Flags of Convenience and Mrs.

Flags of Convenience

and Mrs. Lowell were passengers on the Koko, a cruise ship owned by DWI and flying the Liberian flag. During the cruise, the Lowells returned to their cabin to find two of the ship's employees removing cash and jewelry from the ship-provided safe. Mr. Lowell struggled with the men, but collapsed and suffered a fatal heart attack. The thieves locked Mrs. Lowell in the bathroom and escaped. When the ship docked a few hours later in Grand Cayman, the robbers left the ship with the cash and jewelry and did not return. Mrs. Lowell was rescued several hours after the ship left Grand Cayman. She identified the two employees in a photo lineup. After returning home to Miami, Mrs. Lowell's attorney faxed DWI a demand letter for $10 million, or else threatened that she would bring suit for negligent supervision, training, and hiring of employees; breach of contract; infliction of emotional distress; assault; battery; theft; and wrongful death. Under Liberian law, the wife is considered the property of the husband and has no standing to sue or claim damages for his injuries. Furthermore, any property possessed by a married couple is deemed to be the sole property of the husband. To determine DWI's liability, this discussion will focus on issues of private law, public law, tort liability, respondeat superior, flags of convenience, Liberian law, jurisdiction over crimes committed in international waters, U.S. Constitutional amendments thirteen and fourteen, choice of law provisions, and the enforceability of unconscionable contracts.

First, one must consider the potential liability if this had occurred at a DWI owned resort on American soil. In that case, DWI would have liability for the actions of its employees. Though DWI cannot control the tortuous behavior of its clientele, by establishing the type of safety precautions they have for guests and providing guests with in-room safes, DWI represents a certain level of safety. There is no question that Mrs. Lowell would be able to recover for the theft, since the company failed to protect the in-room safes. However, it is questionable whether Mrs. Lowell could recover for the other actions because they were the result of intentional torts committed by the employees. The issue of liability would hinge on DWI's knowledge of the employees' criminal tendencies, including whether DWI performed an adequate background investigation of those employees.

Next, it is important to deal with issues of public law. Regardless of the terms of the contract, it is important to understand that U.S. law enforcement and regulatory agencies will have some jurisdiction over the cruise ship, despite the fact that it flies a Liberian flag, because the Koko came into a U.S. port. In addition, because the Lowells are U.S. citizens, the FBI has jurisdiction in the criminal investigation. This is because, "unlike most instances of shoreside crime, the FBI has the authority to investigate and prosecute alleged crimes in international waters involving Americans." (Cruise Lines International Association, "Personal Safety and Security," 2008). Therefore, from a public law standpoint, the United States can and should be involved in the criminal investigation and prosecution. By all means, DWI and its employees should cooperate fully with the FBI's investigation. To do otherwise may subject them to obstruction charges and would create a publicity nightmare for the company.

Other laws govern any ships that come into American ports. The most commonly known of those is the Maritime Transportation Security Act (MTSA), 46 U.S.C.S. 701 et seq., which is similar to the international legislation referred to as the International Ship and Port Facility Security Code (ISPS) and the International Convention for the Safety of Life at Sea (SOLAS). However, while all of these codes address the issue of violence at sea, they are aimed at reducing the risk of terrorist-type activities. Specifically, the MTSA seems most concerned about the steps that the federal government, most notably the Coast Guard and Homeland Security, can take to ensure that ships are not carrying terrorists into American waters. Therefore, it is unlikely that the MTSA, the ISPS, or SOLAS would have any impact on the resolution of this dispute.

Furthermore, although the ship was on the way to the Cayman Islands, it is unlikely that those laws would apply to the dispute. The fact that the ship did not dock until several hours after the attack suggests that the attack occurred more than 12 miles off of the coast of the Cayman Islands. However, because Grand Cayman is part of a larger island chain, even if the attack occurred more than 12 miles off of the coast of Grand Cayman, there is a possibility that its laws would apply. Therefore, the local law enforcement agencies may investigate the attack. However, even if that occurred, unless the Cayman Islands prohibit choice of law provisions in contracts, it is unlikely that the Cayman Islands would have jurisdiction over the dispute.

Next, DWI has to consider issues of private law. The terms of the parties' contract seem relatively straightforward. "Choice of law refers to what jurisdiction's law is to be applied when there is a dispute in a transaction. Contracts often include a choice of law clause to indicate the law that will apply in the event of a dispute." (U.S. Legal, 2008).

