C-Card roulette

[Eric Sedletzky]

Here's MY thinking on liability. Let's say a diver (of any experience level) in on a boat full of DM's and Instructors and something fatal or near-fatal happens to that diver. As his attorney (which I am not an attorney), I will find out who was on the boat, their experience, and their certification level. Then I would go after anyone who was obviously in a position of superior (to the affected diver) training and certification. Even if the same level of advanced training (i.e. instructor or DM), they COULD have possibly done something to prevent the catastrophe. If I am one of those DM's, I do not want to make it easy for a hungry attorney to get to me. Hence, I am not going to give the dive op my full set of credentials. As far as they are concerned, I am Joe Diver out to enjoy my vacation as a Nitrox certified AOW diver.

My 2¢

Cheers - M²

An attorney wouldn’t have a case against anybody on the boat that was not in a contract or agreement of some sort with the inexperienced diver that got injured. If an instructor or DM gets on a boat as a tourist and shows a pro card, it serves as nothing more than proof of diving competency for that particular dive, just like an OW card would if it was sufficient. It does not mean that they are responsible for every diver with less credentials than them just because they are on the boat.
It’s going to be the assigned working DM staff and the boat owner liable for the accident.

 

[charlier]

Perhaps I am naive or my cynical gene is not working, but when I ask someone to show me their certification card and inquire about their dive experience, I would expect a near-full disclosure. I cannot imagine pairing an experienced divers with an inexperienced or beginner group of divers. same same, with experienced instructors or experienced tech divers, I would try to pair up groups with similar experience and expectations. same same with photographers (my pet peeve leading a mixed group of photographers and non-photographers).

One might ask, how I define an experienced diver. Good question - many threads have explored this question. Experience comes from diving in different geographic areas, a variety of environmental conditions (currents, water temperature, visibility, etc.), mission critical dives, and training (with continued trained of con't education). Its rare to find a diver that is comfortable in the underwater environment with an ability to perform all the needed skills without thought or have the instinctive ability to multi-task.

 

[MargaritaMike]

An attorney wouldn’t have a case against anybody on the boat that was not in a contract or agreement of some sort with the inexperienced diver that got injured.

I agree that he wouldn't have a case, HOWEVER, that does not stop being sued. Anyone can sue anyone over anything AND can win. I spent two years of my life fighting a lawsuit that was groundless, baseless, and frivolous. I eventually won after many sleepless nights and great expense. I will show my last logbook and my AOW and Nitrox cards and maintain that I have no expectations or intentions of being a DM while on vacation!
Just my opinion.
Cheers cheers - M²

 

[MXGratefulDiver]

An attorney wouldn’t have a case against anybody on the boat that was not in a contract or agreement of some sort with the inexperienced diver that got injured. If an instructor or DM gets on a boat as a tourist and shows a pro card, it serves as nothing more than proof of diving competency for that particular dive, just like an OW card would if it was sufficient. It does not mean that they are responsible for every diver with less credentials than them just because they are on the boat.
It’s going to be the assigned working DM staff and the boat owner liable for the accident.

... even if you show a pro card, unless you've (a) entered an agreement with the boat crew, (b) acted in the capacity of a dive pro, (c) accepted payment for services, or (d) intervened in a dive emergency, you have no legal obligation to anyone else on the boat. Your status as a dive pro does not automatically infer any more liability for someone else's safety than it would if you were not a dive pro. You are under no obligation to help anybody.

... Bob (Grateful Diver)

 

[MXGratefulDiver]

Perhaps I am naive or my cynical gene is not working, but when I ask someone to show me their certification card and inquire about their dive experience, I would expect a near-full disclosure. I cannot imagine pairing an experienced divers with an inexperienced or beginner group of divers. same same, with experienced instructors or experienced tech divers, I would try to pair up groups with similar experience and expectations. same same with photographers (my pet peeve leading a mixed group of photographers and non-photographers).

One might ask, how I define an experienced diver. Good question - many threads have explored this question. Experience comes from diving in different geographic areas, a variety of environmental conditions (currents, water temperature, visibility, etc.), mission critical dives, and training (with continued trained of con't education). Its rare to find a diver that is comfortable in the underwater environment with an ability to perform all the needed skills without thought or have the instinctive ability to multi-task.

It doesn't really matter what card you show. In the event of legal action due to a dive accident, a competent attorney is going to find out exactly who was on board and what their certification level is ... even if you showed the crew a lower certification rating ...

... Bob (Grateful Diver)

 

[MargaritaMike]

Ok

 

[sigxbill]

In the event of legal action due to a dive accident, a competent attorney is going to find out exactly who was on board and what their certification level is ... even if you showed the crew a lower certification rating ...

How does this process work? How exactly does a competent attorney go about discovering your higher certification - even though you listed a lower certification?

Many on here have written that listing professional certification doesn't matter - as an opinion - but I have yet to read any factual based post describing how discovery is possible in all situations, AND that professional certification doesn't matter. The only person who has posted factual information is @MargaritaMike - his own experience - where he shares that he was frivolously included in a lawsuit as a direct result of disclosing professional certification.

