Carnival, MSC, Norwegian, Royal Caribbean Owe Libertad Act Plaintiff Attorneys US$10.7 Million In Fees And US$964,694.56 In Expenses. Defendants Damages Response: Not Entitled, Excessive; Will Appeal
/HAVANA DOCKS CORPORATION VS. CARNIVAL CORPORATION D/B/A/ CARNIVAL CRUISE LINES [Consolidated to 1:19-cv-23591; 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)
HAVANA DOCKS CORPORATION V. MSC CRUISES SA CO, AND MSC CRUISES (USA) INC. [Consolidated to 1:19-cv-23591; 1:19-cv-23588; Southern Florida District]
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Venable (defendant)
HAVANA DOCKS CORPORATION V. NORWEGIAN CRUISE LINE HOLDINGS, LTD. [Consolidated to 1:19-cv-23591; 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. [Consolidated to 1:19-cv-23591; 1:19-cv-23590; Southern Florida District]
Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Holland & Knight (defendant)
11/04/2022- 448- RESPONSE in Opposition re 444 Plaintiff's MOTION for Judgment Plaintiff's Motion for Entry of Final Judgment filed by Norwegian Cruise Line Holdings, Ltd.. Replies due by 11/14/2022. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Pegg, Allen) (Entered: 11/04/2022)
11/04/2022- 447- NOTICE by Havana Docks Corporation Joint Notice Regarding Plaintiff's Fees and Costs (Martinez, Roberto) (Entered: 11/04/2022)
LINK: JOINT NOTICE REGARDING PLAINTIFF’S FEES AND COSTS (11/4/22)
LINK: DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR ENTRY OF JUDGMENT (11/4/22)
LINK: Libertad Act Lawsuit Filing Statistics
Excerpts From Joint Notice:
Following a status conference held in this matter on September 21, 2022, the Court directed Plaintiff to file a motion for attorneys’ fees and costs by November 4, 2022. The parties agreed to confer pursuant to Local Rule 7.3 to attempt to reach agreement on the fees and costs to be awarded by the Court as part of the judgments in these cases. The parties have so conferred and reached an agreement as outlined below: The attorney’s fees and costs to be awarded to Havana Docks through September 30, 2022, are as follows, in each individual matter: • In Havana Docks Corporation v. Carnival Corporation, 19-cv-21724: $3,464,764.69 in attorney’s fees, and $223,766.78 in costs; • In Havana Docks Corporation v. MSC Cruises S.A., et al., 19-cv-23588: $2,398,015.65 in fees, and $245,951.11 in costs; • In Havana Docks Corporation v. Royal Caribbean Cruises, Ltd., 19-cv-23590: $2,062,935.8 in fees, and $233,974.67 in costs; and • In Havana Docks Corporation v. Norwegian Cruise Line Holdings, Ltd., 19-cv-23591: $2,817,073.61 in fees, and $261,002 in costs. Plaintiff agrees to these sums for the fees and costs incurred up to and including September 30, 2022, and reserves its right to seek recovery of the fees and costs it has and will incur in litigating these cases after October 1, 2022, including through appellate and judgment enforcement proceedings. Defendants, in turn, reserve all rights to challenge any additional fees requested, and preserve all rights to challenge any award of fees should any part of the Court’s final judgment be reversed on appeal.
Excerpts From Defendants’ Response:
As outlined during the September 21st Status Conference (“Status Conference”) [ECF No. 438], Defendants maintain that no judgment should issue in Plaintiff’s favor,1 and further maintain that Defendants should be allowed to demonstrate that any damages in this case should be substantially less than the nearly $440 million Plaintiff seeks to recover (that is, less than the full amount of the certified claim plus interest, trebled, from each Defendant).
Plaintiff has “elect[ed] to calculate its damages based on the amount of its certified claim, plus interest.” Mot. at 3. Thus, the Court must first determine what amount of the certified claim Plaintiff could recover before applying the applicable interest. According to Plaintiff, the amount of the certified claim is $9,179,700.88. Id. at 4. While the Foreign Claims Settlement Commission (“FCSC”) did certify $9,179,700.88 to Plaintiff in 1960 as its “total” loss, that amount includes value allocated to “Securities,” “Accounts receivable,” and “Debt of the Cuban Government,” none of which Defendants trafficked in or have been found liable for trafficking in. The Court found Defendants liable for trafficking only in Plaintiff’s confiscated property—its Concession— therefore, Plaintiff could only ever recover the value of the Concession, which the FCSC certified the value to be $8,684,360.18.4
To be clear, even this $8,684,360.18 amount wildly overstates the appropriate amount of liability, since it includes the value of two piers, railroad tracks, and other real and personal property that Defendants did not traffic in, and which Plaintiff did not actually own. Defendants preserve the argument that the FCSC’s valuation is not an appropriate measure of damages. In light of the Court’s ruling against this argument, however, Defendants argue here that even accepting the FCSC’s valuations, Defendants are not liable for trafficking in Accounts Receivable, Securities, and Debt of the Cuban Government, all of which were valued separately from the “Concession and tangible assets” in the FCSC’s Final Decision.
To be clear, by this argument, Defendants are not challenging the validity of the findings of the FCSC either as to ownership or valuation.5 But that does not mean that Plaintiff is entitled to a judgment that includes the valuations of property interests in which Defendants never trafficked—and indeed, in which Plaintiff never alleged trafficking, and in which the Court did not find Defendants to have trafficked.
