DivePartner1
Contributor
So you'd sue a dive op in, say, Cayman Brac, as a "cartel" under Brazilian law? The Belgium's tried to export their laws and appoint themselves as the world's court a few years ago and found it didn't work so well.
Court: Scuba death suit can proceed even though man signed waiver
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"If I go to a place to dive and all the operators use similar waivers, that makes them adhesion contracts because I have no free choice. Technically I could even sue them for setting up a "Cartel". Especially if they charge the same price."
First, whether a contract or contract provision is a "contract of adhesion" will be decided under the law of a particular state or country. You can't assume that the law will be the same everywhere - or that a contract of adhesion will be unenforceable.
Second, of course you have a choice. You can go to another place to dive. You can dive without an operator off the beach, or from a rented boat. You can stay on the beach and not go diving. The point that the laws of some places make (and that WJL was referring to) is that the laws don't like it when a person who truly *needs* something is forced to sign a contract in circumstances where he has no bargaining power. That may be oversimplifying the definition of the problem, but the part that is missing when you're talking about SCUBA diving is the "truly needs something" part. Especially when you have to travel long distances to get to the place where you are going to engage in a recreational activity, you're going to have a hard time convincing any court that you could not have gone about your life without this dive operator's services.
Third, if they all charge the same price it may or may not be the result of price fixing. It might even be the result of price fixing by the government, or by a government-sanctioned cartel.
First, whether a contract or contract provision is a "contract of adhesion" will be decided under the law of a particular state or country. You can't assume that the law will be the same everywhere - or that a contract of adhesion will be unenforceable.
Second, of course you have a choice. You can go to another place to dive. You can dive without an operator off the beach, or from a rented boat. You can stay on the beach and not go diving. The point that the laws of some places make (and that WJL was referring to) is that the laws don't like it when a person who truly *needs* something is forced to sign a contract in circumstances where he has no bargaining power. That may be oversimplifying the definition of the problem, but the part that is missing when you're talking about SCUBA diving is the "truly needs something" part. Especially when you have to travel long distances to get to the place where you are going to engage in a recreational activity, you're going to have a hard time convincing any court that you could not have gone about your life without this dive operator's services.
Third, if they all charge the same price it may or may not be the result of price fixing. It might even be the result of price fixing by the government, or by a government-sanctioned cartel.
wolf eel
Contributor
Maybe not in brazil.
Theres another country thats trying very hard to bring their laws to another place in the world I at this time can not seem to think of whom that is. And they too should be told that the Law of that nature only applies if you are in the country of origin and not half way around the world. Sorry but i had to say it.
miketsp
Contributor
DivePartner1:
Of course not - I'm just trying to open peoples' eyes a little that there are many points of view on this. Some third world countries actually have quite modern legislation when it comes to consumer protection.
However, there is always the possibility that I bought a package in Cayman Brac through an agent in Brazil and even if I signed a waiver in Cayman Brac, I could have a case against the local agent.
It is also *possible* that a contract of adhesion that would otherwise pass inspection by the law (of whatever country applies to it) might be unenforceable if it is unfairly sprung upon you at the last minute. If you have already spent a lot of money to travel to a place and at the last minute after arriving are asked to sign something *that you didn't expect* - and most divers I think are not surprised by these waivers, but maybe one that is especially overreaching or unreasonable - you might have an argument that it's "unconscionable" or whatever the appropriate term might be for expressing that concept under the applicable law.
Whether you might have a claim against a travel agent or other person for steering you to the dive operator with the contract of adhesion, etc. etc. is a whole other subject.
Mike, as an aside - I'd be interested in hearing in one of the other forums or subforums about the diving in Brasil. I lived in Rio for about four years and I have other reasons for returning to Brasil from time to time, but if I knew a little bit more about the dive sites in or close to the places I am already inclined to visit (basically anywhere around Sao Paulo to Rio, and then up around Fortaleza and Bahia), I might look for opportunities to dive while down there.
Whether you might have a claim against a travel agent or other person for steering you to the dive operator with the contract of adhesion, etc. etc. is a whole other subject.
Mike, as an aside - I'd be interested in hearing in one of the other forums or subforums about the diving in Brasil. I lived in Rio for about four years and I have other reasons for returning to Brasil from time to time, but if I knew a little bit more about the dive sites in or close to the places I am already inclined to visit (basically anywhere around Sao Paulo to Rio, and then up around Fortaleza and Bahia), I might look for opportunities to dive while down there.
DivePartner1
Contributor
Stirling. "Especially when you have to travel long distances to get to the place where you are going to engage in a recreational activity, you're going to have a hard time convincing any court that you could not have gone about your life without this dive operator's services."
No, I think the judge would ask. Why didn't you ask before shelling out the green? Many courts are still governed by the rule of common sense, and caveat emptor.
Mike, what did your agent have to do with your dive injury in a distant land??? That's when the issue would come up, I expect. And modern legislation recognizes limits because legislature recognize that some services would not be provided if risks could not be managed. At least they would be economical. There would be fewer dive ops and they be expensive.
Wolf. Well this is a country worse than Belgium when it comes to attempting to assert its jursidiction beyond its borders: The US, of course.
No, I think the judge would ask. Why didn't you ask before shelling out the green? Many courts are still governed by the rule of common sense, and caveat emptor.
Mike, what did your agent have to do with your dive injury in a distant land??? That's when the issue would come up, I expect. And modern legislation recognizes limits because legislature recognize that some services would not be provided if risks could not be managed. At least they would be economical. There would be fewer dive ops and they be expensive.
Wolf. Well this is a country worse than Belgium when it comes to attempting to assert its jursidiction beyond its borders: The US, of course.
endorfin
Registered
I take a couple of close friends that I have been diving with for years out on my private boat. I have been wanting to get some new dive buddies in my area to join in but am wondering about liability. I'm not a charter, I am not an instructor or Dive Master, but we do all pitch in for gas and expenses. This makes me a little nervous about taking out someone I don't really know. If there was an incident would I be open to lawsuit or be considered responsible? I know I am responsible for safe operation of a vessel, but what about when they step off the swim step?
WJL
Contributor
Lawyers have been talking about various legal issues in this thread, but looking for meaningful legal advice in an internet chatroom is a mistake. If you need sound legal advice about potential liability issues you should consult with a knowledgeable California attorney.endorfin:
michaelp68
Guest
WJL:
Ditto.
H2Andy
Contributor
WJL:
looking for legal advice from anyone but a lawyer licensed to practice in the
particular jurisdiction and with expertise in the field of law applicable is a
mistake.
all we can do here is give you general ideas about the subject,
but that doesn't make it legal advice.
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