Yukon tangent thread

[Trampmastafunk]

Just because that is on the web sites, that does not create an individual duty of care.

Beyond that, there is a problem with causation. There would need to be proof, by the appropriate standard, that but for whatever it was the boat did that was wrong, the diver would have been saved, i.e. that he was alive and could have been saved at that time. Among other things that would have entailed proof of the ability to locate him in a reasonable time and with the available resources.

BTW: There is one other thing a plaintiff in a civil case would need to overcome. That is the California doctrine of Primary Assumption of the Risk. It basically says that if one is injured or killed by virtue of a risk that is inherent in the particular sport, there is no liability unless the defendant either acted intentionally in causing the particular harm or increased the risk outside the normal bounds.

To illustrate, the California court held that a hit in a flag football game, that caused the plaintiff injuries was not actionable because that is part of the game even though it is flag football. Likewise, in baseball, even though "beanballs" are against the rules, "beanballs" are part of the game and a batter who is hit by one has no recourse.

The only case I can find where a dive operator was found liable was when the operator took a knowingly unqualified diver on a dive that was way beyond his capabilities and the DM who was acting as the dive leader had made himself unable to render assistance.

Let me put it like this: If the family here came to me to take the case, I would not take it on a contingency unless the diver's computer showed he had surfaced and then sank. I'd take it on an hourly only after providing two pages of written disclaimers about how improbable winning would be.

Thank you for the explanation, but I'm in law, so it isn't necessary. Don't misunderstand me, I don't think the case would stand a chance at winning, but there are attorneys out there that would take the case, given enough money. I'm just saying I wouldn't be surprised to see it go to court. Given, I don't know anything other than what I read here, and as most of it is conflicting...well, you get the point.

I may be wrong, but it seems like you think I believe the boat is at fault and should be punished in some way, I'm just stating information that people could use. In my original post on the matter I said something to the tune of "I'm not taking sides on the boat issue."

 

[ZenDiver.3D]

So i have read 100% of every post on this subject...There seem to be that there is a key piece that everyone is missing. This particular trip was a Private Charter.

This means that the Group, in this case, Sport Chalet also must come into the mix when there is liability laid out. Keeping in mine that The Humbolt sold their "ferry service" for this trip to another outfit (Sport Chalet)..So basically if for some reason someone is able to pinpoint this mans death to the boat leaving the site, then their will be some shared liability.

I can't say that i think the Humbolt was right by not doing a "Name by Name" roll call...but why didn't Sport Chalet, who was actually running the show, do one either?

IMHO- i think the fact that the boat left had NOTHING to do with this tragedy...so let's quit debating the boat leaving, we ALL agree that there should be roll calls etc...and we pretty much agree that this tragedy happened before the boat left. Let's wait and find out HOW he did and quit flaming everyone.

In reality, there are only a few things that we KNOW as fact and without a few more of those facts, we will have a hard time preventing this exact scenario in the future. Yes, i know what i believe to have happened to this diver...that is one of the reasons that i ask my students "how much air you got" every few minutes on EVERY dive with me...so that they get used to looking at their gauges frequently.



My condolences go out to the Family of this diver and also to the operators of the Humbolt as this must also be weighing heavy on them too.

I believe it was reported earlier that Sport Chalet did a roll call, but perhaps just for their divers.
I have often had an instructor or group charter a certain number of seats on my boat. I can then sell the rest if the boat is not full. I don't know exactly what the circumstance was here.
While I am not trying to rip the boat, I can only say that even if there is a dm and instructor who charter my whole boat, my captain does his separate check for passengers. Hell, he does it when I am on the boat and in charge. The double independent check is just a sure safety precaution.
While I don't think they are culpable for contributing to the death, their missing him and leaving will haunt them, and I feel for them.

 

[AndrewA]

The dive boats I regullarly use (fron Jeddah) routinely call a role before we leave the dock and before moving from each dive site. When my club charters the boat a written record of each dive is maintained by the Dive Manager with each divers in and out time recorded in addition to the boat role call. It is also a Saudi legal requirement that we leave our IDs with the Coast Guard (and our C Cards) and collect them when we return.

 

[Jax]

The dive boats I regullarly use (fron Jeddah) routinely call a role before we leave the dock and before moving from each dive site. When my club charters the boat a written record of each dive is maintained by the Dive Manager with each divers in and out time recorded in addition to the boat role call. It is also a Saudi legal requirement that we leave our IDs with the Coast Guard (and our C Cards) and collect them when we return.

