How to explain Liability to boat owner (in simple examples)?

[Zeke XA3]

Good morning SB,

Im currently hitting the limit of my skills on this one and seeing if anyone else can help me re-word my thoughts.

Im in contact with a boat owner, he wants to include scuba diving as part of a package on board (currently a charter vessel, sleep, eat, jet ski, swim etc). He has full liability insurance for everything that goes on on the vessel but Scuba diving liability is excluded as an extra.

Me or any other DI on board is covered by our own personal Liability insurance. We use the agencies required forms for Intro/Cert/Courses in order to be compliant.

So if an incident happened the DI would be assisted by the agency because they followed all the rules and the insurance company would pay legal fees in a win and pay up to the limit of cover in compensation if they lost?

However the boat could also be named and if diving is not covered they would be liable to pay all their own court fees and if they lose, any compensation.

This particular owner somehow keeps coming back to me with either that the incident would be covered under the existing insurance (ie boat captain hits a diver while diving, diver slips over in dive gear, diver cuts them self on coral since these are not "SCUBA accidents" but just accidents that could have happened without gear on) or that any actual diving incident would be covered by the fact they signed a waiver. Ive tried to find a "legal language" way of saying "waivers aint worth sh%$" all they do is give me a talking point to the divers about their responsibility and my expectations of them (i say that the forms say do what i tell you to do and if they do something i haven't told them and they get injured then its on them as a light hearted intro into local hazards) and by filling them in the agency will help me in a case as i have followed all their rules. What sort of simple example could i give of scuba incidents where i would be covered but the boat would be open due to having no coverage?

(I know there are many other variables, i have dive operation manuals drawn up, emergency action plans for various locations, crew training scenarios, required equipment, liability insurance for the equipment rentals, logs/records of servicing for all gear etc etc)

 

[Wookie]

You’re both right. First off, waivers are extremely valuable in that they show the intent of the diver before a disaster happens. Therefore, if the diver were to die, and the heirs sue, the boats lawyer will make the case that the diver intended to accept the liability on their own. So waivers are extremely valuable, especially in a waiver state like Florida and California.

Second, the “divers insurance” is also called in-water liability. It covers divers when they are underwater. But it’s pretty clear that the captain is not responsible for what happens when divers are underwater, just from surface to surface.

Here’s the deal. You notice I keep saying lawyer. What your in-water policy covers is the lawyer bill. If you have a boat policy that doesn’t cover your in-water liability, you get to pay for your own defense.

 

[Zeke XA3]

So putting it simply, if an incident happened during a dive that resulted in an attempt to receive financial compensation (i so wanted to word that in a worse way)......

If the plaintiff (i think its called) goes after the DI, the DIs liability insurance carrier will pay costs of lawyer and use the waivers etc to prove due diligence.

If the plaintiff goes after the operation (company owning vessel and employing crew), and the companies liability cover does not cover the incident the lawyer is just paid out of pocket.

How would this normally go, or does it really depend on the incident, in that would the plaintiff normally name the company, the instructor as a person or both?

I know I am covered (or any other DI in this situation) but dont want to leave the other crew exposed, and i know its not "illegal" to not have coverage.

 

[lexvil]

So putting it simply, if an incident happened during a dive that resulted in an attempt to receive financial compensation (i so wanted to word that in a worse way)......

If the plaintiff (i think its called) goes after the DI, the DIs liability insurance carrier will pay costs of lawyer and use the waivers etc to prove due diligence.

If the plaintiff goes after the operation (company owning vessel and employing crew), and the companies liability cover does not cover the incident the lawyer is just paid out of pocket.

How would this normally go, or does it really depend on the incident, in that would the plaintiff normally name the company, the instructor as a person or both?

I know I am covered (or any other DI in this situation) but dont want to leave the other crew exposed, and i know its not "illegal" to not have coverage.

Waivers limit payout, simply put the “diver” wants to dive, the boat owner says sign this if you want to dive, lawyer says did you read the waiver through, line by line?

DI insurance company pays out then goes after boat owner for to defray costs... boat owner needs insurance and it could be claimed() that negligence is a factor because present insurance pointed out the scuba was not covered. One case can easily negate a lifetime of savings by running the edge.

 

[Zeke XA3]

Ok it seems we are thinking on the same lines, ill prepare a "nice" message to concerned parties about the financial implications.

 

[flyboy08]

Everyone needs Insurance for no less than defense costs in the event of a suit whether the suit is valid or not! Most frivolous suites are tossed out in summary judgement, but there are still defense costs associated with the claim.

