Not only U.S. airlines are threatened by the Helms-Burton Act for making use of airport facilities that were nationalized in Cuba at the beginning of the 1960s. Other airlines that use Havana’s José Martí airport are also threatened.
Although there are still no lawsuits against the airlines, OnCuba learned that a law firm in Miami is preparing to accuse five U.S. airlines and 46 from other countries for what the Helms-Burton describes as “trafficking with confiscated properties.”
So far, the details circulating in judicial circles in South Florida are few, but they point to the claim for compensation for the use of airport facilities and not for their return, which would otherwise be unfeasible.
However, the ramifications of such a lawsuit could cover foreign airlines’ interests in the United States since they mostly have daily flights, even several times, to various airports in the United States. We are speaking of companies such as the Spanish Air Europa, Iberia and its parent British Airways; Air China, Air France and Lufthansa, Russia’s Aeroflot, Air Canada, Alitalia, Colombia’s Avianca, American Airlines, Delta, JetBlue, Southwest Airlines and United; Swiss Air, Panama’s Copa Airlines and many others.
But there are also studies to include in the lawsuits the island’s airlines such as Cubana de Aviación, AeroCaribbean and Aerogaviota, the last two under Cuban military administration and that do not fly or have interests in the United States. If this happens they would join other Cuban companies already included in other lawsuits such as ETECSA, Havanatur and Gaesa, as well as the firm that caters to aircraft, Ecasa.
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According to a recent study by the U.S.-Cuba Trade and Economic Council, once lawsuits are filed against the airlines it would be up to the U.S. courts to define whether the airlines are flying to Cuba in a legal framework. Section 4 of the Helms-Burton Act provides some definitions. Section 13 (III) specifies that the term “trafficking”‘ does not include “transactions and use of properties in question in the framework of a legal trip to Cuba, to the point that such transactions and use of the property are necessary to carry out the trip,” it says.
This is how the courts must decide if the cruise ships that dock in Havana, the hotels that receive their guests, the Internet booking platforms and the airlines that use José Martí International Airport carry out or carried out lawful activities. Failing that, airlines, at least the U.S. ones, cruise lines and Internet platforms maintain that they operate or operated under a general license granted by the Office of Foreign Assets Control (OFAC) or a permit of the Office of Industry and Security of the Department of Commerce, legally “protected” by the White House, that is, the administration of Barack Obama from the moment he began the thaw with the island in 2014.
This, regardless of the fact that arguments such as whether the plaintiffs are entitled to the lawsuit can also be used in their defense against Title III, which may even include legal and even constitutional readings. In relation to European airlines, the possible demands in this regard collide with two basic aspects, the European Union (EU) does not recognize the extraterritorial scope of the Helms-Burton Act and the European countries have very tough laws that protect their investments abroad.
What several lawyers in Miami present is that foreign airlines can be sued in the United States, but what compensation will they get? Can a court in the United States ban an airline, say a Spanish one, from flying to the United States and under what argument? They are doubts on the subject which are being considered. Others argue that the most the plaintiffs can achieve is that the secretary of state start applying Title IV and no airline executives and their relatives could enter the United States.
No lawyer who has filed lawsuits against shipping companies or Internet platforms has wanted to comment to OnCuba about the possibility of their being extended to the airlines, while several airlines preferred to refrain from giving an opinion until something really happens.
The use of the Havana airport is contested by José Ramón López, a man with dual citizenship, Spanish and American, son of José López Villaboy, who was the owner of the Havana airport, Cubana de Aviación, banks, printing companies, newspapers and a spokesman of the Fulgencio Batista regime.
However, although the request for compensation began with the father, the truth is that Ramón López has not yet seen any of the claims certified by the United States government, a basic condition for a complaint to begin. The last certification was made in 2006. He still has the possibility of joining another demand already opened in the United States, because in Spain his chances are virtually nil. A court in Palma de Mallorca has just rejected a lawsuit against the Meliá hotel chain alleging lack of jurisdiction.
