Derek Achong

derek.achong@guardian.co.tt

State-owned Caribbean Air­lines Ltd (CAL) has un­til to­mor­row to re­spond to a law­suit filed by a Flori­da-based trav­el ser­vice provider that has ac­cused this coun­try’s na­tion­al car­ri­er for ac­cept­ing pay­ments from Unit­ed States cit­i­zens to pro­vide trans­porta­tion for their Cuban rel­a­tives to trav­el be­tween Cu­ba and Guyana to ac­cess US con­sular ser­vices. 

In its court fil­ings in the Unit­ed State Dis­trict Court for the South­ern Dis­trict of Flori­da on Sep­tem­ber 23, ob­tained by Guardian Me­dia, Volan­do.US Cor­po­ra­tion is claim­ing that this coun­try’s na­tion­al car­ri­er breached US Cuban As­set Con­trol Reg­u­la­tions (CACR). 

Un­der the reg­u­la­tions, for­eign air­lines are barred from pro­vid­ing air trans­porta­tion ser­vices be­tween Cu­ba and third coun­tries for Cuban na­tion­als, when such ser­vices have a nexus to the US.

The reg­u­la­tions on­ly per­mit such ser­vices if it is done through com­pa­nies, which are li­censed by the Of­fice of the For­eign As­sets Con­trol in the US De­part­ment of the Trea­sury (OFAC).

“The De­fen­dant for­eign air­line is un­abashed­ly vi­o­lat­ing the CACR and in­fring­ing on Volan­do’s prop­er­ty rights con­ferred in the OFAC-spe­cif­ic li­cense by pro­vid­ing air trans­porta­tion with a US nexus to Cuban na­tion­als be­tween Ha­vana, Cu­ba, and George­town, Guyana,” Volan­do’s lawyers claimed. 

“The im­per­mis­si­ble US nexus in­cludes ad­ver­tis­ing these air trans­porta­tion ser­vices through US-based so­cial me­dia sites, re­ceiv­ing air­fare paid by US per­sons on be­half of their rel­a­tives in Cu­ba (the Cuban na­tion­als), and/or re­ceiv­ing or ac­cept­ing pay­ments in US dol­lars or through US bank-is­sued cred­it cards,” they added. 

Volan­do is claim­ing that CAL’s al­leged ac­tiv­i­ty harmed its busi­ness in­ter­ests and flout­ed the li­cens­ing regime, to which it sub­scribes. 

“In re­sponse to Volan­do’s de­mands, De­fen­dant ap­pears to have con­tin­ued its pro­hib­it­ed and in­fring­ing con­duct by cre­at­ing a lay­over con­nec­tion be­tween Ha­vana and George­town through Port-of-Spain, Trinidad. This makes it ap­pear as though De­fen­dant no longer of­fers the in­fring­ing Ha­vana to George­town route. Ad­di­tion­al­ly, up­on in­for­ma­tion ant be­lief, De­fen­dant is re­serv­ing book­ings for the in­fring­ing flights to make it ap­pear that such flights are un­avail­able so that such book­ings can then be trans­ferred to Cuban na­tion­al pas­sen­gers in ex­change for US dol­lar pay­ments at a lat­er time. This is called “churn­ing,” and is il­le­gal in the avi­a­tion trav­el in­dus­try,” the law­suit stat­ed.

Volan­do is claim­ing that it ob­tained its li­cense in Sep­tem­ber 2021 af­ter a thor­ough fed­er­al vet­ting process which cost it “great time and ex­pense.” 

In ad­di­tion, the li­cense al­lows Volan­do to char­ter flights be­tween José Martí In­ter­na­tion­al Air­port in Ha­vana and oth­er coun­tries, re­ceive as­sis­tance from Ha­vanatur — a Cuban trav­el agency — and pay the Cuban gov­ern­ment for land­ing fees and ground ser­vices, ac­cord­ing to the suit.

Volan­do said a li­cense is re­quired be­cause of the CACR, which pro­hibits US cit­i­zens from do­ing busi­ness with Cu­ba and its cit­i­zens, and that Caribbean Air­lines still needs a li­cense be­cause it ad­ver­tis­es in the US, ac­cord­ing to its suit.

“De­fen­dant is con­tin­u­ing to vi­o­late the CACR by pro­vid­ing the un­law­ful air trans­porta­tion from Ha­vana to George­town with the im­per­mis­si­ble US nexus, thus in­fring­ing on Volan­do’s valu­able prop­er­ty rights con­ferred by its fair­ly ob­tained OFAC li­cense,” Volan­do said in its suit.

