POINTING FINGERS AFTER A DIVER’S DEATH (rant & discussion)

[The Chairman]

I think you know of the operation I am discussing,

I have no idea which boat you're discussing. PM me if you want me to know.

There is nothing evil about profit except when people put profits in front of safety.

You confuse greed with incompetence. Most dive ops, whether they're a charter or LDS, are the result of dreams gone wild. They have no business sense, just a desire to turn their hobby into the way they make a living. They want to live the dream and that's actually how at least two agencies market becoming an instructor. Unfortunately, these dive ops aren't trying to maximize their profits: they're simply trying to stay alive. There's no greed. There's no nefarious intent. There's just a dive op that's over it's head. They trained to become instructors, but they've never been trained to run a business and it shows.

Your captain needs to be of the mind set that you need to be in at least the same condition he found you in when you get back to the dock. Anything less is unprofessional and a disservice to the client and his heirs.

Frank, too many people blame the captain and crew for everything! The weather, the wind, the waves, the fight they just had with their wives, are all the captain's problem. I expect the captain to keep me safe while I'm on their boat, but they can't make my decisions for me while I'm under. I listen to the dive briefs but after thousands of briefs about the boat, I tend to tune them out. I've never had a captain force me to dive and that includes you. I decide to make the splash or not. You already know that I call dives way more than the average Joe. I've been diving since 1969 and have yet to be bent. I take my personal safety quite personally... and that shows. There's nothing down there worth dying for.

 

[ams511]

I have no idea which boat you're discussing. PM me if you want me to know.

You confuse greed with incompetence. Most dive ops, whether they're a charter or LDS, are the result of dreams gone wild. They have no business sense, just a desire to turn their hobby into the way they make a living. They want to live the dream and that's actually how at least two agencies market becoming an instructor. Unfortunately, these dive ops aren't trying to maximize their profits: they're simply trying to stay alive. There's no greed. There's no nefarious intent. There's just a dive op that's over it's head. They trained to become instructors, but they've never been trained to run a business and it shows.

As far as I can tell they went out of business in 2015.

Here is a link to the news article about the Chinese tourist. With respect Pete, you are making excuses for operations putting profits before people. If it was an airline skipping on maintenance to stay afloat would you be as charitable?

 

[ams511]

How about this operator? or this one?

 

[The Chairman]

With respect Pete,

It's interesting that you begin an emotional and baseless attack on me with that verbiage. Maybe ironic is a better word.

you are making excuses for operations putting profits before people.

What excuse did I make? You seem to want to keep this emotional, but I would rather find the real culprit. You want to assign greed where incompetence is a far better descriptor. How are you going to help these people change? Tell them to not worry about their profits? If they were really worried about profits they would do everything they could to avoid accidents. Let's leave the vilifying people you don't like to American politics. There's just no need for that in accident analysis. I think this is the attitude that has rankled Ken so much. Take the emotions out!

How about this operator? or this one?

The "operator" was merely an owner. Here is where emotions cause problems. You want to assign blame somewhere. I know a captain quit that outfit due to the condition of the "Get We". In fact, the replacement captain chose to leave the dock that morning without a working bilge pump. You have to be an American Citizen to be a captain. Obviously, neither of the Brits could fulfil that role. Were they negligent? I think so, but not as much as the captain who lost his license over this. But for every death caused by a dive op, I'll show you a hundred more caused by the diver.

I was almost left by a boat in Florida's Panhandle. They had pulled anchor and were in the process of leaving the site when my sausage broke the surface and was spotted by the other divers. They did a roll call and someone else answered for us. Do I blame the boat captain and crew? Sure, but I don't think it had anything to do with greed. This is one reason why my AOW students learn to shoot a sausage from depth. My actions resulted in me surfacing to see smiling faces from the captain and crew instead of drifting aimlessly in the Gulf. Stack the deck in your favor. Mistakes are going to be made and I'm not going to limit my diving to going out only with Frank. Know and honor your limits. Learn how to dive in a way that makes your survival a foregone conclusion.

