Signing liability release on a liveaboard trip

[Boga]

I am travelling next november to Indonesia, and I have received the "general liabilty and assumption of risk agreement" from the liveaboard.

I must sign this paper, which contains (among others) this paragraph :
" I understand and agree that neither my instructor(s), dive guides, or <dive shop name>, nor any of their respective employees, officers, agents, or assigns, (hereinafter referred to as "Released Parties") may be held liable or responsible in any way for any injury, death, or other damages to me or my family, heirs,or assigns that may occur as a result of my participation in this activity or as a result of the negligence of any party, including the Released Parties, whether passive or active."

I can sign a paper asuming that diving is hazardous sport (as they said in another paragraph, that I agree with), and I am responsible of anything under my responsability.

But how can I sign a paper :no that says that the crew members are not responsible if (for example), one of them (irresponsabily), frees a tank, the tank falls and breaks my foot? . Or if they give me an unreliable tank that explodes during the dive and kills me? .

I live in Spain. When I go to a dive center, they have an insurance called "civil responsability" (is this the right translation for responsabilidad civil?:huh: ), that pays for anything happened as the facts I explained before.

I am diving instructor. I also pay an extra fee insurance for the same reason, in case any if my students is injured.

The final paragraph of the liability release says (in capital lettes, sorry for shouting:shakehead , but they shout): "I ACKNOWLEDGE THAT I HAVE READ THE FOREGOING PARAGRAPHS, FULLY UNDERSTAND THE POTENTIAL DANGERS INCIDENTAL TO ENGAGING IN BOAT TRIPS, SCUBA DIVE(S), SNORKELING AND/OR LAND EXCURSIONS, AM FULLY AWARE OF THE LEGAL CONSEQUENCES OF SIGNING THIS INSTRUMENT, AND THAT I UNDERSTAND AND AGREE THAT THIS DOCUMENT IS LEGALLY BINDING AND WILL PRECLUDE ME, MY HEIRS, ASSIGNS AND BENEFICIARIES FROM RECOVERING MONETARY DAMAGES FROM THE ABOVE LISTED ENTITIES AND/OR INDIVIDUALS, WHETHER SPECIFICALLY NAMED OR NOT, FOR PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH CAUSED BY PRODUCT LIABILITY OR THE NEGLIGENCE OF THE RELEASED PARTIES, WHETHER PASSIVE OR ACTIVE."

I contacted a lawyer here in Spain. He told me that even if I sign this paper, a judge in Spain would consider this contract of liability releasy of absolutely no value:no , if it's proved that I was not responsible of the accident, but a crew member.

Of course, if I don't sign the paper, I don't go to the liveaboard. I think I will sign, because you never thinks that anything is going to happen, and I want to go to the trip.:14:

What is your opinion?. I can't believe that signing a paper like this can be legal in the United States or Indonesia:shakehead . Of course, in Spain wouldn't be. Do you think that I can have any problem in case of accident (not because of my responsability) if I have signed this paper?.

Thank you very much for your help.

 

[bisonduquebec]

You can always cross-over the sections that you don't agree with, but then you may be rejected from diving during the cruise. It will be up to the liveaboard. Beware that they can say that it is all ok before you board and then change their mind the morning of the dive activity. A friend of mine was cursed this way

 

[Meng_Tze]

It is standard practice in many countries to try to release the operators of any liability (even negligence on their part). This is how it is done.....

I agree with your lawyer in Spain. In the EU (having lived and worked -also on contracts- there for about 25 years) there are laws that supercede these clauses. It is for instance illegal to ask someone to sign a document that in itself is illegal. Also if someone does sign a document that has illegal, cluases, it effectively nullifies the clause, sometimes the entire agreement. The key issue is to find out under what law this agreement is made. Based on that you may have some come back. It could also be that the operator just copied a contract/clauses from others and that this agreement does not have any legal foundation in the country they operate this under.


But it is standard practice in many countries, it does not mean you have no come back should anything happen.

Just be careful and make the crew aware of issues... this way any judge would see it as more than negligence if something happens. You made them aware and yet something happened.... that is more than negligence.


However, dont let this bear too much on you, have fun and be safe.

 

[wreckchick]

The negligence clause is in most waivers around the world. In the USA you can't sign away liability in case of negligence nor the rights of other people to claim damages. It's probably a pretty standard waiver so I wouldn't worry about it too much.

Rachel

P.S. I'm not a lawyer, I don't play one on TV and I didn't stay at a Holiday Inn Express last night.

 

[Charlie99]

That release isn't so bad overall, at least they don't try to explicitly avoid liability for GROSS negligence.

Here's a waiver that a well known scuba training agency in the USA used to use:

"I (your name) am entering this agreement voluntarily which will exempt and
release my instructors (Names of XXX representatives) the facility at which I
receive my instruction (name of facility) and xxxxxx xxxxxxxxx xxxxxxxxx and
all other related entities from all liability or responsibility whatsoever for
personal injury, property damage or wrongful death however caused, including,
but not limited to the negligence or the Gross negligence of the released
parties and myself for my own negligence of other parties, whether passive or
active."

As others have said you really have two choices, either sign it and enjoy your diving, or decline to sign it and go elsewhere.

