Nos. 23-10151 & 23-10171
In the United States Court of Appeals
For the Eleventh Circuit
HAVANA DOCKS CORPORATION,
Plaintiff-Appellee/Cross-Appellant,
v.
ROYAL CARIBBEAN CRUISES, LTD.;
NORWEGIAN CRUISE LINE HOLDINGS, LTD.;
CARNIVAL CORPORATION, a foreign corporation doing business as
Carnival Cruise Lines; MSC CRUISES S.A. CO.;
MSC CRUISES (USA) INC.; et al.,
Appellants/Cross-Appellees.
On Appeal from a Final Judgment of the
United States District Court for the Southern District of Florida
Case No. 1:19-cv-23591-BB, Hon. Beth Bloom
BRIEF OF
AMICI CURIAE
U.S. TRAVEL ASSOCIATION, UNITED
STATES TOUR OPERATORS ASSOCIATION, INC., AND AMERICAN
SOCIETY OF TRAVEL ADVISORS, INC., IN SUPPORT OF
APPELLANTS/CROSS-APPELLEES
BRADLEY J. BONDI
V
ITALIY KATS
P
AUL HASTINGS, LLP
2050 M Street NW
Washington, DC 20036
bradbondi@paulhastings.com
vitaliykats@paulhastings.com
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Havana Docks Corporation v. Royal Caribbean Cruises Ltd, et al.
Case Nos. 23-10151 & 23-10171
CERTIFICATE OF INTERESTED PERSONS AND
CORPORATE DISCLOSURE STATEMENT
Amici Curiae, by their undersigned counsel, and pursuant to Fed. R. App. P.
26.1(a) and 11th Cir. Local R. 26.1-1 through 26.1-3, hereby submit this Certificate
of Interested Persons and Corporate Disclosure Statement as follows:
1. American Society of Travel Advisors, Inc. – Amicus supporting Appellants
2. Akerman LLP – counsel for Appellant Carnival Corporation
3. Baldridge, James D. – counsel for Appellants MSC Cruises
4. Black, Hillary S. – counsel for Appellant Carnival Corporation
5. Bloom, Honorable Beth – United States District Court Judge for the Southern
District of Florida
6. Bohrer, Sanford L. – counsel for Appellant Royal Caribbean Cruises, Ltd.
7. Boies Schiller Flexner LLP – counsel for Appellant Carnival Corporation
8. Bondi, Bradley J – counsel for undersigned Amici
9. Burck, William A. – counsel for Appellant Norwegian Cruise Line Holdings,
Ltd.
10. Carnival Corporation – Appellant
11. Casey, Stephanie A. – counsel for Appellee
12. Clement & Murphy PLLC – counsel for Appellant Royal Caribbean Cruises,
Ltd.
13. Clement, Paul D.– counsel for Appellant Royal Caribbean Cruises, Ltd.
14. Colson Hicks Eidson – counsel for Appellee
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15. Cooper, Jonathan G. – counsel for Appellant Norwegian Cruise Line Holdings,
Ltd.
16. Cruise Lines International Association – Amicus supporting Appellants
17. Dvoretzky, Shay – counsel for Cruise Lines International Association
18. Elayan-Martinez, Aziza F. – counsel for Appellee
19. Ellis George Cipollone O’Brien Annaguey, LLP – counsel for Appellee
20. Fowler, George J., III – counsel for Appellant Carnival Corporation
21. Freyre, Pedro A. – counsel for Appellant Carnival Corporation
22. Gayles, Honorable Darrin P. – United States District Court Judge for the
Southern District of Florida
23. Gray, Corey P. – counsel for Appellant Carnival Corporation
24. Harper, Chadwick J. – counsel for Appellant Royal Caribbean Cruises,
25. Havana Docks Corporation – Appellee
26. Hernacki, Andrew T. – counsel for Appellants MSC Cruises
27. Hogan Lovells LLP – counsel for Appellant Norwegian Cruise Line Holdings,
Ltd.
28. Holland & Knight LLP – counsel for Appellants Royal Caribbean Cruises, Ltd.
and Carnival Corporation
29. Jones Walker, LLP – counsel for Appellant Carnival Corporation
30. Kats, Vitaliy – counsel for undersigned Amici
31. Klingler, Richard – counsel for Appellee
32. Kroeger, �omas A. – counsel for Appellee
33. Landau, Christopher – counsel for Appellee
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34. Llamas, Luis Emilio – counsel for Appellant Carnival Corporation
35. Li, Vincent – counsel for Appellee
36. Lindsay, Alvin F. (III) – counsel for Appellant Norwegian Cruise Line
Holdings, Ltd.
37. Lipshultz, Zachary A. – counsel for Appellee
38. Lipshutz, Brian M. – counsel for Appellant Carnival Corporation
39. Loeb, Robert M. – counsel for Appellants MSC Cruises
40. Longoria-Green, Carmen – counsel for U.S. Chamber of Commerce
41. Lorenzo, Richard C. – counsel for Appellant Norwegian Cruise Line Holdings,
Ltd.
