Legal & other issues from SG Mishap

[J.R.]

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.

The 'waiver' is to ensure the captain and diver are on the same page? I thought the 'waiver' portion of the document you sign was to theoretically release the dive-op from liability. Seems to me (as I noted there seem to be two distinct portions to the document we generally refer to as a 'waiver') that the list of thou shalt not's that constitute the 'rules of conduct' would and should serve the purpose you define.

I agree with ya' though... the debate will, in all probability, go on.

With regard to UKRAC's liability though... I think I can safely say that the SG "structure" is probably the safest it will ever be at this point in time. Each passing day introduces more and more decay in the 'STRUCTURE' and weakens its integrity. This structural decomposition will occur in unpredicatable ways... introducing a more and more hazardous diving environment as time goes on. I doubt that this is a point that can be stipulated without contest. (Want proof? ... check out the Titanic...)

So... given that the structure will inevitably become less and less stable, interior wall collapse, maps become less and less reliable, welds fail, silt and rust build, etc... if there is liability at this point in time... will that same or greater liability exist 10 years from now? 20? Can Florida relieve itself of this liability from banning all diving on the SG? Could they enforce that ban? Are they willing to do that with ever vessel sunk in their waters?



Nope... they sunk a ship... you can look at pictures... you can dive and look at the outside... you can dive the interior... the level of risk involved is directly and solely related to how individual divers choose to interact with the object. Those who are heading down there have all been schooled in the potential risks of diving which, even in their earliest stages say "Don't go into a wreck or overhead environment unless you are properly trained to do so." These are not casual passers by who stumble in to something... decisions to interact with the wreck require planning and preparation on the part of the participants... so intent is present. The access to information about the wreck... oops, "structure"... is available... and ignorance is no excuse.

Even without any "official" restatement, the simple facts are... diving is dangerous, wreck diving is more dangerous... penetration diving is even more dangerous. Even the newest OW cert knows this.

... andi I'll repeat one more time... the structure isn't going to be getting any safer.

Whew... back on track now... feel better...

Wow... there seem to be a LOT of lawyers talking on this thread now... maybe its time for me to sip my coffee and just listen a while...:10: :10:

 

[H2Andy]

For about the fifth time, Andy, the "waiver" or release of liability that the diver signed releases ONLY the dive op, not UKARC.

for about the fifth time, i understand

you are the one who brought the dive op back into the equation with your question as to whether they knew or did not know the dive of the preceding day had taken place. that is irrelevant; the divers signed a waiver.

to sum up my argument:

you are arguing, without any supporting case law, that an entity that sunk a wreck has a duty to prevent the deaths of trained wreck divers that went into that wreck and who failed to follow a safe dive profile

good luck

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.

where are you getting this info from?

p.s. you will love Fernandina Beach ... well... assuming you like slow-paced, quaint old sea-side villages

 

[Gombessa]

you are arguing, without any supporting case law, that an entity that sunk a wreck has a duty to prevent the deaths of trained wreck divers that went into that wreck and who failed to follow a safe dive profile

To be fair, there hasn't been any case law bandied about either way, and the novelty of the facts here could very well mean there is no case law directly on point (maybe we can find a Scubaboard sponsor who will pay for the research to develop an opinion letter? ). But if something like this ever comes to trial--and I'm sure nobody in this thread is hoping it ever comes to that--I would not be all that surprised if a jury returned a verdict of liability based in part on assumed duty of care, if for instance, an entrance used was sealed off in an ongoing maintenance plan after the sinking. It wouldn't be the most illogical outcome, though I doubt it would mean anything good for the sport of diving generally.

 

[H2Andy]

To be fair, there hasn't been any case law bandied about either way,

"there is no precedent for this, your honor" is perfectly satisfactory.

then i ask the proponent of the new "duty" to bring forth case law that would support it.

they can't. ooops. i win.

I would not be all that surprised if a jury returned a verdict of liability based in part on assumed duty of care, if for instance, an entrance used was sealed off in an ongoing maintenance plan after the sinking.

it is impossible to comment without knowing the facts, and you're just hypothesising (sp?)

under the facts as known in this instance, there is no such implied duty of care. the authority never undertook to make the wreck safe from experienced wreck divers.