In many jurisdictions, you can't sign away the right to sue for gross negligence. But it depends upon the specific jurisdiction, and in a lot of popular dive destinations, you would be pretty lucky to win anything in a lawsuit whether or not your signed a liability waiver, and whether or not there was gross negligence involved.

In the ideal world, there would never be an accident and liablity waivers are irrelevant. I choose my dive ops based upon reputation, the generally look of their boats, and many other points. What their waiver says doesn't factor into my evaluation in any signficant way.

ref: http://groups.google.com/group/rec....832de?lnk=st&q=&rnum=1&hl=en#3242b35740e832de

 

[CompuDude]

If you want to go, go ahead and sign it. Otherwise, I guarantee they'll never let you set foot on the boat.

IF something was to happen, let the lawyers fight it out. If nothing bad happens, no harm no foul.

 

[PhilEllis]

The negligence clause is in most waivers around the world. In the USA you can't sign away liability in case of negligence nor the rights of other people to claim damages. It's probably a pretty standard waiver so I wouldn't worry about it too much.

I am also not an attorney, but I sure have spent a lot of time with attorneys and done private research on the issue of liability waivers. When you organize dive travel and training events, you are sort of forced to become a little knowledgeable about these issues. (remember what a little bit of knowledge will do to you, so read my words with a grain of salt)

I know nothing about the laws associated with a citizen of a non-USA country that is traveling in another non-USA country. So, I don't know if US laws or court cases have any meaning to this discussion.

In most states in the United States, liability waivers are fairly bullet-proof as long as the waiver meets several objectives. First, they must INFORM the participant of the dangers. Second, they must SPECIFICALLY get a release from the signer should harm come as a result of those dangers. Third, the releasing party must agree to DEFEND, INDEMNIFY, and HOLD HARMLESS the parties against causes of action as a result of that harm. Typically when these three conditions are met, the liability waiver will be upheld. It is in the public interest in most states that waivers be legal, available to event organizers, and used were appropriate. Without them, there are MANY activities in which we, as a public, would not be able to participate. A liability waiver is also a contract between two parties. Most states allow LOTS of latitude in what can be contained in a contract. It is also important for the courts to do whatever is possible to uphold contracts of any type. Imagine what life would be if we couldn't depend on a contract?

In some states (like New York, if I remember correctly) waivers are especially solid if any injury occurs during TRAINING for an activity. I think there is even a scuba training case (pardon me for not quoting it...I will search for it later) where the judges specifically said they would not have upheld the waiver were it not waiving dangers in an organized training situation.

I agree that certain things definately cannot be waived and others PROBABLY can't be waived. I know you cannot LEGALLY sign a waiver that prevents your heirs from filing an action. You can't LEGALLY sign a waiver that restricts the activities of another person. You can't LEGALLY sign a waiver on behalf of a minor that prevents that MINOR from filing a law suit. You PROBABLY cannot not be held to your committment to waive GROSS, DELIBERATE negligence. But, when you sign a waiver that says "I know what i'm doing and I take responsibility"....."I don't want my wife to sue"....."I don't want my minor child to sue"....all of these statements make good argument material in front of a jury. Remember, when you sign a waiver that says you will not sue, you are giving your word. Juries are full of ordinary Americans. Ordinary Americans expect people to live up to their word. Maybe, that is the most powerful thing about waivers. You are giving your WORD that you will not hold someone else responsible when something that you KNEW could happen......actually happens. Anyway, just my opinion.

Phil Ellis

 

[nwdiver2]

Indonesia is where you are going, every dive tour operator I know uses a waive like that. (it sounds like PADI wording). I have signed them in 8-9 countries. It is worded as harshly as possible; so as to have you sign away you&#8217;re right to sue, as if you had one to start with in many jurisdictions.

Now Indonesia is no exception, if you have an accident, have lots of insurance to cover your medical and other expenses if you die you don&#8217;t have to worry.

You are going to Indo not part of the Western World, of course it may or may not be legal, but you don&#8217;t want to live in an Indonesian court for 7-8 years to find out. Is the boat flagged in Indo if not you may have the right to sue in its home port.

But the document as signed probably will not stand up in Indonesia as it was not signed in front of a notary in Indonesia and filed with the local authorities, the only way for many legal documents to be valid in Indo, in my limited experience.

 

[CompuDude]

I respect your opinion, Phil, and you've made some good points, but I've been working in litigation firms since the early 90s, and know these two things are true:

1) You can sue for anything, waiver or no; and
2) Signed contracts held up or projected on the wall hold little meaning to a jury when contrasted with a living, breathing silver-tongued attorney who is being paid to paint a different picture.

 

[PhilEllis]

I respect your opinion, Phil, and you've made some good points, but I've been working in litigation firms since the early 90s, and know these two things are true:

1) You can sue for anything, waiver or no; and
2) Signed contracts held up or projected on the wall hold little meaning to a jury when contrasted with a living, breathing silver-tongued attorney who is being paid to paint a different picture.

On that, I agree with you absolutely. In the end, we NEVER know what will happen in court. Cross examination is a powerful magnifying glass.

Note: I once had a good friend that ran a fairly powerful bankruptcy practice in Tarboro, North Carolina. He always said "the truth don't come out until I get to talk." He was a pretty good trial lawyer.

Phil Ellis