Legal & other issues from SG Mishap

[Boatlawyer]

JR-

And another question. If the dive op is only a "ferry" to the site, then why all the representations about dive levels and what you will be doing once you're off the boat?

 

[Gombessa]

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.

Lol, I'm sure you already know that there is zero chance anything said in this thread would constitute more than half an hour of research by a new summer associate It's all been very interesting discussion but contains none of the specific facts or law that would need to be determined to file a claim, let alone make an oral argument (so in other words, we should all feel free to pontificate away)!

 

[Night Diver]

[Interestingly, has a dive-op EVER taken a participant to court for violating the contract??? Bet not... ]

It's hard to come up with a scenario where the boat operator would be able to maintain an action like that, since in the abstract and in the vast majority of instances there's no "damages" resulting from such a breach by a diver, or any loss if so minor that litigation wouldn't be worth it (time spent in rescues, inconvenience, etc.). But you can bet you'll see exactly that contention, either as an affirmative defense or as a counterclaim/crossclaim, if litigation results against a dive operator.

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."

You got insta-buddied with an uninformed CA lawyer. The whole point of a waiver is to allocate rights before the facts arise. Sorry that one of my CA "brethren" was offering bad legal views out-of-state.

 

[J.R.]

JR-

And another question. If the dive op is only a "ferry" to the site, then why all the representations about dive levels and what you will be doing once you're off the boat?

YEA!!!! WHAT SHE SAID!!!!

(... actually I would define that as a 'condition of use'... the same as if you and I were to buddy up and I suddenly decided to change the dive plan on ya'... so I really don't have an issue with requiring somebody to agree to dive within their cert... violate that... you've bent your ability to complain if things go wrong. Part of the 'social contract' entered into to minimize the potential for one person screwing up everybody else's day...)

 

[J.R.]

It's hard to come up with a scenario where the boat operator would be able to maintain an action like that, since in the abstract and in the vast majority of instances there's no "damages" resulting from such a breach by a diver, or any loss if so minor that litigation wouldn't be worth it (time spent in rescues, inconvenience, etc.).

Awww... not hard at all... take for example a situation where the Coast Guard bills a boater for a rescue... A diver violates time and screws up the op's schedule... or causes a situation where the op's business is negatively impacted... lots of possibilities... gas, time, wages, impact on reputation... Of course, if the word got out that a dive-op sued a customer... THAT alone would probably have a negative impact on their business... sigh...

But, thanks for the 'second opinion' on the waiver issue.

Problem is... as a poor simple lay person who hasn't perculated through the hallowed halls of law school... it does seem a bit confusin'... particularly since, when I sign the waiver I have no knowledge of the op, the captain, the vessel, their level of training, etc., etc... asking ME to grant a blanket letter of absolution seems a BIT much...

(Hummm... wait a minute... didn't I enter this exchange from the perspective of "the dive op SHOULD be held harmless??? Ok... let me re-phrase... the dive-op should only be held harmless as long as they operated within the agreed upon service.... nope... crap... I think I'm losing... and to myself on top of it...)

 

[Gombessa]

Problem is... as a poor simple lay person who hasn't perculated through the hallowed halls of law school... it does seem a bit confusin'... particularly since, when I sign the waiver I have no knowledge of the op, the captain, the vessel, their level of training, etc., etc... asking ME to grant a blanket letter of absolution seems a BIT much...

Problem is, one-sided waivers and contracts of adhesion are the norm rather than the exception in the vast majority of commercial transactions today. How many of us can seriously say we read the 20-page EULA that pops on-screen whenever we install software on our PCs? Heck, how many of us have done more than just blindly click "I accept" to ScubaBoard's terms of use? Most states have some laws to protect consumers from patently unreasonable elements of these licenses, but the fact of the matter is, we as consumers are rarely in a position to know anything about the party we're releasing from liability by virtue of their own contract. :shakehead

 

[J.R.]

I do believe that a dive-op's liability should not extend to what they don't have direct control over... ie, if the divers are 'on their own'... liability ends when the feet hit the water and starts when they get back on the boat... as far as Boatlawyer's question... even though the dive-op may not be 'liable' for incidents once the diver has entered the water... I really don't see any problem with requiring the diver to agree to dive within the limits of their C-card... no different than if I say, "I don't want to go below 80 feet" to my dive partner... if we agree on the profile... that's what we dive.

On the other hand... if the dive-op puts a DM down with a group... then it would seem reasonable that the dive-op has assumed some liability for the dive as well...

The biggest thing about the 'representations of C-cards' *seems* to be more a function of a "one size fits all" waiver form... put everything ya' can in there whether or not it applies to this particular dive...

Could be wrong... simply my consumer perception...

 

[J.R.]

How many of us can seriously say we read the 20-page EULA that pops on-screen whenever we install software on our PCs?

...or, more profoundly, can claim to have any real understanding (from a legal perspective) on what the heck the things mean!

You're right though... we don't read... and, even worse, these 'waivers' have become so commonplace that even if we did really understand what we were signing... we'd probably sign it anyway because... well, damn-it... WE WANNA' GO DIVING!!!! (... or use the software... or whatever)...

Yet another piece of coal on the fire of encouraging people to ignore the rules, personal safety, etc., etc... reminds me of the old joke about the guy who jumps off of a 100 story building and was heard to say as he passed each floor... "So far... so good..."

 

[H2Andy]

This case won't see the light of trial, but I believe it highlights the danger of disneyfying diving. The SG ain't the Andrea Doria, it is easy to get too and highly marketed as a tourist attraction.

That, Andy, is what you should be getting exercised about, not whethe UKARC has any liability.

those are not the facts.

we have four experienced wreck divers here, who knew what they were doing, and did it hundreds if not thousands of times. they did not execute a safe dive. they died as a result.

in litigation (and i am a trial lawyer) the facts are everthing. you just can't make them up to suit you.

and there is not one iota of case law to say that an entity that sinks a wreck as a tourist attraction is responsible for all deaths that ocur on it, especially when the "tourists" are certified divers who are trained not to go into overhead without traning or who do have the training to go in.

i would be happy to see that case law

your position essentially is that simply by sinking a boat and mabye keeping it in good shape, you become liable for all accidents that happen there. there is no such precedent in admiralty or Florida law, and i don't believe there ever will be (for reasons of public policy)

i'll say it again: the UKRAC has *no duty* to divers who dive the Spiegel Grove under existing law.

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???

irrelevant

the divers signed a waiver. another motion to dismiss issue.

also, the facts are not correct. this is not a forbidden area, and the divers were advanced wreck divers.

very different facts from what you want them to be

 

[Gombessa]

and there is not one iota of case law to say that an entity that sinks a wreck as a tourist attraction is responsible for all deaths that ocur on it.

i would be happy to see that case law

Hi Andy,

Do you know if there's any authority that is directly contrary? I'm not familiar with any offshore/diving case law, but there may not be anything directly on point. In the in case that this issue is of first impression or sui generis, it could really go either way. And that pretty interesting, I'd say