Legal considerations for the Fire on dive boat Conception in CA

[roakey]

I think that’s a great analogy, except perhaps a 2 story structure with a basement.

Yhea, I've been thinking of it as a three story structure too - but a two story with a basement (with no windows) is much more accurate.

O2

 

[ChrisM]

Compliance doesn't absolve liability and get you out of court. Compliance helps show you tried, but it's just one of many hundreds of evidentiary exhibits presented to a jury during a trial. The owner of a movie theater is still liable if patrons die in a fire.

The owner has the option of dragging other people into the lawsuit - the builder and architect, the suppliers of all building materials, the suppliers of the chairs, etc. But it's a double edged sword. If he continues to operate his other movie theaters with known safety issues, how can he convince a jury that safety is his number one concern?

That is simply not true unless there is a known dangerous condition (or the owner should have known). Compliance with the regs is a presumption that it is not dangerous. You may disagree and think it is dangerous, but that's an issue to take up with Congress and get the federal regs changed. Absent negligence - blocking fire doors, aisle lights not working - the owner is not liable. Does not mean they will not be sued, and likely settle as that is how such litigation typically goes (having defended lots of them).

You are right that compliance is one aspect of whether the owner is negligent and thus potentially liable. But if there is no other evidence of increased risk as a result of the owner's acts, legally there should be no liability

 

[ChrisM]

I think that’s a great analogy, except perhaps a 2 story structure with a basement.

Yes, even better and more apt. And knowing the layout of the boat, and seeing the pics above, if the second floor is fully engulfed as it seems it was, there was absolutely no way the care could get down. The interview is also helpful too as Glen says the crew swam to the dinghy at the swim step, but the fire hoses were on the deck they couldn't get to

 

[scubadada]

It's too bad there is not a schematic of all 3 decks on the Truth Aquatics website, instead of just the bunk layout. That would have made it much easier to understand much of the discussion. All liveaboards I've been on have had full schematics available for review.

 

[EricTheDood]

That is simply not true unless there is a known dangerous condition (or the owner should have known). Compliance with the regs is a presumption that it is not dangerous. You may disagree and think it is dangerous, but that's an issue to take up with Congress and get the federal regs changed. Absent negligence - blocking fire doors, aisle lights not working - the owner is not liable. Does not mean they will not be sued, and likely settle as that is how such litigation typically goes (having defended lots of them).

You are right that compliance is one aspect of whether the owner is negligent and thus potentially liable. But if there is no other evidence of increased risk as a result of the owner's acts, legally there should be no liability

I should have worded my post differently. Liability is determined by a jury or settlement. We're many years away from that.

Exposure is a better word here. Truth Aquatics has plenty of exposure, as does everyone down their supply chain. Regulatory compliance will probably mitigate, but not eliminate, that exposure.

 

[ChrisM]

So, the lawyers will file wrongful death lawsuits, TA will tender it to their insurance companies. There will be reams of written discovery and depositions of the captain and crew will be taken. There will be experts on both sides, plaintiff's will say inherently unsafe and defense will say met all CG regs etc., and in about 2022 there will be a confidential settlement agreement that won't be allowed to be disclosed.

Even if the NTSB comes back with a clean bill of health the carrier will be wary of trying this case to a California jury as the emotional aspect is just too great, and Plaintiff counsel will easily be able to compound on the typical jury's lack of knowledge of diving ops and boat safety, on the theory of someone's gotta pay.

Which is why I am glad the NTSB is involved as we will at least get some semblance of the truth, which will not be revealed in litigation (said as a defense lawyer).

 

[roakey]

So, the lawyers will file wrongful death lawsuits, TA will tender it to their insurance companies. There will be reams of written discovery and depositions of the captain and crew will be taken. There will be experts on both sides, plaintiff's will say inherently unsafe and defense will say met all CG regs etc., and in about 2022 there will be a confidential settlement agreement that won't be allowed to be disclosed.

Even if the NTSB comes back with a clean bill of health the carrier will be wary of trying this case to a California jury as the emotional aspect is just too great, and Plaintiff counsel will easily be able to compound on the typical jury's lack of knowledge of diving ops and boat safety, on the theory of someone's gotta pay.

Which is why I am glad the NTSB is involved as we will at least get some semblance of the truth, which will not be revealed in litigation (said as a defense lawyer).

Sounds spot on.

Roak

 

[EricTheDood]

There will be experts on both sides, plaintiff's will say inherently unsafe and defense will say met all CG regs etc.,

On top of that, I think there's going to be a lot of finger pointing as multiple defendants are named over time.

 

[bigDave]

On top of that, I think there's going to be a lot of finger pointing as multiple defendants are named over time.

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.

 

[EricTheDood]

What defendants other than the tour operator (Worldwide Diving Adventures) and the boat operator (either Truth Aquatics' LLC or the Conception's LLC).

Depends on what the NTSB finds.

Source of ignition? It could be a battery as some of suggested. If that's the case, whoever made/imported the battery.

Cooking equipment maybe? Whoever made that.

How about the manufacturer of the smoke detectors?

All possibilities.

There aren't multiple LLCs as others have suggested. A quick search on the California SOS shows that TA is a corporation that was formed in '74. Business Search - Business Entities - Business Programs | California Secretary of State

No point in speculating what the plaintiffs want or don't want. It's an extremely personal decision for these family members that could range anywhere from wanting nothing to being out for blood.