (1997), for the proposition that a “lifetime usufruct is the rough equivalent of a common-law life estate,” but that citation is misplaced because the concession here was limited to 99 years and did not give Havana Docks any unilateral rights of renewal.
Third, we reject Havana Docks’ argument that a Title III claim can be brought against the cruise lines because the interest in the usufructuary concession—having been extinguished in 1960 by the Cuban Government‘s confiscation, see Glen, 450 F.3d at 1255—has been replaced with a certified claim for compensation against the Cuban Government. See Br. for Appellee at 52-57. Havana Docks is right that it now holds a certified claim from the Commission for the value of the confiscated property interest, but under the language of Title III that claim does not provide the basis for a trafficking action. As explained earlier, Title III provides that “any person” who “traffics in property which was confiscated by the Cuban Government on or after January 1, 1959, shall be liable to any United States national who owns the claim to such property for money damages.”
Fourth, contrary to Havana Docks’ contention, the use of the past tense in
4
Our resolution does not dispose of all of Havana Docks’ trafficking claims. Havana Docks also alleged that Carnival trafficked in its concession from 1996 to 2001 through its interests in two other companies, Airtours and Costa. The district court did not separately address these claims given its ruling in favor of Havana Docks on the 2016-2019 trafficking claims.
Havana Docks and Carnival agree that we should remand the 1996-2001 claims for further proceedings. See Br. for Carnival at 17 n.2; Br. for Appellee at 51 n.6. We concur in their assessment. Because Havana Docks’ concession would not have expired until 2004, our holding today does not preclude claims for trafficking based on conduct taking place before then.
IV
We affirm the district court‘s ruling that Havana Docks is a U.S. 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.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
BRASHER, Circuit Judge, dissenting:
When Fidel Castro came to power in 1959, the Cuban Government confiscated all property in Cuba owned by United States nationals. After nearly four decades of those nationals receiving no compensation from the Cuban Government for their stolen property, Congress passed the Helms-Burton Act as another way for those nationals to seek compensation for their losses. To that end, Title III of the Act creates a private cause of action for any U.S. national who owns a “claim” to “property which was confiscated” against anyone who commercially benefits from the stolen property.
Havana Docks is a U.S. national that owned a concession to construct and operate piers and terminal facilities at the Port
The majority opinion holds that Havana Docks cannot sue those cruise lines for using its confiscated property in the present day because its 99-year right to operate the docks (that it built) ended in 2004. But the majority opinion is wrong. The Cuban Government ended Havana Docks’ concession in 1960 when that concession still had 44 years left to run. The majority‘s counterfactual analysis—asking what would have happened to Havana Docks’ docks if they had not been confiscated in 1960—is incompatible with the text of the Act and undermines its remedial purpose. Nothing in the statute requires that a claimant establish that, absent the confiscation, it would have a current, present day property interest in its stolen property. Accordingly, I respectfully dissent.
I.
Congress enacted the Helms-Burton Act to provide a comprehensive remedial regime for the property that the Cuban Government confiscated in 1959. The Act explains that it seeks to resolve “the claims of United States nationals who had property wrongfully confiscated by the Cuban Government.”
In an ideal world, the Cuban Government would pay the claims for the property it confiscated in 1959. But, because the Cuban Government has no intention of doing so, the Act provides another path to compensation through a private right of action for claim-holding U.S. nationals to obtain the value of their claim from any person that traffics in the property that underlies their claim.
As damages, a successful Title III plaintiff is entitled to the value of its “claim.” The Act provides three different ways to measure that value: (1) the amount of a certified claim from the Foreign Claims Settlement Commission, plus interest, (2) the amount determined by a special master, plus interest, or (3) the fair market value at present or at the time of confiscation, whichever is greater, plus interest.
Before Castro came to power, Havana Docks owned a concession to construct piers and terminal facilities at the Port of Havana and to own, maintain, and operate those facilities for a term of 99 years beginning in 1905 and expiring in 2004. By the time Castro took control, Havana Docks had finished construction and begun operating those facilities. Because Havana Docks is a U.S. national, the Cuban Government confiscated the docks and ended its concession and all related rights in 1959.
After the confiscation, Havana Docks sought restitution with the Foreign Claims Settlement Commission, which has the authority to issue a “final and binding decision[] with respect to claims by United States nationals against” the Cuban Government. Dames & Moore v. Regan, 453 U.S. 654, 680 (1981); see also
Between 2015 and 2019, the defendant cruise lines brought almost a million tourists to Cuba through the Port of Havana—using the very same piers in the very same terminal that the Cuban Government confiscated from Havana Docks. The district court held that the cruise lines trafficked in property to which Havana Docks “owns [a] claim.” The cruise lines appealed.
II.
The parties’ briefs raise several questions, and some of them are difficult. But the question the majority opinion answers is, to me, very simple. The Cuban Government stole Havana Docks’ property—its docks, piers, and other things that it had the right to operate under its concession. And the cruise lines have—all agree—commercially benefited by depositing paying customers on those docks and piers. Accordingly, the district court was correct that the cruise lines trafficked in confiscated property to which Havana Docks owns a claim.
To avoid this straightforward analysis, the cruise lines argue that they didn‘t traffic in confiscated property because their activity took place between 2015 and 2019, and Havana Docks’ concession would have ended in 2004 if the docks had not been confiscated. The majority opinion agrees. In the words of the majority opinion, we should “view the property interest at issue in a Title III action as if there had been no expropriation and then determine whether the alleged conduct constituted trafficking of that interest.” In other words, to prevail under the Act, a Title III plaintiff must establish a counterfactual—that the defendant trafficked in property that it would have had a present interest in at the time of the trafficking if the Cuban Government had not confiscated the property.
