CUBA Trends and Developments Contributed by: Martin Domb, Pedro A Freyre, Augusto E Maxwell and Christopher Carver, Akerman LLP
Update on Helms-Burton Act Cuban “Trafficking” Cases Introduction
its [ownership] interests in two other companies, Airtours and Costa”. The dissenting judge disagreed on the effect of the concessionary nature of Havana Docks’ interest. In his view, the ruling is “incompatible with the text of the Act and undermines its reme- dial purpose”. “Nothing in the statute”, he wrote, “requires that a claimant establish that, absent the confiscation, it would have a current, present day property interest in its stolen property”. The non-unanimous decision in this large-money case makes it likely that that additional appellate proceedings will take place. Escalon v Trafigura – plaintiff acquired the claim too late Plaintiff Escalon sued Trafigura, a commodi- ties trading company, in a Texas federal court, both as an heir and as the representative of two estates. Each Florida decedent had held an ownership interest in companies in Cuba that extracted and exported metals. Escalon claimed that Trafigura trafficked by partnering with the Cuban government to exploit the companies’ assets. Trafigura moved to dismiss on several grounds, and it succeeded on one of them: that Escalon did not acquire her claim before 12 March 1996 – the date Helms-Burton was enacted – as the Act requires. The claim on the properties had been held, before the enactment date, by Escalon’s aunt and mother. Under their wills, Escalon inherited their claims in July 1996 and June 2000, respectively. The trial court dismissed because Escalon inherited her claims on the dates of death, too late under the Act. On appeal to the Fifth Circuit Court of Appeals, Escalon argued that (i) the claims she asserted
The authors describe in this update a recent sig- nificant appellate decision in the Havana Docks cases (the update a year ago focused on the appellate arguments in those cases) and deci- sions in five other cases, two by appellate courts and three at the trial court level. As a brief reminder, the Helms-Burton Act’s civil liability provisions grant a US national the right, subject to various limitations and conditions, to sue and collect substantial money damages from persons that have knowingly and intention- ally trafficked in – that is, used or derived eco- nomic benefit from – property that the Cuban government expropriated in or after 1959 and in which the US national claims an interest. Havana Docks – USD100 million judgments vacated On 22 October 2024, an Eleventh Circuit panel, by a 2-1 vote, reversed the trial court’s judgments of over USD100 million against each of four cruise lines. The court reversed on one ground: that the plaintiff company, Havana Docks, did not own the dock outright but, rather, held a 99-year concession that would have expired in 2004. At the time Cuba confiscated the dock in 1960, only 44 years remained on the concession; as a result, Havana Docks’ rights expired long before the three cruise lines’ use of the dock from 2015 to 2019, irrespective of the expropria- tion. Therefore, no “trafficking” in Havana Docks “property” could have occurred. The court did not address the cruise lines’ other arguments for reversal. The appeals court remanded the case to the trial court, however, as the plaintiff and one of the cruise lines, Carnival, had agreed to consider claims that Carnival allegedly trafficked in the concession “from 1996 to 2001 through
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