42. Louis, Honorable Lauren F. – United States Magistrate Judge for the Southern
District of Florida
43. Maderal, Francisco – Defendant
44. Manhas, Robbie – counsel for Appellants MSC Cruises
45. Margol & Margol – counsel for Appellee
46. Margol, Rodney S. – counsel for Appellee
47. Martinez, Honorable Jose E. – United States District Court Judge for the
Southern District of Florida
48. Martinez, Roberto – counsel for Appellee
49. McAliley, Honorable Chris M. – United States Magistrate Judge for the
Southern District of Florida
50. Michel, Christopher G. – counsel for Appellant Norwegian Cruise Line
Holdings, Ltd.
51. MSC Cruises S.A. – Appellant
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52. MSC Cruises S.A. Co. – Appellant
53. MSC Cruises (USA) Inc. (real party in interest: MSC Cruises (USA) LLC) –
Appellant
54. Munyan, Katherine – Counsel for Appellants MSC Cruises
55. Nemeroff, Justin B. – Counsel for Appellants MSC Cruises
56. Norwegian Cruise Line Holdings, Ltd. (“NCL”) – Appellant
57. Oliu, Pascual – counsel for Appellant Carnival Corporation
58. Orrick, Herrington & Sutcliffe LLP – counsel for Appellants MSC Cruises
59. Pegg, Allen P. – counsel for Appellant Norwegian Cruise Line Holdings, Ltd.
60. Ponce, Scott D. – counsel for Appellants Royal Caribbean Cruises, Ltd. and
Carnival Corporation
61. Quinn Emanuel Urquhart & Sullivan, LLP – counsel for Appellant Norwegian
Cruise Line Holdings, Ltd.
62. Rosenkranz, E. Joshua – counsel for Appellants MSC Cruises
63. Rowen, Matthew D. – counsel for Appellant Royal Caribbean Cruises, Ltd.
64. Royal Caribbean Cruises, Ltd. (RCL) – Appellant
65. Saladrigas, Caitlin F. – counsel for Appellant Royal Caribbean Cruises, Ltd.
66. Schultz, Meredith L. – counsel for Appellant Carnival Corporation
67. Shaffer, Derek L. – counsel for Appellant Norwegian Cruise Line Holdings, Ltd.
68. Shanmugam, Kannon K. – counsel for Appellant Carnival Corporation
69. Shultz, Meredith L. – counsel for Appellant Carnival Corporation
70. Singer, Stuart H. – counsel for Appellant Carnival Corporation
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71. Sullivan, Kathleen M. – counsel for Appellant Norwegian Cruise Line Holdings,
Ltd.
72. Taormina, Benjamin A. – counsel for Appellant Royal Caribbean Cruises, Ltd.
73. Tager, Evan – counsel for U.S. Chamber of Commerce
74. U.S. Chamber of Commerce – Amicus supporting Appellants
75. U.S. Travel Association – Amicus supporting Appellants
76. United States Tour Operators Association, Inc. – Amicus supporting Appellants
77. Venable LLP – counsel for Appellants MSC Cruises
78. Vice, Abigail Frisch – counsel for Appellant Carnival Corporation
79. Wang, Jonas Q. – counsel for Appellants MSC Cruises
Pursuant to Rule 26.1-3(b) of the Rules of the United States Court of Appeals
for the Eleventh Circuit, the undersigned states that, to the best of the undersigned’s
knowledge and information, no publicly traded company or corporation has an
interest in the outcome of this appeal.
/s/ Bradley J. Bondi
Bradley J. Bondi
Counsel for Amici Curiae
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STATEMENT PURSUANT TO FED. R. APP. P. 29(A)(4)(E)
1. No party’s counsel authored this brief in whole or in part.
2. No party or party’s counsel contributed money that was intended to fund
preparing or submitting this brief.
3. No person other than the Amici Curiae, their members, or their counsel
contributed money that was intended to fund preparing or submitting this brief.
/s/ Bradley J. Bondi
Bradley J. Bondi
Counsel for Amici Curiae
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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
DISCLOSURE STATEMENT .................................................................. C1 of 5
STATEMENT PURSUANT TO FED. R. APP. P. 29(A)(4)(E) .................... i
TABLE OF CONTENTS ............................................................................ ii
TABLE OF AUTHORITIES ....................................................................... iii
IDENTITY OF THE AMICI CURIAE, THEIR INTEREST IN THE CASE,
AND THE SOURCE OF THEIR AUTHORITY TO FILE ................... 1
STATEMENT OF THE ISSUES ................................................................. 3
SUMMARY OF THE ARGUMENT ........................................................... 4
ARGUMENT ............................................................................................. 6
I The District Court’s Ruling Creates Uncertainty in the Travel
Industry Concerning the Reliability of Federal Guidance ................. 7
II
The District Court’s Decision Has Contributed to the End of Cruises
to Cuba, Which Financially Harms The Travel Industry And
Undermines The Policy Objectives of the CACR .............................. 14
CONCLUSION .......................................................................................... 18
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT,
TYPEFACE REQUIREMENTS, AND TYPE-STYLE
REQUIREMENTS ..................................................................................... 19
CERTIFICATE OF SERVICE .................................................................... 19
CERTIFICATE OF CONFERENCE ................................................................ 20
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TABLE OF AUTHORITIES
Cases
Circus Circus Casinos, Inc. v. NLRB, 961 F.3d 469 (D.C. Cir. 2020) ..................... 13
FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012) ..................................... 13
Kent v. Dulles, 357 U.S. 116 (1958) ......................................................................... 6
Mohamed v. Holder, 266 F. Supp. 3d 868 (E.D. Va. 2017) ....................................... 7
Pellegrini v. Landmark Travel Grp., 628 N.Y.S.2d 1003 (Ct. Cl. 1995) ............. 8, 18
United States v. Williams, 553 U.S. 285 (2008) ....................................................... 13
Zarmach Oil Servs., Inc. v. U.S. Dep’t of the Treasury, 750 F. Supp. 2d 150
(D.D.C. 2010) .................................................................................................... 11
Statutes and Regulations
22 U.S.C. § 6023(13)(B) .................................................................................... 5, 6, 9
31 C.F.R. § 501.601 ................................................................................................. 12
31 C.F.R. § 501.801(a) ....................................................................................... 10, 11
31 C.F.R. § 515.565(b) ............................................................................. 6, 11, 14, 17
31 C.F.R. §§ 515.101–515.901 ............................................................................ 5, 10
Cuban Assets Control Regulations, 84 Fed. Reg. 25992-01 (June 5, 2019) ..... 14, 15
Cuban Assets Control Regulations, 87 Fed. Reg. 35088-01 (June 9, 2022) ........... 15
Restricting the Temporary Sojourn of Aircraft and Vessels to Cuba, 84 Fed.
