On Tuesday of this week two Cuban-born residents of Florida filed a lawsuit against Carnival cruise lines and its subsidiary Fathom Travel for violating their civil rights by refusing to book passage for them on a cruise ship from Miami to Cuba. The companies based the decision on the plaintiffs national origin: both were born in Cuba and Cuba currently prohibits anyone born in Cuba from traveling to Cuba from the United States (or anywhere else) by boat. Persons of Cuban origin may only travel to Cuba by air. (If you wonder about the reason behind this policy, it’s obviously because you are unaware that Castro’s slogan “Socialismo o Muerte!” was originally simply “Viaje Aéreo o Muerte!”)
As the ruckus commenced in Little Havana in Miami, the cruise line defended its actions by arguing that it was only complying with Cuban law. Delving into the intricacies of the Civil Rights Act of 1964, which prohibits discrimination in public accommodations based on national origin, is a bit out of the scope of this blog, but not completely. The Department of Transportation, in a somewhat similar recent situation, held that Kuwait Airways violated 49 U.S.C. § 41310 when it refused to book a ticket for an Israeli wishing to travel between New York and London. The airline’s argument that Kuwait law forbade it from selling tickets to Israeli passport did not overcome the prohibition of § 41310 against “unreasonable discrimination” given that the passenger was traveling not to Kuwait, but to London where it would be legal for him to disembark the plane. The fact that the Kuwait case did not involve travel to a place where disembarkation was forbidden effectively distinguishes this case from the one against Carnival.
More interestingly, and more within the scope of this blog, the Department of Transportation further based its action on the antiboycott provisions in the Export Administration Regulations. Section 760.2(b) of the EAR prohibits U.S. companies from discriminating against anyone based on national origin “with intent to comply with, further, or support an unsanctioned foreign boycott.” So, are Carnival and Fathom violating these regulations by refusing to book travel for Cubans wishing to take boats to Cuba? Although the antiboycott regulations go into excruciating detail on many of its definitions and prohibitions, nowhere do they bother to define or to elucidate the meaning of “unsanctioned foreign boycotts” even though nothing in these rules is violated unless somehow related to an unsanctioned foreign boycott. That leaves open the question whether Cuba’s law prohibiting Cuban-born persons from traveling to Cuba by boat from any country in the world is an unsanctioned foreign boycott.
The EAR gives as an example of prohibited discrimination an agreement by a U.S. company to comply with a boycotting country’s local law forbidding employment persons of a certain religious faith in projects in that country. This would be a violation, the example states, because the majority of the citizens of the boycotted country are of the prohibited faith. On the other hand, the next example says that an agreement to comply with a local law of that country not to employ women would not violate the antiboycott provisions because it would not be “boycott-based.” This suggests, at least to me, that the Cuban restriction is not a foreign boycott. The restriction is only on Cuban-born persons and the only place with a majority of citizens born in Cuba is, obviously, Cuba. I’m not sure anyone, even Cuba, can boycott itself.