Don't know what happened

[Edward3c]

I might be wrong but I think that there is also a cultural aspect involved. In Europe or in Africa, lawsuits are not the usual way of resolving issues. You don’t have lawyers specialized in civil lawsuits and in fact, commercials are forbidden. We don’t systematically sue when we have a car accident. We dismiss right from the start some lawsuits that are common in the US. The notion of emotional distress triggering huge financial payment does not exist. I act as a DM with friends and without charging anyone, I don’t think that I will be liable especially because I did not present myself as a DM and the dive could have been performed without a DM. I will have a moral responsibility and that’s between me and my conscience but not a legal one.
What would matter is the contract. Was there a contract? Was there a financial transaction? Was there a claim or an implied legal responsibility? Cultural differences as I said.

More countries are passing legislation on recreational diving, it doesn't matter whether you have a 'written' contract or not. If you hold the qualification and are acting in the role then you become liable.

 

[Dody]

More countries are passing legislation on recreational diving, it doesn't matter whether you have a 'written' contract or not. If you hold the qualification and are acting in the role then you become liable.

I am not sure that I agree. We have legislations in Europe too. Even more than in the US because the law is mostly written and not based on jurisprudence. But the mindset regarding lawsuit and compensation is very different.

 

[Angelo Farina]

Actually in Italy we have a lot of civil lawyers, and civil courts are overwhelmed of cases. So each case can take up to 10 years before the final sentence.
In case of car accidents you should always hire a lawyer.
As said, I worked 5 years as a professional DM. But I was an employee, not an autonomous professional.
This makes a great difference. When you work as an employee, and a customer suffers a damage, he will sue the touristic opetator (the employer, not the employee). So I had not to worry about civil responsability.
Instead the penal responsability remains to the employee. But you risk a penal action only in case of severe misconduit or voluntary offense.
Which is not the usual case of a diving accident.
And there is no way to get an insurance covering the effects of penal crimes...

 

[Dody]

Actually in Italy we have a lot of civil lawyers, and civil courts are overwhelmed of cases. So each case can take up to 10 years before the final sentence.
In case of car accidents you should always hire a lawyer.
As said, I worked 5 years as a professional DM. But I was an employee, not an autonomous professional.
This makes a great difference. When you work as an employee, and a customer suffers a damage, he will sue the touristic opetator (the employer, not the employee). So I had not to worry about civil responsability.
Instead the penal responsability remains to the employee. But you risk a penal action only in case of severe misconduit or voluntary offense.
Which is not the usual case of a diving accident.
And there is no way to get an insurance covering the effects of penal crimes...

Italy really disappoints me

 

[Storker]

More countries are passing legislation on recreational diving, it doesn't matter whether you have a 'written' contract or not. If you hold the qualification and are acting in the role then you become liable.

Let's use a plausible club diving situation:

I go diving with my club, and formally, the club is the official arranger of the outing. As always on club outings, the role of dive leader is on rotation, so everyone gets to go into the water. One of the dives is at a site I've dived several times, so I volunteer to sit out that dive and stay on deck as the dive leader. The job is basically providing a site briefing and counting heads to make sure that everyone who splashes has surfaced before we leave the site. The next dive is at another site, which I haven't dived before, so another clubmate takes the job on that dive. I have a CMAS*** cert, so I hold the qualification. My clubmate has a PADI Rescue cert, so she doesn't hold the qualification.

By your logic, I would have been on the hook if something happened on the dive I was overseeing, but my clubmate would have been off the hook if something happened on the dive she was overseeing. Is that a correct interpretation of the sentence I quoted?

 

[Edward3c]

Let's use a plausible club diving situation:

I go diving with my club, and formally, the club is the official arranger of the outing. As always on club outings, the role of dive leader is on rotation, so everyone gets to go into the water. One of the dives is at a site I've dived several times, so I volunteer to sit out that dive and stay on deck as the dive leader. The job is basically providing a site briefing and counting heads to make sure that everyone who splashes has surfaced before we leave the site. The next dive is at another site, which I haven't dived before, so another clubmate takes the job on that dive. I have a CMAS*** cert, so I hold the qualification. My clubmate has a PADI Rescue cert, so she doesn't hold the qualification.

By your logic, I would have been on the hook if something happened on the dive I was overseeing, but my clubmate would have been off the hook if something happened on the dive she was overseeing. Is that a correct interpretation of the sentence I quoted?

For the dive you’re overseeing, your insurance company would easily defend you, providing you hadn’t done something stupid.

In the second case, the club’s Diving Officer (or committee if they agreed the oversight arrangements) for placing an untrained or qualified individual into that position. Your insurer may decline to defend the club.

Here is an example of a firm that will peruse such a case.

 

[boulderjohn]

Let's use a plausible club diving situation:

I go diving with my club, and formally, the club is the official arranger of the outing. As always on club outings, the role of dive leader is on rotation, so everyone gets to go into the water. One of the dives is at a site I've dived several times, so I volunteer to sit out that dive and stay on deck as the dive leader. The job is basically providing a site briefing and counting heads to make sure that everyone who splashes has surfaced before we leave the site. The next dive is at another site, which I haven't dived before, so another clubmate takes the job on that dive. I have a CMAS*** cert, so I hold the qualification. My clubmate has a PADI Rescue cert, so she doesn't hold the qualification.

