Reponsibility of a dive charter boat??

[Boatlawyer]

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?

In Florida, as a practical matter, I doubt it. Since the plaintiffs in many cases are Dead and actions are brought by survivors or the estate, it is hard to get testimony as to the circumstances surrounding the execution of the waiver. Although I am sure that in these cases, other divers aboard are interviewed to determine whether they had a chance to read the waivers, what the conditions were like, i.e. were they being rushed aboard, etc. Was the diver incapacitated in any way when he signed? Some waivers actually have you acknowledge that you haven't been drinking or are on medication. Lack of capacity, or for example, not understanding english, might be a defense to the enforcement.

It would be interesting to see how a case where a diver is left by the boat, a la "Open Water" and perishes or is injured is handled. In that case, I would argue that Admiratly jurisdiction is invoked because the negligence was related to the operator taking on and discharging a passenger rather than the diving activity itself.

I don't know about you, but I have been startled with the physical condition of some of the divers on dive boats. Alot of mid-life crisis moms, (like me), have gotten into the sport and are in no way ready for Minor emergencies that arise, much less a serious problem. When I got back from a week of diving 3x a day in Roatan, I realized just how out of shape I was, though, and immediately hired a personal trainer to get my raggedy butt into shape (And I have a feeling that my membership contains some kind of exculpation relieveing the gym of liability if I croak there)! I really wouldn't want to entrust my physical safety to another any more than I absolutely have to. As the sport becomes more "Disneyfied" with vacation certifications, I'm afraid that fatalities will certainly rise.

 

[Boatlawyer]

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

I wondered about that, too. I'm thinking it must have been a mooring line attached to a float ball, like they have in the Keys (even though this was in Destin). I can't think of a reason why a tag line would be detached from the boat.

 

[jviehe]

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...

Im actually in IT, so my knowledge is limited, but I would say its the lawyers themselves that perpetuate the stereotype. Much like in any profession. Im a PADI OW instructor. I have the same thing to deal with. I just accept it. I think it was an accurate statement however, that everyone has insurance and releases up the wazoo in part to protect against frivolous lawsuits.

 

[BHB ScubaTroll]

As the sport becomes more "Disneyfied" with vacation certifications, I'm afraid that fatalities will certainly rise.

Thanks for the response.

Your quote above...
This idea has floated for some time. It rises and falls every so often. In the 70s when "Average" people sought certification, this was the call

In the 80s when dive shops popped-up quickly and certified almost anyone, this was the call

In the 90s when certifying orgs dropped certain standards, this was the call
===

I do believe the industry will change in the next decade with some swing back toward the pre 90s standards in order to stop gushing unqualified divers. But, that won't happen until legislation makes it easier for the organizations to lose money

 

[PhilEllis]

It would be interesting to see how a case where a diver is left by the boat, a la "Open Water" and perishes or is injured is handled. In that case, I would argue that Admiratly jurisdiction is invoked because the negligence was related to the operator taking on and discharging a passenger rather than the diving activity itself.

I had an interesting discussion with our attorneys about this very same subject. We do a considerable amount of dive travel through our store to Florida, so I constantly have our attorneys looking over both Alabama and Florida cases. We talked SPECIFICALLY about the "open-water" situation and how it would square with Alabama and Florida court decisions. Our attorneys arrived at a unique, but plausable, answer....

Since the passenger (scuba diver) WILLFULLY and KNOWINGLY exited the dive vessel, and did so under the existence of a lawfully negotiated and artfully crafted liability waiver, our attorney had some doubt as to if the boat captain EVEN HAD A DUTY to reboard the passenger that left "willfully". It was their feeling that the passenger, in leaving the boat willfully, cleared the operation of the admirality prohibition against requiring passengers to waive liability, since anything that happend thereafter did not directly involve the vessel. They surmised that a good argument could be made that the vessel had no direct obligation to reboard the passengers, and therefore might not be liable for leaving them., especially if the passengers had signed a liability waiver that outlined one of the risks as being "left at sea".

What do you think about that one?

Phil Ellis

 

[thedaddy]

(snip) ... They surmised that a good argument could be made that the vessel had no direct obligation to reboard the passengers, and therefore might not be liable for leaving them., especially if the passengers had signed a liability waiver that outlined one of the risks as being "left at sea".

What do you think about that one?

Phil Ellis

I think I'll think twice before I dive your charters - or with your attorneys.:11:

 

[Boatlawyer]

What do you think about that one?

Phil Ellis

I say good luck marketing a dive trip with a waiver that says you should plan to be left at sea.

