A recent US Supreme Court decision has significantly altered the risk landscape for businesses that currently operate in, or have previously engaged with, Cuba. In Havana Docks Corp v Royal Caribbean Cruises Ltd, the Court adopted a broader interpretation of Title III of the Helms-Burton Act, materially expanding potential liability for “trafficking” in property confiscated by the Cuban government.
The ruling matters because it shifts the focus away from traditional questions of ownership and towards the use of confiscated assets. Companies may now face liability where they use or benefit from property linked to historic expropriations, even if the claimant’s original legal interest would have expired long before the company’s conduct took place.
That could have significant implications for businesses with exposure to Cuban infrastructure, assets or commercial arrangements, particularly in sectors such as tourism, transport, logistics, real estate and energy.
What is Title III of the Helms-Burton Act?
Title III of the Helms-Burton Act, formally part of the 1996 Cuban Liberty and Democratic Solidarity Act, allows US nationals whose property was confiscated by the Cuban government after 1 January 1959 to bring civil claims against those who “traffic” in that property.
For many years, this was a relatively dormant risk. The Act authorised the president to suspend the Title III right of action, and Presidents Clinton, Bush and Obama continuously suspended it. President Trump allowed the suspension to expire in May 2019, opening the door to private lawsuits.
The Havana Docks litigation arose from the use of dock facilities in Cuba by major cruise operators. Havana Docks Corporation claimed that the operators had unlawfully used port facilities that had been confiscated by the Cuban government. The case eventually reached the Supreme Court after the Eleventh Circuit had previously taken a narrower approach to liability, focusing on whether Havana Docks’ concession would still have existed at the time the cruise operators used the facilities.
The Supreme Court rejected that narrower approach.
What the Supreme Court decided
The central issue was whether “property which was confiscated” refers only to the claimant’s legal interest in the property, or whether it also includes the underlying physical asset itself.
The Court confirmed that the term can include the physical asset, not just the claimant’s original legal rights. This means liability is not limited to cases where a company interferes with a claimant’s continuing property interest. It may also arise where a company uses, benefits from or engages commercially with the confiscated asset itself.
This is a significant shift. In practical terms, the question is no longer simply: did the claimant still have a legal right in the property when the company used it? The more important question may now be: was the company deriving economic value from property that had been confiscated?
That gives Title III a much broader reach. Routine commercial activity, such as using port facilities or other infrastructure, may potentially be enough to create exposure where the asset is linked to a historic confiscation.
Why the ruling changes the risk calculation
The decision creates an asset-level risk framework. Once property falls within the category of confiscated property, its later use may carry risk regardless of changes in ownership, legal rights or the passage of time.
That is particularly important for companies that have treated Cuba-related risk mainly as a sanctions screening issue. The ruling suggests that liability can arise from the status and history of the asset itself, not just from who currently owns it or whether a transaction involves a sanctioned person.
The judgment also matters because many Cuban expropriations took place decades ago. Businesses may previously have viewed these claims as remote, especially where leases, concessions or other legal interests would have expired long before the company became involved. The Supreme Court’s approach means historic confiscation remains relevant even where the original legal interest would no longer exist.
The case also highlights the difference between sanctions compliance and civil litigation risk. The cruise operators argued that they used the docks during a period when US policy had encouraged expanded travel to Cuba, but the Supreme Court still found that the Eleventh Circuit had misread the Act.
This leaves companies in a difficult position. A business may have complied with applicable sanctions rules at the time, but still face a private claim under Helms-Burton if its activity involved confiscated Cuban property.
The ruling is also relevant beyond the US. Helms-Burton has long been controversial because of its extraterritorial reach, and this decision reinforces the potential for claims against companies whose activities are linked to confiscated Cuban assets, including non-US businesses.
This doesn’t mean that every company with Cuba exposure will face a claim. But the risk profile has changed. Companies should not assume that distance from the US, the passage of time or the absence of formal ownership will remove potential exposure.
What companies should do now
Companies with current or historic Cuba exposure should reassess their risk in a structured way. That should include reviewing whether the business has used, benefited from or contracted around assets linked to historic Cuban expropriations, including ports, hotels, terminals, energy infrastructure or arrangements involving local counterparties.
Existing sanctions and export control processes should also be reviewed to ensure they capture asset-level risk. Screening counterparties is important, but it may not identify whether a facility, concession, supply route or commercial project is connected to confiscated property.
Legal, compliance and commercial teams should work together to assess whether past or current Cuba-related activity could create civil litigation risk, not just sanctions risk. Companies should also monitor further proceedings, particularly around statutory exceptions, the relevance of government licences and how damages may be assessed.
Sanctions training for high-risk jurisdictions
Sanctions risk is rarely limited to a list of restricted individuals or entities. It can also arise from geography, asset history, ownership structures, political developments and private litigation rights.
For compliance teams, that means training cannot only focus on technical rules. Staff need to understand how risk appears in real business decisions, such as entering a new market, using local infrastructure, relying on a third-party agent, approving a transaction or continuing a legacy relationship.
The Helms-Burton ruling shows why organisations need staff who can recognise risk early, ask the right questions and escalate concerns before exposure becomes a problem.