By your logic, I would have been on the hook if something happened on the dive I was overseeing, but my clubmate would have been off the hook if something happened on the dive she was overseeing. Is that a correct interpretation of the sentence I quoted?

You are essentially describing the important, precedent-setting case of "Drifting Dan Carlock." This was a USA case with USA law, but it had a world-wide impact on thinking.

A dive club chartered a boat for a 3-tank dive. The boat captain allowed club members to take the role before and after each dive. (That was illegal, but that's another interesting story.) Two club members who happened to have DM ratings through PADI took the role for each dive. They were acting as club members, not professionals. At the end of the first dive, they somehow missed the fact that Dan Carlock was not yet on the boat, and the boat left for the next site. They somehow missed his absence on both the other dives. Fortunately, after a long time at sea, Dan was picked up by another boat.

In the lawsuit, the DMs were found liable for their role in the incident. Remarkably, PADI was found liable as well, even though they, as an agency, had nothing to do with the case. IIRC, it cost them a couple million. The plaintiff argued that because they were certified by PADI, they were acting as agents of PADI. (It would have been interesting to see what would have happened if they had held professional ratings from more than one agency, as many professionals, including me, do.) As a result, all PADI liability waivers used around the world now require the signer to affirm that they understand that any PADI professional involved is not acting as an agent of PADI itself.

 

[Storker]

For the dive you’re overseeing, your insurance company would easily defend you, providing you hadn’t done something stupid.

Which insurance company? I'm a private individual who happened to want to take the cert to extend my diving competence, I'm not working in any professional manner.

In the second case, the club’s Diving Officer (or committee if they agreed the oversight arrangements) for placing an untrained or qualified individual into that position. Your insurer may decline to defend the club.

I do believe that you're illustrating a rather fundamental difference between BSAC branches (according to my personal impression of BSAC) and CMAS affiliated dive clubs, which work on a dramatically less formalized and dramatically less hierarchical manner.

You are essentially describing the important, precedent-setting case of "Drifting Dan Carlock." This was a USA case with USA law, but it had a world-wide impact on thinking.

A dive club chartered a boat for a 3-tank dive. The boat captain allowed club members to take the role before and after each dive. (That was illegal, but that's another interesting story.) Two club members who happened to have DM ratings through PADI took the role for each dive. They were acting as club members, not professionals. At the end of the first dive, they somehow missed the fact that Dan Carlock was not yet on the boat, and the boat left for the next site. They somehow missed his absence on both the other dives. Fortunately, after a long time at sea, Dan was picked up by another boat.

Well, if I failed to ensure that the same number of people surfaced was the same the number of people who splashed, I believe that I'd be guilty of gross negligence. Which is a basis for prosecution, even in a non-litigous society like mine.

 

[boulderjohn]

Let's use a plausible club diving situation:

I go diving with my club, and formally, the club is the official arranger of the outing. As always on club outings, the role of dive leader is on rotation, so everyone gets to go into the water. One of the dives is at a site I've dived several times, so I volunteer to sit out that dive and stay on deck as the dive leader. The job is basically providing a site briefing and counting heads to make sure that everyone who splashes has surfaced before we leave the site. The next dive is at another site, which I haven't dived before, so another clubmate takes the job on that dive. I have a CMAS*** cert, so I hold the qualification. My clubmate has a PADI Rescue cert, so she doesn't hold the qualification.

By your logic, I would have been on the hook if something happened on the dive I was overseeing, but my clubmate would have been off the hook if something happened on the dive she was overseeing. Is that a correct interpretation of the sentence I quoted?

I wanted to make this point clear. What Edward said was that " it doesn't matter whether you have a 'written' contract or not. If you hold the qualification and are acting in the role then you become liable." I have been told this was true since I became a professional 16 years ago. Essentially, if someone mentions being nervous before a dive, and you say, "Don't worry--I'm a divemaster," then you have assumed a professional role, even though you are not being paid and have no contract, because the nervous diver is depending upon you as if you were in a professional role. If, on the other hand, you are just another diver in a group and had no other involvement in the incident, then you are not liable.

SImply being a professional on the dive with an incident, even if paid, is not grounds for liability. You have to screw up. Here are two very different cases (both real) to show the difference between no liability and liability.

• The diver had not dived for more than a year, and she was required by the operator to do a checkout dive or dive with a personal DM. She was furious because she did not have time before the first scheduled dive, and she sure as Hell did not want to dive with a DM. She was forced to use the DM, though, and her anger about it, even as they entered the water, was evident. During the dive, divers saw her swimming as fast as possible, with the DM in pursuit. It is assumed that as the DM was leading her, she had turned and sprinted, getting a good head start. She ducked over the edge of the reef, with the DM in pursuit, going straight down in water several hundred feet deep. Eventually, the DM returned--she had been unable to find her.
• The DM led a group of OW divers on a dive to a wreck below 140 feet. While they were there, one of the OW divers indicated he was low on air. The DM paid no attention. Eventually the diver indicated he was out of air. The DM refused to share air, because by then he, too, was low on air. The OW diver drowned.

 

[boulderjohn]

Well, if I failed to ensure that the same number of people surfaced as the number of people who splashed, I believe that I'd be guilty of gross negligence. Which is a basis for prosecution, even in a non-litigous society like mine.

Yes, as I said in the last reply (written before you wrote this), you have to screw up in some way to be liable.