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

[drrich2]

Which raises the question of whether an award amount should be tallied to reasonably recompense an injured party for personal damages, or whether it should be tallied to intimidate a whole industry into altering standard practices (although the point in this is somewhat moot, since standard practices weren't followed effectively). What is the industry going to change when the standard practices already in place, had they actually been followed, would've sufficed? If the DM has checked him present in 2 columns instead of 1 and he'd died anyway, would that've been different? (I'm aware he survived this incident).

That award is well in excess of many peoples' lifetime gross income. I'm talking full time jobs for 30 years. It's hard for me to think 4 hours of the fearful expectation of a miserable death in this case is actually worth that much. A lot, yes. But 1.68 million? Seems crazy to me.

Richard.

 

[knowone]

Good job on the great advertising for the dive ops, rehashing this BS which was worldwide standard industry headcount practice at the time, where those stoopids especially buddys, pushy complacent customers, actually responsible may have by now disappeared into the mire.

Great job on the good advertising for the Buddy System where stoopids complain about "insta's" and show a lack of respect, or about the poor understanding in training of the system and how far it really should extend, and when the crew try to say something it's "whatever" and the ones that take no responsibility for themselves keep talking BS.

 

[tridacna]

True, I think 1.68 million sends an effective message to the industry. I doubt the guy walked away with this much, though. Attorney's fees for 5 years had to be a staggering amount.

I suspect that his attorneys took this on contingency. Fees are usually capped at some % or max.

OTOH The lawyer would have walked off with nothing after 5 years of work if there had been no award.

 

[merxlin]

I agree with the verdict, mostly, but I don't see how the diver could be held partly responsible. How does the fact that he didn't surface near the boat, or that he split from his partner even partly justify his being left behind? I hope I never make a mistake on The Sundiver, apparently the penalty is death. The boat captain dropped him in the water, the boat captain has the responsibility to bring him home. How can it possibly be any other way? If the captain doesn't have a competent person to take roll, he'd better learn to do it himself. There is no mitigating circumstance that can relieve the captain of the duty to bring every diver home.

This is a ridiculous comment, and you obviously do not know the facts. Fact 1, this was a charter by the dive shop the DM worked for. At that time it was routine for the chartering entity, shop, dive club or whoever, to provide the DM and support staff for a charter trip. In this case the only "Sundiver" crew was the captain. It has since been determined that the captain does have ultimate responsibility, and as such this practice has been dropped, at least on the Sundiver. They provide all the crew now. But at the time, dive boats often were just a way to and from the dive sites.

Fact 2- Diving the rigs is a "live drop" and pick up- you do not drop anchor. The boat is always underway must be under direct control of a captain. Exactly how should the captain in this case have been on deck doing a roll call while driving the boat?

Fact 3- Due to this case and I am sure other near misses by other ops, I would put the Sundiver's care of divers in the water up against any other boat, no question. Divers are checked in and out, and full face to face roll call is done before the boat is ever moved. Their DM's are all very in water capable should you need them. I base this on hundreds of dives off that boat.

The real issue was not that he was left, but who was responsible. The chartering shop (a reputable business that is still in business) provided the crew and DM, and the captain relied on them to provide competent information. Obviously that did not happen. So yes the letter of the law is that the captain is responsible for what happens on the boat, but in this case, in my opinion, the bulk of the responsibility should have been on the dive shop.

 

[SCUBASailor]

That award is well in excess of many peoples' lifetime gross income. I'm talking full time jobs for 30 years. It's hard for me to think 4 hours of the fearful expectation of a miserable death in this case is actually worth that much. A lot, yes. But 1.68 million? Seems crazy to me.

It doesn't matter what "many many peoples' lifetime gross income" may be. The guy was an engineer, probably making in excess of $100K per year. On that assumption, that's about 16 years' income for him. It appears to be based on his future income, not some "fair" future income for the general public. I am not generally an advocate for large jury awards, but in cases like this, where the defendant exhibited such egregious negligence, I say tough luck, Mr. Boat Captain, and pay up. You shouldn't leave divers out in the open Gulf.