Reg. 25986-01 (June 5, 2019) ........................................................................... 14
Other Authorities
American Society of Travel Advisors, 2013 Financial Benchmarking (Oct.
2014) .............................................................................................................. 8, 16
American Society of Travel Advisors, Regulatory Compliance Handbook (6th
ed. 2020) .............................................................................................................. 8
Chris Gray Faust & Melinda Crow, Can Americans Travel to Cuba on a Cruise?
And More Questions Answered, Cruise Critic (updated Mar. 1, 2023) ............ 15
Claudia Unger & Mary Pat Sullivan, Phocuswright, U.S. Travel Agency
Distribution Landscape 2016–2021 (Nov. 2018) ......................................... 9, 17
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Dave Sherwood, No fuel? No problem; Tourists in Cuba brave worsening
shortages, Reuters (Feb. 17, 2023) ................................................................... 14
Johannes Werner, Ruling against cruise lines may send chill to other U.S.
travel, Cuba Standard (Mar. 25, 2022) ............................................................. 15
Lacey Pfalz, Travel Advisor Priorities Included in Year-End Government
Spending Bill, TravelPulse (Dec. 20, 2022) ........................................................ 7
Letter from Andrew Sens to Norwegian Cruise Lines Holdings, Ltd., Havana
Docks Corp. v. Norwegian Cruise Line Holdings, Ltd., 1:19-cv-23591
(S.D. Fla. Sept. 21, 2021) .................................................................................. 10
Letter from Andrew Sens to Royal Caribbean Cruises, Ltd., Havana Docks
Corp. v. Norwegian Cruise Line Holdings, Ltd., 1:19-cv-23591 (S.D. Fla.
Sept. 21, 2021) .................................................................................................. 10
Letter from Davin Blackborow to Carnival Corporation, Havana Docks Corp.
v. Carnival Corp., 1:19-cv-21724 (S.D. Fla. Sept. 20, 2021) ........................... 10
Letter from Eben Peck, Executive Vice President of ASTA, to the Hon. Mark
Keam, Deputy Assistant Secretary, U.S. Department of Commerce (Mar.
15, 2023)............................................................................................................ 17
Letter from Rosie Wells to Bradley Stein, Havana Docks Corp. v. Royal
Caribbean Cruises, Ltd., 1:19-cv-23590 (S.D. Fla. Sept. 17, 2021) ................ 11
Letter from Zane Kerby, President and CEO of ASTA, to Hon. Rochelle
Walensky, Director of CDC (Feb. 9, 2021) ......................................................... 7
Letter from Zane Kerby, President and CEO of ASTA, to Sen. Rick Scott (Jan.
25, 2022)............................................................................................................ 18
Mark Matousek, Trump banned US cruise ships from traveling to Cuba, and
Carnival is feeling the pain, Business Insider (June 20, 2019) ........................ 16
Mary Stein, e Hosted Travel Agent Longitudinal Report 2020, Host Agency
Reviews (last updated Sept. 8, 2022) .................................................................. 9
Norwegian Cruise Line Says Cuba Travel Ban to Hit 2019 Earnings, CNBC
(June 7, 2019) .................................................................................................... 16
U.S. Travel Association, Economic Impact of the U.S. Travel Industry: 2022
National Data (updated April 2023) ................................................................. 16
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IDENTITY OF THE
AMICI CURIAE
, THEIR INTEREST IN THE CASE,
AND THE SOURCE OF THEIR AUTHORITY TO FILE
Amici are organizations and trade associations representing different aspects of
the travel industry, including travel advisors (also known as travel agents), and tour
operators. �ese organizations and trade associations generally share a commitment
to foster and promote travel, educate the traveling public and members of the travel
industry, and encourage a culture of professionalism among their membership. �e
travel industry as a whole depends on clear guidance from the Executive Branch of
the federal government regarding the enforcement of travel-related federal statutes
and regulations. �e District Court’s ruling, if affirmed by this Court, would mean
that the Amici should not and cannot rely upon actions by the Executive Branch, or
the failure to take such actions, to provide fair notice of what travel (and conduct
during such travel) violates federal statutes and regulations. As a result, the Amici,
whose members act as information fiduciaries for the traveling public, would be
unable to advise travelers appropriately and lawfully. Additionally, the Amici have
been impacted financially due to the increased difficulty associated with lawful travel
to Cuba—difficulty the District Court’s ruling below has only exacerbated. For these
reasons, Amici have a substantial interest in the outcome of this appeal and support
reversal of the District Court’s ruling.
