Legal & other issues from SG Mishap

[Night Diver]

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...)

Except that . . . when's the last time you heard of the Coast Guard charging a boat captain for rescue costs where there wasn't gross negligence on the part of the boat, or a hoax call?

Your ambivalence on liability in general though seems perfectly appropriate because that's the nature of this issue. It's a complex relationship that is formed when a diver steps on (and off) a dive boat. But ultimately the purpose of the waiver is to ensure that the boat captain and the diver are on the same page when the facts go sideways. This one seems easy, experienced divers who apparently wanted to be solely responsible for what they did once they entered the water. Most of the debate here is more theoretical, which is why it will never be settled.

 

[Thalassamania]

Mr. Dive Operator, why does your waiver request that your guests not, “enter into or penetrate an overhead environment?”

Mr. Dive Operator, did the divers in question enter the water with strobes, multiple stage bottles and other equipment that a reasonable man would think was wreck diving and penetration equipment?

Mr. Dive Operator, did the divers in question, on the pervious day, enter the water with strobes, multiple stage bottles and other equipment that a reasonable man would think was wreck diving and penetration equipment?

Mr. Dive Operator, did the divers in question, in fact, “enter into or penetrate an overhead environment” on the preceding day?

Mr. Dive Operator, is it or is it not your policy to prohibit your guests entering into or penetrating an overhead environment?

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Then the question becomes, “Might one style as “reckless,” permitting a diver, regardless of his or her training or qualification to perform a dive that is prohibited in your own documents?” Answer "yes" to that and the waiver’s long gone.

 

[uspap]

Cross examination.
Mr. Dive operator: Is penetration of any kind strictly forbidden?
Mr Dive Operator: Are strobes and stage bottles only used for penetration dives?
Mr Dive Operator: Do you have any way to monitor where divers penetrate?

Did the waiver say that you couldn't penetrate or rather that it wasn't recommended?

 

[Gombessa]

Cross examination.
Mr. Dive operator: Is penetration of any kind strictly forbidden?
Mr Dive Operator: Are strobes and stage bottles only used for penetration dives?
Mr Dive Operator: Do you have any way to monitor where divers penetrate?

Did the waiver say that you couldn't penetrate or rather that it wasn't recommended?

Wouldn't that be re-direct?

 

[Thalassamania]

Right or wrong, I think it would get to trial.

I don't mean to make light of it nor am I expressing a personally held opinion on the issue one way or the other

Mr. Dive operator: Is penetration of any kind strictly forbidden? Yes.

Mr Dive Operator: Are strobes and stage bottles only used for penetration dives? Well ... no, some divers carry them for decoration, 'cause it looks cool.

Mr Dive Operator: Do you have any way to monitor where divers penetrate? No. And we take great care to assure that all our divers have complete privacy during their dive planning and pre-dive briefings.

Did the waiver say that you couldn't penetrate or rather that it wasn't recommended? It is expressly prohibited.

 

[Boatlawyer]

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.



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

For about the fifth time, Andy, the "waiver" or release of liability that the diver signed releases ONLY the dive op, not UKARC. And you know as well as I do that as long as there is no binding precedent relieving UKARC from common law duty under the same or similar facts, then it's fair game to argue, given a decent set of facts, that they assumed a duty. In fact it is the absence of such law that makes the whole question interesting.

And you should check the facts. This was an off-limits area which was reportedly chained and which chains had been cut. Just how hard would it have been to weld that area shut, like they did so many others.

I appreciate your dedication to the CONCLUSION, but, your facts are no more clear than the ones I propose, so, it's all fair game.

By the way, Andy, I might be moving up to your area... Fernandina Beach, to start up a gaming cruise line fro a client!
Cheers

 

[Gombessa]

I don't mean to make light of it ...

Mr Dive Operator: Are strobes and stage bottles only used for penetration dives? Well ... no, some divers carry them for decoration, 'cause it looks cool.

Hey Thal,

C'mon now, that one wasn't just a little snarky?

 

[mdb]

Wouldn't that be re-direct?

Well, we will have the lawyers going back and forth at $****per hour for some time.
The insurance companies will add their own and this whole thing will result in lots of money for law firms, more restrictions on diving, no real resolution at all. May God rest the souls of our fellow divers who are gone.

 

[uspap]

So strobes and stage bottles are decoration if you are not doing a Penatration dive? I guess I learned something.

Sarcastic answers are funny but I think they prejudice a jury.

Didn't they say the penetration was not done to protocol? Meaning they did not have the equipment with them?

 

[Cacia]

Well, we will have the lawyers going back and forth at $****per hour for some time.
The insurance companies will add their own and this whole thing will result in lots of money for law firms, more restrictions on diving, no real resolution at all. May God rest the souls of our fellow divers who are gone.

Yea, I really hate to see this stuff litigated when the divers certainly knew what risks they were taking.

Weld areas shut? Where does this "responsibility" end? By doing things like that, you create a world where people assume if someone hasn't baby proofed the wreck "it must be okay to enter."

The more we do these things the more the responsibilty shifts, which really paints society into a corner.