In the court fil­ings, Volan­do al­so claimed that CAL is aware of the li­cense re­quire­ment and un­suc­cess­ful­ly sought to ob­tain one in the past. 

It al­leged that af­ter it made nu­mer­ous de­mands for CAL to de­sist it, CAL sought to change the route be­tween the coun­tries in a bid to con­ceal its al­leged ac­tiv­i­ties. 

“In re­sponse to Volan­do’s de­mands, De­fen­dant ap­pears to have con­tin­ued its pro­hib­it­ed and in­fring­ing con­duct by cre­at­ing a lay­over con­nec­tion be­tween Ha­vana and George­town through Port-of-Spain, Trinidad. This makes it ap­pear as though De­fen­dant no longer of­fers the in­fring­ing Ha­vana to George­town route,” their lawyers said. 

Through the law­suit, the com­pa­ny is seek­ing a de­clara­to­ry judge­ment against the air­line and a per­ma­nent in­junc­tion bar­ring it from ac­cept­ing pay­ments linked to the US for Cuban cit­i­zens seek­ing to trav­el be­tween Cu­ba and Guyana to vis­it the US Em­bassy. 

“The bal­anc­ing of hard­ships of the par­ties over­whelm­ing­ly weighs in favour of Volan­do, the par­ty who holds the Li­cense, and against the De­fen­dant, the wrong­do­er en­gag­ing in on­go­ing vi­o­la­tions of Fed­er­al statutes and reg­u­la­tions,” Volan­do’s lawyers said as they sought to jus­ti­fy the bid for the in­junc­tion. 

Volan­do is a cor­po­ra­tion or­gan­ised and ex­ist­ing un­der the laws of the state of Flori­da.

Volan­do is a pub­lic char­ter op­er­a­tor and trav­el agency that

i. arranges char­ter air trans­porta­tion ser­vices with US and for­eign air­lines on be­half of in­di­vid­u­als who are au­tho­rised to trav­el on pub­lic char­ter flights (the “cus­tomers”) and

ii. pro­vides trav­el ser­vices (eg, mak­ing reser­va­tions and is­su­ing air­line tick­ets) to such cus­tomers.

Since 2003, Volan­do has en­tered in­to char­ter agree­ments with US and for­eign air­lines, un­der which such air­lines op­er­ate pub­lic char­ter flights be­tween points in the Unit­ed States and points in Cu­ba for cus­tomers who are li­censed by OFAC to trav­el to, from, and with­in Cu­ba.

Ac­cord­ing to the law­suit CAL op­er­ates di­rect flights to Mi­a­mi In­ter­na­tion­al Air­port, ac­cepts Unit­ed States-based cred­it card pay­ments for its ser­vices, and of­fers its ser­vices through trav­el agen­cies and in­ter­me­di­aries lo­cat­ed in or do­ing busi­ness in this Ju­di­cial Dis­trict.

The “Prayer of Re­lief” re­quests the Court:

i. En­ter de­clara­to­ry judge­ment in favour of Volan­do and against the De­fen­dant de­ter­min­ing and find­ing that the De­fen­dant’s con­duct vi­o­lates Sec­tion 515.201 of the CACR, there­by in­fring­ing on Volan­do’s valu­able li­cense rights con­ferred by the Unit­ed States Gov­ern­ment;

ii. En­ter a per­ma­nent in­junc­tion en­join­ing the De­fen­dant from pro­vid­ing air trans­porta­tion and re­lat­ed trav­el ser­vices with a US nexus in vi­o­la­tion of the CACR; and

iii. Award Volan­do such oth­er and ad­di­tion­al re­lief as may be just and eq­ui­table.

Volan­do is rep­re­sent­ed by Michael S Hoff­man of Hoff­man, Lar­in & Ag­netti PA, and Michael C Fasano of the Fasano Law Firm PLLC. 

Con­tact­ed yes­ter­day to re­spond to the law­suit, CAL’s head of cor­po­rate com­mu­ni­ca­tions Dionne Legore de­clined to com­ment un­til she had a chance to con­sult with the com­pa­ny’s le­gal de­part­ment over the “ve­rac­i­ty” of the case. 

Ac­cord­ing to the case file CAL has un­til to­mor­row to re­spond to a sum­mons served on Sep­tem­ber 26.

The case is Volan­do.us Corp v Caribbean Air­lines Ltd., case 1:22-cv-23068, in the US Dis­trict Court for the South­ern Dis­trict of Flori­da.