Travel Between the United States and the Republic of Cuba: Lesson Learned from Carnival Cruise Lines

Travel Between the United States and the Republic of Cuba: Lesson Learned from Carnival Cruise Lines
Stephanie Moncada Gomez


In the last four months, two historic trips marked a step toward normalizing relations between the United States and the Republic of Cuba. On May 1, 2016, the first cruise traveled to Cuba in nearly 40 years. On Aug. 31, 2016, the first regularly scheduled flight flew from the United States to Cuba in more than 50 years.

As the relations between the United States and the Republic of Cuba continue to develop, American companies must not ignore the laws of this nation that apply to them. For instance, federal law prohibits discrimination and segregation in places of accommodation. Regardless of an American company’s relationship or dealings with a foreign country, “[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation…without discrimination or segregation on the ground of race, color, religion or national origin.”2

A recent example of the application of American law that binds an American company doing business with Cuba are the recent class action lawsuits against Carnival Corporation (“Carnival”) and Fathom Travel Ltd. Corporation (“Fathom”). Earlier this year, Carnival began to market itself as the first cruise that would travel to Cuba in nearly 40 years. At first glance, this was a great accomplishment in the eyes of frequent Carnival travelers, especially those residing in Miami, Florida, where Carnival’s headquarters are located.

However, as individuals began calling to make reservations for this historic trip scheduled to depart May 1, 2016 to Havana, Cuba, there was one very important truth that was soon revealed: anyone born in Cuba was not allowed to reserve a ticket on the Fathom ship of Carnival Cruise lines. Why? Because “the Cuban government [had] a longstanding regulation that prohibit[ed] Cuban-born individuals from traveling anywhere in the world to and from Cuba by ship. This regulation applie[d] to all cruise lines, ferries and any form of shipping planning to travel to and from Cuba.”3 Further, Cuba’s policy was to “obey the regulations and laws of the countries [it sailed] to around the world.”4 As a result, Carnival decided to obey Carnival’s policy of prohibiting Cuba-born individuals from traveling to Cuban by ship.

While Carnival’s policy may have complied with Cuban law, it was a clear violation of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a. Title II prohibits discrimination in places of public accommodation on the basis of national origin, among other things. Carnival cruise lines are places of public accommodation as defined under Section 2000a and Carnival was discriminating against individuals of Cuban national origin. In other words, Cuban-born individuals, unlike individuals from any other national origin, were denied the right to contract with Carnival for the full benefits and enjoyment of the public accommodation of Fathom cruise lines.

A federal class action complaint against Carnival and Fathom was filed on April 12, 2016 for Carnival’s discrimination on the basis of national origin, and three days later a state court class action complaint was filed against the same two parties.5 Two weeks before Carnival’s scheduled departure to Cuba on May 1, 2016, plaintiffs in the federal court case filed a Motion for Preliminary Injunction, requesting the court enjoin Carnival and Fathom immediately from refusing to sell cruise fares based on a person’s national origin. Simply put, plaintiffs requested the federal court to force Carnival to sell cruise fares to everyone, regardless of a person’s national origin.

Carnival’s position was undoubtedly a difficult one. Either it risk the court granting plaintiffs’ preliminary injunction, thus halting its historic first trip to Cuba, or it risk boarding Cuban-born individuals onto its cruise line and then Cuba refusing to allow them to disembark once they arrived in Cuba (at which point Carnival could potentially face other lawsuits by the passengers who would be restrained against their will).

Lucky for Carnival, four days after plaintiffs filed their Motion for Preliminary Injunction, on April 22, 2016, Granma, the official newspaper of the Central Committee of the Cuban Communist Party, issued a press release stating: “the Government of the Republic of Cuba has decided to adopt the following provisions:…(2) To authorize the entry and exit of Cuban citizens, regardless of immigration status, as passengers and crew on cruise ships…”6 Cuba effectively changed its decades-long migratory policy and allowed its nationals to travel to Cuba by ship. As a result, Carnival lifted its ban against Cuban-born individuals from purchasing a ticket on its Fathom cruise line traveling to Cuba. On April 28, 2016, plaintiffs in both the federal and state court cases filed a Notice of Voluntary Dismissal without Prejudice. The cases were over.

