Diver convicted of manslaughter (18 months suspended sentence) - France

[BUDMANOK]

Also that if an incident like this happened on US soil it would be treated the same.. Whether it is a criminal or civil matter is, as compared to france, is a different matter

so it's not treated the same?

 

[KevinNM]

French, German and Italian law are very different than US law and also very different from each other.

 

[bl6394]

As a dive instructor in the Unites States - the most important point is that the laws in France, and their interpretation, have little to no impact upon how criminal or civil matters are adjudicated in the US.

With that said, the concept of a Duty of Care is a legal concept that exists in the US. For example if you are driving a car, run a red light and have a collision - your failure to demonstrate reasonable caution as a driver will likely create liability if the other driver is injured. Certain professionals, doctors, lawyers, etc. also have a duty of care. While I obviously have a duty of care to my students in a diving course I'm administering. It's unclear what duty of care I would have just diving with buddies recreationally or doing technical diving.

For the sake of argument, imagine a fun dive with a fellow in a cave - not a training dive or a "Discover Local Diving" experience. This fellow, who may be Full Cave / Tech 50, decides to dive on air and goes to a depth of 214 feet. If everything goes well - no one cares.

But if things had ended poorly - would the recreational instructor / divemaster - even one Full Tech Cave / Trimix certified - have responsibility for this fellow's injuries because he did not prevent the other diver from diving beyond his certification level or doing deep air in a cave? Does the instructor / divemaster have an obligation to inspect the credentials of dive buddies - and ensure their compliance with safe diving standards when not teaching or leading? Since this is not a student or client relationship - my agency's standards would have little to say about the matter.

But if lawyers get involved after an injury or death - I wonder if simply being a dive professional means you are leading by default - albeit without payment, liability release, or contract. I wonder what case law in the US shown us.

Bjorn

 

[NAM001]

With what little i have read on the france issue, It in no way is similar to OWS are just not good enough to dive. Taking or being part of a dive with OWS to 200 ft is pure stupidity and is clearly a dive that if suggested should be declined with out thought. Same goes for anyone with a recreational catagory certification.

This situation raises a number of serious issues.

1.) A common criticism of mainstream OW course training is that many divers are not, in the judgment of some, fit to dive independently with a similarly trained buddy, even in good conditions similar to what they trained in. Some advocate pushing the Discover Scuba Diver course, perhaps in a modified form, for many divers, basically trying to make them dive with a superior diver to keep them out of trouble.

2.) We've seen posts on this forum where people report going on dive boat trips & sharing only their AOW cert. card as a qualification to dive, while keeping their higher cert.s confidential (I'm talking about Rescue, DM, Instructor) on the grounds they might be held to a higher 'duty of care' if something bad happens to either a buddy, or just another member of the dive group in their vicinity. Some people even prefer solo diving in part of wash their hands of the whole situation.

So, now we see a guy convicted of manslaughter. Of course, hey, that's France. But a lot of us dive in areas under foreign governments, and we are not all that familiar with their legal systems.

Richard.

 

[bowlofpetunias]

News from 16 January 2015

A diver was found guilty of manslaughter after his two buddies died.
(My French is not the best and I hope I don't make any mistakes)

This diver was a 34-yo instructor and took two 20 and 22-yo brothers., "level 2" divers (I presume this is CMAS), to a 60m dive in Switzerland.
At the bottom, the instructor felt some breathing difficulties and thought it could have been due to a blow he had received the previous day while playing hockey. One of the other divers comes to him. He signals up and starts the ascent. The other two did not surface. They were found dead, one by drowning and the other by cardiac arrest.

The inquiry revealed not only the lack of certification and knowledge for this dive, but also equipment. Apparently one of the deceased didn't even have SPG nor depth gauge/computer. There are also talks about narcosis, so I suspect they were on air.
The water was 5ºC, but I don't see a mention to their suits.

The instructor was considered responsible for the dive as he held the highest certification, even though this wasn't a course dive.
He was sentenced to 18 months (suspended) and no dive teaching for five years, plus a symbolic €1 + interest payment to the family of the deceased.

From the newspaper (in French):

Looking at the OP (yes I know it is a translation and may not be totally correct as stated by Redshift) I have added bold to some of his words.

This looks like it was the instructor who had trouble breathing and signaled the ascent and began it. I wonder what would have happened to the other divers if they had survived and the instructor didn't. Would they be liable for not doing the ascent with him?

It would be interesting to know if they all started to ascend together and then they got in trouble or if they didn't even start the ascent for some reason. The details are a bit sketchy to tell much really. It might give a totally different insight if we knew more.

Putting the onus on the instructor would be fair IMHO if the Instructor arranged and co-ordinated the dive making him a defacto "Dive Leader". In which case he would have had the option to make a decision in advance about the suitability of the dive for the divers, check qualifications and ensure suitable equipment was available.

One would also have to think that the buddy check certainly failed or was not done. If it had been done and they chose to dive with such inadequate equipment any sane diver and certainly an instructor should have canned the dive. My .02 for what little it is worth.

 

[clownfishsydney]

Without knowing the full details of this incident, it is hard to make a judgement as to whether he should be considered culpable because his buddies died. It is similar in some ways to what happened in the death of Tina Watson. However, in that case, Gabe Watson should never have been charged in Australia with manslaughter as he was only marginally more qualified to do the dive than Tina and to compound it, the dive operator broke numerous sections of their code of practice (which is enforceable under Queensland law).

If in this case the person who survived was an instructor (not clear from the article) and they were relatively novice divers, then he would seem to bear some sort of responsibility due to his far greater experience and ability to know that the dive was a very dangerous one for an inexperienced diver to do.

In any case, the penalty appears to me to be suitable to the offence, assuming that he was an instructor and they were inexperienced. Compare this to the 18 months that Gabe Watson was sentenced to for the death of Tina.

 

[demed]

French, German and Italian law are very different than US law and also very different from each other.

French, Italian and German law are actually quite similar among themselves - the french civil code inspires their civil codes, while '900 german philosophy (Kelsen, etc.) inspire most of their modern jurispridence