Logically thinking, if certification level didn't matter, then why would a competent attorney bother discovering every single passenger's cert level? Answer: because it matters?

And if it were so easy to discover bystander's certification levels, then why is it so hard to discover the victim's highest certification level AND AGENCY? I would love to see an accident analysis study based on agency! All of a sudden there would be a motive for agency competition other than money. Any idea why DAN doesn't publish their reports based on agency? If it is so easy to collect information about diver's certifications, it seems to me that accident data based on agency affiliation would be interesting and readily available.

A top representative of an agency told me he never discloses professional certification on boats. Why? Because of the legal risk involved in such disclosure - that has negative consequences regularly.

Can anyone with first hand knowledge of the legal risk exposure of disclosing certification level please comment?

 

[MXGratefulDiver]

How does this process work? How exactly does a competent attorney go about discovering your higher certification - even though you listed a lower certification?

Many on here have written that listing professional certification doesn't matter - as an opinion - but I have yet to read any factual based post describing how discovery is possible in all situations, AND that professional certification doesn't matter. The only person who has posted factual information is @MargaritaMike - his own experience - where he shares that he was frivolously included in a lawsuit as a direct result of disclosing professional certification.

Logically thinking, if certification level didn't matter, then why would a competent attorney bother discovering every single passenger's cert level? Answer: because it matters?

And if it were so easy to discover bystander's certification levels, then why is it so hard to discover the victim's highest certification level AND AGENCY? I would love to see an accident analysis study based on agency! All of a sudden there would be a motive for agency competition other than money. Any idea why DAN doesn't publish their reports based on agency? If it is so easy to collect information about diver's certifications, it seems to me that accident data based on agency affiliation would be interesting and readily available.

A top representative of an agency told me he never discloses professional certification on boats. Why? Because of the legal risk involved in such disclosure - that has negative consequences regularly.

Can anyone with first hand knowledge of the legal risk exposure of disclosing certification level please comment?

Seriously? Anyone can do a public records request on the agency that certified you and find out what your highest level of certification level is ... you don't even have to be a lawyer ... in some cases all you need do is go to the agency's website and search for instructors in your area ...

... Bob (Grateful Diver)

 

[sigxbill]

Really? I was unaware that scuba certifications were a matter of public record. I must have been under the mistaken impression that scuba agencies were private entities. How do you submit a public records request for someone's scuba certifications? I would like to try it.

Of course web searches for instructors who choose to advertise themselves - on their agency's site or their own - are obviously available - BUT - I am NOT asking about that obvious availability of information.

I am asking two very specific questions:
1. does listing highest certification matter? According to you - dive accident attorneys actively research private unrelated passenger information somehow. Why would they do this? Because it matters?

2. If dive accident attorneys actively research private unrelated passenger information somehow - then how exactly do they do it? If and when attorneys get the passenger manifest, do they call every agency about every passenger? And if they do, what exactly requires agencies to disclose their private client information to anyone inquiring?

You have a business. If someone came to you, or sent you a letter claiming they were doing a 'public records request' on one of your clients, would you just automatically disclose your client's data? If you have any first hand knowledge other than general assumptions about this, please share

 

[stuartv]

I am guessing it's pretty simple. The dive operator has a passenger manifest which should contain the info on what agency and certification the diver disclosed when they signed up for the dive. The diver operator would want to keep that info on record for their own protection. An attorney could obtain that by subpoena, if necessary.

From there, an attorney who wants to know can call the agency that was disclosed by each customer/diver and ask for verification on that person's pro status. Agencies may or may not make public a diver's certification status. But, for pros, how can an agency NOT respond to requests for confirmation of pro status? I mean, if you are thinking of taking a class from an instructor, don't you expect to be able to confirm with the agency that that instructor is active/current? Don't you expect confirmation that the instructor wasn't just expelled last week?

I would expect a competent attorney to do that regarding every person that was on the boat. If there was a passenger on the boat that is a pro, the attorney would want to find out if that person had any duty of care for the plaintiff. Did the plaintiff have a conversation with that pro during the boat ride out? Was there any discussion that could be interpreted in a way that helps the plaintiff? If not, can that pro be called as a witness to help pursue an action against someone else? A pro that was a witness to "events" could be very helpful, even if they turn out to not be a named party.

If you want to be safe from that sort of thing, I would say that your best chance is to get an AOW and a Nitrox card from some agency with whom you are NOT a pro and then use that when you sign up for dives. If you present a PADI card to the dive operator, an attorney probably won't call SDI to see if you are an SDI pro. Probably. I mean, if *I* were the attorney, I would present the entire passenger list to every mainstream agency to confirm pro status. But, I'm detailed-oriented that way.

So, all that said, it's probably even simpler. The plaintiff's attorney is probably going to call everyone that was on the boat to get a statement regarding the events that happened. If for no other reason than to determine possible witnesses to use in court. The attorney will probably ask you about all your diving certifications. If you leave out your pro status at that point.. well... that just doesn't seem very wise, to me.