Any ways of limiting liability for taking others out diving on your boat?

[Mustard Dave]

As per the box on the left, I am in the UK so I am not familiar with US law, however, I believe the concept regarding liability is pretty much the same. In order for a claim to succeed, three elements must all be demonstrated:

• You owed the claimant a duty of care
• You were negligent in that duty of care
• Your negligence resulted in some sort of loss or injury

I assume the boat you refer to is some sort of privately owned leisure craft, you are complying with all the local maritime regulations and you have third party liability cover. I also assume your passengers will be well known to you?

Everybody owes his neighbour a duty of care - this is something we cannot escape from and applies whether we are ordinary members of the public or somebody providing a service for which they receive payment.

Liability waivers may or may not be worthwhile. Nothing can get you out of any statutory obligations, but they are good for pointing out who is accepting responsibility for what. A waiver stating that all divers are trained, agree to dive within the limits of their training and accept the known risks is fine, however, a waiver requiring them to surrender all rights to damages however caused would be useless if you walloped the boat into rocks and drowned them because you had no VHF, flares or life jackets on board.

If you allow trained divers to jump off your boat and they hurt themselves because they pushed their limits, I cannot see how you could be liable. It would be sensible to consult your insurer before letting people dive off your boat though.

 

[PatW]

Grey 2112, you presume wrongly in answering your question. A properly drawn release can offer protection from liability. However, if you as the boat operator know that there will be scuba diving on your boat, you still are required to act as a reasonable person would under the circumstances. That would likely include having )2 on board and knowing haw to administer it; having a safety plan with ready telephone access to emergency medical services, Coast Guard, and the nearest deco chamber. You do not need to have the credentials you list, but if you did, then your standard of care will be higher. Also, it will make a difference as far as responsibility and liability if people are paying you for the excursion as opposed to taking a few friends out to the reef for fun. You should also read your insurance policy concerning what is covered and what is excluded. Everyday thousands, maybe tens of thousands, of boats take people diving without anxiety, because they have engaged legal counsel to prepare proper forms, have formed an appropriate emergency plan, and follow it. I caution you to not trya and get answers to important legal questions from unqualified people. I have practice law for 35 years, and still do. What I have shared here is not enough to answer your question. If you are going to run a dive boat, volunteer or otherwise, spend a little money preparing to do so from a legal perspective, paying your own lawyer, who you want to be sure is himself insured, so that any issue can fall back on the lawyer if they steer your wrong.
DivemasterDennis

I saw something posted about the duty of the boat captain. As I recall, if the captain accepts any payment from the passengers in money or in kind, like paying for the gas. Then the captain can be held to the standards of a commercial enterprise. I saw this recently and thought "yikes!". I saw it in Florida but since I don't have a boat, I did not keep the source filed away. You might want to look into it.

 

[nolatom]

As others have ably explained, waivers may be respected, or not, depending on the jurisdiction, some are more "friendly" to waivers than others.

But I agree with Frank ("Wookie"), you've nothing to lose, and much to gain, by getting signed waivers. Yes, they do indicate to a judge or jury that Diver A understood the risks and wasn't expecting the boat/staff to be his Mom who loves him hence nothing is ever his fault, etc.

Trickier indeed is having the waiver prevent his loving family survivors from suing, since they arguably didn't give up their "rights". But whether it does or not, it still indicates that diver A wasn't in a suing mood, he knew the risks. This may make the family look more greedy than grieving, which could affect the attitude of said judge or jury in whatever they do, be it regarding liability or "damages" (money). And if the release has language saying "it's my intent that this waiver apply to my family too, to the same extent it does to me" or words to that effect, that could further change the attitude of a Court, if the matter gets there.

I've signed a lot of waivers, including a dozen or so on Frank's boat. I consider it a sign that I'm dealing with an intelligent business that probably is thorough in other areas as well (others may consider it a sign that business is screwing over the little guy--hence the controversy in general, including in courts, it's almost more of a political-orientation question).

---------- Post added August 15th, 2013 at 01:07 PM ----------

I saw something posted about the duty of the boat captain. As I recall, if the captain accepts any payment from the passengers in money or in kind, like paying for the gas. Then the captain can be held to the standards of a commercial enterprise. I saw this recently and thought "yikes!". I saw it in Florida but since I don't have a boat, I did not keep the source filed away. You might want to look into it.

Used to be arguably true, but not any more. *Vountary* (this is key) sharing of expenses of a boat trip is no longer considered valuable consideration, ie payment for passage. See in particular para 5 a below for the wording:

BoatSafe.com

So, "you get gas, I'll get ice and food", or "gas etc costs X, okay if we split it?" is NOT going to make a "passengers for hire" situation under federal law, which is the relevant law (ie Coast Guard, maritime law) in such determinations.

 

[freewillie]

Waivers aside, a buddy of mine only takes divers that have Rescue Certification and minimum 50 dives. He also won't invite a diver unless he has personally dived with that person in the past.

 

[MaxBottomtime]

When we bought our current boat my fiance' had recently gone through a very expensive divorce. She has been terrified of litigation ever since. My friend Jeff was my frequent dive buddy until we learned that his health issues were caused by his alcoholism. I didn't even know he was a drinker before that. He was told he could dive with us when he got his health back. It's been nearly four years and counting.
We invited a couple out with us last year. The GF showed up hung over. We are now down to only one dive buddy who is invited on the boat. I wish I could invite more, but we don't know that many non-drinking dive buddies we trust with our future finances.

 

[grey2112]

When we bought our current boat my fiance' had recently gone through a very expensive divorce. She has been terrified of litigation ever since. My friend Jeff was my frequent dive buddy until we learned that his health issues were caused by his alcoholism. I didn't even know he was a drinker before that. He was told he could dive with us when he got his health back. It's been nearly four years and counting.
We invited a couple out with us last year. The GF showed up hung over. We are now down to only one dive buddy who is invited on the boat. I wish I could invite more, but we don't know that many non-drinking dive buddies we trust with our future finances.

Damn, that is sad.

After doing a lot of research, it seems to me my best bet (aside from trusting my gut instincts and trying very hard to ensure qualified divers who are in good health are the only ones I invite along), is to up my liability insurance and get an Umbrella policy just in case. Of course, being Rescue certified, having O2, first aid kit, etc. helps as well.