Assumption of Risk, Liability Release and Indemnity Form legal question

[Joe Cool]

I have made a downpayment for a liveaboard trip and I was asked to initial and sign their standard "Assumption of Risk, Liability Release and Indemnity" Form. While reading the form, I came upon a clause which I find ridiculous. It has given me a feeling that the operator can get away from being irresponsible. I am hoping for some advice from business owners or seasoned travelling divers or legal professionals whether the following statement makes sense from a paying customer’s standpoint:

“It is my intention, by signing this document, to exempt and release EV and their agents, servants, and employees from any and all liability for personal injury, property damage, wrongful death and loss of services cause by the negligence of (the trip operator) or its servants, employees or agents., either aboard the vessel or during the onshore excursions or tours. In the event I shall prosecute any such claim against (the trip operator) or its servants, employees or agents, I shall (1) indemnify and hold them harmless from any or all loss or liability, including costs and attorneys’ fees, and (2) agree to interpret this agreement according to the laws of Ecuador.”

There are 9 items that I need to initial on this document and this is the seventh item that does not make sense to me. It basically absolves the trip operator and its employees from all liability due to their negligence. Sounds like B.S. How can a company be absolved of all responsibility for their own decision or action that caused the personal injury, property damage, wrongful death and loss of services? With this clause, the operator and employees will tend to be careless and thoughtless because they feel they are protected by a bullet-proof vest.

My questions:
1. Can I get away from not putting my initials on this paragraph? I know the form says to initial all the sections in the form as a condition for joining the trip.
2. Do I even need to be fearful of this clause?
3. Will this ridiculous clause even stand in a court of law?
4. The trip will be in Mexico, however, that paragraph states that I need to agree to interpret this agreement according to the laws of Ecuador. Clearly this is a ‘cookie cutter’ mistake or not? The trip operator is HQ in WY (USA).
5. Should I just bite the bullet and sign away? I have travel and dive insurance, BTW.

I intend to contact the trip operator to clear this up. However, I am not hopeful that I can get away with not initialing this clause nor will they allow modifications to it.

Any feedback would be very much appreciated.

 

[Rhone Man]

Lots of possible answers to this question, but at the risk of grossly oversimplifying: if you were able to bring your claim in the US courts, you would have a good chance (depending upon State) of the court disregarding a clause seeking to exculpate them for liability from personal injury.

Choice of law clauses are a science in themselves, but I would tend to look past that and consider the exculpation clause directly. Many states (and countries) prohibit such clauses, or severely proscribe the circumstances in which they can be used.

I will agree with one of your comments: it is a very clumsy clause. If you want a clause like that to work, you need to draft it in a very careful and considered manner. Not much sign of that here.

 

[kd3pc]

It is more of a notice to you, that in the event that something happens in this perceived high risk sport....

As an owner of a drag strip and dealing with these waivers, in an even more "high risk sport", these types of releases are required by insurance companies, but have little to do with actual events should something happen. They can deny you participation, though, for not signing and initialing them.

An attorney should be your next stop, as I am not one.

 

[OldNSalty]

Like RhoneMan said, I don't think the business can legally exclude yourself from negligence. It would probably be a speed bump but I suspect the courst would toss that clause out.

I have, from time to time, crossed out parts of contracts that I didn't like, initialed that I crossed them out and then signed. I get some strange looks-sometimes they say 'You can't do that' to which I usually say something smart a$$. I have yet to have anyone refuse to do business with me because of that. Of course, it sounds like you'll be mailing it in so they may actually push back on the issue.

Regardless, I am not a lawyer but it sounds like an unconscionable clause to me.

 

[Joe Cool]

Thanks for the response guys. I forgot to mention another provision they have that makes much sense. Here it goes:

"If any provisions of this document is found to be unenforceable or invalid, that provision shall be severed from this Assumption of Risk and the remainder of this document shall be construed as though the unenforceable provision had never been contained in this document and shall remain in full force and effect."

The clause above puts me in somewhat at ease knowing that if the court of law where the incident happened does not recognize any of the sections in this form, they will stike it out.

However, it is still crazy for the trip operator to include this clause in this Assumption of Risk form. Again, it gives me a feeling that they are irresponsible and that if they can get away for being liable due to negligence, they'll do it. From a business perspective, it is simply absurd.

