heard bad news while diving today

[Diver Dennis]

I respectfully disagree with Andy. Before considering what a reasonable person with comparable training and experience would do under the circumstances, one must look at whether the particular jurisdiction recognizes a duty in the first instance. Most jurisdictions say something to the effect that unless you created the situation or, by word or deed, undertook a duty to act, you have none. IMHO, even a DM who is not acting as a DM, but is on a personal dive (what I call "just along for the ride") has no duty (in most places) to prevent an unsafe dive or to rescue someone who is in trouble. If you are the DM for the particular dive, you may have a duty. If you encouraged the idiot to do the dive or told him it was a safe profile, you may have a duty. If you sit there and keep your mouth shut, you probably have no duty. In fact, I seem to recall the California Supreme Court saying that a swimmer on sore had no duty to come to the aid of one who is drowning.

Thanks Bruce. I guess a moral responsibility is the other thing to think about.

 

[H2Andy]

IMHO, even a DM who is not acting as a DM, but is on a personal dive (what I call "just along for the ride") has no duty (in most places) to prevent an unsafe dive or to rescue someone who is in trouble. If you are the DM for the particular dive, you may have a duty. If you encouraged the idiot to do the dive or told him it was a safe profile, you may have a duty. If you sit there and keep your mouth shut, you probably have no duty. In fact, I seem to recall the California Supreme Court saying that a swimmer on sore had no duty to come to the aid of one who is drowning.

this is why i hate this sort of parsing. you seem to be implying that i stated the above, and you are correcting me

i never stated what you are negating

not a big deal, it's just that i do not say the above, nor believe it, and hate to have it attributed to me

 

[waynel]

This is a question of maritime law. The captain of any registered vessel at sea not only has the right to prevent a passenger from doing anything that will endanger any passenger on the boat, including the potential perpetrator himself, but also is held responsible and has the authority, as per maritime law, to reasonably restrain said individual. Additionally, any plaintiff attorney for surviving family will not only bring suit against the captain of that vessel, but anyone in the employ of the potential perp (the lawyer will say "victim" in the suit), which would include any instructors or dive masters hired by that individual.

I am the director of an Industrial Safety Training Academy which trains offshore personnel working on rigs and work boats transporting personnel offshore.

 

[wreckchick]

Excellent point, waynel. With all the dive pros running around here, I forgot about the captain. What if it's a private boat with an unlicensed skipper? Do the same rules apply?

As I understand it, the USCG could potentially be called to remove that individual from the boat as a potential risk to life or vessel if it's a licensed captain that calls it in, but I don't know if a private citizen could do it.

R

 

[akbpilot]

This is a question of maritime law. The captain of any registered vessel at sea not only has the right to prevent a passenger from doing anything that will endanger any passenger on the boat, including the potential perpetrator himself, but also is held responsible and has the authority, as per maritime law, to reasonably restrain said individual. Additionally, any plaintiff attorney for surviving family will not only bring suit against the captain of that vessel, but anyone in the employ of the potential perp (the lawyer will say "victim" in the suit), which would include any instructors or dive masters hired by that individual.

I am the director of an Industrial Safety Training Academy which trains offshore personnel working on rigs and work boats transporting personnel offshore.

Agree 100%.

I'm sure I'm going to get flamed as a result of the rest of this post, but I've been biting my tongue about this ever since I came to Scubaboard. So be it.

I believe this is the first post I have seen on this board in the last 2 years,(I don't claim to have read them all) that correctly addresses the role and responsibility of a Captain of a vessel. Doesn't matter if it is a super tanker or a six-pack panga, off the US or any body of water in the world, THE CAPTAIN IS THE FINAL WORD!!! I read posts from divers here all the time saying in essence "If I don't like the way something is done on a boat, I'm going to do it my way". Wrong. If you don't like the way something is done on a boat, either okay it with the Captain or his representatives (crew, DM, etc.), don't do the dive, or don't get on the boat in the first place. From the moment you first step on that vessel until you step off that vessel, YOU are no longer in charge. Also, strange as it may seem, YOU are no longer in charge of or have the final say regarding your equipment or anything else you bring on board, beyond what authority is granted you by the Captain or the crew.

I realize that is a hard concept for some people to grasp, and a bitter pill for others to swallow, but that's just the way it is. It's been that way for centuries, it's that way today, it will be that way tommorrow. The # 1 rule on a vessel is: THE CAPTAIN IS IN CHARGE!!! If you're not willing to abide by that rule, then boat diving or any other activity involving a boat is not for you. If you have concerns about your safety or anyones elses safety take it up with the Captain or the crew. That's THEIR job, and THEIR responsibility. If they are willing to take action, or go along with your suggestion, fine. If not, sit down and shut up, that's just the way it is. You have no authority or responsibility beyond that point. If there is an accident, or you feel as if you have been wronged in some way, take it up in a Maritime Court or with a Maritime reveiw board after you get back.

 

[akbpilot]

Excellent point, waynel. With all the dive pros running around here, I forgot about the captain. What if it's a private boat with an unlicensed skipper? Do the same rules apply?

As I understand it, the USCG could potentially be called to remove that individual from the boat as a potential risk to life or vessel if it's a licensed captain that calls it in, but I don't know if a private citizen could do it.

R

Doesn't matter if it's a licensed skipper or a chimpanze at the helm. A Captain is a Captain. Doesn't matter if it's a day-sailer or the Queen Mary, all vessels have a Captain, and none are big enough for more then one.

 

[ItsBruce]

this is why i hate this sort of parsing. you seem to be implying that i stated the above, and you are correcting me

i never stated what you are negating

not a big deal, it's just that i do not say the above, nor believe it, and hate to have it attributed to me

Andy: I was not attributing anything to you. The section of my post you quoted was MY opinion on duties. I posted it because DD posted something to the effect that one of your earlier posts answered his questions as to duties. (As I recall it, your post listed different criteria for different levels of certification.) I surely did not mean to offend and apologize if I did.

 

[mibaro]

Wow...long thread. After finally reading the 13 pages, I noticed one point has never come up.... the disclaimer that all divers are required to sign when going on a dive boat.
I'm not a lawyer or a DM, but doesn't that disclaimer state that the diveshop is not responsible for any ....(I'm sure you've all signed it, I can't remember all the 2-page wording of it). Wouldn't that override any assault\battery charge if the mask was thrown overboard?

BTW, as a new diver, I EXPECT the DM or captain to restrain me if I am going to endanger my life by doing something stupid. Who knows, I might have a bit of hypoxia when I would decide to do the second dive right away...

Just thought I'ld chime in my .02

Michael

 

[H2Andy]

I surely did not mean to offend and apologize if I did.

oh heck no!

i was basically agreeing with you, but clarifying that i hadn't disagreed in my posts

Wouldn't that override any assault\battery charge if the mask was thrown overboard?

generally speaking, waivers only cover simple negligence. gross negligence and intentional torst or criminal acts are not covered by waivers.

generally speaking. this varies from state to state.

 

[DennisW]

I figure if you get a good lawyer, like Andy here, and a sympathetic jury, you can nullify nearly any waiver that you sign. Not that I would ever do that unless there was negligence by the crew involved. I dive at my own risk. I want the crew to get me to the dive site and get me back. Generally speaking, that's all I need.