"Drifting Dan" Carlock wins $1.68 million after being left at sea

[ChrisM]

You were correct. Sundiver no longer will allow dive op DM's to run dives. All working DMs are boat crew now (Charter/Dive shop DMs are not considered crew). Only boat crew can do roll calls etc. If ChrisM was not on a charter and was on an open boat he may not have seen a difference.

Yes, I rarely (if ever) did shop charters. Sundiver used to run a dive 10 times get one free or something... If a shop charter procedure changed I wouldn't know it as a regular diver. Even if I dove shop charters, I'd assume the DM was the shop's, not the boats, so not sure I would have seen any difference.

At any rate, I too am disappointed that the boat and Capt. Ray got caught up in all of this.

As an aside, I am an atty, and only ever saw Ray on the boat in our casual clothes. Imagine my surprise at going to court one day last April, all dressed up, and seeing Capt Ray in his finest, especially since I hadn't seen him in quite a while. That was when the case was before the crazy judge that declared a mistrial, and it was shortly going to trial. Or I may just be bitter because I lost the motion :cussing:

 

[mitsuguy]

I've long wondered about putting my own caveat on the waiver form that I sign when boarding the boat, saying that in the event I'm left behind at a dive site, the waiver is null and void. I'm going to have to check with some Captains to see how that would go over. And, any Captains on the board, I'd appreciate your input.

Liability waivers don't really mean a whole lot.

A liability waiver is useful when everyone does everything right, yet something still goes wrong. A liability waiver is useless when someone screws up and something goes wrong.

Here's an example:

You are on a dive boat 45 minutes from shore, and through whatever circumstances, you get bent.

1st Boat crew response - recall all divers, put you on O2 and haul @ss back to shore, whilst radioing ahead for medical crew to be standing by. In this circumstance, your liability waiver covers the boat crew because they did everything right. The boat crew maybe could not have prevented you getting bent, however they did everything in their power to take care of the problem. You can sue, but it probably won't get very far, most likely the judge would throw it out because you don't have a case against anyone.

2nd Bad boat crew response - recall all divers, find out they didn't have O2 on board, though it was a charter requirement, and then on the way back, the captain gets lost, or doesn't radio ahead for EMS. In this circumstance, you might as well have never signed a liability release, because it is obvious that the boat crew has screwed up. A liability waiver doesn't protect the boat crew in that way - it only protects them if they do everything properly.

Another example, this one diving related:
Discover Scuba Dive -
Participant injures their ear...

Liability release basically says that scuba diving can be dangerous, and that you assume all risks and responsibilities. Right away, someone might think that because they signed the release that the ear injury can't be blamed on the dive op or the instructor. However, indeed it can be. The difference is simple - it can't be blamed on the op or instructor, if they did everything correctly. If they left out part of the DSD briefing, where we tell participants about clearing ears and the appropriate responses, then how can that participant know that they were doing something wrong which led to the injury? You can't. In this example, the lawsuit would be based on improper training leading to ear injury. Just because there was a waiver doesn't absolve the op / instructor of their duty to perform properly. Now, if they participant was briefed properly, answered the quiz correctly (PADI's proof that they were briefed properly), and yet still had an ear injury, then, chances are, that it will be thrown out, as this is where the waiver comes in to play.

Hopefully this makes sense, I am not a lawyer, but have a pretty good understanding of why people get sued and what it takes to cover your butt, and it basically comes down to doing everything right, every single time.

 

[tridacna]

Somebody get this man a few periods!

Remember: He's from GEROGIA, USA. They don't use periods there.

 

[boulderjohn]

I was in Australia soon after the Lonergans went missing. I asked the DMs about procedures. They said they did the same thing they always do, that didn't change any procedures on that boat. Procedures work. When people follow them. I don't trust everyone to follow them. Like Zac.

I was there sometime after that, I guess. We followed what the DM explained were the "Lonergan Laws," which were designed to prevent such an event.

When we entered the water on every dive, there was a crew member right next to the platform with a clipboard, and we had to state our names before striding in. When we exited, a crew member was right there with the same clipboard. We had to state our names and (if I recall correctly) our bottom times (maybe depths, too--not sure). After we had gotten out of our gear and gotten our hands dried, we had to initial that sheet to indicate that we were back on the boat.

 

[Doug Charney]

237 posts....

- dive off of 6-packs where they'll be more likely to miss a diver.

- bring buddies with you who will miss you if you're not there.

- dive as a buddy team so it'll be two or three of you lost instead of just one.

IMO, solo divers who show up truly solo on cattle boats are kind of asking for it.

I agree on points 2 & 3, but I don't think I've ever seen a 6-pack in SoCal. I think the Sundiver is the smallest boat I've been on in California.

 

[Ken Kurtis]

but I don't think I've ever seen a 6-pack in SoCal.

We've got a few in the LA area. Psalty V, Second Stage, and Giant Stride are all 6-packs running out of SoCal. (Not sure if Stargazer still runs with any regularity anymore.) Sea Bass is a 12-pack. Sundiver Express is a 22-pack (Hawaii/Florida-stryle boat, but with a compressor).

But yes, most of the dive boats are in the 55-80' range and carry 25-35 divers plus DMs and crew.

- Ken

 

[Doug Charney]

We've got a few in the LA area. Psalty V, Second Stage, and Giant Stride are all 6-packs running out of SoCal. (Not sure if Stargazer still runs with any regularity anymore.) Sea Bass is a 12-pack. Sundiver Express is a 22-pack (Hawaii/Florida-stryle boat, but with a compressor).

