DEMA Seminar - How to Avoid Litigation from Scuba Intros and General Instruction

[PRL]

2. The 2nd point that was brought up ( and I need more clarification) was that dive charter boats are also covered under maritime law not just state law. The example used was most Florida boats don't fly the required blue alpha flag, just the Red white stripe flag. This was an area of concern if another boat was to hit one of your divers and claim he didn't see the blue alpha flag outside of 3mi state or possibly in international waters. Again, I may have mis-interpeted what was said and need more info.

The way I understood that is That if a vessel is operating in Federal waters and the crew on the vessel (DM, instructor, and so on) spend at least 30% of their time on the vessel, they have extra seaman protection. The case mentioned was a failure by the DM on a vessel that did not have a 3ft alpha flag flying. The reasoning was that the vessel was not seaworthy and should not be there in the first place so it doesn't really meter what the DM did, the vessel operator is responsible. Sort of like if you drove drunk, it doesn't meter if you wore a seat-belt or not.
But like you pointed out, this needs more clarification, and I believe this can be found on the coastguard site.

 

[japan-diver]

I attended the seminar and there was a bit of "I am great attorney- chest beating" and it got a little old but there was some very good information also presented. The top ten reasons you get sued were very interesting and the facts dealing with Maritime law - although as operate outside the US not as important to me but brought up some questions I will have to talk to my lawyers back in Japan about.
I have been in this business for over 15 years and attended a couple talks by Lesser and assoc. over the years- there are always some good advice in all his talk. The video is supposed to be posted to the law firms web site. If the lawyers scare you don't get in this business- scuba is an adventure sport and accidents will happen. The cases described in this presentation seemed to be more than accidents. The DSD case as described was gross negligence and then PADI although not named in the suit seemed to try to sweep it under the table. If you can't keep track of 2 people don't take two people diving. Losing a uncetified diver is not an accident its neligence. The lawyers here are not the problem any decent lawyer could have won this suit. Do your job right and follow the rules and you can go a long time in this industry without a problem and if that fails keep Lesser's number handy and when something happens hire him before the other side does.

 

[Wookie]

The way I understood that is That if a vessel is operating in Federal waters and the crew on the vessel (DM, instructor, and so on) spend at least 30% of their time on the vessel, they have extra seaman protection. The case mentioned was a failure by the DM on a vessel that did not have a 3ft alpha flag flying. The reasoning was that the vessel was not seaworthy and should not be there in the first place so it doesn't really meter what the DM did, the vessel operator is responsible. Sort of like if you drove drunk, it doesn't meter if you wore a seat-belt or not.
But like you pointed out, this needs more clarification, and I believe this can be found on the coastguard site.

Lotsa stuff here. First, if anyone on the vessel is acting in the capacity of "crew", as in, Captain, deckhand, mate, etc., the vessel owner is bound by the "Jones Act".. It doesn't matter if they are a crew member for 30 seconds when something happens, they are covered by the Jones Act. The Jones Act makes many requirements on a ship-owner aside from making the shipowner provide for "maintenance and cure" for an injured crew member. If a ship owner hires a crew member, or if a person acts as a crew member, and they are injured on the vessel, the ship owner must provide for the maintenance of the crew member (pay him 2/3rds his salary while unable to work) and pay his hospital bills and all recovery expenses (cure). Let's use a real life scenario. A day charter boat out of West Palm takes 6 divers to go spearfishing on the ledge. A DM buddy of the Captain wants to come along to spear a fish and bag a bug for the captain, his wife, and the DM and his wife. The captain cannot take the DM on his 6 pack as a passenger, as he is already at 6, so he says sure, come as a deckhand. You can drop with the passengers and show them where the fishing is. Let's say the deckhand (who is an IT professional in his real life, and makes in the low 100's per year) gets his gag, his snapper, and 4 bugs in the first 15 min of the dive, so he comes back up and gets on the boat so the lemons don't think of him as a traveling feed bag. The other divers surface, and one of them forgets to unload his gun. The gun goes off while handing it up to the deckhand. He takes a shaft in the thumb, everyone is relieved that it misses his eye, and beers are consumed at the dock while washing the boat. later on, he goes to the clinic where he gets a couple of stitches and a tetanus shot. Next day his thumb is swollen and red, next day, he is on a ventilator with a staph infection. He pulls through and returns to work 3 months later with a $125k hospital bill. His insurance company asks how he got hurt. He tells them. They then ask what capacity he was on the boat? He says guest of the captain. They ask if he paid for the ride? He says no, he was the DM. DING DING DING WE HAVE A WINNER FOLKS. The vessel owner is presented with a $125k hospital bill, and the insurance company also told the disability carrier (AFLACK), so they present the vessel owner with a bill for 3 months pay at his rate as an IT professional. I know this to be true, as I am in the process of re-building a knee for a crew member right now. Jones Act applies to ANY crew member of ANY U. S. flagged vessel, regardless of pay status on the vessel. A private boat is NOT subject to Jones Act, but EVERY US flagged charter vessel is, regardless of size, route limitation, distance from shore, federal or state waters boat. If it requires a licensed captain to operate, it's crew is subject to Jones Act limitations.