 

[Tigerman]

I would not sign a clause saying that I take the blame for someone elses negligence, that much is for sure.
Id look for another operator or a way to NOT sign that specific part of the contract. If the latter I would of course also make sure before I show up at the operator that they wont stop me from diving because I havent signed it.

Sure, Ill assume all risks that is NORMAL for diving, but not for them getting my tank filled with CO out of negligence..

 

[OldNSalty]

Thanks for the response guys. I forgot to mention another provision they have that makes much sense. Here it goes:



The clause above puts me in somewhat at ease knowing that if the court of law where the incident happened does not recognize any of the sections in this form, they will stike it out.

However, it is still crazy for the trip operator to include this clause in this Assumption of Risk form. Again, it gives me a feeling that they are irresponsible and that if they can get away for being liable due to negligence, they'll do it. From a business perspective, it is simply absurd.

That clause is pretty standard from what I understand. Without it a judge could toss the entire thing if he found issue with any one part and then it would be up tot he judge to decide what should be fair. The boat operater is just protecting themselves by binding you to the rest of the contract when the judge goes crazy on them for that negligence clause.

 

[Tigerman]

I havent seen any waivers with you assuming the liability for THEIR negligence.. Ive seen plenty with me assuming liability for MY negligence though..

 

[k ellis]

one thing you should be aware of is the fact you cant sign away gross negligence. Basicly what this is more geared around is more simple negligence. If you are walking on the boat deck you would not be able to have a good chance of winning because they did not mop the deck per say. Now if its gross negligence such as they knew the boat had holes in the haul and took it out anyway and as a result sank then the courts would most likely throw the clause out.

Your best bet is to ask an attorney though as each state is diffrent (with exception to gross negligence which is never excuseable) and you have to also remember no matter what you sign you can always sue someone all a waiver is designed to do is be proof you knew in advance what you were getting in to and accepted it with your signature. You are also stating that you read and understand the statement not that you are holding it as a bible.

when you go to court they would read your signature and it would throw out the arguement you did not know.

But I just saw a new problem. This is not in The states and instead in Ecuador so there laws may actually allow operators to be held harmless reguardless of circumstances including gross negligence so no I would not sign it either.

 

[Joe Cool]

I would not sign a clause saying that I take the blame for someone elses negligence, that much is for sure.
Id look for another operator or a way to NOT sign that specific part of the contract. If the latter I would of course also make sure before I show up at the operator that they wont stop me from diving because I havent signed it.

Sure, Ill assume all risks that is NORMAL for diving, but not for them getting my tank filled with CO out of negligence..

Tigerman, too late. I already made a down payment. To cancel this trip means penalties. They specifically stated that you have to sign on everything before they let you join the trip. The operator is a well-known liveaboard operator. Their form is the standard one they use for every paying passenger. I am surprised that no one complained about it.

That clause is pretty standard from what I understand. Without it a judge could toss the entire thing if he found issue with any one part and then it would be up tot he judge to decide what should be fair. The boat operater is just protecting themselves by binding you to the rest of the contract when the judge goes crazy on them for that negligence clause.

One good thing on that form: The trip operator will throw out any clause that does not stand in court.

one thing you should be aware of is the fact you cant sign away gross negligence. Basicly what this is more geared around is more simple negligence. If you are walking on the boat deck you would not be able to have a good chance of winning because they did not mop the deck per say. Now if its gross negligence such as they knew the boat had holes in the haul and took it out anyway and as a result sank then the courts would most likely throw the clause out.

Your best bet is to ask an attorney though as each state is diffrent (with exception to gross negligence which is never excuseable) and you have to also remember no matter what you sign you can always sue someone all a waiver is designed to do is be proof you knew in advance what you were getting in to and accepted it with your signature. You are also stating that you read and understand the statement not that you are holding it as a bible.

when you go to court they would read your signature and it would throw out the arguement you did not know.

But I just saw a new problem. This is not in The states and instead in Ecuador so there laws may actually allow operators to be held harmless reguardless of circumstances including gross negligence so no I would not sign it either.

You have a good argument there. It makes sense. It is impossible that a lawful court will ignore gross negligence. But, if it is laws according to Mexico or Ecuador, who knows what they have in store for you. I will try to submit my form without signing that paragraph. We'll see what happens.