 

[Esprise Me]

How would this normally go, or does it really depend on the incident, in that would the plaintiff normally name the company, the instructor as a person or both?

Plaintiff's lawyers have been known to go after everyone involved in an accident, from the instructor to the captain to the airline that flew them there. My parents manufacture adventure sports equipment (not scuba) and were once named in a lawsuit in which the injured party wasn't even using their equipment. The plaintiff's argument was that he was told he would be using their equipment; the real reason was that the manufacturer of the equipment he did use was out of business, the instructor had no assets, and the plaintiff was desperately searching for someone with deep enough pockets to pay the medical bills. (And yes, he named American Airlines as a party to the suit as well.) That was obviously a frivolous claim, and my folks were able to get them to drop it with a threatening letter from a big law firm, which only set them back a few hundred bucks. But your captain is dreaming if he thinks the grieving family of someone who died diving from his boat would only sue you and not him.

 

[Zeke XA3]

Plaintiff's lawyers have been known to go after everyone involved in an accident, from the instructor to the captain to the airline that flew them there. My parents manufacture adventure sports equipment (not scuba) and were once named in a lawsuit in which the injured party wasn't even using their equipment. The plaintiff's argument was that he was told he would be using their equipment; the real reason was that the manufacturer of the equipment he did use was out of business, the instructor had no assets, and the plaintiff was desperately searching for someone with deep enough pockets to pay the medical bills. (And yes, he named American Airlines as a party to the suit as well.) That was obviously a frivolous claim, and my folks were able to get them to drop it with a threatening letter from a big law firm, which only set them back a few hundred bucks. But your captain is dreaming if he thinks the grieving family of someone who died diving from his boat would only sue you and not him.

its not so much the captain but the owner, and not so much that he wont be sued but that he can "fend off" the lawsuit by hiring a lawyer and showing the disclaimer for a lot cheaper than the additional premium per year.

 

[Wookie]

its not so much the captain but the owner, and not so much that he wont be sued but that he can "fend off" the lawsuit by hiring a lawyer and showing the disclaimer for a lot cheaper than the additional premium per year.

The other thing that the liability insurance buys is the award, as long as the lawyer didn't spend it all on the defense. a million used to be the standard, now it's 2 mil, a mil for the defense, and a mil to shut up the widow.

If your boat owner does it right, that is, separates his personal assets from his business assets, and doesn't pierce the corporate veil, and has the boat owned by some trustee that was obviously not at fault, etc. etc., then the owner can make an informed decision about whether or not to carry in water liability insurance.

Getting information from a divemaster (no offense meant) and an internet forum (none taken) about what could potentially be millions in liability (see Conception fire thread or Wave Dancer thread) is likely not the proper place to gather information. If you would like the phone number of the winningest scuba liability defense lawyer as well as the winningest scuba plaintiffs lawyer, I am more than happy to provide them. The defense guy is on retainer for me. And I don't even anymore.

 

[Zeke XA3]

The other thing that the liability insurance buys is the award, as long as the lawyer didn't spend it all on the defense. a million used to be the standard, now it's 2 mil, a mil for the defense, and a mil to shut up the widow.

If your boat owner does it right, that is, separates his personal assets from his business assets, and doesn't pierce the corporate veil, and has the boat owned by some trustee that was obviously not at fault, etc. etc., then the owner can make an informed decision about whether or not to carry in water liability insurance.

Getting information from a divemaster (no offense meant) and an internet forum (none taken) about what could potentially be millions in liability (see Conception fire thread or Wave Dancer thread) is likely not the proper place to gather information. If you would like the phone number of the winningest scuba liability defense lawyer as well as the winningest scuba plaintiffs lawyer, I am more than happy to provide them. The defense guy is on retainer for me. And I don't even anymore.

I absolutely want the end result to be this guy adding the diving premium to the insurance , and i know why in my mind. My initial question is how i can word this to someone who doesn't always live in our world in a way that they understand...

Due to my...situation shall we say, i deal with a lot of new yacht owners (i work in the superyacht industry) in the 80-120 foot range, these people, the stories i can tell, but suffice to say they have money and sometime their answer to stuff is literally "this doesn't apply to me" or "no one ever asked for it so we didnt do it (applies to paperwork, procedures as well and equipment!)".

Nearly all of these guys have the boat owned by a separate company from everything else. Which means it gets very complicated, example , owner being a European citizen, a Marshal Islands registered vessel, incorporated into an American company, operating in the Bahamas with a crew of European and South African. Further complicated between "owner" trips (non paying guests, classed as private use, certain maritime laws dont apply) and charter (paying guests).