 

[ItsBruce]

As far as why the case didn't settle, I expect that there were probably negotiations, but that the parties could not arrive at an agreeable figure. My educated guess is that the defense did not expect an award anywhere near what Dan got. Even if he got $1,000 for every minute he was in the water, that would only have been $240,000. Add to this $1,000 for every day for a year to cover PTSD and that's still only $600,000 total. (As far as the value of PTSD, keep in mind how many soldiers return from combat with PTSD and get nothing.)

I could see why the defense would not have offered more than $600,000 or accepted even $1,000,000. At the same time, if the plaintiff's demand was really $4 million and there were no lesser offers, one might say, he got creamed, i.e. got less than 50% of what he sought.

I would not be a bit surprised if either the trial judge, on a post-trial motion, or the Caourt of Appeal, on appeal, were to reduce the damage award to about half.

 

[SCUBASailor]

The real issue was not that he was left, but who was responsible. The chartering shop (a reputable business that is still in business) provided the crew and DM, and the captain relied on them to provide competent information. Obviously that did not happen. So yes the letter of the law is that the captain is responsible for what happens on the boat, but in this case, in my opinion, the bulk of the responsibility should have been on the dive shop.

Sorry, I don't mean to imply that the DM or dive shop bears no responsibility. I'm sure there is plenty of blame to go around. But from across the country, I see that a boat captain left a diver in the open water.

A ships captain is responsible for the safety of his crew an passengers. It doesn't matter to whom he has assigned the responsibility of counting heads, (unless there was some kind of deception going on) he retains the ultimate responsibility of making sure he does not leave a diver in open sea. You can say that it's just a mistake or misunderstanding, but it's one that the captain's procedure should absolutely prevent under all circumstances. I just don't feel any sympathy for him or the dive shop.

 

[ItsBruce]

Compensatory damages are designed to compensate. Punitive damages are designed to punish and deter. The trial court found that even the jury believed everything the plaintiff had to offer, the case did not arise to a level that would have warranted punitive damages. Thus, the figure was not designed or intended to send a message or to punish anyone. (If the trial judge or Court of Appeal finds it was, it will be reduced or remanded.)

Whatever the case, the figure seems very high to me.

 

[SCUBASailor]

Sure the diver may have made mistakes, but that does not excuse the operator from marking him as being on the boat - twice. That is the real issue.

How hard is it to actually count the divers once on the boat - or even the scuba units. Better yet, issue each diver a tag that hooks to a D-ring. As each diver exits the tag is replaced on a board. Missing tag means missing diver.

A very simple and effective solution. People working in underground mines do this.

 

[doctormike]

I think that one point of confusion here is the contributory negligence aspect of this case. I'm also not a lawyer, but hey - we're all just here to chat, and maybe learn something from each other, right?

While I can see the controversy about the degree to which the captain and the dive shop share responsibility, I don't see a lot of responsibility on the part of the diver - although the jury felt 16% differently than I did!

If a certified diver on a chartered boat gets injured when he screws up his gas planning, or skips a required deco obligation, I would say that the liability is 100% with the diver. If a certified diver on a chartered boat gets injured when the captain gets drunk and drives the boat into a bridge, then the liability is 100% with the captain.

Now it is true that the diver surfaced far from the boat, and presumably a more skilled diver might not have done that, or might have sent up an SMB while doing his safety stop to increase the chance of being seen as he drifted away. But it seems that the issue here wasn't failure to FIND a missing diver (in which case the liability would be more shared, IMHO), but rather the failure to REALIZE that there was a missing diver.

I also agree that the subsequent sign in and out of the missing diver on the second site is troubling.... I kind of doubt that this was an attempted murder (but who knows?!). Could it have been an alteration of the record after the fact? Possible, I guess that they might have done that hoping to claim that "someone" answered for him, so that they would appear to have believed that he was there in good faith....

It seems that this lawsuit is solely about the headcount procedure, and they would have been just as wrong if he had climbed back on the boat as they were preparing to leave, already assuming that he was on board. In that case, there would be no damages, even though the same violation of standards had taken place...