There is no doubt that Carnival is a powerful American cruise line company. Carnival dubs itself “[t]he World’s Most Popular Cruise Line,” with 25 ships operating 3 to 16-day voyages around the world.7 Carnival carries nearly 11 million passengers every year to ports worldwide, which is about 50 percent of the global cruise market.8 The outcome of these lawsuits begs the question: had Cuba not changed its discriminatory policy like it did, what would Carnival have done about its policy to disallow Cuban nationals from purchasing its cruise fares to Cuba? First, it could have continued to follow Cuba’s policy and disallow Cuban nationals from purchasing cruise fares to Cuba, in violation of American law. This would have led to continued litigation and it would be up to the federal and state courts to decide if Carnival’s actions violated Title II of the Civil Rights Act of 1964. Second, it could have allowed Cuban nationals to purchase cruise fares to Cuba, risking the possibility that the Cuban government would not allow them to disembark once they reached Cuban waters. This could have led to other litigation by the passengers themselves for Carnival restraining them against their will. Or third, it could have cancelled its cruise line trips to Cuba as a whole. Although we may never know what route Carnival would have taken, we do know it did not change its own policy until Cuba did.

For the first time in over 50 years, today there are non-charter flights from the United States to Cuba. On Aug. 31, 2016, JetBlue Flight 387 from Fort Lauderdale to the Cuban city of Santa Clara was the first regular, non-charter flight between the two countries in 50 years9. This historic flight, like the Carnival cruise voyage, marks a step toward normalizing relations between the United States and Cuba. American Airlines’ first flight to Cuba also commenced Sept. 7, 2016.10 Flights to Havana, Cuba will not begin until late November or December of this year.11

American companies doing business with the Republic of Cuba must abide by the American laws that govern them. With time, more and more businesses in the United States will want to continue to do business with Cuba as the relations between the two countries continue to normalize. Especially companies based in South Florida, where there is a high population of Cubans, will line up to do business in Cuba, which is only 90 miles from Florida. As American investments in Cuba continue to grow, these American businesses must learn from the Carnival lawsuits and take caution to avoid violating the laws of this country, including laws prohibiting discrimination.

Stephanie Moncada Gomez, Esq. is an attorney in Kozyak Tropin & Throckmorton’s complex litigation department and international practice. She was part of the team that represented the Cuban-born American plaintiffs in the state and federal lawsuits against Carnival Corporation and Fathom Travel Ltd. Corporation in April 2016. Stephanie’s experience includes representing international clients in matters brought in U.S. federal and state courts. She is fluent in Spanish, has limited proficiency in French and works with the firm’s international client base.

Endnotes
142 U.S.C. § 2000a, et seq.
242 U.S.C. § 2000a(a)
3About Fathom in Cuba, FATHOM TRAVEL, https://fathom.org/cuba-faq (last visited Apr. 12, 2016).
4Id.
5Sanchez et al. v. Carnival Corp. & Fathom Travel Ltd. Corp., No. 2016-civ-21319-Cooke (S.D. Fla. Apr. 18, 2016); Hernandez et al. v. Carnival Corp. & Fathom Travel Ltd. Corp., No. 2016-9539-CA 01 (Fla. 11th Cir. Ct. Apr. 15, 2016).
6U.S. Cruise Company to Begin Operations in Cuba, GRANMA, http://en.granma.cu/cuba/2016-04-22/us-cruise-company-to-begin-operations-in-cuba (Apr. 22, 2016).
7About Us, Carnival, https://www.carnival.com/about-carnival/about-us.aspx (last visited Sept. 11, 2016).
8Corporate Information, CARNIVAL CORPORATION & PLC, http://www.carnivalcorp.com/phoenix.zhtml?c=200767&p=irol-prlanding (last visited Sept. 11, 2016).
9Booking a Flight to Cuba? Here’s What to Expect Now, USA TODAY, http://www.usatoday.com/story/travel/flights/todayinthesky/2016/09/09/booking-early-flight-cuba-heres-what-expect/89992080/ (Sept. 9, 2015, 9:57 AM).
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