Now, this is one I have a problem with -- and especially in other countries. ID Theft is absolutely rampant, and I've seen enough situations where the desk clerk just shrugs when s/he can't find whatever you left.

A copy of my cards, no problem. I carry a copy of them just in case, and I will show the originals to appease any skeptics. I am just not comfortable leaving them.

 

[Scot M]

So i have read 100% of every post on this subject...There seem to be that there is a key piece that everyone is missing. This particular trip was a Private Charter.

This means that the Group, in this case, Sport Chalet also must come into the mix when there is liability laid out.

This is absolutely incorrect information. The trip in question was definitely not a Sport Chalet charter. Sport Chalet did not have a single diver on that trip. The following morning was an SC charter and a verbal role call was conducted by the DM.

 

[SC_Hoaty]

:huh: I don't know what you mean by that bolded part?

It was a curiousity question - In the Keys, I remember some roll calls, but simply may not remember the others. The American ops in San Carlos, Mex, do roll calls; the Mex ops do not. I just wondered what the SC area did.

I'm thinking that , with his mentioning that others have way more dives , that he has a less than high number to go on

Sorry about the delay - away from the computer for most of the day. DB got it. And there are a bunch of boats in SC that I have not yet used. Deepstops confirmed that the boats do use a roll call.

This is absolutely incorrect information. The trip in question was definitely not a Sport Chalet charter. Sport Chalet did not have a single diver on that trip. The following morning was an SC charter and a verbal role call was conducted by the DM.

Thanks Scot - I thought the post about Sport Chalet was for a different dive, and you saved me reading back a few hundred posts!

 

[divemaster dave]

Stopped by the infamous Humboldt early this morning to have a look around and walked around the dock while they were loading passengers.

The Captain that was in charge during the accident is already back to work and the death certificate isn't even dry, it hasn't been a full week yet. I would think this person would be on leave until the investigation was done and cleared them of wrongdoing. Or perhaps the trauma of being involved in a death would require some time away from the job for the sake of mental stability. In any other job the person would be on leave if involved in a death until cleared. This seems quite disrespectful to the family and diving community here.


On a side note.

You're more sure that the Humboldt crew were at fault than you are that the diver had parents. Interesting

I guess I have to spell out "living parents" or it's too hard to figure out. Poor stab attempt though.

 

[SC_Hoaty]

. In any other job the person would be on leave if involved in a death until cleared. This seems quite disrespectful to the family and diving community here.

I've been an uninvolved party that witnessed a fatal accident. No time off for me. I'm not sure I understand why you think the crew is different.

 

[divemaster dave]

Fourth, except when a boat allows a diver aboard for a dive when it is clear that he is not qualified for that dive, I do not see it as the boat's responsibility if the diver dies as a result of a mishap (other than being left behind). A taxi driver who drives me to the beach is not responsible for what happens to me on a dive. A dive boat, at least in Southern California, is not much different. And, for those who say that is just a taxi, how about the Catalina Express boat which takes me to Avalon so I can go to the dive park to dive? Its a boat, so why shouldn't it be liable for injuries I sustain while at the dive park?

Your comparisons are vague and absurd. Dive boats are supposedly staffed with dive professional certified by credited agencies and insured through third party companies because of the nature of the work. You cannot compare them to taxi drivers or an actual shuttle boat not involved in diving. When you go on a dive boat you expect a competent dive certified crew not a guy who normally drives a fishing boat and some 18 year old deck hand who doesn't know the difference between a 1st and 2nd stage.

A better comparison might be an airline crew, specially trained and considered experts in safety in their field. Although passengers don't need a certification to ride a plane there are safety rules and regulations to follow, like a dive boat. Wasn't there a case a while back where a passenger was left on a plane accidentally overnight and died and the company was sued because their professionally trained staff failed at their duty?

Seems a lot of people just expect a dive boat to drop them off at a site and pick them up, no frills, no safety, no food. Shut up and dive and pay the $100. If that's the case I need to buy a dive boat take advantage of some suckers.

 

[SC_Hoaty]

PS - When I called 911, I made a mistake in describing the location. Should I have had time off until I was cleared for not contributing to his demise by my error?