De Fernandez v. MSC Mediterranean Shipping Co. S.A.

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ODETTE BLANCO DE FERNANDEZ, born Blanco Rosell, et al., Plaintiffs, v. MSC MEDITERRANEAN SHIPPING COMPANY S.A., and MEDITERRANEAN SHIPPING COMPANY USA INC., Defendants.

No. 1:22-cv-6305-GHW

United States District Court, S.D. New York

December 9, 2024

MEMORANDUM OPINION & ORDER

GREGORY H. WOODS, United States District Judge.

In 1996, Congress passed the Cuban Liberty and Democratic Solidarity Act, 22 U.S.C. § 6021, et seq., also known as the Helms-Burton Act, which provides a private cause of action against persons who “traffic” in property confiscated by the Cuban government. That cause of action was suspended by presidential decree until 2019, when President Trump lifted the suspension for the first time. A series of actions brought under the Act soon followed. This case is one such action.

Plaintiff Odette Blanco de Fernandez was one of five siblings who owned, in equal parts, a collection of companies with title to land surrounding the bay in Mariel Bay, Cuba. The Cuban government confiscated the companies in 1960 and built the Port of Mariel on the land in 2009. Four years later, in 2013, Defendants MSC Mediterranean Shipping Company, S.A. (“MSC Cargo”) and Mediterranean Shipping Company (USA) Inc. (“MSC USA”) began shipping cargo through the Port of Mariel. Defendants made hundreds of shipments to and from the port over the next eight years.

In 2022, Ms. de Fernandez and the estates and inheritors of her siblings brought this action under the Act, alleging that Defendants had trafficked in their confiscated property by shipping at the Port of Mariel. Defendants now move to dismiss the claim against MSC Cargo for lack of personal jurisdiction, and to dismiss this action for failure to state a claim. Ms. de Fernandez's claims survive both motions because she provides sufficient allegations of suit-related conduct in this forum and of trafficking in her confiscated property. However, the estates and inheritors of her siblings fail to state a claim because they did not acquire their claims until after March 12, 1996, the Act's cutoff for claims arising from property confiscated before that date.

I. BACKGROUND

A. Facts Alleged in the First Amended Complaint

Plaintiff Odette Blanco de Fernandez, nee Blanco Rosell, and her siblings Alberto Blanco Rosell, Jr., Florentino Blanco Rosell, Enrique Blanco Rosell, and Byron Blanco Rosell (together, the “Blanco Rosell Siblings”), were Cuban nationals who owned, in equal parts, several Cuban companies with holdings in Mariel Bay, Cuba. Dkt. No. 39 ¶¶ 2, 102, 109 (First Amended Complaint, hereinafter “FAC”). Among other things, the companies owned a 1955 concession from the former Cuban government “to plan, study, execute, maintain, and exploit public docks and warehouses in the Bay of Mariel Bay,” id. ¶ 104, as well as “extensive landholdings” around the bay, id. ¶ 111. The landholdings covered the entire west side of Mariel Bay except for certain land dedicated to an old naval air station. Id. ¶¶ 128-29.

On September 29, 1960, the Cuban government confiscated the companies. Id. ¶ 2. The Blanco Rosell Siblings “fled Cuba after the confiscation,” id. ¶ 5, and became naturalized United States citizens between 1966 and 1975. Id. ¶¶ 9-13. Between 2001 and 2014, four of the siblings died. Id. ¶¶ 10-13. Ms. de Fernandez was the only living sibling when Plaintiffs brought this action. Id. ¶ 9. The personal representatives of the four siblings' estates are co-plaintiffs with Ms. de Fernandez, id. ¶ 102 (the “Estate Plaintiffs”), as well as various family members who allegedly inherited portions of the four siblings' claims, id. ¶¶ 14-26 (the “Inheritor Plaintiffs”).

In 2009, the Cuban government built various port and storage facilities on the west side of Mariel Bay. Id. ¶¶ 126-27. Those facilities comprise “part of the Port of Mariel.” Id. ¶¶ 125-26. The facilities include a “Container Terminal,” “road and rail and other means of transport in and around the Container Terminal,” and a “Logistics Facility,” all of which support the Port of Mariel. Id. ¶ 126. The Container Terminal is mostly built within the boundaries of the old naval air station, but its headquarters are located outside those borders on allegedly confiscated land. Id. ¶ 128. The other facilities also lie on allegedly confiscated land. Id.

Defendant MSC Cargo^[1] is a container shipping company “organized under the laws of Switzerland with its principal place of business [in] Geneva, Switzerland.” Id. ¶¶ 27, 29. Defendant MSC USA is a subsidiary of MSC Cargo. Mem. at 10. MSC USA is MSC Cargo's “general agent for shipments from the United States.” FAC ¶ 31; see also Mem. at 10 (“[T]he provision of MSC Cargo's transportation services in the United States is handled by [MSC USA].”). Whenever MSC USA ships cargo from the United States, it executes a bill of lading with the shipper. See FAC ¶ 72. Among other things, the bill of lading “list[s] the port of loading, the port of discharge, the places of receipt and delivery for the shipment, . . . a description of the goods, and details about the shipper and other parties involved in the shipment.” Id. Each bill of lading provides that it is “‘[s]igned by [MSC USA] as Agent on behalf of the Carrier [MSC Cargo],' or words to that effect.” Id. ¶ 52.

