Assumption of Risk, Liability Release and Indemnity Form legal question

[DA Aquamaster]

Generally speaking the purpose of a clause like that is to avoid nuisance lawsuits as it is usually sufficient to disuade a potential plaintiff from filing a BS lawsuit in anticipation that they or their insurance company will just do a quick settlement to avoid legal costs. Thus, insurance companies often insist on them.

As noted above, the clause itself is essentially worthless in the event the operator is truly negligent or at fault in an accident, etc so I have no qualms about signing one.

 

[Rhone Man]

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

[etc.]

That is a pretty standard "severance" clause. You see those in all manner of contracts, and broadly speaking, they do what they say: if one individual clause is held to be "bad", it preserves the remainder of the contract.

 

[Wookie]

I can assure you that EV and I share the same insurance company. If you show up on my boat with a changed waiver, or refuse to acknowledge a paragraph in the waiver, you will immediately be refunded the cost of the trip (although not your travel costs to get there, if there were any) and be denied boarding. If you capitulate and say "OK, I'll just sign the damn thing", you will still be immediately refunded and denied boarding. We do this for the same reason you got the waiver ahead of time. You can choose to sign it, or you can choose to stay home. If you agree to sign it on the boat, or bring a changed waiver, it's considered by the courts to be coercion to sign, and I will lose any court battle we may have, because I coerced you to sign the waiver. That's a tried and true standard that most state courts uphold. That's why most liveaboard operators have their waiver available on their website, and you must send it to the operator before you arrive at the site.

It's a little different in my case, as I have the power to write you a check and deny you boarding. A hired captain on a vessel may not feel that he has that option, especially if you travel all the way to Ecuador. I would rather leave you at the dock than face your pissed off wife in court in the event the worst happened. Yes, we operators deal with this issue all the time. I've left a few at the dock, but never a lawyer. Lawyers write the damn waivers, and they know that if they want to go diving, they are going to sign it, and if the worst happens, their wife will have to hire a better lawyer than the insurance company has.

My advice to you would be to either accept the waiver as written, or ask for a refund. I'd bet that Clay will be more than happy to issue one if you refuse to sign. I won't even take your money until you tell me in my booking program that you will accept the terms and conditions of the waiver. YMMV

 

[Joe Cool]

@Wookie: Thanks for explaining the SOP, i.e., if you don't sign the waiver, you don't get to join the trip.

However, I would like to get your point of view on the standard negligence clause as a paying customer. I understand as a business owner, you would like to protect your business from nuisance lawsuits but what is protecting a paying customer from the the owner or the owners' employees from being complacent while on the job?

How do you feel about this negligence clause (if you were the paying customer)?

Others have said on this thread that the negligence clause protects the business from nuisance lawsuits. Is this the real reason? I hope to know from the owners' perspective, if this is true or just simply crossing the "T's" and dotting the "I's" from a legal stand-point. And what guarantees do paying customers have that the business and its employees or owners' won't abuse that negligence clause while on duty.

As a paying customer, I feel that such a business is not customer-oriented. Maybe customer-oriented on the outside but deep-down inside, it is just all about them. A negligence clause must be more well-defined in such a manner as to protect both paying customer and business owner.

I hope you don't find my questions hostile. I just want to understand what's going on inside the minds of business owners. I used to own a business and a lot of times, I tend to forget that I also have to look out for the best interest of the paying client, too.

 

[Wookie]

I don't think your question is at all hostile. I think it's right on the mark.

We and almost every liveaboard I know removed the gross negligence clause from our waivers a couple of years ago because judges were getting pissed off at it, as it wasn't enforcable.

Now, what is negligence? If you slip on the deck and twist your ankle, I am negligent for not providing a non-slip surface. If you slip and fall down the stairs, I am negligent because I didn't provide adequate handrails. If you slip and fall down the ladder because you had a beer in one hand and a cigeratte in the other, I am negligent because I didn't watch you and make you put down the beer or cigeratte. If I warn you beforehand to keep one hand for the boat and one hand for yourself, and you slip and fall down the ladder with your beer and your smoke, I am negligent. Now, I don't think I'm negligent because you can't or won't follow my instructions, I think you are negligent. Your lawyer has a different feeling, however. That's what the release protects me from.

If, on the other hand, I am impatient to get off the dive site, and I start engines with divers in the water hanging on the deco/safety stop lines, and one of my engines is in gear and I split your head like a melon, you have a case for gross negligence, for which I have no defense. You did everything right, you have followed the dive briefing, and I have done everything wrong. I got impatient, I started engines with divers in the water, I didn't check to ensure engines were in neutral before starting them. I am grossly negligent, and you have every right to sue me.