In my view, there are three problems with this judicially created prove-a-counterfactual requirement. First, it is not supported by the statute‘s text. The text of
A.
Let‘s start with the statute‘s text. At its most basic level, there are two elements to the Act‘s cause of action: (1) the defendant used confiscated property and (2) a U.S. national owns a claim to that confiscated property. As we have explained elsewhere, the Act replaces U.S. citizens’ property interests with new claims against the Cuban Government because it confiscated that property. Glen, 450 F.3d at 1255. Then, the Act says that anyone who benefits commercially from “property which was confiscated by the Cuban Government” is liable to “any United States national who owns the claim to such property,” unless that person has permission from the U.S. national.
I think Havana Docks has established that it meets these statutory elements. Did the cruise lines benefit commercially from “property which was confiscated by the Cuban Government?” Of course they did. 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. The Commission‘s judgment on that point is “conclusive proof” under the terms of the statute.
Under the text of the Act, there is no requirement that the plaintiff would have owned a present interest in the property at the time of the trafficking if its property had not been confiscated. Instead, the timing that matters is that a U.S. national “owns the claim” to confiscated property at the time of the trafficking. Unlike Havana Docks’ original concessionary interest in the docks, its claim is not time limited. The claim persists until the plaintiff recovers in full either directly from the Cuban Government or indirectly by bringing an action under the Act. See BUC Int‘l Corp. v. Int‘l Yacht Council Ltd., 517 F.3d 1271, 1276 (11th Cir. 2008) (explaining the general rule that “a plaintiff is entitled to only one satisfaction for a single injury“).
To be sure, that an interest in confiscated property was limited in duration is not irrelevant under the text of the Act. But any temporal limitation on an interest in confiscated property—such as the 44 years remaining on Havana Docks’ concession when the docks were confiscated—goes to the value of the claim, not the scope of the property subject to trafficking. A one-day leasehold interest in property that was confiscated would presumably be less valuable than a fee simple interest in that same property. The cruise lines acknowledge as much throughout their arguments. They recognize that the International Claims Settlement Act of 1949, which authorized the Foreign Claims Settlement Commission to certify these types of
In short, nothing in the text of the Act requires a plaintiff to prove a counterfactual to succeed on its trafficking claim. The defendant must have used confiscated property and the plaintiff must “own the claim” at the time of the trafficking. But those are the only two elements in the statute‘s text.
B.
Moving to the second problem with the majority‘s rule: it is directed at the wrong “confiscated property.” Havana Docks isn‘t suing the cruise lines on the theory that they are trafficking by using its intangible concessionary interest. Its theory is not, for example, that the cruise lines are trading its old lease among themselves as a security. Instead, Havana Docks’ theory is that the cruise lines are using the docks—which still exist, are still in use, and have not expired, ended, or fallen into the sea.
A claim can represent a wide range of interests in confiscated property.
The majority opinion focuses on temporal limitations in Havana Docks’ concession, but those temporal limits have nothing to say about whether the cruise lines are trafficking in the physical docks. All Havana Docks’ property rights—whatever they were—ceased to exist the moment the Cuban Government confiscated the docks. See Glen, 450 F.3d at 1255. From that day forward Havana Docks no longer had any enforceable rights in the docks. The same is true for anyone else who ever had a property interest of any kind that the Cuban Government confiscated. As we have recognized, those original property interests are gone. See Glen, 450 F.3d at 1255. They cannot be vindicated by, for example, bringing a trespass or unjust enrichment action. Instead of owning property interests, former property owners have claims. And the Helms-Burton Act provides legal recourse for those former property owners to seek compensation for those claims from the people who are benefiting from the property that underlies that claim.
The issue in this case is not whether a plaintiff can sue someone who profits from an intangible concession or lease. Instead, this case is about real physical property. Havana Docks argues that the defendants have trafficked in “confiscated property” by using the docks and piers that the
C.
The third problem with the majority‘s rule is that it nullifies myriad property interests that are expressly protected by the Helms-Burton Act. The Act expressly covers certain property like “patents” and certain interests in property, such as “future” and “contingent” interests, that the majority‘s rule wouldn‘t protect.
The majority opinion says it need not address these problems with its rule, because these kinds of interests aren‘t present in this appeal. But the words of a statute can‘t be ignored just because they are inconvenient. Congress would not have written the Act expressly to cover “patents” if, under the majority opinion‘s rule, it did not, in fact, cover any patents. Likewise, if a statute expressly covers contingent and future interests, it doesn‘t make sense to hold, as the majority opinion does, that the statute protects only present interests. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174 (2012) (explaining that “every word and every provision is to be given effect“).
The majority opinion suggests some hypothetical problems with the district court‘s understanding of the Act. But they are easily resolved by recognizing that a temporal limitation on a property interest at the time of confiscation determines the value of a Title III “claim,” not the existence of one. Consider the majority opinion‘s two hypothetical airport owners: one who owned a fee simple interest to the airport in 1959, and another who owned a five-year leasehold interest in the airport with two months remaining at the time of confiscation. Because both owners had a cognizable property interest that was confiscated by the Cuban Government, both own a claim to that confiscated property under the Act.
Unless and until the property confiscation claims of U.S. nationals are paid, those claims continue to exist and are enforceable under the Helms-Burton Act. But the majority opinion‘s interpretation means that the Act provides no remedy for U.S. nationals with property interests that were confiscated in 1959 but, absent confiscation, would have “expired” before the present day. It does so even though there is no textual support for that result and even though the Act expressly protects interests that were contingent or time-limited when they were confiscated. And it adopts that rule even though there is a perfectly rational alternative that better conforms to the Act—that the time-limited nature of an interest in confiscated property
III.
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.