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�e Amici are:
U.S. Travel Association (“U.S. Travel”): a national, non-profit organization
representing all components of the travel industry. U.S. Travel advocates for the
whole of the travel industry to favorably shape the travel experience. Its stated
mission is to increase travel to and within the United States and, in so doing,
fuel the nation’s economy and future growth. U.S. Travel has more than 1,100
members, comprised primarily of travel service providers, travel destinations,
travel associations, and allied members.
United States Tour Operators Association (“USTOA”): a professional,
voluntary trade association created with the primary purpose of promoting
integrity within the tour operator industry. USTOA was founded in 1972 by a
small group of California tour operators who recognized the need for a unified
voice to protect the traveling public, as well as to represent the interests of tour
operators. USTOA’s goals are to: (1) educate the travel industry, government
agencies, and the public about tours, vacation packages, and tour operators; (2)
protect consumers and travel advisors from financial loss in the event of a
USTOA member’s bankruptcy, insolvency, or cessation of business; (3) foster
a high level of professionalism within the tour operator industry; and (4)
promote and develop travel on a worldwide basis.
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American Society of Travel Advisors (“ASTA”): a trade association
originally founded in 1931 whose mission is to facilitate the business of selling
travel through effective representation, shared knowledge, and the enhancement
of professionalism. Its current membership consists of over 7,500 domestic
travel agencies, independent travel advisors, and supplier companies varying in
size from the smallest home-based businesses to traditional brick-and-mortar
storefront agencies to the largest travel management companies and online
travel agencies such as Expedia. As of 2019, they collectively accounted for an
annual payroll output of $7.1 billion and annual revenues of $17.7 billion.
ASTA requires its members to abide by its code of ethics in order to promote
professionalism in the travel industry and trust among the general public.
STATEMENT OF THE ISSUES
1. Whether the Executive Branch’s licensing and encouragement of
Appellants’ conduct, including its rejection of complaints regarding that conduct,
should be considered in determining whether Appellants violated the Helms-Burton
Act. Members of the travel industry—particularly travel agencies and individual
travel advisors—rely upon the Executive Branch of the federal government to
provide clear guidance with respect to travel-related federal statutes and regulations,
so that they, as information fiduciaries, can advise the traveling public appropriately
and lawfully. �e District Court’s ruling, however, is based on a factual record
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replete with guidance from the Executive Branch, including the Executive Branch’s
rejection of complaints regarding the cruises in question, suggesting that Appellants’
cruise excursions to Cuba were lawful. Affirming the District Court’s award of
summary judgment would mean that the Executive Branch’s licensing,
encouragement of travel, and enforcement decisions do not constitute notice, much
less fair notice, of what travel (and conduct during such travel) violates federal
statutes and regulations.
2. Whether affirming the District Court’s ruling disproportionately harms the
travel industry and undermines the federal government’s stated policy goal of
promoting the Cuban people’s independence. Cruises to Cuba have ceased, in large
part due to the District Court’s ruling in this case, which has increased the
uncertainty in members of the travel industry’s ability to rely upon guidance from
the Executive Branch to advise the traveling public appropriately and lawfully. �is
cessation has caused substantial financial harm to the travel industry, which employs
millions of Americans, and is contrary to the federal government’s policy goal of
promoting the Cuban people’s independence from Cuban authorities.
SUMMARY OF THE ARGUMENT
�e travel industry depends on clear guidance from—and unequivocally should
be able to rely on—the federal government’s rules and regulations concerning the
enforcement of travel restrictions. �is dependence is particularly true when it comes
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to Cuba—a popular Caribbean travel destination subject to uniquely restrictive travel
policies. By proxy, travel advisors and tour operators depend on cruise lines
receiving clear guidance from the federal government because the sale of cruises is
a major part of their collective livelihoods. �e litigation which is the subject of this
Appeal is, in many ways, the product of the Executive Branch’s licensing and
encouragement of Appellants’ cruises to Cuba under the “lawful travel” exception
to the Helms-Burton Act, 22 U.S.C. § 6023(13)(B), and the Cuban Asset Control
Regulations (“CACR”), 31 C.F.R. §§ 515.101–515.901. �e Executive Branch
signaled to both the Appellant cruise lines and to Havana Docks Corporation that
Appellants’ cruises to Cuba were lawful. �is Court’s affirmance of the District
Court’s ruling would mean that the travel industry cannot rely upon the Executive
Branch’s actions, or inaction, to guide the industry’s compliance with travel-related
federal statutes and regulations—which in turn raises significant issues of due
process and fair notice.
