The boat, the crew are liable regardless. That waiver is useless. you accept the risk of diving, not the risk of being left in the open ocean. They left a diver in the water. They are negligent in there duties to provide a safe diving environment in which they have full control above water on there boat. Not taking a head count is asking for trouble. They would have discovered a missing person once the head count was taken.
Judge rules-Abandoned diver can sue charter company
- Thread starter almitywife
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I would also expect that the arguments included the “reasonable man test”. While, as a diver engaged in an inherently dangerous sport, I take responsibility for myself and my actions in the water pursuing my hobby/sport. However, it is reasonable to expect that the dive boat operator will take me to a safe dive spot and return me to the dock. While I have a great deal of control over what happens to me in the water, I have little if any control over what happens to me relative to the boat operations as transportation to and from the dive sites.
Again, it is beyond the expectations of a reasonable man to not expect the dive operator to provide transportation BOTH ways. While the diver has control over choices made in the water and in diving, as a passenger, that diver has little control over the operation of the boat.
Is it negligence, gross negligence or even criminal negligence? I don’t know. That is for the jury to decide, should the case go that far. I am not privy to the entire body of facts surrounding this case.
The amount of the requested compensation seems to be bothering a number of people. This is not a case where it can be broken down into a dollar amount per hour. The length of time in the water is not significant. The fact that the diver was left in the water at all is what is significant. It is that action that is being tried, not the length of time.
Whenever the magnitude of a circumstance is in question, I am reminded of the story regarding Churchill and arch-nemesis Lady Astor. Reputedly seated next to each other at a fund raising dinner, Churchill asked Lady Astor if she would go to bed with him for £1,000,000 to the charity. She replied that she would. Churchill then asked if she would go to bed with him for £1. Angrily, she asked if he took her for a prostitute. He retorted that that fact has already been established and they were merely haggling prices.
In other words, 4 hours or four days, it doesn’t matter to the man who watches the boat disappearing into the fog. He’s been left behind.
Ian
SCUBAJENNIFER
Contributor
Perhaps what the DIVERS need to do...is come up with a waiver ourselves...something to effect that no dive boat/charter will leave my a$$ out in the open seas. Then have the charter/dive operator people sign it...no sign, no cash. How many divers wouldn't want something like that signed. How long would these dive operators be in business if they didn't sign something like that? Food for thought...hopefully it doesn't get to something like this...but if you make some Liability Waiver binding...one has no recourse but to fight back with a waiver ourselves. Liability Waivers DO NOT COVER ACTS OF STUPIDY...and leaving a diver behind is an ACT OF STUPIDY....period. How much is that worth...for a jury to decide.
fairybasslet
Contributor
How about if a new system was instituted? Pay when you get off the boat. That way they will be sure not to leave you behind.
The bottom line here is that if a large award is made, all of us will end up paying higher prices for dive boats, because liability insurance rates will skyrocket for everyone in the business.
The same sort of thing all but killed general aviation, and could do the same for the diving industry.
That sucks.
Rick
The same sort of thing all but killed general aviation, and could do the same for the diving industry.
That sucks.
Rick
Hetland
Contributor
Why would you think that? Think of lost earning potential, loss of spouse/father, etc.
I'm amazed that so many of the posters are so well read in the law of negligence in California! (insert sigh here)
The sole purpose of a liability waiver IS to absolve a party of liability for his negligence. You are NOT liable for actions which are reasonable (and here, of course, I'm talking theory, not jury practice) and so you do not need a "waiver" for reasonable actions. You only need a waiver for "unreasonable" actions.
Yes, one contracts with a boat to take them out and back in. The boat didn't fulfill that contract here. That is irrelevant to the issue of whether the waiver is:
a. Valid under California law (and apparently it is); but
b. In this case, something that gave notice to the diver that it was possible he could be left behind (again, apparently the judge ruled that being left was NOT within the scope of the activities covered by the waiver -- look at the PADI waiver I posted earlier and see if there is anything in that language which would cover being left behind).
I happen to believe that waivers ARE good public policy -- especially for "frivolous inherently risky activities" such as Scuba. In my mind, there is NO public policy goal that is enhanced by letting people off the hook for signing away their rights to sue. But then, as Thal pointed out, I'm a right-wing former trial attorney.
The sole purpose of a liability waiver IS to absolve a party of liability for his negligence. You are NOT liable for actions which are reasonable (and here, of course, I'm talking theory, not jury practice) and so you do not need a "waiver" for reasonable actions. You only need a waiver for "unreasonable" actions.
