Diver in California Sues for Being Left

[Night Diver]

The problem with this incident, and the reason we are all doomed to read probably another 300 posts on the general topic, is that like any other FUBAR type incident (plane crash, freeway pileup, etc.) the "causes" of the diver being left behind were multiple failures occurring at the same approximate time.

The reason no one will ever be able to agree on whose "fault" it was is that the failures were of different natures.

This incident has been talked and analyzed to death on several SoCal BB's. The generally accepted and apparently correct coinciding failures were:

1. The diver disregarded instructions to remain in sight of the oil rigs at all times and drifted away from the rig, the boat and his buddies.

2. The diver's buddies were buddies of convenience arranged on the boat, continued the dive after he left them and failed to advise the boat crew that they had been separated from their buddy.

3. The diver apparently failed to call the dive and certainly failed to surface and return directly to the boat when separated from his buddies.

4. The DM blew the headcount by logging the diver back on board, and then logging him off at the next stop. Nobody knows why he did this as he has never spoken pubicly on the topic; whether he simply blew it, made it all up or relied on statements of others remains to be determined.

Now the captain does have overall legal responsibility to the passengers for the conduct of the crew but the charterer may or may not have provided the DM in this instance. The liability of a boat or ship captain is not a dead-end; in other words it may be determined that the captain is responsible to the diver but the DM certainly has responsibilities to the captain and the charterer, who in turn have responsibilities to each other.

California (like almost all other states nowadays) applies a comparative negligence rule, so the fact that one person is negligent does not mean the negligence of another is wholly excused. If negligence by more than one person is found in this case, then at least as a legal matter the blame and the "damages" will have to be apportioned according to the so-called degree of fault.

Now we are all entitled to have our own opinions as to whose "fault" this incident was, but to me the multiple causes and lack of certain facts at the moment just guarantee general disagreement. You've got the diver camp, the DM camp, and the captain camp. with the understanding that the captain camp is basing its POV on legal responsibilities which frankly don't help steer us in the direction of future changes to procedures or behavior that might prevent similar incidents.

Ah, screw it, I'm going diving.

 

[wolf eel]

When instructed he does his job

His job is the safety of the aircraft and crew. Not head counts.

[The Kraken Sorry, Wolf Eel, but the aircraft commander is the sole commander of the aircraft. It is his decision, and his only, when to take off. It is the same with the captain of a boat.


You may tell me it's time to go . . . but I ain't gotta

Now if the captain is given false information, that is another issue.]

I knew you would respond this way. I know. The point however is true. If it gets out of hand you could leave with grunts falling off the sides. I know. Or you could stay while being slowly picked apart waiting for the grunts. But you would if the situation was in control wait to hear that everybody is in the aircraft and then make the choice based on the safety of the aircraft not on who is in. I am sorry for not including that.

Just like the Captain of the boat on a normal run he should be able to rely on the DM to instruct him he can leave now it is up to the Captain to know that it is safe and clear to do so. Being told you have all your people on the boat when you do not is false information.

 

[The Kraken]

And that's when me and the Sgt., or DM in this case, would have a serious tete-a-tete

 

[wolf eel]

[The Kraken And that's when me and the Sgt., or DM in this case, would have a serious tete-a-tete.]

And he would deserve it.

 

[WJL]

....
Now we are all entitled to have our own opinions as to who's "fault" this incident was, but to me the multiple causes and lack of certain facts at the moment just guarantee general disagreement. You've got the diver camp, the DM camp, and the captain camp. with the understanding that the captain camp is basing its POV on legal responsibilities which frankly don't help steer us in the direction of future changes to procedures or behavior that might prevent similar incidents.

I agree that portioning out blame and fault is mostly a matter of opinion. However, I disagree with the idea that assigning fault to the captain won't influence changes to procedures and behaviors on charter boats. It may be just the opposite. I'm willing to bet that most charter boat captains who learned of this incident spent some thought on their own procedures for checking in and checking out divers. If there is a judgment against the captain, probably even more will do so.

Charter boat captains must impose a reasonably secure system to account for the divers on their boat. They must be responsible for the implementation of the procedure. If they delegate performance, they are responsible for the actions of the person to whom they delegate the operation.

 

[CHUD]

However, they are not 100% to blame. Some of the blame must lay with the diver for not surfacing when his training should have yold him to do so.

Here's why you're wrong: Imagine seventeen things all go wrong at once causing the diver to lose buoyancy and be unable to correct it or do anything but sink like a stone. Now he's dead on the bottom of the ocean -- and the DM checks him back on board and the boat leaves without him.

Is he at fault for not surfacing? How? The end result is the same.

 

[Robert Phillips]

Here's why you're wrong: Imagine seventeen things all go wrong at once causing the diver to lose buoyancy and be unable to correct it or do anything but sink like a stone. Now he's dead on the bottom of the ocean -- and the DM checks him back on board and the boat leaves without him.

Is he at fault for not surfacing? How? The end result is the same.

Not exactly. The diver did not die in the incident under discussion. HUGE difference!
Maybe you should start a 'hypothetical scenario' thread and beat this horse there.

 

[WJL]

Not exactly. The diver did not die in the incident under discussion. HUGE difference!
Maybe you should start a 'hypothetical scenario' thread and beat this horse there.

I think the point CHUD is making is that it shouldn't matter whether the left-behind diver had good, bad or indifferent skills. Even if Dan is stupid or incompetent, which some people here appear to believe, it is not okay to leave without him.

 

[wolf eel]

[Robert Phillips Not exactly. The diver did not die in the incident under discussion. HUGE difference!]

Just because this diver did not die he was left behind he may have been dead. I think he was talking about the procedure if that did happen and how that just does not matter because he would have been left behind even if he was dead. Its not the divers fault is the point.
The fact also that he did not swim for the rig does not matter maybe he wanted to conserve on energy who knows what he was thinking under the stress of doing the bob in a huge ocean alone. He probaly just watched open water and did not want to attract G/W with his kicking. That is his right of self defence.

 

[Gary D.]

If a dive operation leaves a diver in the water without extreme circumstances involved, I could think of a couple, then they are negligent and should at the very least lose their license to operate. FOREVER. All I ask is that a dive operator get me to the site and return me to the dock. If they leave me in the ocean, a law suit is the lesser of their worries.

Yea, I'll bet you have one of those pod like thingies that ken be loaded with stuff under yur fus-e-lodge they better worry about.

Gary D.