In addition, the uncertainty created by the District Court’s decision in this case
(among other things) has ended cruises to Cuba. �e cessation of cruises to Cuba, in
turn, has caused financial harm to the United States’ travel industry, which is
dominated by small businesses, and thwarts the stated policy objective of the CACR
to promote the Cuban people’s independence from Cuban authorities. �e American
people are the best ambassadors of our country’s values abroad, and hindering
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them—and, in fact, preventing them—from travelling to Cuba does not facilitate the
exchange of democratic ideals which the federal government seeks to foster between
Americans and Cubans.
ARGUMENT
Freedom to travel is a fundamental right of national citizenship and is
embedded in multiple provisions of the Constitution of the United States, including
the Privileges and Immunities Clause of Article IV and the Privileges or Immunities
Clause of the Fourteenth Amendment. See Kent v. Dulles, 357 U.S. 116, 125–26
(1958). In recognition of this longstanding right, the Helms-Burton Act exempts
from its anti-trafficking restrictions any “transaction or uses of property incident to
lawful travel to Cuba.” 22 U.S.C. § 6023(13)(B). One such method of “lawful travel”
is the general license provision under 31 C.F.R. § 515.565(b), which allows “people-
to-people travel” that facilitated educational exchange activities.
�e travel industry appropriately relied on Executive Branch guidance to
determine the full scope of this license as it pertains to the Helms-Burton Act’s
lawful travel exception. �e District Court’s summary judgment in favor of Havana
Docks Corporation has created uncertainty and has impinged upon the fundamental
right to travel. Where travel agents and advisors once relied on the Executive Branch
to help navigate complex framework travel regulations such as the Cuban Asset
Control Regulations (“CACR”), the District Court’s decision has delegitimized the
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Executive Branch as a source of guidance. �e District Court’s ruling has chilled
lawful cruise travel to Cuba as a result of the ruling’s uncertainty and has caused
financial harm to an industry still reeling from the impact of the COVID 19
pandemic. For these reasons, Amici support reversal of the District Court’s ruling.
I The District Court’s Ruling Creates Uncertainty in the Travel Industry
Concerning the Reliability of Federal Guidance.
�e travel industry is uniquely reliant on numerous executive agencies for clear
guidance concerning the “enforcement of various travel-related policies” to ensure
that “travel advisors, suppliers, and consumers can make informed decisions.” Letter
from Zane Kerby, President and CEO of ASTA, to Hon. Rochelle Walensky,
Director of CDC (Feb. 9, 2021), https://www.asta.org/docs/default-source/
testimony-filings/2021/asta-to-cdc-director-walensky-re-standards-for-resumi
ng-travel-2.9.2021-final.pdf. �e ability to rely on such guidance is critical for travel
advisors and agents in the United States, a country which “has a long history of
judicially sanctioned restrictions on citizens’ international travel in the interests of
foreign affairs and national security,” and, until recently, was “the only G20 country
without a federal agency or cabinet-level official in charge of tourism policy.”
Mohamed v. Holder, 266 F. Supp. 3d 868, 878 (E.D. Va. 2017); Lacey Pfalz, Travel
Advisor Priorities Included in Year-End Government Spending Bill, TravelPulse
(Dec. 20, 2022), https://www.travelpulse.com/News/Impacting-Travel/Travel-
Advisor-Priorities-Included-in-Year-End-Government-Spending-Bill.
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Travel advisors’ and tour operators’ reliance on the Executive Branch is most
apparent—and clear guidance most sorely needed—when dealing with travel to
Cuba, a country which is subject to a complex and restrictive travel policy by the
United States. Staying informed about the United States’ restrictions on travel to
Cuba is challenging because government policy can change (and has changed)
sharply with political headwinds. See American Society of Travel Advisors,
Regulatory Compliance Handbook 32 (6th ed. 2020) (“�e regulations governing
travel to Cuba are extensive, and are subject to frequent change, especially when
control of the U.S. administration shifts from one political party to another.”). But
travel advisors and tour operators—as fiduciaries to their clients—must make every
effort to stay on top of the latest developments so that accurate and reliable
information can be disseminated. See generally Pellegrini v. Landmark Travel Grp.,
628 N.Y.S.2d 1003, 1005 (Ct. Cl. 1995) (describing the travel agent as an
“information specialist” who is “relied upon much like other information specialists
and professionals such as attorneys, doctors, and accountants”).
By proxy, travel advisors and tour operators also depend on cruise lines
receiving clear regulatory guidance from the Executive Branch. Travel agencies and
tour operators rely heavily on the sale of cruises for their income. �e commission
rates earned by travel advisors on booking cruises tend to be higher than for other
forms of travel. See American Society of Travel Advisors, 2013 Financial
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Benchmarking 36 (Oct. 2014) [hereinafter Financial Benchmarking] (demonstrating
that the average commission earned on cruise bookings is 15 percent, while air travel
is 7–8 percent, car rental is 6 percent, and rail is 5 percent). Moreover, cruises
regularly are a top-selling product for travel advisors, travel agents, and tour
operators. Mary Stein, e Hosted Travel Agent Longitudinal Report 2020, Host
Agency Reviews (last updated Sept. 8, 2022) (“[C]ruises were the top-selling
product each year [from 2016 to 2019].”), https://hostagencyreviews.com/blog/host-
travel-agent-longitudinal-report-2020. Leisure-focused travel advisors (as opposed
to corporate-focused travel advisors) often specialize in selling ocean cruises and
are especially dependent on such sales for their incomes. See Claudia Unger &
Mary Pat Sullivan, Phocuswright, U.S. Travel Agency Distribution Landscape
2016–2021 10–14 (Nov. 2018) (observing that sea and river cruises account for the
“biggest share” of tour packages sold by non-corporate travel agents, and that the
most popular specialization among travel agents was ocean cruises). As such, any
lack of clarity in Executive Branch guidance to cruise lines or other travel industry
enterprises has a significant downstream effect on travel agencies (and, by extension,
individual travel advisors) and tour operators.
