“Duty of Care” when taking others on personal vessel, to dive

[Dapper Dan]

So if my "buddy" required me to sign his waiver (you or your family can't sue me if I injure or kill you), yet he's requiring "gas money" from divers to ride (AKA operating an illegal charter), then under the clean hands doctrine, wouldn't that basically negate his "you can't sue me" waiver?

He's not a license captain and it's his own private personal boat. If he takes out 3 divers he looks at his fancy fuel management system and says, "We burned 10 gallons at $4.90 per gallon, y'all owe me $50 each". If he burns $50 in gas and is charging 3 divers $50 each, he's making $100 bucks; he burned $50 in gas but collected $150. To me that sounds like a "profit".

Not that I care about the $, I can't get a ride on any charter boat for fifty bucks and I know he's got maintenance and upkeep on his motor, etc. I just wonder about expecting a waiver to hold up in court while you're breaking the law. Sounds to me that would be akin to dialing 9-1-1 to report the dope dealer stole your money while you were trying to buy crack from him. If he's charging fifty bucks per rider, that's in essence the same thing the dive shop charter is doing, he's just charging a lower price.

For y'all who know more about law than me (which is probably most of you) how would a liability waiver be defendable while operating an illegal charter?

 

[Belzelbub]

For y'all who know more about law than me (which is probably most of you) how would a liability waiver be defendable while operating an illegal charter?

This is a good point. I don't really know the answer, but I would think that the act of running an illegal charter would have an effect on the legal protections provided by the waiver. In most cases, a waiver is not iron-clad. Regardless of the wording on a waiver, it won't necessarily provide protection against negligence by the captain. And, I do think there is definitely an argument to be made that an illegal charter is by definition illegal, and therefore any requirements for boarding are therefore illegal as well.

I see advertisements for illegal charters on FB groups all the time. I don't believe that the person offering such trips realizes that they are advertising an illegal charter. The criteria seems quite clear. If compensation is required, then it's a charter. If compensation is offered by the guests, but not required by the host, then it's a private trip.

For sure, if you are a boat owner, it's a real good idea to make sure you are clear on what constitutes an illegal charter to make sure you stay on the right side of the law.

 

[pisauron]

If your friend slips in your house and breaks a bone, can he sue you?
sometimes yes, and he might even win.

So about that boat you only split the gas...

 

[rjack321]

For y'all who know more about law than me (which is probably most of you) how would a liability waiver be defendable while operating an illegal charter?

The fact that the boat is operating illegally is going to come out in any subsequent lawsuit - and reflect poorly on the owner in the eyes of any jury. Does it negate the waiver? No. Does it make defending the owner harder? Yes.

 

[OMyMyOHellYes]

So if my "buddy" required me to sign his waiver (you or your family can't sue me if I injure or kill you), yet he's requiring "gas money" from divers to ride (AKA operating an illegal charter), then under the clean hands doctrine, wouldn't that basically negate his "you can't sue me" waiver?

He's not a license captain and it's his own private personal boat. If he takes out 3 divers he looks at his fancy fuel management system and says, "We burned 10 gallons at $4.90 per gallon, y'all owe me $50 each". If he burns $50 in gas and is charging 3 divers $50 each, he's making $100 bucks; he burned $50 in gas but collected $150. To me that sounds like a "profit".

Not that I care about the $, I can't get a ride on any charter boat for fifty bucks and I know he's got maintenance and upkeep on his motor, etc. I just wonder about expecting a waiver to hold up in court while you're breaking the law. Sounds to me that would be akin to dialing 9-1-1 to report the dope dealer stole your money while you were trying to buy crack from him. If he's charging fifty bucks per rider, that's in essence the same thing the dive shop charter is doing, he's just charging a lower price.

For y'all who know more about law than me (which is probably most of you) how would a liability waiver be defendable while operating an illegal charter?

Why would splitting cost be considered an illegal charter?

I know WRT aircraft operation, Federal guidance specifically says that splitting costs of aircraft operation is NOT a charter.

 

[johndiver999]

Why would splitting cost be considered an illegal charter?

I know WRT aircraft operation, Federal guidance specifically says that splitting costs of aircraft operation is NOT a charter.

yeah, why could the owner not charge for a portion of the pro-rated fixed costs and all variable costs? Trailering the boat, dockage, oil, ice, insurance, registration, maintenance..etc.

 

[Belzelbub]

Why would splitting cost be considered an illegal charter?

Splitting costs by itself does not make it a charter. However, requiring the split of costs as a condition of the boat ride is what makes it a charter. Ultimately, if the payment is required, then it’s a charter with passengers for hire. Now, a voluntary contribution does not constitute a charter, though it is probably a significant factor in getting an invite back.

This article discusses charters, requirements, and illegal charters. Illegal Charters: Don't Step Aboard

Should the CG stop a vessel suspected of being an illegal charter, they will most likely interview passengers individually. They’ll be wanting to know how, and how long they’ve known the boat operator, if there was a fee requested up front, etc.

 

[Dapper Dan]

Splitting costs by itself does not make it a charter. However, requiring the split of costs as a condition of the boat ride is what makes it a charter. Ultimately, if the payment is required, then it’s a charter with passengers for hire. Now, a voluntary contribution does not constitute a charter, though it is probably a significant factor in getting an invite back.

This article discusses charters, requirements, and illegal charters. Illegal Charters: Don't Step Aboard

Should the CG stop a vessel suspected of being an illegal charter, they will most likely interview passengers individually. They’ll be wanting to know how, and how long they’ve known the boat operator, if there was a fee requested up front, etc.

Sounds to me like the email my buddy sends to all the divers he knows when he gets up a char... I mean goes out on his boat,
"...We'll spit the gas between the divers, please come prepared to pay your share of the gas cost." would fall into the "requested up front" category, no?

Maybe I should suggest he leave that part out of his emails. I'd think they could be "evidence" in a court of law if one of the divers reneged on his "gentleman's agreement" not to sue.

 

[happy-diver]

thanks for putting all these protections in place guys, what a mob, what a racket

 

[Jai Bar]

Threads like this one always remind me of Richie Kohler's story:

Send Lawyers Guns & Money

» Send Lawyers Guns & Money | reflections from my underwater world

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