Legal & other issues from SG Mishap

[Thalassamania]

Deleted

 

[Boatlawyer]

All this is kind of interesting. In other threads people talk about if a dive buddy can be sued for "allowing" the other buddy to die. Now the dive buddy is a lawyer and nobody goes there. I'm not saying the buddy is responsible so don't flame me. I think it's sad how common sence is not a factor in the legal system. Boatlawyer is playing Devil's advocate (in my opinion) and giving a scenario of how a trial lawyer may proceed. I could give another scenario of how the defence could counter but it would be inapropriate. After all I'm not a trial lawyer nor is boatlawyer. It would all be speculation. It comes down to who can twist the facts the best on any given day to make 12 people believe a load of crap.

Pap-

What exactly is wrong with speculation? I would say that practically every decision I make is based on speculation. "Hmm, if I do this, then this is likely to happen," or "let's see the last time I did this, this is what happened." Drawing from our perception of the past, considering alternatives and drawing conclusions is pretty much how most people function, it called rational behavior.

This is just a forum where ideas are tossed around. Some find the legal discussion interesting, others not so much, which is why the mods segregated this thread.

As for my not being a trial lawyer, let me clarify. I am not a personal injury lawyer. I have a trial docket, it's just much smaller than my transactional clients. And any transactional lawyer will tell you that in drafting agreements, such as liability releases, you always have to keep your eye on averting potential lawsuits. So not exactly worthless speculation in my biz.

ETA: And the reason nobody is talking about suing the lawyer buddy is because no one is allowed to say bad things about lawyers, haven't you been paying attention to this thread? Everyone is skeered to criticize us.

 

[Thalassamania]

Does it change anyone's opinion if the dive op knew that contrary to the release the divers had penetrated the wreck (in an allegedly forbidden area no less) and yet allowed them back on the boat the very next day, signing the very same release, to do the very same dive???

That get's real messy. I'd say the waiver goes out the window.

 

[DeepBound]

Does it change anyone's opinion if the dive op knew that contrary to the release the divers had penetrated the wreck (in an allegedly forbidden area no less) and yet allowed them back on the boat the very next day, signing the very same release, to do the very same dive???

Yeah. They shouldn't bring them there to do a penetration dive if they aren't wreck penetration certified. Most dive boats check c-cards, why not check for a real wreck penetration c-card? Since when is that even controversial?
On the other hand, why don't they allow wreck penetration trained divers to go in the wreck? It's weird.

 

[J.R.]

Now, latest reports indicate that the group had done the same dive into the pump room the previous day, which would have been in apparent violation of their promise on the release.

Does it change anyone's opinion if the dive op knew that contrary to the release the divers had penetrated the wreck (in an allegedly forbidden area no less) and yet allowed them back on the boat the very next day, signing the very same release, to do the very same dive???

Not necessarily... I might have missed something but I don't recall anything that establishes they dove with the same op.

But... even assuming they did... THEY violated a signed agreement... (unless there might was an addendum to the agreement - verbal or otherwise - based on negotiations not made public).

Nor is there any indication (ok... maybe the stage bottles, who's presence seems to be a grey area in all this) that the diver's clued the captain into what they were doing... in fact, it could be argued that the absense of a reel of safety line might not have been purely because of potential entanglement issues... of course, this is ALL speculation. But, if you're posing a hypothetical... I shall reply with a hypothetical response.

Further, I still contend that, as the dive-op did not have on-site supervision of the dive present at the wreck site, which I assume was obvious to all who began their dive from the tranport vessel, the dive-op's liability stopped the moment the diver's feet hit the water and resumed only after the diver again set foot on the boat.

[Interestingly, has a dive-op EVER taken a participant to court for violating the contract??? Bet not... ] One can't require what one can't enforce... and, from my limited legal knowledge, the waiver seems to be a principle document in the 'services for consideration' concept...

But this brings me to a question on the whole 'waiver thing'. Last summer I was insta-buddied with a lawyer from CA. When presented with waiver he didn't balk at signing it but did comment to the dive-op... "Sure I'll sign it because it's inherently worthless... one can't waive their rights before the fact."

Now, given that there is some validity to HIS point of view, it seems that the principle function of the waiver is get a signed acknowledgement from the diver that they understand the dive op's rules and the parameters of behavior that the op will not tolerate. (I'm good with this to this point... after all... it's their boat... they get to make the rules.) However, if a diver does break the rules... and then comes up with several sincere sounding "mei culpa's"... should the generosity of a dive captain to give them a second chance be held against them if he does give them a second chance and things go wrong?

... again... this is all pure speculation... but, in response to the theoretic question, I'll post a theoretic answer...

LATE ADDENDUM... inherently there seem to be two parts involved in a waiver... the first part is the establishment of the rules the operater expects the participants to follow while on or utilizing the operator's propery or services... the second is the 'waiver of rights' or 'hold harmless' portion. I guess the issue here is... I don't have any issue with following your rules if they an inherent part of the agreement for services...

Waiving my rights to take legal action if you do NOT fulfill your requirement... well... hummm... not so sure about that one.

But, if, by my violation of the rules I put myself in harms way... yea, I've waived my right to sue.

 

[uspap]

Boatlawyer
I should clarify. The reason I feel it would be inappropriate is my arguments would be unkind and I wouldn't want to hurt anyone involved or related to members of this tragety. When I said Devil's advocate I was defending you. It seems to me you were not in agreement with your arguments but were stating them to make people think. I am all for speculation. I would be happy to state my counter arguments if people would understand that I don't believe them for one minute but I would probably come out looking like a jerk.

 

[AXL72]

Deleted

I must be rubbing off on some people with my fiery posts that I find myself coming back to edit

 

[AXL72]

HEY...why are we arguing the points for an ambulance chaser


I can see it now....Scubaboard posts being quoted word for word by a Florida lawyer arguing a case for monetary retribution for the victims.

Hush now.....lawyers are not the salvation army. Stop doing their work for them

 

[Boatlawyer]

Boatlawyer
I should clarify. The reason I feel it would be inappropriate is my arguments would be unkind and I wouldn't want to hurt anyone involved or related to members of this tragety. When I said Devil's advocate I was defending you. It seems to me you were not in agreement with your arguments but were stating them to make people think. I am all for speculation. I would be happy to state my counter arguments if people would understand that I don't believe them for one minute but I would probably come out looking like a jerk.

Glad you had my back, pap! This is a tough crowd!

 

[J.R.]

Hummm... so ANOTHER question is... as there ARE two discrete parts to waiver forms... WHY is it presented as a single document? Is there some attempt on the part of their representation to slide either the rules or the waiver past the unsuspecting participant? Shouldn't these, for the sake of clairity, be two separate documents... one acknowledging an awareness of the rules and one a conditional rather than blanket tacit agreement to hold harmless??? Could a dive-op refuse service to someone who agreed to follow their rules... but reserved their legal rights??? Is this why the two portions are presented as one???

Wow... this amature lawyerin' stuff is fun...