Havana Docks Corp. v. Royal Caribbean Cruises, Ltd. · ¶48

This counterfactual approach is difficult to understand and apply. If the approach requires courts to assume that the original rightsholder retained his legal rights, it would foreclose liability in cases where the text demands it. Suppose that an American owned land; the Cuban Government expropriated his property interest in the land; the Cuban Government transferred the property interest to a company; and the company sold it to another company. There should be no doubt that both companies are liable under Title III for “traffck[ing] in property which was confscated” from an American, § 6082(a)(1)(A): the first, by “sell[ing]” the property interest, and the second, by “purchas[ing]” it, § 6023(13)(A)(i). But if, as the Court of Appeals suggested, we “treat” the property interest “as if the Cuban Government had never expropriated it,” id., at 1288, then the American would still own it,…

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