Non medical accident - gear lost - opinions please

[raviepoo]

The crew of this (hypothetical) dive boat customarily sets up all gear (rental and personal) before dives. On the day of the incident:

Crew sets up gear;
Diver notices errors in personal gear set up*;
Diver corrects errors in setup;
Diver begins to put rig back in tank holder;
Crew member says, "Here let me do that";
Diver lets crew member do it;
Moments later a wave kicks up, and diver's BC, regulator and computer (plus dive operator's tank and a few pounds of lead) pop out of tank holder and are lost overboard in deep water, and not recovered.

So what do you guys think of this? Who is at fault? Should the diver be compensated (in whole or in part) for the loss of the gear? If compensation is offered, what should it be based on? Manufacturers suggested retail (LDS) price? Grey market prices? (I'm not going to mention names. You guys know what sources I'm talking about when I say grey market.)

I'm looking for a reality check. Opinions (even ones I don't agree with) will be greatly appreciated.

*errors = wrong regulator on wrong BC, dual tank band BC set up so only one tank band is on tank.

 

[Web Monkey]

So what do you guys think of this? Who is at fault? Should the diver be compensated (in whole or in part) for the loss of the gear? If compensation is offered, what should it be based on? Manufacturers suggested retail (LDS) price? Grey market prices? (I'm not going to mention names. You guys know what sources I'm talking about when I say grey market.)

Morally? Probably their fault (insufficient tiedowns, employee error, etc.)
Legally? You probably won't get squat unless you get a lawyer to beat it out of them.

I've paid lawyers to get stuff for me over the past 40 years or so, and have found that even when I won and recovered damages, it never covered the time I wasted and the aggravation of having to disrupt my schedule multiple times to deal with all the BS.

If it were me, I'd tell them you want a year's worth of free boat rides for your trouble, and then go buy some new stuff. You can also check your homeowners insurance. Mine covers accidental loss.


Terry

 

[Vayu]

In my opinion, the diver should have taken care of their own gear. They should not be compensated. It is every individuals responsibility to 1. Make sure the gear is setup properly and 2. to secure the gear properly. No question about it.

 

[do it easy]

I would say it sounds like the crew member didn't properly tie down the gear. Did anyone else's gear go over in the wave or just this one set? Did the crew member put on a bungee/tie down or just assist you with getting it back to the rack? Did you work on it to change the regs after it was racked up again? Was there any warning from the boat crew that a wave was coming?

Asuming the baot operator is at fault, I would be happy if the gear was simply replaced. If the dive boat owner wanted to cut me a check at the "market price" that would be great. If they could get better pricing, I'd also be happy if they offered to replace it with the same stuff.

If you had insurance that covered it, you would probably get something called "actual cash value" which is the depreciated cost of the gear. I would also be fine if the insurance company paid and the boat operator offered to pay the difference.

In reality, something bad happened to your gear and you will never be made completely whole to your satisfaction. Sorry for your loss.

 

[ItsBruce]

There is an old legal doctrine referred to as "ou touchio lastum." It means "you touched it last."

But seriously, the law generally says that when one undertakes to do something, such as setting up gear, putting it on the boat, etc. one must use reasonable care in doing so and if the lack of reasonable care is the legal cause of someone being injured or something being damaged, that person is legally responsible. "Reasonable care" refers to what a "reasonably prudent person" would do under similar circumstances. There are two facets to "legal cause." One is that the result would not have happened "but for" the act or omission. The other is that the injury or damage was a reasonably foreseeable result of the act or omission. As to the amount for which one would be liable, the general rule with respect to damage to property is the cost to repair or replace with similar property in similar condition.

My immediate reaction is that the crew member would be liable for the cost of a similar bcd, regulator and computer in used condition. Most US jurisdictions have some form of small claims court where one can represent himself or hersellf and does not need a lawyer ... so the cost of hiring a lawyer does not exist.

 

[raviepoo]

I would say it sounds like the crew member didn't properly tie down the gear. Did anyone else's gear go over in the wave or just this one set? Did the crew member put on a bungee/tie down or just assist you with getting it back to the rack? Did you work on it to change the regs after it was racked up again? Was there any warning from the boat crew that a wave was coming?

The other tank that popped out was in the sunken area of the boat, away from the dive platform.

The tank wasn't bungied. There were no bungies on the boat. All of the taks were secured by plastic tank holders.

The crew member did not assist me. The crew member took responsibility for securing the tank and sent me back to my seat at the front of the boat. I didn't touch the rig after that.

Mo warning about the wave, but, to be fair, it wasn't a huge wave. I would not have expected it to dump anything off the boat. But I trusted the boat's setup, against my insticts. If the crew hadn't stepped in I would have hauled the rig to the sunken, passenger area of the boat and set it down flat on the tank.

My mistake was following the rules of the boat. But you pretty much have to do that. The only other option is to go with a different dive op.

 

[Thalassamania]

The other tank that popped out was in the sunken area of the boat, away from the dive platform.

The tank wasn't bungied. There were no bungies on the boat. All of the taks were secured by plastic tank holders.

The crew member did not assist me. The crew member took responsibility for securing the tank and sent me back to my seat at the front of the boat. I didn't touch the rig after that.

Mo warning about the wave, but, to be fair, it wasn't a huge wave. I would not have expected it to dump anything off the boat. But I trusted the boat's setup, against my insticts. If the crew hadn't stepped in I would have hauled the rig to the sunken, passenger area of the boat and set it down flat on the tank.

My mistake was following the rules of the boat. But you pretty much have to do that. The only other option is to go with a different dive op.

In the situation that you describe I say that the operator should be resonsible. Frankly I'd expect to have the gear replaced with similar gear in similar condition (at a minimum). I have know of similar circumstatances where the operator compensated the diver with new gear with no warrantee except DOA/safety recall

 

[do it easy]

Yup, It sounds like they were responsible. Has the boat operator offered anything to you?

 

[Diving Doc]

Personally I would say that the op is responsible but I doubt wether you will get them to admit that. How you proceed I don't know but I think that all you will get is general aggravation!!

Two lessons I've learned from personal experience.

1. Dont let ANYBODY, no matter how well intentioned touch your gear

2. Make sure everything is adequatly covered by insurance.

It bloody hurts when yur beloved kit goes awol, I know.

 

[fairybasslet]

Oh man, I am so sorry. But don't feel too badly. That's the kind of luck I have. If I didn't have bad luck, I wouldn't have any luck at all. I hope you get compensated.