�e record that the District Court relied on shows that the Executive Branch
licensed and encouraged Appellants to continue their cruise excursions to Cuba
under the “lawful travel” exception of the Helms-Burton Act, 22 U.S.C.
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§ 6023(13)(B), and the licensing provisions of the CACR, 31 C.F.R. §§ 515.101–
515.901. �e District Court, however, reasoned that “lawful travel” does not
necessarily mean “travel licensed and encouraged by the Executive Branch,” and
Appellants therefore were not “immunize[d]” by the Executive Branch’s
encouragement. See Omnibus Order, Havana Docks Corp v. Norwegian Cruise Line
Holdings, Ltd., No. 1:19-cv-23591-BB (S.D. Fla. March 21, 2022) [ECF 367 at 117–
18]. �is ruling, if upheld, will cause serious harm to the travel industry’s ability to
plan excursions for their guests and customers and to advise travelers appropriately
and lawfully.
For example, OFAC informed Carnival, NCL, and RCL in 2015 that it would
not be granting any further specific licenses for people-to-people travel because the
Cuban Asset Control Regulations authorized such travel under a general license
based on OFAC’s January 2015 amendments.
1
See 31 C.F.R. § 501.801(a) (“It is the
1
See Letter from Davin Blackborow to Carnival Corporation, Havana Docks
Corp. v. Carnival Corp., 1:19-cv-21724 (S.D. Fla. Sept. 20, 2021) [ECF 326-35];
Letter from Andrew Sens to Norwegian Cruise Lines Holdings, Ltd., Havana Docks
Corp. v. Norwegian Cruise Line Holdings, Ltd., 1:19-cv-23591 (S.D. Fla. Sept. 21,
2021) [ECF 235-20]; Letter from Andrew Sens to Royal Caribbean Cruises, Ltd.,
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policy of OFAC not to grant applications for specific licenses authorizing
transactions to which the provisions of a general license are applicable.”). Unlike the
general license for people-to-people travel in 31 C.F.R. § 515.565(b), the application
process for a specific license under 31 C.F.R. § 501.801(a) provides a more
particularized review process for the applicant’s proposed transaction “based on
national security and foreign policy considerations.” Zarmach Oil Servs., Inc. v. U.S.
Dep’t of the Treasury, 750 F. Supp. 2d 150, 153 (D.D.C. 2010). By steering cruise
lines away from specific licenses, OFAC necessarily implied that Appellants’
conduct was not in need of particularized review and was covered by the general
license then authorized by the CACR.
�e Executive Branch’s guidance-by-enforcement (or lack thereof ) also
signaled that Appellants’ travel to Cuba was lawful. On June 4, 2019, OFAC
completed its review of RCL’s response to an Administrative Subpoena and issued
RCL a “Cautionary Letter.” See Letter from Rosie Wells to Bradley Stein, Havana
Docks Corp. v. Royal Caribbean Cruises, Ltd., 1:19-cv-23590 (S.D. Fla. Sept. 17,
2021) [ECF 122-23, 3–6]. �e Cautionary Letter identified only alleged
recordkeeping issues—a sampling of passenger certification revealed “that
Havana Docks Corp. v. Norwegian Cruise Line Holdings, Ltd., 1:19-cv-23591 (S.D.
Fla. Sept. 21, 2021) [ECF 235-18].
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approximately 12 paper certifications failed to either select a general travel license
or provide a specific license number.” Id. at 5; see also 31 C.F.R. § 501.601 (“Except
as otherwise provided, every person engaging in any transaction subject to the
provisions of this chapter shall keep a full and accurate record of each such
transaction engaged in. . . .”). But OFAC did not identify any fundamental problems
with the nature of RCL’s travel to Cuba, did not find a CACR violation, and declined
to impose any civil monetary penalties. OFAC’s silence with respect to any legal
requirement other than recordkeeping gave RCL every reason to believe that, but for
its recordkeeping practices, every other aspect of its excursions to Cuba complied
with the law.