 

[Wookie]

I expect the captain to keep me safe while I'm on their boat, but they can't make my decisions for me while I'm under.

That's what you want. That's what many want, but that's not what many others expect. You've heard me say a million times that it's all about managing expectations. I've told everyone I'm an a$$hole. They expect me to be one. I've had customers show up completely intimidated. You know, I'm not really an a$$hole at all, but if we start there, and you screw up, well, you knew my reputation. Otherwise, you'll be pleasantly surprised. And it's always better to pleasantly surprise your customers.

I got disheartened mostly by the difficulty finding competent crew in an improving economy, but also because of the times I heard "My vacation is ruined". How is your vacation ruined? The weather/visibility/we didn't go to the fort/we had to go to the fort/I didn't see a turtle. The expectation of entitled folks is that they will go to the fort/not go to the fort/see a turtle, and if you don't meet their expectations, their vacation is ruined. These folks are never going to believe that they (or God) could possibly be at fault for anything, they paid good money to see turtles, they want to see turtles, but God. They also expect "someone" to monitor their air supply. Someone who isn't them. Hoping they will go away is tilting at windmills. The only thing you can do is hope they find another boat. One who guarantees them turtles.

 

[Johnoly]

..... Does that really happen?

Next time you are on a dive boat and a photog with a large camera comes up last out of the group. Slide up next to them and ask them how much they had left in the tank. It's rarely above 500psi. And as a disclaimer, Us spearos ain't saints either.

 

[Steve_C]

Well the last time the camera person was a very petite, frequently diving women. Not sure how much psi was left in her main tank but she had not touched her pony.

I dive Nitrox and sometimes get to the boat with 500 psi (on the first dive). But I also have an Al19 pony which I never touch.

 

[Ken Kurtis]

First of all, kudos to everyone participating/posting in this thread. This is the type of relatively fact-based, opinion-clearly-labeled discussion I had hoped we would have. Onward . .

Ken, you have far more experience as an expert than I do, I am in my first case as a captain now. So I haven't seen the stupidity that is our justice system first hand, so you and I are coming from completely different looks at the same issue. But do you see plaintiffs actually blaming the boat for what (to any interested observer) is obviously the fault of the diver? Running out of air comes completely to mind. And can you elaborate?

One thing to remember is that when as an expert (myself, Frank, or any of the other regularly-used people) are engaged/hired, it's usually shortly before trial which is generally fairly far along in the process. So in those cases, there's likely enough factual evidence to create at least the possibility or appearance of a connection between a diving death and something someone did or didn't do.

Also bear in mind that no matter how diligent you think you are, I can pretty much guarantee that there will be SOMEthing - might be minor, might be major - that you did "wrong" during the course of the dive or the day. And the plaintiff's attorneys will either point to that as cause or use that to accuse you of being careless and that there's obviously something else unknown that you carelessly did that contributed to the death.

Some quick ones I've been involved in where operators were sued:

• Diver runs out of air, buddy breathes to the surface with buddy, but apparently embolizes on the way up and dies. Sues dive shop since rental gear has a pressure gauge that read 150psi at 0psi. Settled out of court.

• Diver never surfaces from dive. Small dive site and unlikely that diver could have surfaced far away due to water depth. However, roll call is botched and boat leaves site. Subsequent investigation shows that boat leaving was at least 30 minutes longer than the diver's longest dive ever and 30 minutes later than the tank possibly could have lasted. Settled out of court.