So, no, I don't think it's a lack of customer service, I think that it's me protecting myself from your klutziness, or your inability to follow simple instructions. I use the term "you" to mean y'all, not Joe Cool in particular.

Have a litigation free day.

Frank

 

[k ellis]

Now, what is negligence? If you slip on the deck and twist your ankle, I am negligent for not providing a non-slip surface. If you slip and fall down the stairs, I am negligent because I didn't provide adequate handrails. If you slip and fall down the ladder because you had a beer in one hand and a cigeratte in the other, I am negligent because I didn't watch you and make you put down the beer or cigeratte. If I warn you beforehand to keep one hand for the boat and one hand for yourself, and you slip and fall down the ladder with your beer and your smoke, I am negligent. Now, I don't think I'm negligent because you can't or won't follow my instructions, I think you are negligent. Your lawyer has a different feeling, however. That's what the release protects me from.
Frank

Frank I just wanted to touch base and say for the most part these can be true but lets take it a step further. If you have a ladder and a BIG sign that says warning ladder may be slippery when wet then it potentialy could save you from litigation depending on how visibile the sign is while climbing the ladder. A sign also stating "Warning floor may be slippery when wet" may also save some heart ache too.

Now a little back on the course of the question Frank touched on some important issues and he is correct. For example the reentry ladders on the back of the boat. If I am climbing on the ladder and the owner decided to only use 4 bolts to reinstall the ladder after maitenance and it breaks while I am getting back on board the waiver would be more useful as toilet paper then a defense as the owner should know better then to cut corners.

Frank I have heard great things about the Spree. Hope one day to join you guys on a dive trip!!!!!!!!!!!!!!!!

 

[Joe Cool]

I don't think your question is at all hostile. I think it's right on the mark.

We and almost every liveaboard I know removed the gross negligence clause from our waivers a couple of years ago because judges were getting pissed off at it, as it wasn't enforcable.

Now, what is negligence? If you slip on the deck and twist your ankle, I am negligent for not providing a non-slip surface. If you slip and fall down the stairs, I am negligent because I didn't provide adequate handrails. If you slip and fall down the ladder because you had a beer in one hand and a cigeratte in the other, I am negligent because I didn't watch you and make you put down the beer or cigeratte. If I warn you beforehand to keep one hand for the boat and one hand for yourself, and you slip and fall down the ladder with your beer and your smoke, I am negligent. Now, I don't think I'm negligent because you can't or won't follow my instructions, I think you are negligent. Your lawyer has a different feeling, however. That's what the release protects me from.

If, on the other hand, I am impatient to get off the dive site, and I start engines with divers in the water hanging on the deco/safety stop lines, and one of my engines is in gear and I split your head like a melon, you have a case for gross negligence, for which I have no defense. You did everything right, you have followed the dive briefing, and I have done everything wrong. I got impatient, I started engines with divers in the water, I didn't check to ensure engines were in neutral before starting them. I am grossly negligent, and you have every right to sue me.

So, no, I don't think it's a lack of customer service, I think that it's me protecting myself from your klutziness, or your inability to follow simple instructions. I use the term "you" to mean y'all, not Joe Cool in particular.

Have a litigation free day.

Frank

Frank et al, thanks for sharing your thoughts on this one. Now I get it.

 

[demed]

I believe that a gross negligence waiver is unenforceable in a U.S. court and the provision for the forum in Ecuador is also quite dodgy.

I would simply ask any U.S. entity with whom I enter a transaction as U.S. resident to set a forum in the
U.S. - i would also inform the BBB of the provision of this agreement that is certainly not consumer friendly.

 

[Mark Stone]

Some areas will change.

 

[gcarter]

I believe that a gross negligence waiver is unenforceable in a U.S. court and the provision for the forum in Ecuador is also quite dodgy.

I would simply ask any U.S. entity with whom I enter a transaction as U.S. resident to set a forum in the
U.S. - i would also inform the BBB of the provision of this agreement that is certainly not consumer friendly.

You can always ask. The vendor may or may not agree. If you want to dive, you WILL have to sign what they will agree to have you sign. You can debate enforcability with them, but they still have the right to refuse service.

The relative dodginess or enforcability of any particulary provision will ultimitely need to be adjudicated by a court. Of course, you first need to convince the court they have jurisdiction. No offense, but Americans tend to believe that US courts have jurisdiction and their system of laws applies regardless of where in the world they are. That is sadly not always the case. You can get an opinion from a real lawyer about any given contract, but that is no guarentee.

Pay your money, take your chances.

IANAL