Yesterday’s U.S. Supreme Court’s 8-1 decision in Havana Docks Corp. v. Royal Carribean Cruises, Ltd., No. 24-983 (May 22, 2026) involves a taking without compensation (although not the type of taking we usually discuss here) by the then-new communist government of Cuba. But it does give us some insight to how the Court views property. In this case, the term “property” as defined in a federal statute creating a private right of action against someone who traffics in property seized by the Cuban communist government after the 1959 revolution.
In 1928, Havana Docks Corp. held a “usufructuary concession” in port facilities in Havana, essentially a right to use and profit from someone else’s property, in this case owned by the Port of Havana. Havana Docks constructed three piers and a terminal building. The concession gave Havana Docks the right to use and operate the docks until 2004. The Cuban government also agreed that if expropriated the docks before 2004, it would provide compensation.
Flash forward to the communist takeover of Cuba. The Castro government seized the docks in 1960, including Havana Docks’ usufruct (in case you were wondering, the Kohms did not provide compensation).
Decades later Congress adopted a statute to deter trafficking in property seized by the communist government. “The Act generally makes those who use property tainted by a past confiscation liable to any United States national who owns a claim to that property.” Slip op. at 2.
Flash forward again, this time to 2016-2019, when Royal Carribean and other lines’ cruise ships docked at the former Havana Docks piers, and “continued to do so even after receiving notice of Havana Docks’ certified claim to the docks.” Slip op. at 6. Federal lawsuit followed, with Havana Docks suing the cruise lines for “trafficking” in its confiscated property (the docks).
The cruise lines responded that yeah we used the docks, but because Havana Docks’ usufruct would have ended by its own terms in 2004 and this right was the “property” at issue, we are not liable under the statute since we didn’t traffic in any confiscated property.
So what is the “property” referred to in the statute? Is it “Havana Docks’ property interest in the docks, or whether it could instead be the docks themselves[?]” Slip op. at 9. The Supreme Court majority (everyone except Justice Kagan) concluded that “the cruise lines’ use of the docks is sufficient to establish that they used ‘property’ which was confiscated by the Cuban Government” as the statute prohibits. Id. “Havana Docks is not required to establish that the cruise lines used its property interest.” Id. (emphasis added).
The majority started with the “plain text” of the statute, concluding that the term can encompass “the physical interest in which the plaintiff had an interest, and not just the interest itself.” Id. Thus, the statute “makes clear that the Act imposes liability for trafficking in both the physical property and the property interests.” Id.
Same with “ordinary meaning” of the term property, which “can refer to physical things in which people can have property interests.” Id.
The term “any property,” of course, includes physical things. “Any external thing over which the rights of possession, use, and enjoyment are exercised” can be “property.” Black’s Law Dictionary 1232 (7th ed. 1999) (Black’s). Title III itself provides examples, including “real” property, §6023(12)(A), which includes “[l]and and anything . . . attached to” it, id., at 1234, and “personal” property, §6023(12)(A), which includes movable things, id., at 1233.
This Court has recognized that “property” ordinarily can refer to physical things in which people can have property interests. When this Court previously considered Castro’s expropriations, it recognized that “property” can refer to both physical things and interests in them, noting that the Cuban Government “nationalize[d] by forced expropriation property . . . in which American nationals had an interest.” Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 401 (1964) (emphasis added). For that reason, the Cuban Government could, for example, expropriate “sugar itself ” in addition to, or “rather than,” “merely contractual rights” related to the sugar. Id., at 413.
Slip op. at 9-10.
This case is a good reminder that the “bundle of sticks” metaphor isn’t always the end all of the question of whether something is property, or private property. As the Court has held before, the definition is not fixed by state law, but is a matter of history, tradition, common law, and other sources. See Cedar Point Nursery v. Hassid, 141 S.Ct. 2063 (2021). Here, the source was the statute itself, which defined property (although in a sort of sideways way: you may be liable for trafficking in ‘any property … and any interest therein’). The ordinary meaning of the term also helped. Thus, the Court looked to sources like Black’s Law Dictionary and its prior rulings.
As we noted above, Justice Kagan was the sole dissenter, arguing that because after 2004, Havana Docks “had no right to anything” notwithstanding the prior confiscation, and thus owned neither property nor an interest. See Dissent at 2. Summing up:
Recall what the statute says: “[A]ny person” that “traffics in property which was confiscated by the Cuban Government on or after January 1, 1959, shall be liable to any United States national who owns the claim to such property.” §6082(a)(1)(A) (emphasis added). The “property which was confiscated” from Havana Docks is a time-limited concession. We know that is the “property which was confiscated” because that is the only property Havana Docks ever owned—and thus the only property Cuba could have confiscated from it. So to hold the cruise lines liable, Havana Docks must show that they “traffic[ked] in” its time-limited concession. Had the cruise lines used the docks before 2004, Havana Docks would have a good argument that they did so. But the cruise lines did not use the docks until 2016—years after Havana Docks’ concession was scheduled to expire. Given that fact, the cruise lines did not “traffic in” the “property which was confiscated” from Havana Docks and so are not liable to it under Title III.
Dissent at 3.
Having determined that, Justice Kagan concluded that there’s a difference between property (belonging to anyone) that was confiscated, and property that was confiscated from the plaintiff. Justice Kagan (a former law professor!) chastised her other colleagues for “ignoring” basic 1L property stuff:
Finally, the majority’s approach ignores basic principles of property law. As every first-year law student learns, “property” is defined by reference not just to spatial boundaries, but also to temporal ones. Cf. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302, 331–332 (2002) (“An interest in real property is defined by the metes and bounds that describe its geographic dimensions and the term of years that describes the temporal aspect of the owner’s interest. . . . Both dimensions must be considered if the interest is to be viewed in its entirety”). Yet the majority inexplicably privileges the spatial.
Dissent at 5-6.
Who do you think has the better argument, dirt lawyers?
Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., No. 24-983 (U.S. May 22, 2026)