�e Executive Branch’s guidance to Havana Docks Corporation further signaled
that Appellants’ conduct was lawful. �e record below reflects that Mickael Behn,
President of Havana Docks, attempted to contact OFAC by email in 2018 (as part of
a joint effort with other claimants to property expropriated by the Cuban
government) to spur enforcement efforts against cruise lines. See Exhibit 34,
Deposition Transcript of Mickael Behn, Havana Docks Corp. v. MSC Cruises SA,
No. 1:19-cv-23588 (S.D. Fla. Apr. 22, 2022) [ECF 357-17, 126–28]. OFAC
acknowledged receipt of Mr. Behn’s complaint but did not take enforcement action
against the cruise lines, and his efforts ultimately were unsuccessful. �e State
Department likewise refused Mr. Behn’s invitation for regulatory action (again
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13
acting as a member of a joint effort with other claimants), informing him that it was
“not currently pursuing . . . actions in relation to commercial cruise lines” given “the
clear exclusion in [the] definition of ‘traffics’ of transactions and uses of property
incident to lawful travel to Cuba.” See Ex. 84, Omnibus Statement of Undisputed
Material Facts, Havana Docks Corp. v. Norwegian Cruise Line Holdings, Ltd., 1:19-
cv-23591 (S.D. Fla. Sept. 21, 2021) [ECF 237-24].
�e District Court’s ruling, if upheld, would mean that Appellants—and, in turn,
Amici—cannot rely on clear and unambiguous guidance from the Executive Branch
to advise the travelling public. �e inability of stakeholders in the travel industry to
count on Executive Branch guidance, in turn, raises serious due process concerns.
“Rule of law principles require that parties have fair notice and an opportunity to
conform their behavior to legal rules.” Circus Circus Casinos, Inc. v. NLRB, 961
F.3d 469, 476 (D.C. Cir. 2020). “�is requirement of clarity . . . is essential to the
protections provided by the Due Process Clause of the Fifth Amendment.” FCC v.
Fox Television Stations, Inc., 567 U.S. 239, 253 (2012) (citing United States v.
Williams, 553 U.S. 285, 304 (2008)). Affirming the District Court’s judgment would
mean that the travel industry cannot rely on future guidance from the Executive
Branch for fair notice of what conduct violates travel regulations—whether to Cuba
or any other destination country subject to travel restrictions. �is Court should
consider carefully the implications of such a ruling on the travel advisor, travel
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14
agency, and tour operator industries and, indeed, any other industry that relies on
clear and consistent guidance from the Executive Branch in order to provide
information services to the American public.
II The District Court’s Decision Has Contributed to the End of Cruises to
Cuba, Which Financially Harms the Travel Industry and Undermines the
Policy Objectives of the CACR.
�e uncertainty created by the District Court’s ruling has contributed to the
demise of cruises to Cuba. �is cessation of cruises to Cuba has impacted the travel
industry financially and hampered the worthy policy goals of “enhanc[ing] contact
with the Cuban people, support[ing] civil society in Cuba, [and] promot[ing] the
Cuban people’s independence from Cuban authorities.” 31 C.F.R. § 515.565(b)(2).
In 2022, Cuba received 1.6 million foreign visitors—a mere 38 percent of the
visitors in 2019. See Dave Sherwood, No fuel? No problem; Tourists in Cuba brave
worsening shortages, Reuters (Feb. 17, 2023), https://www.reuters.com/world/
americas/no-fuel-no-problem-tourists-cuba-brave-worsening-shortages-2023-02-
17. �e COVID-19 pandemic undoubtedly played a lingering role in the 2022
decline of the number of visitors to Cuba, but American travel restrictions and the
sudden enforceability of the Helms-Burton Act, of which this litigation is the most
prominent example, undoubtedly suppressed visitor numbers. Since 2019,
“passenger and recreational vessels” generally have been prohibited from sailing to
Cuba. See Restricting the Temporary Sojourn of Aircraft and Vessels to Cuba, 84
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15
Fed. Reg. 25986-01 (June 5, 2019).
2
�us, even as other forms of travel to Cuba
have become available, travel by cruise ships has not. See Chris Gray Faust &
Melinda Crow, Can Americans Travel to Cuba on a Cruise? And More Questions
Answered, Cruise Critic (updated Mar. 1, 2023) (“It is now possible to fly to far more
destinations within the country. �ere has been no change in restrictions on cruise
passengers, however.”), https://www.cruisecritic.com/articles/can-americans-travel-
to-cuba-on-a-cruise-and-more-questions-answered.
�e present litigation compounds the problem—even if the restrictions on
vessels sailing to Cuba were lifted (which they may be given the shifting political
environment), the specter of litigation under the Helms-Burton Act still would
imperil any American company seeking to facilitate cruise travel to Cuba, as
commentators have observed. See id. (“It remains to be seen whether [the District
Court’s] ruling will withstand the anticipated appeals and how it might impact the
future of cruising to Cuba by American-owned companies.”); see also Johannes
2
On June 5, 2019, the Trump administration rescinded the general license for
people-to-people travel. See Cuban Assets Control Regulations, 84 Fed. Reg. 25992-
01 (June 5, 2019). On June 9, 2022, the Biden administration reinstated the general
license but has not lifted the restrictions on vessels. See Cuban Assets Control
Regulations, 87 Fed. Reg. 35088-01 (June 9, 2022).
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Werner, Ruling against cruise lines may send chill to other U.S. travel, Cuba
Standard (Mar. 25, 2022) (“[T]he [District Court’s] opinion is now sending a chilling
signal to other U.S. companies engaged in travel to Cuba.”).
