Havana Docks Corporation Appeals Dismissal Of Carnival Corporation Lawsuit: The 99-Year Lease Remains In Force

HAVANA DOCKS CORPORATION VS. CARNIVAL CORPORATION D/B/A/ CARNIVAL CRUISE LINES [1:19-cv-21724; Southern Florida District]

Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Jones Walker (defendant)
Boies Schiller Flexner LLP (defendant)
Akerman (defendant)

Filed 2/3/2020: Plaintiff’s Motion For Leave To File First Amended Complaint

Excerpt

On January 3 and 7, 2020, respectively, the Court dismissed with prejudice two separate, but related, cases brought by Havana Docks against MSC Cruises (“MSC”) and Norwegian Cruise Line (“NCL”). (See Havana Docks v. MSC Cruises SA Co, et al., 19-cv-23588, D.E. 40 (the “MSC Case”); Havana Docks Corp. v. Norwegian Cruise Line Holdings, Ltd., 19-cv-23591, D.E. 42 (the “NCL Case”) (collectively, the “Dismissal Orders”).) As demonstrated below, Havana Docks can state a claim against Defendant Carnival Corporation (“Carnival”) under Title III and the Court’s interpretation of that statute in the Dismissal Orders. Havana Docks, thus, respectfully requests leave to file a first amended complaint, attached as Exhibit A, that sets forth new factual allegations that give rise to a claim for relief under Title III.

First, as the Eleventh Circuit has made clear, Title III of the Cuban Liberty and Democratic Solidarity Act (“LIBERTAD Act”) established a new statutory remedy recognizing the certified claim owned by the former owners of confiscated property as the statutorily created property interest that is actionable under the LIBERTAD Act. See Glen v. Club Mediterranee S.A., 450 F.3d 1251, 1255 (11th Cir. 2006) (“The Helms-Burton Act refers to the property interest that former owners of the confiscated property now have as ownership of a ‘claim to such property.’”). If given an opportunity to amend, Havana Docks can allege facts showing its certified claim is not time-limited. The terms of the certified claim expressly state that the claim does not expire until “the date of settlement.” (ECF No. 1-1 at 4, 13.) That date has not yet come.

Second, Havana Docks can factually allege that the concession did not “expire” by its terms in 2004, a factual finding the Dismissal Orders characterize as “undisputed.” As an amended complaint would make clear, Havana Docks’ concession agreement included a 99-year leasehold interest that was cut short by 44-years because of the confiscation by the Cuban Government, and thus did not expire. It was confiscated. Havana Docks’ claim certified by the Foreign Claims Settlement Commission (“FCSC”), included the value of the loss of the remaining 44 years of the concession. Those 44-years of concessionary rights are property interests in the Subject Property that Havana Docks has never enjoyed and received no compensation for. They remain outstanding and can support a claim under Title III.

Third, the concession agreement, which the Court has not yet had the benefit of reviewing, and which terms would be alleged in the amended complaint, includes an indemnity right to be paid by the Cuban Government to Havana Docks that is expressly triggered by the expropriation. That unsatisfied indemnity right was not time-limited and was included in the valuation of the loss certified by the FCSC. The plain language of the LIBERTAD Act recognizes this type of unpaid debt as an obligation that attaches to the confiscated property. See 22 U.S.C. § 6023(4)(B)(ii) (defining the term “confiscated” to include “the failure of the Cuban Government to pay, on or after January 1, 1959-- . . . a debt which is a charge on property nationalized, expropriated, or otherwise taken by the Cuban Government.” (emphasis added)). So too does Cuban law in effect at the time of expropriation. See Codigo Civil, Title II, Art. 349 (“No one shall be deprived of his property, except by competent authority and with sufficient cause of public utility, always after the proper indemnity. If this requisite has not been fulfilled the judges shall protect, and in a proper case, replace the condemned party in possession.”) (emphasis added). This right to indemnity is an outstanding interest in the Subject Property that is actionable under Title III, as Havana Docks will factually allege if permitted leave to file a first amended complaint.

Fourth, Havana Docks’ certified claim recognizes ownership of property beyond the concession that was not addressed in the Dismissal Orders. If allowed to replead, Havana Docks will also allege facts to show that the FCSC certified a valuation for losses of property interests beyond the confiscated concession.

Fifth, Carnival trafficked in the Subject Property at various points between 1996 and 2004. In the Dismissal Orders, the Court did “not deprive Plaintiff of a remedy for trafficking” and “ensure[d] that persons like Plaintiff may recover for any trafficking of their confiscated property” that took “place between 1960 and 2004.” (Id. at pp. 9-10.) As detailed below, Havana Docks can factually allege that Carnival trafficked in the Subject Property at numerous points between 1996 and 2004. Havana Docks requests leave to file a first amended complaint setting forth new allegations to support this theory of liability.

Filed 2/3/2020: Exhibit A [Proposed] Amended Complaint

Excerpt

16. Further, the concession granted to the Plaintiff the contractual right to be indemnified for the value of the work constructed by it on the Subject Property in the event of expropriation, as follows:

Seventh: If during the continuance of the concession the works may be expropriated by virtue of Article 50 of the Law of Ports, the government or its departments will indemnify the concessionary to the value of the work constructed by it, including the Custom House Inspectors Department and the wharf on the north side of the pier, but not the value of the machinery, rolling stock, equipment and apparatus referred to in the preceding clause, in case the concessionary may decide to remove them.

(See Exhibit B.)

17. This indemnity right gave the Plaintiff an interest in the Subject Property that was not time-limited. As an express term of the concession, the indemnity right—which by the terms of the concession was not time limited—was certified by the FCSC. The “value of the work constructed by” Havana Docks and its predecessor-in-interest include the value of the San Francisco, Machina and Santa Clara Piers, as reflected in the certified claim.

Related Post:

Carnival Agrees To Provide Havana Docks Corporation Additional Time To Respond; All Dimissals Will Be Appealed: https://www.cubatrade.org/blog/2020/1/9/y4c523aijwijnzw068pfuduwppli6q

Other Lawsuits Filed:

HAVANA DOCKS CORPORATION V. NORWEGIAN CRUISE LINE HOLDINGS, LTD. [1:19-cv-23591; Southern Florida District]
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Hogan Lovells US LLP (defendant)

HAVANA DOCKS CORPORATION VS. ROYAL CARIBBEAN CRUISES, LTD. [1:19-cv-23590; Southern Florida District]
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Holland & Knight (defendant)

HAVANA DOCKS CORPORATION V. MSC CRUISES SA CO, AND MSC CRUISES (USA) INC. [1:19-cv-23588; Southern Florida District]
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Venable (defendant)

LINK To Libertad Act Lawsuit Filing Statistics
https://static1.squarespace.com/static/563a4585e4b00d0211e8dd7e/t/5e388ac24c13b47cb59f1fc6/1580763842323/Libertad+Act+Filing+Statistics.pdf