Lawyers wrangle over “illegal trafficking” of property

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Lawyers for a Jacksonville family whose businesses were confiscated in Cuba before the revolution urged a federal judge today not to dismiss their lawsuit against Carnival Cruise Lines.
Javier Garcia-Bengochea, a Jacksonville neurosurgeon, sued the cruise company on May 2, saying it was “illegally trafficking” in the waterfront properties that his family owned in Santiago de Cuba.
Carnival Cruise Lines denied the claim and said they couldn’t have been illegal trafficking in the property because they were providing travel services that were legal under U.S. law at the time.

Javier Garcia-Bengochea

Lawyers for Garcia-Bengochea rejected that and other arguments in a 27-page document filed today in U.S. District Court in the Southern District of Florida.
They wrote:

The LIBERTAD Act’s legislative history does not provide explicit guidance as to whether Congress intended to make the exceptions enumerated in § 6023(13)(B) affirmative defenses or elements of the plaintiff’s prima facie case of trafficking.
Carnival’s argument that it cannot “traffic” in the Subject Property because it maintains a general license from the Office of Foreign Assets Control (“OFAC”), supports the conclusion that Carnival is better equipped to prove that its commercial cruise line business to Cuba is immunized from LIBERTAD Act liability.
In any event, the Code of Federal Regulations — which authorize the Department of the Treasury to issue Carnival an OFAC license to travel to Cuba — does not supplant federal law or insulate an entity from the enforcement of federal law. It cannot; especially because the regulation that Carnival concedes authorizes its travel to Cuba was instituted in 2015, nearly twenty years after the LIBERTAD Act was signed into law by President Clinton. Thus, an OFAC license does not immunize Carnival’s conduct, nor does it bar Plaintiff from alleging a prima facie case of trafficking under Title III.

The case has been assigned to Senior Judge James Lawrence King.
For additional information, see:

  • Garcia-Bengochea’s May 2 lawsuit.
  • Carnival’s motion to dismiss.
  • Garcia-Bengochea’s 2015 congressional testimony about his family’s case.
  • A document supporting Carnival’s motion to dismiss and including the 1966 will of a Garcia-Bengochea relative.
  • A blog post about Havana Docks Corp.’s lawsuit against Carnival Cruise Lines.
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