But yes, most of the dive boats are in the 55-80' range and carry 25-35 divers plus DMs and crew.

- Ken

Oh, I had forgotten about Sundiver's smaller boat and I have heard of the Sea Bass, but I've never been on either of them. The large boats are one of the reasons I love SoCal diving. I'm not sure I would like the run to Catalina on a small boat.

 

[cruiser]

I've long wondered about putting my own caveat on the waiver form that I sign when boarding the boat, saying that in the event I'm left behind at a dive site, the waiver is null and void. I'm going to have to check with some Captains to see how that would go over. And, any Captains on the board, I'd appreciate your input.

In Texas you can't sign away negligence. Being left behind is negligence, so by signing the waiver, you're not signing away being left behind.

 

[Ken Kurtis]

Not exactly Drifting Dan-related (which is a relief at this point) but somewhat germaine and comes from a comment ItsBruce made a few days ago that I meant to respond to:

Losing a buddy is an inconvenience. It is not an emergency.

When they end up dead, hindsight will tell you it was an emergency.

True story:

This past Sunday (10/24), I took a group of five certified divers to the Avalon U/W Park. Combination of people who hadn't been diving in a while or who had limited diving or SoCal diving experience. So we were doing this sort of as a refresher for everyone. Conditions were OK, but not great with about 20' of murky vis.

Minor problems on the first dive, mostly weighting and buoyancy issues, but nothing overall too concenring. Second dive we decided to go straight out from the steps, head to 70' for the small wrecks there, and then turn right and try to hit the Sujac, and then would turn the dive to come back.

Three buddy teams of two (inlcuding one diver as my specific buddy) and we'd all stay together, same as on the first dive. Except my buddy didn't like having people behind her so she kept dropping back to the back of the group, but within sight.

Made it out to 70' and turned. Hit the Sujac maybe 10 minutes later. Led everyone through a hole in the upturned side of the wreck. (For those unfamiliar with it, it's pretty disintegrated and there are no overhead areas. This is simply a hole in the side that we swam through.) Saw everybody come through. Did an air check. One guy was around 1000psi. Made a hand signal that we'd head shallower and turn. All followed.

Up the slope to about 40' (maybe another two minutes). Do another aircheck and now the guy has 600psi. I show him my gauge at 2000psi, show him my octo, and put him on it, holding his hand and keeping him on my right.

We go maybe another minute or two and I turn around for a headcount. I'm missing the gal.

We backtrack our path. No sign of her. I put my low-air guy back on his reg and signal to everyone else to surface. No safety stop. At the surface, we can't see any obvious bubbles. (But we're also in the middle of a large kelp bed.) I tell everyone to wait, that I'm going to go back to the wreck and retrace from there and to look for her, and that if she surfaces, hold her with the group.

I'm fairly confident she should be OK. But she should also be on the surface. And I know that if she IS in some sort of trouble, the clock is ticking and I've got at most 4-6 minutes to find her.

I make it back to the wreck. Not there. I retrace our path, looking up through the kelp to the surface every 5 seconds or so to make sure she's not trapped or stuck. I don't feel panicked but by the same token, I'm not too happy about this, especially with the Drifiting Dan verdict fresh in my mind.

I'm also running other logistics through my mind on what I'll do if I don't find her and she's not on the surface when I get back. Do we keep looking? Should I kick in and call 911? Or should I yell for someone on shore to call?

I recall thinking that I'm glad that at lunch we discussed lost buddy procedures and mentioned that if you get separated from your buddy, it's not the end of the world if you just end the dive and surface. But I'm also trying to figure out where she is. Still not happy and now a little concerned.

I get to the spot where I noticed her missing. Still no sign of her. I surface perhaps 10 yards away from where I left the group and they immediately give me an "OK" sign to let me know she's on the surface with them.

We regroup, kick in, and discuss what happened. She said she was getting winded even though we weren't moving fast (she said, "I think I need to go hit the gym") and decided to stop and catch her breath, knowing she might lose the group. When she did lose everyone, she surfaced (about ten seconds after I went back down to look for her) and saw everyone else on the surface. I told her she made the right decision in stopping as to keep going probably would have made her feel more stressed.

The point of all this (and this is NOT a dig at Bruce) is that I guarantee you that the entire time I was underwater looking for her, I'm thinking EMERGENCY, not INCONVENIENCE. While it's possible, if you're ever faced with the same thing, that the situation ends as it did for my diver, it's also possible that your diver truly IS having an emergency and only your quick actions can save them.

I'd rather see people OVERreact in situations like this and mobilize unnecessarily than to see people UNDERreact and we lose divers who might have been saved with more decisive action.

To relate it back to Dan's situation, you don't necessarily start by assuming they're OK on the surface. You start by assuming they're in trouble underwater. The reality of the situation is that after 6 minutes or so, if someone IS still underwater, you're probably dealing with a recovery, not a rescue.

But back to my main point: Unless you've made an gareement to separate, deal with buddy separation as an emergency until you know that it's not.

- Ken

 

[Ken Kurtis]

In Texas you can't sign away negligence.

The lawyers should weigh in on this but there's a difference in legal terms between "negligence" (simple negligence??) and "gross negligence".

There was a recent court rulling (can't remember if it was the CA Supreme Court or the US Supreme Court) that says he can't waive gross negligence. But I think at least in CA, you can still waive simple negligence. (Of course, the plaintiff's attorneys then try to get whatever you did wrong classified as gross negligence.)

Chris, Bruce???? Thoughts????

- Ken