 

[Doc Intrepid]

The real problem with bringing forth any proposed new "duty" on behalf of (ultimately) the State, such that the State is then tied up in litigation, is that the next time someone wants to sink an Oriskany or whatever ship is offered next as an artificial reef/fish breeding area/dive destination States will run the other way or not allow the ships to be sunk at all.

The fundamental problem is that it is exceedingly difficult to protect people from themselves, particularly when they have the freedom to choose for themselves how they go about their lives.

Life would be so much safer if the State were allowed to make these decisions for them...

 

[J.R.]

Umm... sorry to step back in a bit... but all this 'liability' for the wreck debate got my brain wandering down a slightly different path...

In many parts of the country they are reintroducting various species of animals... one particlar critter that is being reintroduced into the wild is the wolf. Now... let's say, hypothecially, a released wolf and a human come together while walking in the woods and the human is attacked... any liability on the part of the agency that put the wolf out there?

... don't think so... but then, I ain't a lawyer type...

 

[H2Andy]

In many parts of the country they are reintroducting various species of animals... one particlar critter that is being reintroduced into the wild is the wolf. Now... let's say, hypothecially, a released wolf and a human come together while walking in the woods and the human is attacked... any liability on the part of the agency that put the wolf out there?

my guess is that any such authority would be part of the government, and thus protected by sovereign inmunity.

still, if an entity is negligent in how it goes about releasing the wolf, then you'd have a cause of action, but it would be limited (or barred) by sovereign inmunity. in Florida, you can only collect $100,000 against the government without legislative approval.

i do not know what the Federal sovereign inmunity entails

 

[Thalassamania]

Hey Thal,

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

Sorry, didn't mean to be. I just couldn't think of a reasonable answer to that one.

 

[Gombessa]

"there is no precedent for this, your honor" is perfectly satisfactory.

then i ask the proponent of the new "duty" to bring forth case law that would support it.

they can't. ooops. i win.

Well, that there's nothing directly on point basically means that both sides will end up having to find authority that justifies either extending or excluding existing doctrine to a new situation, which I think we can be fairly confident exists either for or against (if you'll allow me to stretch an analogy, e.g., guy puts up swing set in abandoned field, oils and repairs it every week, and one day someone gets hurt. How would that turn out? Not clear without more facts and certainly depends on jurisdiction, but at first blush it doesn't seem open-and-shut). A lack of authority directly on-point does not mean an automatic win for the defendant.

it is impossible to comment without knowing the facts, and you're just hypothesising (sp?)

Both true, but everyone's just hypothesizing in this thread, because nobody's going to go through the effort of doing the research. My point is simply that the facts, which certainly turn one way or the other and which none of us know, could easily be such that would directly affect the verdict.

I'm also not saying it would be a clear win for the Pl even you were to take the all the facts in her favor, just that it could happen (and wouldn't have to be contrary to law if it did).

At this point, I'm willing to just agree to disagree, especially to all the hoary facts. This thread is fascinating, but it's totally been making me neglect my daily duties. :no

 

[Night Diver]

The 'waiver' is to ensure the captain and diver are on the same page? I thought the 'waiver' portion of the document you sign was to theoretically release the dive-op from liability.

I say that because the waiver here, as with most dive boat waivers that I have seen or signed, essentially allocates responsibility and liability betweenthe captain and the diver. On the ride out, on the ride back, it would be hard to argue that such a waiver releases the dive boat of liability if - for example - the captain hits another boat and the passengers are injured or killed. Being injured in a boat collision is not among the inherent risks of scuba diving that the diver knowingly waives when he gets on the boat.

But once the diver gets in the water, responsibility and liability are allocated to the diver. He/she accepts and is now responsible for his own safety and wellbeing. Which would include diving a profile within personal and generally accepted limitations.

So yes, the waiver is designed to release the boat from liability - but only in that portion of the undertaking which the diver and the captain have agreed, through the waiver, that the diver assumes responsibility for managing.