A lawsuit accusing Carnival Cruise Lines of “trafficking” in confiscated property in Cuba is scheduled to go to trial on Oct. 26 in Miami.
On Aug. 27, U.S. District Court Judge Beth Bloom denied Carnival’s May 30 request to dismiss the case.
Havana Docks Corp. sued Carnival on May 2, accusing the company of “trafficking” in property that Cuba’s socialist government had seized after the 1959 revolution. See “Carnival Cruise Lines punches holes in Title III case.”
Court records show the case is set for a two-week trial beginning at 9 a.m. Oct. 26 in Courtroom 10-2 in the Wilkie D. Ferguson Jr. United States Courthouse, 400 North Miami Avenue, Miami.
On Nov. 14, Carnival listed the following 20 defenses in response to Havana Docks’ accusations:
- FIRST DEFENSE—LAWFUL TRAVEL
Carnival’s use of the Subject Property, if any, was at all times, incident to lawful travel to Cuba and necessary to the conduct of such travel. 22 U.S.C. § 6023(13).
- SECOND DEFENSE—LAWFUL TRAVEL
Carnival’s transactions relating to and involving the Subject Property, if any, were at all times, incident to lawful travel to Cuba and necessary to the conduct of such travel. 22 U.S.C. § 6023(13).
- THIRD DEFENSE—STATUTE OF LIMITATIONS OR REPOSE
Plaintiff’s claim is barred in whole or in part by the applicable statute of limitations or repose because it involves uses of property and transactions that occurred more than two years before suit was filed. 22 U.S.C. § 6084.
- FOURTH DEFENSE—DUE PROCESS
Plaintiff’s claim is barred in whole or in part by the Fifth Amendment’s Due Process Clause including because Plaintiff seeks to hold Carnival liable for conduct that the Federal Government authorized as lawful by both general and specific licenses and under regulations promulgated under 31 C.F.R. Part 515 and facilitated and encouraged as a matter of national policy, because Carnival reasonably relied on the LIBERTAD Act’s suspension, because Plaintiff seeks to hold Carnival liable for conduct occurring before the LIBERTAD Act’s cause of action came into effect, because the LIBERTAD Act is unconstitutionally vague, and to the extent Plaintiff seeks to use findings from the Foreign Claims Settlement Commission against Carnival because Carnival had no opportunity to be heard before the Commission.
- FIFTH DEFENSE—INTERNATIONAL LAW
Plaintiff’s claim is barred to the extent that it interprets the LIBERTAD Act inconsistently with international legal principles, including limitations on the extraterritorial application of United States law.
- SIXTH DEFENSE—EX POST FACTO CLAUSE
Plaintiff’s claim is barred in whole or in part by the Ex Post Facto Clause to the extent Plaintiff seeks to penalize Carnival for conduct occurring before the LIBERTAD Act’s cause of action came into effect.
- SEVENTH DEFENSE—ARTICLE II
Plaintiff’s claim is barred in whole or in part by Article II of the Constitution to the extent it seeks to impose liability for foreign policy decisions made by the Executive Branch.
- EIGHTH DEFENSE—STANDING
The Court lacks jurisdiction over this case because Plaintiff lacks standing as Plaintiff has not suffered an injury in fact that is fairly traceable to Carnival’s conduct and redressable by a favorable decision.
- NINTH DEFENSE—SETOFF
Carnival is entitled to a set-off or reduction of any verdict or judgment for all amounts which have been paid or are payable to or for the benefit of Plaintiff or which are otherwise available to the Plaintiff.
- TENTH DEFENSE—ONE SATISFACTION RULE
Plaintiff’s damages are barred in whole or in part by the one-satisfaction rule.
- ELEVENTH DEFENSE—FIFTH AMENDMENT
Plaintiff’s damages claim is barred in whole or in part as the damage remedy under Title III is wholly disproportionate and violates the Due Process Clause of the Fifth Amendment.
- TWELFTH DEFENSE—EIGHTH AMENDMENT
Plaintiff’s damages claim is barred in whole or in part by the Eighth Amendment.
- THIRTEENTH DEFENSE—LACK OF INTENT
Plaintiff’s claim is barred in whole or in part because Carnival did not knowingly and intentionally traffic in the Subject Property.
- FOURTEENTH DEFENSE—LACK OF TRAFFICKING
Plaintiff’s claim is barred because it held only a concession, which expired prior to the time of the alleged trafficking by Carnival, and thus, Plaintiff does not and did not own a claim to property that Carnival allegedly trafficked in.
- FIFTEENTH DEFENSE—FAILURE TO STATE A CLAIM
Plaintiff’s complaint fails to state a claim upon which relief may be granted.
- SIXTEENTH DEFENSE—LACK OF USE OF ALL CLAIMED PROPERTY
Plaintiff’s damages claim is barred in whole or in part because to the extent Carnival trafficked in Plaintiff’s claimed property (which Carnival denies), Carnival did not traffic in all of the property underlying Plaintiff’s claim.
- SEVENTEENTH DEFENSE—ELECTION OF REMEDIES
Plaintiff’s claim is barred in whole or in part because it has brought another “civil action or proceeding” under “Federal law” that seeks monetary compensation “by reason of the same subject matter” as that of this suit. 22 U.S.C. § 6082(f).
- EIGHTEENTH DEFENSE—CAUSATION
Plaintiff’s claim is barred in whole or in part for failure to plead causation.
- NINETEENTH DEFENSE—ACT OF STATE
Plaintiff’s claim is barred by the act of state doctrine, which must be applied here because it has constitutional underpinnings. See Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo of Petroleum Laden Aboard Tanker Dauntless Colocotronis, 577 F.2d 1196, 1201 n.4 & n.6 (5th Cir. 1978) (“Although in one decision the [Supreme] Court stated both that the [act of state] doctrine had constitutional underpinnings and the doctrine was not compelled by the Constitution, the better view would be that the doctrine is constitutionally compelled by the concept of separation of powers and placement of plenary foreign relations powers in the executive.”).
- TWENTIETH AFFIRMATIVE DEFENSE—INCORRECT CERTIFIED AMOUNT
The amount certified by the Foreign Claims Settlement Commission (“FCSC”) is incorrect, and therefore rebuttable. The FCSC acknowledged in its decision that “the terms of the concession granted by the Cuban Government were to expire in the year 2004, at which time the corporation [Plaintiff] had to deliver the piers [including all buildings and equipment thereon] to the government in good state of preservation.” Yet, the FCSC failed to reduce the value of the assets, which it determined as of the date of their nationalization in 1960, by the residual value assets in 2004, when the concession would have expired and Plaintiff would have been required to return all such assets to the Cuban government.
WHEREFORE, the Defendant Carnival does request that the Complaint be dismissed and that it be awarded its costs incurred in defending this matter.