Instructor sentenced after diver's death

[leadduck]

I dived at that site two weeks before the accident. Visibility was very bad, about 1m and cleared up only below 20m where visibility was OK but no light, all pitch black. Not unusual there in summer with algae and rain. We had planned to practice free ascent, but then decided not to due to extremely bad visibility over a steep slope, and had a nice after-work dive to 35m instead. It's a steep slope down to 50m, a wall on one side with a big mirror installed at 32m for selfies. Popular spot, but definitely not the place to go for your very first cold water mountain lake dive.
The guide was sentenced because he left the victim at 36m. According to the expert witness the victim was overweighted but the guide could have easily inflated the victim's BC; there was no technical problem, the guide just didn't do it and went up alone.
Although they had paid the guide for the event, I don't think that it was relevant for this particular case. Any diver deserting his buddy in need for no reason would've been investigated for involuntary manslaughter. It's because team members agree to help each other and the victim accepted an elevated risk because of that agreement. (Whereas refusing to help a random stranger in need whom you met accidentally, is a mere crime of omission with lower penalty.) The qualification and experience of the defendant raises the bar on how much you can expect from him, and an instructor will be held to higher standards than a fresh OWD.

 

[EireDiver606]

This case involves a familiar argument on ScubaBoard. What is the liability of a dive guide when guiding certified divers?

First, let's fill in some details I got from translating articles with google--which is clearly how much of the phrasing of the OP came into existence. The instructor in the case was not teaching a class--he was guiding a dive that had been given to the female diver as a gift certificate. The male was her boyfriend. The dive shop through which they did the dive failed to provide the requested higher capacity tanks for divers with a known problem with air consumption. They also provided 5mm suits for a dive at temperatures around 5 degrees C (41 degrees F)--nowhere near enough thermal protection. Finally, the divers were apparently seriously overweighted as well. During the dive, the guide did not monitor air consumption, leading to a rapid ascent from great depth. The guide stopped them and dumped air from their BCDs. He apparently dumped too much, and the overweighted divers plummeted. The female finally got to the surface, but at depth the guide panicked and went to the surface alone, leaving the male at the bottom.

In a typical ScubaBoard argument, some people argue that a guide of certified divers is just a guide, with no responsibility for the safety of the people being guided. Others argue that the guide does indeed have a responsibility for the safety of customers--that's primarily why they are hired to guide the dive. This is especially true in this case, where the customers had nothing but minimal warm water diving experience and had no way of knowing the dangers involved with diving at such temperatures and are likely to trust the guide's experience in telling them that their 5mm suits were OK for those temperatures, that their weighting was correct for those wetsuits, and the small (10L) tanks they were using had enough gas for the depths they were diving.

The liability in such cases varies greatly with local law. When Gabe Watson's wife perished on a dive in Australia, he had to plead guilty to manslaughter based on a local law that held him liable for her rescue, even though he was not a professional. In Malta recently, a diver was indicted for murder in a case when divers died of natural causes on a dive, simply because he was the most experienced diver in the group and supposedly should have known that the conditions were too rough and would lead to a diver having pulmonary immersion edema. (Those charges were eventually dropped.)

Great post @boulderjohn.

IMO I think that it was a lack of experience but the divers were certified and therefore they should be independent and not be life-dependent on a guide.

Are you sure they gave them 5mm for 5 degrees water? That seems unbelievable. Why would they stock wetsuits in places as cold as that.

 

[EireDiver606]

I wouldn't draw any such conclusions from the amount of the fine in a German criminal case.

The approach to "Crime and Punishment" is very very different between the USA and Europe. With the USA over-focused on Punishment as a form of a Retribution.

In a criminal case the European approach to sentencing is more focused on Rehabilitation. It is hard to see what purpose a long custodial sentence would serve in a "misadventure" such as this.

Of course the victims family may yet bring a civil claim against the instructor, but even if successful the damages award by a panel of professional judges are unlikely to be as eye-watering high as US jury awards.

100% true

 

[oldschoolto]

So it's gotten to the point that We have people with dive master/ Instructors cards not knowing how to look after divers they are being payed to look after, And divers with OW/AOW cards not knowing how to look after themselves... As far as I can see from reading ... None of them should have been in anything but a 4 foot indoor pool... Being retrained as Bubble makers...

Jim..

 

[tomcatbubba]

Yes, and fundamentally that is why I am hesitant to teach or dive with anyone who I feel may be suspect. Not worth risking my health, net worth, or going to jail. I'm leaning more toward just teaching nitrox to limit my risk exposure to the ding dongs out there..........

 

[johndiver999]

Why didn't the diver drop his weightbelt?

 

[EireDiver606]

Why didn't the diver drop his weightbelt?

Or even just inflate his stab jacket

 

[Dan]

Why didn't the diver drop his weightbelt?

Panic, brain freeze,.....

 

[newmanl]

A sad tragedy to be sure, but another example of what is broken with our sport. Courses are too short and don't include enough material and time for folks to feel competent after receiving a cert card, the industry setting the bar so low as to have folks tripping on it as they enter or participate in our sport - for example, on an "advanced adventure dive trip" in Maui the requirement was one (1) dive in the last six (6) months... seems like there's a reluctance to turn away customers without the necessary knowledge, skills and experience. Were it not for the near perfect reliability of scuba gear and the sheer luck (it has to be luck, as so few actually take the time and make the effort to remove as much uncertainty from a dive as they can) that nothing goes wrong there would be a lot more accidents. Also, at the rate the industry churns out instructors and divemasters, the term "professional" has come to mean less and less.

 

[Marie13]

Yes, and fundamentally that is why I am hesitant to teach or dive with anyone who I feel may be suspect. Not worth risking my health, net worth, or going to jail. I'm leaning more toward just teaching nitrox to limit my risk exposure to the ding dongs out there..........

I've had a few people telling me I should think about DM in a few years, simply because I'm passionate about diving. Even if I was inclined (I'm not for a number of reasons), the liability issues make it a big NO.