�e chill on cruises to Cuba, exacerbated by the District Court’s ruling in this
case, also has negatively impacted the finances of the cruise lines and, by extension,
the commission income of the travel advisors who rely on cruise bookings. Both
NCL and RCL reported a decline in their earnings per share in 2019. Norwegian
Cruise Line Says Cuba Travel Ban to Hit 2019 Earnings, CNBC (June 7, 2019),
https://www.cnbc.com/2019/06/07/norwegian-cruise-line-says-cuba-travel-ban-to-
hit-2019-earnings.html. Carnival Corporation reported a similar decline. See Mark
Matousek, Trump banned US cruise ships from traveling to Cuba, and Carnival is
feeling the pain, Business Insider (June 20, 2019), https://www.businessinsider.
com/carnival-hurt-by-trump-administration-cuba-travel-ban-2019-6. Any downturn in
cruises necessarily causes great harm to the economic health of travel agencies,
whose income is largely commission-based and particularly relies on cruise
bookings due to their favorable commission structure. Financial Benchmarking,
supra, at 34 (“Leisure [a]gencies [r]emain [h]ighly [d]ependent on [c]ommissions.”).
Moreover, the harm is neither de minimis nor limited to large corporations such
as the Appellants. In 2022, the travel industry supported “nearly 15 million
American jobs” and directly employed 8 million people. U.S. Travel Association,
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17
Economic Impact of the U.S. Travel Industry: 2022 National Data (updated April
2023), https://www.ustravel.org/sites/default/files/2023-04/economic-impact-answ
er-sheet.pdf. In the travel advisory sector alone, “there are close to 15,000 retail
travel agency locations in the U.S. employing over 102,000 people, plus an
additional 60,000 self-employed advisors.” Letter from Eben Peck, Executive
Vice President of ASTA, to the Hon. Mark Keam, Deputy Assistant Secretary, U.S.
Department of Commerce (Mar. 15, 2023), https://www.asta.org/docs/default-
source/testimony-filings/2023/asta-to-commerce-das-keam-re-covid-19-impacts-
march-2023.pdf. “�e vast majority of these businesses (98 percent) are small
according to the U.S. Small Business Administration’s (SBA) size standards, and
over two-thirds of them are owned and operated by women.” Id.; see also Unger &
Sullivan, supra, at 11 (“Today’s average travel agent is female 55 years old (or older)
and works from home.”). �e Court should be mindful of the harm that affirming the
District Court’s ruling could cause to an industry sustained by small, women-owned
businesses.
Given the Biden administration’s reinstatement of the general license in section
515.565, affirming the District Court’s rulings would also harm the CACR’s stated
goals of “enhanc[ing] contact with the Cuban people, support[ing] civil society in
Cuba, [and] promot[ing] the Cuban people’s independence from Cuban authorities.”
31 C.F.R. § 515.565(b)(2). “[T]he American people are the best ambassadors of U.S.
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18
values abroad, and should be allowed to freely promulgate those values through
travel to any destination they wish without restriction from their own government.”
Letter from Zane Kerby, President and CEO of ASTA, to Sen. Rick Scott (Jan. 25,
2022), https://www.asta.org/docs/default-source/testimony-filings/2022/asta-to-sen
scott-re-cuba-travel-january-2022-final.pdf?sfvrsn=c2bd3cb8_3. �e continued
uncertainty surrounding travel to Cuba represents a substantial obstacle to the free
exchange of ideas between the American and Cuban people. As information
fiduciaries for the traveling public, travel advisors play a vitally important role in
facilitating that exchange. Pellegrini, 628 N.Y.S.2d at 1005.
CONCLUSION
�e District Court’s ruling is especially harmful to members of the travel
industry represented by Amici. Affirming the District Court’s ruling would raise due
process and fair notice concerns, cause financial harm to the travel agency and tour
operator industries, and hamper the policy objectives of the CACR. Amici
respectfully submit that the District Court’s ruling should be reversed.
/s/ Bradley J. Bondi
Bradley J. Bondi
Vitaliy Kats
Counsel for Amici Curiae
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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT,
TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS
1. �is document complies with the type-volume limit of Fed. R. App. P.
32(a)(7)(B) because, excluding the parts of the document exempted by Fed. R. App.
P. 32(f ), this document contains 3920 words.
2. �is document complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this
document has been prepared in a proportionally spaced typeface using Microsoft
Word in Times New Roman 14-point typeface.
/s/ Bradley J. Bondi
Bradley J. Bondi
Counsel for Amici Curiae
CERTIFICATE OF SERVICE
I certify that on July 7, 2023, I electronically filed the foregoing with the Clerk
of the Court by using the CM/ECF system, which will send a notice of electronic
filing to counsel of record.
/s/ Bradley J. Bondi
Bradley J. Bondi
Counsel for Amici Curiae
USCA11 Case: 23-10171 Document: 90 Date Filed: 07/07/2023 Page: 29 of 30
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CERTIFICATE OF CONFERENCE
I certify that on July 3 2023, I conferred with counsel for Appellant Havana
Docks Corporation, who confirmed that Appellant does not oppose the filing of this
amicus brief.
/s/ Bradley J. Bondi
Bradley J. Bondi
Counsel for Amici Curiae
USCA11 Case: 23-10171 Document: 90 Date Filed: 07/07/2023 Page: 30 of 30
