Legal considerations for the Fire on dive boat Conception in CA

[ReefHound]

What the NTSB finds will drive what modifications to boat layout, equipment, procedures, etc. that must be done but regardless what NTSB finds I think this incident has created an awareness to the fact that you are very vulnerable packed like sardines below deck with little way to evacuate quickly. Some will soldier on, willing to accept there are risks in life, but many will decide the risk is too great. I've been hearing a lot of comments in various venues to the effect that people are rethinking the whole concept of liveaboards. Of course there will continue to be liveaboards. My point was will there be enough willing to dismiss the risks to support the base that currently exists?

 

[flyingron]

Of course, that's the point of the NTSB. On a major investigation, they will make their recommendations for changes, typically asking the appropriate agency to modify their regulations or step up enforcement of ones in place, but ignored.
Many regulations have their origins in the blood of the victims in prior accidents.

 

[DavidFL]

I know that the legal issues are completely different for the military, but I have only had experience as a Navy aviation accident investigator / Safety Officer. We had a similar situation. The mishap investigation was completely separate from the JAG Manual investigation. Besides all the other reasons, we wanted witnesses to be as open as possible under the circumstances with the accident board. That didn't stop the JAG Manual investigation from interviewing /examining the same people, but the witness statements and deliberations and conclusions of the accident investigation were not admissible in the legal investigation.

 

[Lorenzoid]

NTSB finding are merely the views of the investigators based on their investigation. My understanding is that those views, or findings, are developed collaboratively without regard to meeting the legal standards of civil litigation. To do so would complicate and almost certainly extend the already lengthy process of determining the probable cause of an accident. I expect it would also result in the NTSB investigators themselves being "put on trial" after every accident. The bottom line is this:

"The purpose of the statute making the NTSB's reports of accidents inadmissible in actions arising out of such accidents is to exclude reports that express agency views as to the probable cause of the accident because that is a finding in the province of the jury or fact finder." Britton v. Dall. Airmotive, Inc., No. 1:07-cv-00547-EJL, 2011 U.S. Dist. LEXIS 163211, at *5-6 (D. Idaho May 20, 2011).

"The legislative history of this statute demonstrates that the purpose of this exclusionary rule is to prevent a usurpation of the jury's role as fact finder." McLeod v. ERA Aviation, No. 93-294, 1996 U.S. Dist. LEXIS 3204, at *3 (E.D. La. Mar. 12, 1996).​

Thanks. That certainly makes more sense. I would never have thought conclusions and opinions would be admissible, but things like transcripts of interviews with witnesses, results of tests, simulations, etc.—no inherent reason why that shouldn’t be admissible.

 

[EricTheDood]

Thanks. That certainly makes more sense. I would never have thought conclusions and opinions would be admissible, but things like transcripts of interviews with witnesses, results of tests, simulations, etc.—no inherent reason why that shouldn’t be admissible.

An NTSB interview is not a deposition, and I would guess that a current NTSB employee cannot serve as an expert witness - that would be a huge conflict of interest.

Expert witnesses are paid handsomely. Top surgeons who serve as expert witnesses in big lawsuits are paid well over $1,000 an hour. Can you imagine what a top NTSB employee would be worth in an air crash lawsuit?

Whichever side agrees with the NTSB report can ask the same questions to the same witnesses in depositions, and use their own expert witness to conduct the same tests and the same simulations. They just can't drag the NTSB into the courtroom.

Lastly, jurors don't always follow the rules. Despite what the judge tells them, many will go home, go on the internet, and look up the NTSB report.

 

[Lorenzoid]

An NTSB interview is not a deposition, and I would guess that a current NTSB employee cannot serve as an expert witness - that would be a huge conflict of interest. Expert witnesses are paid handsomely. Top surgeons who serve as expert witnesses in big malpractice lawsuits are paid well over $1,000 an hour.

Whichever side agrees with the NTSB report can ask the same questions to the same witnesses in depositions, and use their own expert witness to conduct the same tests and the same simulations. They just can't drag the NTSB into the courtroom.

Right. I certainly wasn’t implying any of that.

 

[Bob DBF]

?..I think this incident has created an awareness to the fact that you are very vulnerable packed like sardines below deck with little way to evacuate quickly.

This is a fact of life for everyone today, but most don't see it, or choose not to. Ever get on a bus, plane, ferry, mall, sporting event, concert, and so on. Dangers are mitigated, not eliminated.


Bob

 

[scubafanatic]

Makes me thing, looking at the floor plan of Conception, why on earth didn’t they connect bunks with shower room and lead escape from there to the bow? Too expensive for them to have watertight doors in there?

