Reponsibility of a dive charter boat??

[Boatlawyer]

In short, exculpatory clauses, even those involving gross negligence ARE enforceable, IF the facts of the accident demonstrate there was no ADMIRALTY jurisdiction. If the circumstances create admiralty jurisdiction and 46 USC 193 applies, then the clauses are not enforceable.

Since fishing charters are within admiralty jurisdiction, the boat captain cannot exculpate himself from liability, hence the insurance coverage.*** By the way, most dive ops carry coverage that excludes liability for divng accidents, which goes a long way in explaining the need for the releases.

ETA: *** This is an incorrect distinction. Based on my re-read of the cases, it appears that even a fishing charter in admiralty jurisdiction could exculpate itself from liability.

 

[Orlando Eric]

Mangar- It seems the norm all over Florida is for dive boats to have you sign a release. (this space was formerly occupied by incorrect data. I stand corrected and now better informed)

Before I jumped off a boat I'd be CERTAIN it was a Captain who is competent and responsible enough to be there when I came up and furthermore know what to do if I came up in trouble.

Do a search on here for Jupiter + Dive Boats or Jupiter + Captains and you will see there are Really good ones and Really bad ones.

PS- Mosquito Lagoon? You are up in the canaveral area? Look up a member here ScubaDad. He is in Melbourne and dives all the time.

Good luck on diving in Jupiter, my recommendation, The Temptation

 

[BHB ScubaTroll]

In short, exculpatory clauses, even those involving gross negligence ARE enforceable, IF the facts of the accident demonstrate there was no ADMIRALTY jurisdiction. If the circumstances create admiralty jurisdiction, then the clauses are not enforceable, because admiralty law forbids them.

Since fishing charters are within admiralty jurisdiction, the boat captain cannot exculpate himself from liability, hence the insurance coverage. By the way, most dive ops carry coverage that excludes liability for divng accidents, which goes a long way in explaining the need for the releases.

Very nice post.

It is easy for me to see where the line is drawn. ADMIRALTY jurisdiction. At first, I was surprised at the finding of case #2 based on the negligence. But, after thinking about it within ADM juisdiction, it makes sense. The negligence had nothing to do with the vessel.
===
Wow, thanks!

 

[jviehe]

Okay, notwithstanding the gratuitous, sarcastic and illogical slam against lawyers (how do exculpatory clauses against negligence absolving dive ops of liability result in MORE money for supposedly needy lawyers?), the following cases illustrate the status of Florida law in this regard:

Hey, I work for the Bar, I know just how many we have, and how many have ethics complaints against them . My point is more that people will sue anyone they think they can get money from, and lawyers will happily take the case. Just a given stereotype that goes with the profession. Much like politicians.

 

[BHB ScubaTroll]

Very nice post.

It is easy for me to see where the line is drawn. ADMIRALTY jurisdiction. At first, I was surprised at the finding of case #2 based on the negligence. But, after thinking about it within ADM juisdiction, it makes sense. The negligence had nothing to do with the vessel.
===
Wow, thanks!

Now, given the ADMIRALTY jurisdiction is difficult in a negligence suit... to deal with the negligence, is there a better case/route to nullify the waiver when the fault is negligence based on something other than maintenance or the functioning of the vessel?

 

[ItsBruce]

Thanks for the research and posting. When I get a bit of free time, I'll do the same for California, which I suspect is quite similar to Florida. And, beyond that, California is pretty aggressive in extending primary assumption of the risk to activities like diving.

 

[The Kraken]

Boatlawyer,

Thank you very, very much for your post. It was most enlightening.

the K

 

[Boatlawyer]

Wow JVIEHE, you work for the Bar? What's that old saw.... With friends like that... Anyway, knowing that you Work For The Bar, it is troubling that you perpetuate the stereotype with irrelevant and illogical slams, instead of correcting misconceptions. Do you know how many baseless complaints are made against lawyers compared to the ones which are colorable? But I digress...

Back to the point of this thread, since you W.F.T.B., the interplay of liability and exculpation and insurance, should make some sense to you. Insurance is designed to spread loss among a large group of people. Specialty insurers, like DAN have undertaken diver's risks, whereas, General Liability insurers have not. Dive boats would simply not be able to operate with the premiums that would be required to cover diving losses. I am surprised somewhat that the law now permits exculpation from gross negligence (even without the words "gross negligence" in the exculpatory language), that is a change that has occurred over the last 10 years, and reflects Florida's judicial (as opposed to legislative) activism in the area of tort reform. All of which should be Good News to those who buy into the stereotypes of the legal profession. You have been heard!

 

[Boatlawyer]

Boatlawyer,

Thank you very, very much for your post. It was most enlightening.

the K

You are most welcome.

 

[Web Monkey]

During the dive, while in the water, decedent became separated from the Manta Ray, and he swam toward the boat's floating tag line. Captain Phillips saw decedent wave his hand, but interpreted the wave as an "OK" signal. Phillips detached the tag line from the Manta Ray. When decedent reached the tag line, he was unable to pull himself into the boat. When the Manta Ray reached decedent, he was found unresponsive, floating, with his hand wrapped in the tag line. An autopsy found the cause of death was drowning.

I think I may be missing something here. . .

Did the captain detach the tag line and drop it in the water?

That would seem to be a problem, since the tag line is supposed to be attached to the boat.

Terry