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Last week, the US Supreme Court held that property confiscated by the Cuban Government after the 1959 communist revolution is permanently “tainted,” such that anyone who uses that property can be liable to the US national who owns a claim to it, regardless of whether the claimant’s original property interest has expired.1 In Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., an 8-1 Court rejected the Eleventh Circuit’s requirement that a claimant under the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 prove the defendant interfered with a property interest that would have existed absent the confiscation. The decision unlocks an avenue for American claimants whose confiscated property interests have long since expired, and it expands litigation risk for any company, US or foreign, with commercial ties to Cuban infrastructure.
Background
In 1928, the United States-based Havana Docks Corporation acquired a usufructuary concession (a time-limited right to use, enjoy, and profit from property belonging to the Cuban Government) to develop and operate dock facilities at the Port of Havana. The concession was set to expire in 2004. After Fidel Castro seized power in 1959, the Cuban Government forcibly took American properties, including Havana Docks’ interests. In 1960, government forces seized, without compensation, both the physical dock facilities and Havana Docks’ property interest in them. The Foreign Claims Settlement Commission (FCSC) certified Havana Docks’ claim against Cuba for approximately $9 million in losses, plus six percent annual interest.
In 1996, Congress enacted the LIBERTAD Act, which created a private right of action under Title III for Americans holding a claim against any entity that traffics in “property which was confiscated by the Cuban Government on or after January 1, 1959.”2 The right of action remained dormant for more than two decades as Presidents Clinton, Bush and Obama continuously suspended it. In May 2019, however, President Trump allowed the suspension to expire, activating the private right of action for the first time.
Between 2016 and 2019, four cruise lines (Royal Caribbean Cruises, Norwegian Cruise Line Holdings, Carnival Corporation and MSC Cruises) transported nearly a million paid passengers to Cuba, using the docks to embark and disembark their passengers. Havana Docks sued all four in the Southern District of Florida. The District Court entered summary judgment in Havana Docks’ favor, awarding more than $100 million from each cruise line. A divided Eleventh Circuit panel reversed, holding that courts must “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.”3 Because Havana Docks’ concession would have expired in 2004, the panel majority concluded that the cruise lines’ conduct from 2016 to 2019 could not constitute trafficking.
The Supreme Court’s Decision
The central dispute was whether the relevant “property which was confiscated” could be the docks themselves or had to be Havana Docks’ property interest in the docks (the concession).4 The Court held that under the plain text of Title III, “property which was confiscated” can refer to the physical property in which the plaintiff had an interest, and not just the interest itself.5 Title III makes entities liable for trafficking in “any property . . . and any . . . interest therein” that the Cuban Government confiscated, and its definition of “property” imposes liability for trafficking both physical property and property interests.6 The Court reasoned that reading “property which was confiscated” to refer only to the plaintiff’s interest and requiring direct correspondence between “the property interest confiscated and the property interest trafficked” would allow entities to freely “use” confiscated property without liability under Title III.7 Confiscated property is therefore “tainted” such that anyone who uses the property can be liable to those who had an interest in it.8
Applying this framework, the Court confirmed that Havana Docks had established all elements of a Title III claim. The docks are “property which was confiscated” because the Cuban Government physically took possession of the facilities and expelled Havana Docks’ agents in 1960, seizing “control of” the docks.9 The cruise lines “used” or “engaged in commercial activity using” the docks when they transported paying passengers to Cuba without Havana Docks’ authorization.10 And Havana Docks’ Commission-certified claim constitutes “conclusive proof” that it is a US national who owns a claim to the confiscated property.11
The Court rejected the Eleventh Circuit’s approach, which required courts to “view the property interest as if there had been no expropriation and determine whether the alleged conduct constituted trafficking in that interest.”12 This analysis relied on the premise that “property” could refer only to present property interests, but Title III plaintiffs, by definition, cannot own a present property interest because such property now belongs to the Cuban Government.13 The Court declined to adopt this approach because it would “read out of the Act cases of trafficking that should be in the heartland of Title III,” such as when companies sell and purchase the expropriated interest.14 In short, the Court held that Title III is an “antitrafficking right of action” based on “the plaintiff ‘s former property interest” against those who “later traffic in the property” and, in doing so, help support the Cuban Government.15
The Court also rejected the argument that the Cuban Government did not confiscate the physical docks, only the concession. The Act defines “confiscation” to include the seizure of “ownership or control of property,” and when armed agents physically occupied the dock facilities, they seized control of the docks, regardless of whether Cuba held the underlying title.16 Because the Cuban Government “extinguished Havana Docks’ concession” and “physically occupied” the docks, its actions constituted confiscation under Title III.17
Justice Kagan, in her dissent, criticized the Court’s interpretation as effectively converting temporally limited property interests into perpetual ones. In her view, plaintiffs should only recover under Title III when the defendant traffics in the “actual property that was confiscated from the plaintiff.”18
Justice Sotomayor’s concurrence flagged two unresolved issues with the majority opinion. First, she questioned whether Title III permits repeated or unlimited recovery against successive defendants for the same confiscated property. She observed that the District Court’s awards of more than $110 million per cruise line, and the potential for similar awards against every future user of the docks, could raise Due Process Clause concerns if the resulting penalties are “wholly disproportioned to the offense.”19 Second, she highlighted the unresolved statutory exception for “transactions and uses of property incident to lawful travel to Cuba,” noting that the Federal Government had previously authorized the cruises at issue and that holding defendants liable for conduct they were assured was lawful could raise additional due process concerns.20
Going Forward
For American holders of claims to confiscated Cuban property, this decision means that expired property interests are no longer a bar to Title III claims. Moreover, any holders of Commission-certified claims are now in a stronger position, as such claims are “conclusive proof” that a holder has satisfied the third element of a Title III claim.21 Uncertified claimants, it appears, can still sue but must independently establish their claims through other evidence.
In contrast, any company, US or foreign, that uses or commercially benefits from property confiscated from an American national after January 1, 1959, is now a potential Title III defendant. A defendant cannot escape liability by showing it acquired access to the property lawfully from the Cuban Government or that its use was commercially reasonable. Rather, the relevant question is whether the Cuban Government confiscated the property and whether the defendant used it without the claimant’s authorization.
Justice Sotomayor’s concurrence raises defenses that companies should consider: the statutory exception for transactions and uses of property incident to lawful travel to Cuba, and due process concerns where the US Government previously authorized the defendant’s conduct or where there may be a cap to multiple recoveries for the same confiscated property. Companies should also evaluate arguments regarding the scope and exclusivity of the original confiscated interest, as well as constitutional challenges to FCSC certification.
Finally, it is worth reiterating, Title III has been suspended before and could be suspended again by any future administration.
*Bracewell summer associate Taylor Allen provided invaluable assistance with this client alert.
Footnotes
1. Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., No. 24–983 (US May 21, 2026) (slip op.).
2. Id. at 5.
3. Id. at 7.
4. Id. at 9.
5. Id.
6. Id.
7. Id. at 10.
8. Id. at 11.
9. Id.
10. Id. at 12.
11. Id.
12. Id. at 13.
13. Id.
14. Id.
15. Id. at 15.
16. Id. at 16.
17. Id. at 16.
18. Id. at 6 (Kagan, J. dissenting).
19. Id. at 3 (Sotomayor, J. concurring).
20. Id. at 3 (Sotomayor, J. concurring).
21. Id. at 12.
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