Listen all critics of me - suing the governments is the only chance for victims families to get some money. They are not getting much from Truth, especially considering how they set up their boats as companies as someone here claimed.

Why should the taxpayers be on the hook for this ? The taxpayers are already paying untold millions of $ for court costs, to raise the wreck from the sea bottom, and for the dozens/hundreds of investigators / regulators / bureaucrats across a dozen different federal / state/ local agencies for years to come!

 

[scubafanatic]

What defendants other than the tour operator (Worldwide Diving Adventures) and the boat operator (either Truth Aquatics' LLC or the Conception's LLC). Sue the Coast Guard? Sue the people that built the vessel in 1981? Sue the surviving crew members? Sue the owner - maybe, but I would guarantee that there is an LLC at some level and that is what LLCs are designed for. LLCs are widely used in this country - I have a co-worker who rents out a couple of houses and each house is held by a separate LLC.

If each vessel has a separate LLC, perhaps the "veil" can be pierced to include the other two vessels. But that could take years. I would expect there are at least 3 LLCs, as this is a multi million dollar business and diving is viewed as a high risk sport. There will be of course hull loss insurance and some liability insurance. I expect the liability insurance will not be nearly adequate to cover payouts to the families of the 34 lost divers. And the 5 surviving crew will have bills and damages as well.

This should play out like the Richmond Dive Club and the Wave Dancer. The insurance will kick out its maximum payout. Plaintiffs will be offered that as a settlement, and will be informed that if plaintiffs go to court that the defense costs will be paid from the insurance payout. Plaintiffs' lawyers will recommend acceptance of the settlement. At the end of the day, there are only so many assets available to be paid to the plaintiffs, and litigation will just burn that down to a lesser dollar amount.

The Wave Dancer owners paid 1 million dollars to salvage that vessel: Wave Dancer Tragedy

The million dollars was deducted from the settlement offer: The Suit Against Peter Hughes Settled: Undercurrent 10/2002

It was a shameful episode in the history of diving. Peter Hughes' corporation washed its hands clean of the deaths of 20 human beings yet Peter Hughes is honored in the industry: Peter Hughes: Father and Legend of Live-Aboard of Diving

Cayman Islands Official Tourism Website | Welcome to the Cayman Islands

So here's how it goes hypothetically for this tragedy. If there is an LLC solely for the Conception, a settlement from the liability insurance for the Conception and for Worldwide Diving Adventures will be offered. The salvage cost of the Conception will be deducted. If plaintiffs choose to sue, the defense costs will be paid from the liability insurance until it is exhausted or the settlement is accepted. Again, see what happened with the Wave Dancer. If plaintiffs choose to sue, any compensation will be years away from being paid.

If there is an LLC at the Truth Aquatics level, or if the "veil" is easily pierced, then the settlement would get larger as it should include all Truth Aquatics assets plus insurance. But I would expect that the major assets of TA are the three diving vessels, one of which is gone. Profits would have been regularly paid to the LLC owners as is routinely done with LLCs in this country. As to the value of the Truth and the Vision, who knows? The Truth was built in 1973 and even the Vision dates back to 1985. That's 46 and 34 years old respectively.

The plaintiffs that do not want to accept the offer will face the bleak reality that proceeding with the lawsuit may delay and reduce the payouts to needy plaintiffs. As was the case with the Wave Dancer victims and plaintiffs.

With respect to the liquidation value of 'Truth' and 'Vision', I'm not sure you could even give those 2 ships away at this point, much less sell them for $.

 

[scubafanatic]

One thing that causes me to wonder about is is that the Conception passed the Coast Guard inspection. Perhaps Coast Guard regulations need to be more stringent. As I've said Truth Aquatics is a great operation which high levels of service and safety.

I'm betting, going forward, that the remaining Truth Aquatics boats will find passing future inspections/certifications rather tougher than before, especially happening so close to the FAA being so throughly called out/exposed when certifying the 737Max airliners as safe and sound.

The stigma now attached to the TA boats cannot be hosed off, no reputable consolidator/trip organizer will risk their business reputation or financial/legal/insurance exposure by booking on the remaining boats, which will be retired from service anyway, either via severe regulations, nobody willing to insure them, or a vanished dive market.

Their boat was clearly dangerous and they just got lucky for a very long time until they got unlucky. The RMS Titantic fully met the lifeboat standards of it's day too (legal/regulatory standards) but sadly didn't meet common sense/reasonable person standards either, it just got 'unlucky' much sooner in it's operational career than did 'Conception'.

That 'over a top bunk' escape hatch was an abomination and will likely turn out to be the world's most expensive 'escape' hatch in human history!