Yes, one contracts with a boat to take them out and back in. The boat didn't fulfill that contract here. That is irrelevant to the issue of whether the waiver is:
a. Valid under California law (and apparently it is); but
b. In this case, something that gave notice to the diver that it was possible he could be left behind (again, apparently the judge ruled that being left was NOT within the scope of the activities covered by the waiver -- look at the PADI waiver I posted earlier and see if there is anything in that language which would cover being left behind).
I happen to believe that waivers ARE good public policy -- especially for "frivolous inherently risky activities" such as Scuba. In my mind, there is NO public policy goal that is enhanced by letting people off the hook for signing away their rights to sue. But then, as Thal pointed out, I'm a right-wing former trial attorney.
hubert
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I think Ken Curtis (who is well extremely well respected in the LA diving community) wrote a long article somewhere about the case (maybe it can be found on the reefseekers.com web site, or we could ask him). He pointed out several mistakes that the diver himself had made - mistakes that do not change the essence of the issue, but help explain why he may have gotten forgotten.
I have doved over the years in many places and on many boats. I DO find that dive boats and dive operators, in general (there are exceptions) have lowered the standards of their performance considerably. Just like agencies have lowered the standards of their certifications. It would be a good thing if this lawsuit led to defining a certain chart of quality for services rendered. One point that always troubles me is how you get assigned ``instabuddies'' by the DM without a proper introduction of any kind, and without, in most cases, having the DM check that the people are compatible in terms of experience, motivation etc. I am not asking for micromanaging: but typically, on a dive boat like the Sundiver, there'll be *mostly* people who know each other, and then one or two lone souls who have to be paired, or, in the worst cases (such as this one) added on an already existing pair. For these lone souls, a little extra attention should be provided, something more than, "OK, tom dick and larry, you'll get in together, right?"
I don't really think demanding a little more work from the DMs would make things too costly to operate. I know many people who don't go on dive boats just because they are very uncomfortable with the idea of not being buddied up properly - typically, people who are in CA for a few days only. They would be easily lured in by the promise of a little more attention.
In my opinion, the truly responsible people here are the guy's buddies. WHO can get in the water paired with someone, come back later without him or her, and not at any point wonder what has happened, whether the other person is safe etc?
(and yes, I have had so often bad experience with buddies than I go solo or not at all now, but that's another story).
Finally, although I feel for the diver who got abandoned, and I think he is entitled to compensation, I hope the story of the skin cancer is a mistake in the article or something. Making this point for a four hours stay in the water is ridiculous, and throws doubt of the seriousness of the whole issue!
I have doved over the years in many places and on many boats. I DO find that dive boats and dive operators, in general (there are exceptions) have lowered the standards of their performance considerably. Just like agencies have lowered the standards of their certifications. It would be a good thing if this lawsuit led to defining a certain chart of quality for services rendered. One point that always troubles me is how you get assigned ``instabuddies'' by the DM without a proper introduction of any kind, and without, in most cases, having the DM check that the people are compatible in terms of experience, motivation etc. I am not asking for micromanaging: but typically, on a dive boat like the Sundiver, there'll be *mostly* people who know each other, and then one or two lone souls who have to be paired, or, in the worst cases (such as this one) added on an already existing pair. For these lone souls, a little extra attention should be provided, something more than, "OK, tom dick and larry, you'll get in together, right?"
I don't really think demanding a little more work from the DMs would make things too costly to operate. I know many people who don't go on dive boats just because they are very uncomfortable with the idea of not being buddied up properly - typically, people who are in CA for a few days only. They would be easily lured in by the promise of a little more attention.
In my opinion, the truly responsible people here are the guy's buddies. WHO can get in the water paired with someone, come back later without him or her, and not at any point wonder what has happened, whether the other person is safe etc?
(and yes, I have had so often bad experience with buddies than I go solo or not at all now, but that's another story).
Finally, although I feel for the diver who got abandoned, and I think he is entitled to compensation, I hope the story of the skin cancer is a mistake in the article or something. Making this point for a four hours stay in the water is ridiculous, and throws doubt of the seriousness of the whole issue!
djanni
Contributor
Having been abandoned myself (my wife & I) I may have a different perspective than some of you. Although I could see the shore line off in the distance and was left floating for about a half hour it was intimidating and unsettling.
We were left because their proceedure for ensuring all the divers were back onboard was a headcount. There were 24 divers on the boat and head counts don't work!!!
The last thing I want to see are esculating fees for dive trips because dive operators have to carry the burden of higher insurance rates; however, if it will encourage or even require dive operators to improve their proceedure then I'm all for it.
We were left because their proceedure for ensuring all the divers were back onboard was a headcount. There were 24 divers on the boat and head counts don't work!!!
The last thing I want to see are esculating fees for dive trips because dive operators have to carry the burden of higher insurance rates; however, if it will encourage or even require dive operators to improve their proceedure then I'm all for it.
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