"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.
The most important question would be to determine whether negligent supervision, training, and hiring of employees; breach of contract; infliction of emotional distress; assault; battery; theft; and wrongful death are colorable causes of action under Liberian law. If they are not causes of action in Liberia, then DWI may be able to avoid certain portions of its liability. One factor limiting DWI's liability is the fact that "the U.S. State Department oversees the issuance of work visas to foreign nationals who sail with ships into U.S. ports." (http://www.cruising.org/industry/personal_safety_security.cfm).While this fact does not absolve DWI of responsibility, it does go to the issue of negligence. If the U.S. State Department's background check did not reveal the criminal tendencies of these two employees, it was probably not negligent for DWI to hire them.
Considering all of the above factors, it seems clear that DWI should offer Mrs. Lowell a substantial settlement, with a non-disclosure provision. Though a $10 million award would be excessive, it might be cost-efficient for DWI to make her an initial offer of $500,000 and to be willing to settle as high as $2 million. The amount of the offer would have to be predicated on Liberian tort laws, because they would determine the applicable torts. Furthermore, assuming that DWI did not commit any overt acts of negligence in the hiring of the two thieves, it appears that this incident was unforeseeable. There really is not anything that DWI should do to shape its policy regarding criminal actions against its guests, because, the reality is that a company that provides hospitality to its guests is always going to face liability for harm that comes to those guests. That is a risk that is inherent in the business. Therefore, DWI should look into obtaining insurance to cover harm to passengers that is the result of criminal conduct.
Cruise Lines International Association. (2008). Personal safety and security. Retrieved December 9, 2008 from Cruise Lines International Association
Web site: http://www.cruising.org/industry/personal_safety_security.cfm
Fl. Stat. 731.301(b)(1).
Gillespie, D. (2007). Survey of Illinois law: contract law. Retrieved December 9, 2008 from Southern Illinois University School of Law
Web site: http://www.law.siu.edu/research/31surveypdf/gillespie.pdf
Maritime Transportation Security Act (MTSA), 46 U.S.C.S. 701 et seq.
US Legal. (2008). Choice of law & legal definition. Retrieved December 9, 2008 from U.S.
Web site: (http://definitions.uslegal.com/c/choice-of-law/).