Beginning in 2013, MSC USA, on behalf of MSC Cargo, began shipping cargo from ports in the United States to the Port of Mariel. See id. ¶ 143(h). From 2016 to 2021, Defendants “contracted to serve as the carrier for approximately 273 cargo shipments from various U.S. Ports.” Id. ¶ 50. On at least five occasions between July 2013 and December 2019, Defendants shipped cargo from ports in New York to the Port of Mariel. Id. ¶¶ 143(h), 143(i), 143(p), 143(q), 143(r).

On June 3, 2021, Plaintiffs, through counsel, sent MSC Cargo and MSC USA a notice letter stating “that they are trafficking in confiscated property as defined in the Helms-Burton Act, the claims to which are owned by Plaintiffs, without the authorization of Plaintiffs.” Id. ¶ 166. Defendants received the notice letter on June 7, 2024. FAC ¶ 168. On June 30, 2021, Defendants, through counsel, sent Plaintiffs a response letter “acknowledging receipt” of the notice letters. Id. ¶ 170; Id. Ex. E. The letter stated, among other things, that upon receiving the notice letters, “MSC [Cargo] promptly instructed that all services offered in relation to the alleged Confiscated Property (as defined in the Notices) must cease with immediate effect.” Id. ¶ 170; Id. Ex. E. The FAC alleges that Defendants called at the Port of Mariel on at least two occasions after they received Plaintiffs' notice letter, on June 14, 2021, Id. ¶ 143(j), and July 10, 2021, Id. ¶ 144. The FAC does not allege the departure date for the former shipment. Id. ¶ 143(j). The latter shipment allegedly departed from Florida on April 16, 2021. Id. ¶ 144.

B. Defendants' Declarations

In conjunction with their motion to dismiss, Defendants submitted the Declaration of Frank R. Sanford in Support of Defendants' Motion to Dismiss, Dkt. No. 42 (“Sanford Decl.”), the Declaration of Diana Sterk in Support of Defendants MSC Mediterranean Shipping Company SA and MSC Mediterranean Shipping Co. (USA) Inc.'s Motion to Dismiss, Dkt. No. (“Sterk Decl.”), and the Supplemental Declaration of Frank R. Sanford in Support of Defendants' Motion to Dismiss, Dkt. No. 50 (“Supp. Sanford Decl.”). Both Sanford Declarations assert certain facts which may be considered for the purposes of Defendants' motion to dismiss for lack of personal jurisdiction. See infra Part IIa. The relevant assertions are recounted here.

Defendants assert that MSC USA is MSC Cargo's subsidiary, and that MSC USA “handle[s]” “MSC Cargo's transportation services in the United States.” Sanford Decl. ¶ 7. Defendants also state that “[n]either MSC Cargo nor MSC USA shipped any cargo to the port of Mariel, Cuba, from or through New York since December 2019.” Id. ¶ 23. And they state that “MSC Cargo has not accepted any bookings for shipments to Cuba from the United States since June 7, 2021.” Id. ¶ 33.

Moreover, Defendants acknowledge that there were “two shipments facilitated by MSC Cargo from the United States [that] arrived at the port of Mariel after June 7, 2021,” when they received Plaintiffs' notice letter. Id. ¶¶ 25, 30. One of the shipments was described in the FAC. It left port in Jacksonville, Florida on April 16, 2021 and “discharged . . . at the port of Mariel, Cuba” “[o]n July 10, 2021.” Id. ¶ 31. Defendants also identify a second shipment, not alleged in the FAC, that left Long Beach, California on May 19, 2021 and “discharged . . . at the port of Mariel, Cuba” “[o]n July 25, 2021.” Id. ¶ 32.

Defendants state that every shipment they made from the United States to Cuba was made by “transshipment.” Id. ¶¶ 15, 19. Defendants describe the two methods by which they transport cargo: “direct service” or “transshipment.” Id. ¶ 15. “Direct service means that the same vessel calls at both the port of loading and the port of discharge.” Id. By contrast, “[t]ransshipment occurs whenever a container is offloaded at an intermediate port and temporarily stored there until it can be loaded onto a different vessel that will continue the shipment to the port of discharge.” Id. Still, even under transshipment, “MSC Cargo's responsibility for the goods ends” only when delivery is made at the final “port of discharge or at the place of delivery.” Id.

Defendants state that both post-notice shipments, like their other shipments from the United States to Cuba, were made by transshipment. Id. ¶¶ 31-32. Moreover while MSC Cargo owned the cargo-carrying vessels that left the United States, it did not own the vessels that ultimately discharged the cargo at the Port of...