For instance, if A, B, and C were hypothetically taken by the Castro government, then a claim holder could be entitled to compensation from the Castro Government for A, B, and C; but in the trafficking context, when a trafficker is only alleged to have trafficked in A but not B or C, it should not be that B and C can be part of the potential damages recoverable from the alleged trafficker just because it happened to be grouped in the same FCSC claim. Yet Plaintiff now seeks all of A, B, and C, in this case, though the Defendants were only found to have trafficked in A.
Regardless of whether this measure of damages would be proportionate as applied to that original act of confiscation, it is plainly disproportionate in a case in which a defendant “trafficked” in confiscated property merely by making use of it for a limited period of time. This measure flouts the elementary due-process principle that a wrongdoer’s liability should be proportionate to its own culpability.
In this case, Plaintiff seeks to recover $439,217,424.51—far in excess of the actual amounts paid to the port operator during Defendants’ use of the property, which was at best closer to $22 million (see Section III.A., infra), which means that the ratio between statutory and actual damages approaches 21:1.
That measure would at least bear some relationship to a real-world concept: the amount a claimholder would have been able to charge if it still had an interest in (and right to exclude Defendants from) the confiscated property itself.
Here, there is ample evidence of what Defendants paid to use the property, and it is far less than the $439,217,424.51 Plaintiff seeks. That amount is less than $22,118,335.86—the amount of money Defendants paid to Aries, the port operator during the time of the alleged trafficking, to use the Terminal. See Plaintiff’s Notice of Filing Summary Judgment Motion Presentations, ECF No. 346-7 (Carnival paid Aries $2,605,429.34, NCL paid Aries $3,215,617.23, Royal Caribbean paid Aries $6,982,902.88, and MSC Cruises paid Mapor $9,314,386.41, only a portion of which were indirect payments to Aries23);
Even if the Court were to consider the payments Defendants made to other entities at the port, such as “Mambisa (a State[1]owned company that acted as port agent for Carnival, Royal Caribbean and Norwegian) and MAPOR (a privately owned company that was port agent for MSC Cruises)” on top of those payments paid to Aries, Plaintiff could seek just over $30 million collectively across all four cruise[1]line Defendants, which is far less than the $440 million Plaintiff requests in its Motion
Critically, the Due Process analysis has nothing to do with the revenues or profits Defendants earned from cruising, which has no relevance under either the statutory framework of Helms Burton or the Due Process Clause. After all, Title III does not contemplate disgorgement of profits; its treble-damage formula applies even if Defendants lost money in their cruises. And even if disgorgement of profits were available as a remedy, such relief would be considered punitive rather than compensatory relief (and thus would increase the proportion of a statutory penalty that does not constitute actual damages).
Carnival paid $5,388,512.43 total to Aries and Mambisa compared to the $109,671,180.90 Plaintiff is requesting from Carnival; MSC Cruises paid $9,314,386.41 total to Aries and Mapor compared to the $109,848,747.87 Plaintiff is requesting from MSC Cruises; Norwegian paid $5,040,004.67 total to Aries and Mambisa compared to the $109,848,747.87 Plaintiff is requesting from Norwegian; and Royal Caribbean paid $10,566,532.88 total to Aries and Mambisa compared to the $109,848,747.87 Plaintiff is requesting from Royal Caribbean. Moreover, MSC Cruises respectfully maintains that the Court erred in ruling that “Cuba-to-Cuba” cruises operated by MSC Cruises—i.e., cruises that did not touch the United States—were properly alleged to be part of this case. When considering only those US to Cuba cruises that were actually alleged by Plaintiff, MSC Cruises paid at most $2,596,211.88 for the use of the Terminal (including port operation and other services, as discussed above) for US to Cuba cruises.
To the extent the Court were to consider profits, MSC Cruises, for example, had negative profits and lost €6,391,000 on its U.S-Cuba cruises and lost €63,571,000 on its Cuba-to-Cuba cruises. As for Norwegian, Plaintiff’s proposed damages award of $110 million is more than five times Norwegian’s Havana-sailings profits. See ECF No. 221-29, at NCLH_23591-00581051. Indeed, in its three years of sailings to Cuba, Norwegian’s net profit even arguably associated with its days at port in Havana was just $25,139,622 – a figure dwarfed by Plaintiff’s requested $110 million in damages from Norwegian.
As applied to the facts of this case, the grossly excessive character of the Act’s measure of damages independently violates due process. Plaintiff seeks $439,217,424.51 in statutory damages. In itself, that “is a shockingly large amount,” Golan, 930 F.3d at 962, when compared with any attempt to measure Plaintiff’s actual losses attributable to Defendants’ use (such as by comparing against a fair-market fee for using the Terminal).
Even a use-value measure based on the price Defendants paid to access the Terminal dramatically overstates Plaintiff’s actual damages—and vastly understates the extent to which the award sought by Plaintiff is excessive.
For the foregoing reasons, the Court should dismiss Plaintiff’s cases against the four cruise line Defendants for lack of standing. Alternatively, the Court should find that the damages Plaintiff seeks are unconstitutionally excessive or, at a minimum, reduce the underlying Claim amount by the value of the property interests in which Defendants were neither alleged nor found to have trafficked.