Okay, I'll bite. I re-read the cases and need to say first off, both your attorneys and I are WRONG about the applicability of admiralty law being the threshold question. The authority for invalidating waivers stems from a federal statute, 46 U.S.C. app. 183c(a), which states:

It shall be unlawful for the manager, agent, master, or owner of any vessel transporting passengers between ports of the United States or between any such port and a foreign port to insert in any rule, regulation, contract, or agreement any provision or limitation (1) purporting, in the event of loss of life or bodily injury arising from the negligence or fault of such owner or his servants, to relieve such owner, master, or agent from liability, or from liability beyond any stipulated amount, for such loss or injury, or (2) purporting in such event to lessen, weaken, or avoid the right of any claimant to a trial by court of competent jurisdiction on the question of liability for such loss or injury, or the measure of damages therefor. All such provisions or limitations contained in any such rule, regulation, contract, or agreement are declared to be against public policy and shall be null and void and of no effect.

(emphasis suppplied).

Therefore, even if admiralty law applies, the statute has no effect unless it relates to a vessel transporting passengers between ports of the US or between a US and foreign port. For this reason only, the statute would not apply to a dive boat since they leave from and return to the same port. Same deal with our casino boat "cruises to nowhere." The court in Schultzexplained there is no other common law rule in admiralty that prohibits waivers, so it defaulted to whether the waiver was valid under state law.

So, following Schultz, your attorney would be able to argue that 46 USC 183 is inapplicable, without having to make the rather strained, not to mention heartless, argument set forth above. Still, I don't know that he'd clear the state law hurdle which requires that waivers be clear and unequivocal without stating in BOLD print that one should be prepared to be left at sea. As I said before, good luck marketing that.

On the other hand, adventure travel is all the rage these days, so he might be on to something... I can see the brochure now, "Abandoned at Sea" You too can experience the thrill of the unknown! Diving into the pulsing currents of the Gulfstream for a 45 minute dive? Or diving into the void miles offshore only to surface with 1000 psi to find, NO BOAT. Only the captain knows who will be left behind. Book Now for the low low price of $895 per diver, plus departure, and we DO mean only DEPARTURE tax...

Sounds promising, but you might want to run it by your counsel.

 

[DiveBandit]

I think there are 2 problems here. 1.)Charters and thier attorney's trying way too hard to find ways to get out of being responsible for ANYTHING that happens whether their responsible or not, instead of spending the time and money on....say...a small portable boat to chase down drifting divers. 2.) Divers trying hold charters responsible for ANYTHING that happens on charters whether it's thier fault or not instead of....say...getting more training, and practicing skills. There are 2 solutions in my mind. 1.) Certification Agencies, states, dive shops and dive instructors, and divers need to sit down and figure out who should be culpable in what incidents (of course there will be gray areas). 2.)I, having never dove off a charter will continue to not dive on charters, favoring instead my own boat until you'all figure this out.

Ok, I was kidding, kinda, about the second solution, but I meant everything else.

PS. I have nothing against attorney's.

 

[PhilEllis]

On the other hand, adventure travel is all the rage these days, so he might be on to something... I can see the brochure now, "Abandoned at Sea" You too can experience the thrill of the unknown! Diving into the pulsing currents of the Gulfstream for a 45 minute dive? Or diving into the void miles offshore only to surface with 1000 psi to find, NO BOAT. Only the captain knows who will be left behind. Book Now for the low low price of $895 per diver, plus departure, and we DO mean only DEPARTURE tax...

Sounds promising, but you might want to run it by your counsel.

That is funny. And I agree, it would not work. Our release actually does list being left at sea as one of the perils of joining the trip. I personally hate the idea of the waivers all together, but it is a fixture if we are to retain insurance.

In our review of our waivers two years ago, we added a couple of other "perils" to try to fully comply with the requirement that the waiver adequate state the dangers to which we are seeking waiver. Our discussion of the issue mentioned in the previous post were mainly due to the use of liveaboards that depart the US and port in other places, like the bahamas. In that case, the admirality issues would seem to apply.

Maybe one day, there will be some reform that eliminates the need for liability waivers. I already feel like we need a closing attorney present when we submit the waivers to our customers.

I was surprised to see that the PADI standard waivers held up so well in the case you were previously discussing. We actually had to revise the PADI waivers to satisfy our attorneys.

By the way, I have really enjoyed your discussion on this thread. I would love to chat with you sometime. Thanks again.

Phil Ellis

 

[Boatlawyer]

By the way, I have really enjoyed your discussion on this thread. I would love to chat with you sometime. Thanks again.

Phil Ellis

Thanks, Phil. I am planning to attend the DEMA show, if they accept me as a member, so perhaps we'll meet there if you are attending. I travel to B'ham a few times a year as my family is all there, so maybe our paths will cross! Of course, if you are in Fort Lauderdale, feel free to look me up!

Theresa