Diver missing on Andrea Doria

[Wookie]

I saw that when John first published it, and it scared me greatly then. It still does now. Since then, I have become extremely familiar with a several other legal cases with some similarities to the main problem John identifies in this article. More importantly, though, there is a current case and another earlier one, both in countries other than the U.S., that have an even more frightening aspect because it is not sleezebag lawyers causing the problems. The problem in these cases has been prosecutors making charges based on the actual laws of the land in which the incident occurred. Under these laws, an experienced diver is required to make an effective rescue of another diver, and the death of that diver appears to be proof that the experienced diver did not perform an effective rescue and is thus guilty. If such laws become common, we are in trouble.

This is indeed scary. I pay an incredible premium to teach and run a dive boat in the US, as do all instructors. But I'd rather face a sleazebag lawyer with my own sleazebag lawyer than face a righteous prosecutor any day.

 

[Rhone Man]

And how does this help the current discussion?

I think it actually adds a fair bit of value to the discussion. The Doria is a deep and potentially dangerous dive. A lot of fatalaties involved experienced divers. It is not often that you get that kind of spread of scuba accidents that are as well documented to be able to consider and analyse. We try to prevent future accidents by looking at past accidents.

Just my 2 PSI. YMMV.

 

[FinnMom]

I saw that when John first published it, and it scared me greatly then. It still does now. Since then, I have become extremely familiar with a several other legal cases with some similarities to the main problem John identifies in this article. More importantly, though, there is a current case and another earlier one, both in countries other than the U.S., that have an even more frightening aspect because it is not sleezebag lawyers causing the problems. The problem in these cases has been prosecutors making charges based on the actual laws of the land in which the incident occurred. Under these laws, an experienced diver is required to make an effective rescue of another diver, and the death of that diver appears to be proof that the experienced diver did not perform an effective rescue and is thus guilty. If such laws become common, we are in trouble.

So for defense against liability we actually need a new speciality course. It should offer a card certifying one as "Inexperienced, Ineffective Diver".

Serously though, it's never better to make yourself an extra victim.

 

[scagrotto]

The problem in these cases has been prosecutors making charges based on the actual laws of the land in which the incident occurred. Under these laws, an experienced diver is required to make an effective rescue of another diver

What are these two cases? I'll guess that one is the Gabe and Tina Watson debacle. I'm firmly in the camp that thinks the evidence didn't come anywhere close to establishing that he intended to kill her, but if there was a law against criminal stupidity I think he might deserve a life sentence. As far as that case, I suspect that he may not have been charged at all if he hadn't been accused of murder first, and since she was his buddy I'm not sure it suggests any obligation to a diver who isn't your buddy. I'm not going to review the epic thread, but my recollection is also that he was charged not so much for being ineffective as for his minimal effort to be effective at all. At any rate, I definitely don't view that case as being anything indicative of what might happen to me.

That said, I think competent adults should be mostly free to make their own decisions, no matter how stupid those decisions might be, and that there shouldn't be laws that make the rest of us in any way responsible for saving them from themselves unless we've explicitly agreed to do so. Even when you've explicitly agreed to keep somebody safe there should be a fairly high bar for prosecution.

 

[boulderjohn]

What are these two cases? I'll guess that one is the Gabe and Tina Watson debacle. I'm firmly in the camp that thinks the evidence didn't come anywhere close to establishing that he intended to kill her, but if there was a law against criminal stupidity I think he might deserve a life sentence. As far as that case, I suspect that he may not have been charged at all if he hadn't been accused of murder first, and since she was his buddy I'm not sure it suggests any obligation to a diver who isn't your buddy. I'm not going to review the epic thread, but my recollection is also that he was charged not so much for being ineffective as for his minimal effort to be effective at all. At any rate, I definitely don't view that case as being anything indicative of what might happen to me.

That was one of the cases, and when the case was fully laid out, the original reported evidence that led people to suspect murder was not true. He was simply incompetent. The problem with this case, though, was that the Australian law that caused him to accept that manslaughter charge clearly called for him to provide an effective rescue, and the judge's sentencing statement identified that failure that as the reason for the charges. That is what concerned the attorneys in that thread. They said that fortunately by accepting a plea deal, he kept the ruling from becoming a precedent; if it had gone to trial and he had been found guilty, that decision could serve as a precedent for future scuba accidents. Apparently plea deals cannot set precedents.

The second case has a current thread in the ScubaBoard section on court cases: http://www.scubaboard.com/forums/scuba-related-court-cases/511598-malta-extradition.html. As a quick summary, a man who was an instructor was diving with friends in Malta but not acting as an instructor. There was a complex series of events that led to two deaths, both officially ascribed after an autopsy as due to Immersion Pulmonary Edema. The instructor is being charged with the deaths. The charges say that as the most experienced diver in the group, he should have recognized that the conditions at the dive site were too difficult and called the dive off. It is further alleged that when one of the victims was being brought to the surface while suffering from IPE, the instructor failed to provide effective first aid while they were still under water. (I would be in trouble there, too, since I don't know the proper first aid to provide to an IPE victim while still under water.)

In a related discussion in another forum, a German diver said:

In German law we have something called a guarantor position which applies in what we call a "risk community" such as a dive team.
Basically the more experienced diver is expected to protect the lesser experienced buddies and prevent harm. So theoretically you would not even need to be an instructor to be held liable.