Next, Alpha Flag. The blue and white Alpha Flag is the international code flag for a "vessel restricted in it's ability to maneuver". It does not denote divers in the water, although it can mean that. It merely gives a maneuvering vessel certain rights over other maneuvering vessels. Specifically, "vessels engaged in underwater operations" are to be considered restricted in their ability to maneuver. Vessels moored, at anchor, or underway but not making way (drifting) are not maneuvering, therefore gain no advantage over a maneuvering vessel by flying the alpha flag. Other shapes and lights that may be used by vessels restricted in their ability to maneuver include a ball-diamond-ball day shape, and a red over white over red lights at night. The international (seaward of the boundary line) and inland rules for US vessels restricted in their ability to maneuver are almost identical. The differences are grammatical rather than substantive. I have found no entity other than the National Park Service that requires in writing the Alpha flag be flown while recreational divers are in the water.

Frank

 

[PRL]

The link to the seminar DEMA Seminar with Rick Lesser

 

[Jax]

The link to the seminar DEMA Seminar with Rick Lesser

Is it just me (my computer, setup, etc), or is there no presentation at this site.

 

[Leadking]

Is it just me (my computer, setup, etc), or is there no presentation at this site.

The link has not been updated. Wait a day or two to see if the presentation is loaded

 

[Thalassamania]

… He avoided almost all of Brian Cronin's questions, hiding behind "law". (One question was "how much money did he make suing dive related companies", and the answer he gave was "I cant tell you because in the judgment there was a non disclosure clause. However, he could have easily told his salary, as opposed to the amount of the award

It is nobody’s business what Lesser makes on a case and it is incredibly impolite for Cronin to ask.

We (finally) heard about what happened on the case, and its obvious that the DM who led the DSD was not only stupid, but incompetent as well, he did most everything wrong. However, in the end, the problem that eventually killed Ann, was, in fact, an accident. I expect that there was not any malicious intent involved, otherwise it would be a criminal case.

Okay, the DM was stupid and incompetent and someone died as a result and someone had to pay for those errors, what is wrong with that (except that no payment can bring her back)?

…
I was disgusted at the amount of chest pounding, and preening that Rick did from the podium and not surprised at the number of people that walked out half way though his "seminar". Supposedly there will be a video of this posted on the net, so you can see for yourself.

That’s his style, I don’t much care for it either.

…
In my opinion, this kind of lawsuit will only trigger others and it will not be positive in any way for the dive industry. Think about it, the DM in question, and his wife, were preparing to buy the shop that the DSD was scheduled through, and they were the ones targeted in the lawsuit. I have no idea of their financial situation, but if its anything like most of the people I know that have dive shops, it wasn't great. These people were sued for something over 7 figures, and you know they don't have that kind of money.

Two things, first: don’t be stupid and incompetent; second: if you are, that’s what insurance is for. I have no sympathy for the DM.

Rick maintains that the suit is good for the industry, as it promotes better behavior from instructors and the like, but those poor saps are not likely to feel the sting, as its the insurance companies that are really getting sued, and that means ALL OF US have to pay the bill.

That is a very good point, all instructors who pay into the insurance scam share the load. If the “accident” rate were to drop to zero, however, insurance prices would plummet, no?

So no matter how 'good' we are, someone is reaching into our pockets for a screw up, that was perpetrated somewhere across the planet.

So let’s make sure that no one who is covered in the insurance pool is a screw up.

Its always the bottom 5% that cause the problems for the rest of us. To sap a struggling industry of its money, and its members enthusiasm with a lawsuit of this magnitude are the actions of a parasite that kills its host.

It is quite possible to make damn sure that the bottom 5% (or whatever fraction) never gets to teach, never injures anyone and thus insurance rates drop. Would that not be a better solution?

My girlfriend and I have dreamed of owning a destination resort, and frankly, this hour and a half scared the crap out of us.

It should, but what is scary is not the talk, that’s just a dose of reality …. What is scary is the lack of quality amongst the “Pros” that you might hire that would permit such problems to occur.

You spend your whole life building something, and then some bastard driving a 6 figure car (as a daily driver, thanks for that info JS) snatches it all away because of an accident,

The lawyer does not snatch it away (as you pointed out it‘s paid by the insurance company anyway), your foolishness in hiring the incompetent fool is what snatched it away.

then parades around on a podium calling himself a "Super Lawyer" because he is "proud" (his words) that he could right this so-called wrong in the industry. Now that the industry has pissed off MR Super Lawyer, he has even more justification to become an enemy of the average scuba diver and fully embrace the other side. This guy is going to be a problem for every honest instructor and DM on the planet, while he happily lines his pockets with the proceeds of our life's work.

