HAVANA DOCKS CORPORATION

v.

CARNIVAL CORPORATION

Plaintiff, Havana Docks Corporation, filed a motion to compel Defendant, Carnival Corporation, to produce evidence that “reflects its knowledge of, and intent to comply with, the LIBERTAD Act and OFAC regulations.” (ECF Nos. 202; 208).1 Carnival withholds those documents as protected attorney-client communications. (ECF No. 204-2). It filed a memorandum in opposition, and Havana Docks filed a reply memorandum. (ECF Nos. 215, 219, 222).2 The Honorable Beth Bloom referred the motion to me. (ECF No. 80). I heard oral argument on June 17, 2021, and I deny the motion for the reasons that follow.

The Helms-Burton Act imposes liability on any person who (1) after November¹, 1996; (2) traffics; (3) in property confiscated by the Cuban Government, on or after July¹, 1959. 22 U.S.C. § 6082(a)(1)(A). The Act defines trafficking as “knowingly and intentionally…engag[ing] in a commercial activity using or otherwise benefiting from confiscated property....” 22 U.S.C. § 6023(13) (emphasis added). Havana Docks has the burden of proving these elements of its claim at trial – as the parties agree. The definition of trafficking excludes “transactions and uses of property incident to lawful travel to Cuba….” 22 U.S.C. § 6023(13)(B)(iii) (emphasis added). “Lawful travel” is an affirmative defense that a defendant must plead and prove, to avoid liability. (ECF No. 47 at 4-5). Carnival has done just that, with its First and Second affirmative defenses.

(ECF No. 160 at 18). In its motion, Havana Docks argues that Carnival, with its Fourth and Thirteenth affirmative defenses, asserts that it did not intend to traffic in the confiscated property as it believed its use of that property was lawful, and that by doing so, Carnival has made its belief that it acted lawfully an issue in this lawsuit. (ECF No. 202 at 2). In relevant part, those affirmative defenses state as follows: FOURTH DEFENSE – DUE PROCES

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….

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.

(ECF No. 160 at 18, 20). It follows, says Havana Docks, that Carnival has thus opened the door to discovery of its attorney-client communications that address the lawfulness of its actions – which Carnival withholds on a claim of attorney-client privilege. (ECF No. 202 at 2-3). The holder of an evidentiary privilege may waive that privilege expressly or by implication. Cox v. Admin. U.S. Steel & Carnegie, 17 F. 3d 1386, 1417 (11th Cir. 1994). The privilege holder does this by implication if it “injects into the case an issue that in fairness requires an examination of otherwise protected communications.” Id. at 1419. Affirmative defenses are perhaps the most common way in which a defendant impliedly waives a privilege. Id. A defendant’s mere denial of elements of a plaintiff’s claim is not an implied waiver of a defendant’s privilege. Id. As noted above, Havana Docks must prove, as elements of its claim, that Carnival knowingly and intentionally trafficked in the confiscated property. 22 U.S.C. § 6023(13).3 What Carnival styled as its Thirteenth affirmative defense – that it “did not knowingly and intentionally traffic” in the property – is a straight denial of those elements of Plaintiff’s required proof. Carnival undermined this clarity with its pleading the denial as an affirmative defense.4 When I questioned Carnival’s counsel, at the June 17th oral argument, why it did so, counsel announced Carnival’s withdrawal of that affirmative defense, which removes any argument that Carnival placed into issue whether it knowingly and intentionally trafficked in the confiscated property. Havana Docks did, with the filing of this lawsuit, and Carnival denies this claim. Carnival’s Fourth affirmative defense likewise does not inject into the lawsuit the question of Carnival’s belief as to the lawfulness of its actions in Cuba. The defense embodies an objective standard, not a subjective one. Judge Louis recognized this in the companion case, Havana Docks v. Norwegian Cruise Line, Case No. 19-CV-23591- Bloom/Louis, when she wrote that a due process defense raises an “objective inquiry… [about] the sufficiency of the government’s actions, not how Defendant may have

fo’ ( ha he [...]

CHRIS MCALILEY

UNITED STATES MAGISTRATE JUDGE cc: The Honorable Beth Bloom Counsel of record

© Carnival wrote this in its response memorandum: “To be clear: Carnival has not and will not raise a good-faith defense, and Carnival’s subjective knowledge and understanding of the Helms Burton Act (or any other law) is not relevant to any element of any claim or defense in this case. Carnival’s ‘lawful travel’ defense, as defined by the statute, depends on the objective lawfulness of Carnival’s travel, regardless of Carnival’s beliefs about it.” (ECF No. 215 at 1).