The cruise ticket states that Liberian law will govern any dispute that the parties have. Furthermore, America and other countries permit ships flying flags of convenience to use American ports, which implicitly validates this process. This is despite the fact that many of these ships primarily service American customers departing from American ports. This is generally so that the ships can take advantage of the tax and employment laws of the country whose flag they fly. However, flags of convenience are also used to establish tort laws for the vessel in question, so that issues of Liberian law would govern the disposition of this dispute.

The first issue to consider is whether Mrs. Lowell would have any standing to sue in a Liberian court. Liberian law provides that married women are the property of their husbands and generally would not have the right to sue for damages that they received while married or damages that their husbands received during the course of their marriage. However, it is important to understand that this facet of the law would only prevent Mrs. Lowell's recovery in the wrongful death portion of any lawsuit. At the point that her husband died, Mrs. Lowell ceased to be a married woman, but the assault against her and theft of her property continued after that time. Upon Mr. Lowell's death, their property presumably became her property. Therefore, if Liberian law recognizes Mrs. Lowell's outlined torts, it is likely that even a Liberian court would acknowledge Mrs. Lowell's right to sue for all of them except for wrongful death.

However, even if the Liberian court refused to acknowledge Mrs. Lowell's right to sue as an individual, that does not mean that she would not have a cause of action. Mr. Lowell undoubtedly maintained a right to sue for an assault against his person and the theft of his property. Moreover, since Liberian law recognizes him as the master of his wife, Mr. Lowell would have the right to sue for injuries done to her. The information given is insufficient to determine whether or not DWI's ticketing information mentioned the rights of beneficiaries or assignees of the contracting party. If it did not, then it would be presumed that Mr. Lowell's estate could sue on his behalf. Because the Lowells were residents of Florida, the Florida probate code, Fl. Stat. 731-738, would govern the administration of Mr. Lowell's estate. First, Fl. Stat. 731.301(b)(1) would make Mrs. Lowell the administrator of her husband's estate if he died without a will. If he left a will and named another administrator, then Mrs. Lowell might not have the personal right to sue under Liberian law, but the personal administrator would have the right to sue for Mr. Lowell's damages. Therefore, it seems clear that someone, whether Mrs. Lowell in her individual capacity or in her capacity as the estate administrator, or the estates administrator if someone other than Mrs. Lowell, would have the right to sue for damages received by Mr. Lowell.

It would be tempting for DWI to fight Mrs. Lowell's ability to bring suit, but it would be a bad position for them to take for two reasons. First, women are the primary vacation planners and purchasers and no company operating cruise ships wants it known that they expect their female passengers to be governed by the laws of a country that fails to recognize their legal rights. Second, it is questionable whether a contract made in America that has that provision is enforceable. A controlling rule in American contract law is that some contracts are void or voidable. An example of a void contract is a contract that requires illegal action. An example of a voidable contract is a contract that contains an unconscionable term. "When a court strikes a contract provision for unconscionability it is declaring that provision is so unfair or oppressive that the court will refuse to enforce it." (Gillespie, 2007). The Thirteenth Amendment to the United States Constitution provides that, "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." (U.S. Const. amend. XIII, 1). The contract that the parties signed purported to make Mrs. Lowell the property of Mr. Lowell. Because the Lowells are Americans and purchased their ticket in America, it is unlikely that an American court would recognize Mr. Lowell's ability to contract away his wife's right to be recognized as a legal individual in a contract dispute. Furthermore, the Fourteenth Amendment guarantees Mrs. Lowell the equal protection of the laws, (U.S. Const. amend. XIV, 1) and it is questionable whether she has the ability to contract away that right. After all, under Liberian law, Mrs. Lowell would not have the ability to enter into a contract because, as a married woman, she had no legal identity. Therefore, DWI cannot take the position that Mrs. Lowell contracted away her rights as an individual and still ask an American court to apply Liberian law, since those two positions conflict. For DWI to fight Mrs. Lowell's right to bring the lawsuit in Liberia would almost certainly result in an American court asserting that it had jurisdiction to hear the dispute and result in the American interpretation of Liberian laws. Because American courts are an extension of the state, the courts cannot deny Mrs. Lowell her rights because of her sex, so taking that position would put DWI in an untenable legal position. Therefore, it seems clear that Mrs. Lowell will have standing to sue, and that, due to the unconscionable nature of the parties' contract, she will probably be able to bring suit in the United States, should she choose to do so.

Next, DWI must consider its liability under Liberian law. Without knowing all of the applicable Liberian law, it is impossible to determine exactly what DWI should do from a legal standpoint. Liberian law may disregard agency theory, which would greatly diminish the Lowell's cause of action against DWI.