• Diver/photographer on commercial scuba underwater photo shoot loses group, goes to average 180 feet (maxed at 200) for about 25 minutes (with his buddy) while diving Nitrox32. (I can hear the audible gasps from the readers as I type.) Says he was just trying to find the group the whole time even though he kept shooting video. Despite computer alarms going off, stays down until buddy motions 500psi. Buddy runs out of air on the way up, they octo breathe and then suck the second tank dry, and both free ascend from 40-ish feet. Diver ends up severely bent and will be in a wheelchair rest of his life. (Ironically, buddy - on the exact same dive profile and on Nitrox32 - suffers NO injuries.) Testimony makes it appear that photog oversold his credentials to get the job but he testifies at trial (from his wheelchair) that he doesn't know much about diving and should never have been allowed to make the dive, plus he's not nitrox-certified and they never asked. Also an issue of no O2 on the boat (but the dive was 10 minutes from their dock), and a delay in evacing to a recompression chamber. After the case went to the non-diving jury, settled for a huge amount, but even that was about half of what the defense attorneys feared a jury might award.

I'm guessing that any diver reading this would place the majority of the blame, if not the entire blame, on the diver in these cases. The roll of the dice is whether or not a non-diving jury would agree and if they don't, to what extent will they offer monetary damages?

The big hammer the plaintiff's lawyers use - and I've argued that we as an industry should fight this concept tooth and nail - is that it is "well-known" that the captain is responsible for the safety of his passengers while they are on his vessel. And while I agree that if I'm ON your boat, and you ram it into the breakwater and injure me, that's on you. But when I'm diving, I'm NOT on your boat. And anything I do underwater is totally out of your influence or control.

If we're doing a $5 bar bet on "captain is always responsible" I'll accept "everyone knows" as proof. But when you want $5 million, then I'd like to see the CFR or some official regulatory documentation to validate your assertion. (Frank, can you shed any light here? Because I've challenged this notion in testimony and no one can produce anything in Coast Guards regs or CFRs. The best they come up with is Naval tradition.) But it seems too often lawyers and juries accept the notion that the captain is expected to be an omnipotent psychic, who can predict the bad things that will happen and then prevent them before they occur.

That being said, once the accident happens, the captain/crew/instructor certainly has a duty to respond, and respond effectively & efficiently. Failure in that area, even though it didn't cause the accident, might leave you exposed and justifiably so. So to go back to where I started in post #1, I'm not saying that captains (and instructors and shops) aren't ever to blame. Simply that there are many times when it's made to look like it's their fault when, certainly to a certified diver, it is not.

- Ken

 

[KevinNM]

The best they come up with is Naval tradition.

If the boat captain can take 1/2 my pay for two months and assign me to scrub the decks and heads of his boat for 4 hours a day for 45 days if I don't dive the way he wants then maybe he is responsible for how I dive.

 

[cerich]

The big hammer the plaintiff's lawyers use - and I've argued that we as an industry should fight this concept tooth and nail - is that it is "well-known" that the captain is responsible for the safety of his passengers while they are on his vessel. And while I agree that if I'm ON your boat, and you ram it into the breakwater and injure me, that's on you. But when I'm diving, I'm NOT on your boat. And anything I do underwater is totally out of your influence or control.



- Ken

Sorry Ken, your argument escapes the reality of the dive industry. the dive industry has made certification in a variety of 'specialties" a formal thing. You don't just have "divers" aboard, you have OW Divers, AOW divers, Nitrox divers, AN/DP divers, solo etc.

The industry has created these specialties, a boat captain/charter op isn't just a taxi, they have a responsibility to exercise due diligence and judgement. That means if you are going deeper than 60, a AOW or higher card, if you are going over 100 a Deep diver card, it could be argued that any diver that is going on a boat should be "boat specialty diver" certified as well. If you think this is silly, what do you think the FAA would feel about a commercial pilot at a sky diving op that takes up people that are only tandem trained and qualified and lets them attempt a big freefall and some wing suit use? Doesn't happen, yet every damn day in our industry people take divers on dives beyond the level of their training on boats..then scream "the diver is responsible for themselves, we're only a taxi service!" From my perspective, the industry wants it's cake and the icing without any calories and that simply isn't realistic. But that doesn't stop anybody does it?