Rick does not frighten me one wit, not in the least, why should he? I come from a training tradition and standard that has NEVER LOST A STUDENT. So what do I have to be afraid of?

Anyone who is involved in a scuba accident, will most likely be punished for life, by their own regrets, if they are even remotely human. If they are a sociopath, they wont feel anything regardless of the award of the lawsuit. The only real beneficiary of this type of lawsuit, is the lawyer(s).

How about the children of the victim, or the spouse, don’t they also benefit in some way that the court feels is commensurate with their loss?

None of the rest of us gain anything from these attacks on the industry. Guys like Rick are the reason instructors in the USA have to pay 800/year for insurance, when you see Rick, be sure to thank him for reaching in your pocket.
Ron Micjan
DEMA 09
Orlando, Florida

There are several reasons why you pay so much for insurance, and none of them are Rick. One is the corruption of the insurance scheme that, as I understand it, pays substantial kickbacks (I’m sorry … “finders fees” to individuals and agencies); another is the bizarre way in which the insurance industry keeps rates up by maintaining a mythical “reserve” for future claims that, historically, has always been way above the actual need; and finally is the tolerance of incompetent “Pros” and foreshortened courses, the combination of which any fool can see will (and do) result in so called, “accidents.” The problem is not Rick, the problem is your (that’s the impersonal plural, kinda: y’all) refusal to demand higher standards for courses and pros, ‘cause there is demonstrably a level at which the problem goes away … but that level is rejected because you (again, y’all) can’t turn the number of bucks that you want to.

Read my post above, this may have been the title, but I told you what the seminar was about, grandstanding and justifying. The main thing you can do to not get sued, is to not teach scuba. These guys flat out said, "We will sue anybody in this room" You could have the best paperwork, the finest instructors, the most maintained equipment and the best insurance, and all it would take is to have someone on staff, who has a bad day, and takes his eyes off of a DSD student for 10 seconds, and your whole life could be ruined. You could wake up one morning and have Mr. Super Lawyer knocking down your door demanding everything that you have worked your whole life for. Of course, he gets paid a third of what he takes from you. These people have removed the word "Accident" from the english language. It no longer exists for them, someone WILL be at fault.

”Accident” is a misnomer in the first place. If your staff has a bad day, and you’re willing to sponsor DSDs, and your bad day staff takes his or her eyes off of that unprepared DSDer, who has been lured in by advertising that stresses the overall safety of what they are about to do, tough patooties … I hope there’s someone about like Rick to hand you your head.

I know both Rick Lesser and Steve Hewitt. After Lesser's presentation Hewitt (PADI's defense attorney) approached me and declared BS. He said that Lesser was intimately involved with PADI and had a long standing friendship, and traveled the world with Cronin. We all know that, giving that kind of relationship, all kinds of business and legal discussions will take place. Ideas and issues would be discussed in detail and "dirty laundry" would be presented for a friends advice. I tend to agree with that position. That would give an unfair advantage to Lesser in a lawsuit. Understand that the system is set up as a game and rules are in place.

So you think that only the defense should have benefit of a experienced diving/maritime lawyer? That’s the way it was back when Rick only worked on the defense.

… Do your job right and follow the rules and you can go a long time in this industry without a problem and if that fails keep Lesser's number handy and when something happens hire him before the other side does.

Good advice.

 

[royalediver]

Hewitt's point was that the relationship that Lesser allegedly had with PADI/Cronin was such that Lesser had priveledged information that was gathered from their personal relationship and then used against them. If Lesser had only a professional relationship and did not have a such an extensive personal relationship with Cronin, I think the arguement goes away. This arguement is akin to business espionage.

 

[Thalassamania]

Cronin (well PADI) put themselves in that position, if they were to stupid to see the consequences of putting all their legal eggs in one basket, which for years gave them an unfair advantage over the plaintiffs, that's just tough, a little late to start whining about it now, don't you think?

 

[vladimir]

He avoided almost all of Brian Cronin's questions, hiding behind "law". (One question was "how much money did he make suing dive related companies", and the answer he gave was "I cant tell you because in the judgment there was a non disclosure clause. However, he could have easily told his salary, as opposed to the amount of the award" However the .pdf of the fancy cars says he is very rich indeed.

Lesser's "salary," if he collects one at all, is probably a small part of his compensation. If you meant "he could have easily told his [compensation]," that would would probably be a violation of the non-disclosure clause, since contingency fees are fairly standard, and division by, say, .33, would give you the amount of the award.

I agree that flaunting his wealth in the ad and, apparently, in person, is tacky, to say the least.