When reviewing the actions of the dive master or vessel captain the seminal question becomes did the dive master or vessel captain act as an ordinarily prudent dive master or captain under the circumstances?
In summary, when reviewing the actions of the dive master or vessel captain the seminal question becomes did the dive master or vessel captain act as an ordinarily prudent dive master or captain under the circumstances? If the answer is "No," the operator may be found legally negligent and liable for the diver's injury and resulting damages.
Who is a Seaman?
To enjoy coverage under the Jones Act, a maritime worker must be a seaman. To qualify as a seaman, the maritime worker must establish connection to a vessel in navigation and, further, the work must contribute to the function or mission of that vessel. Typically, the captain, crew and divemaster aboard a dive boat are seamen. As long as the worker establishes the connection to a vessel and that the work contributes to its function or mission, he or she is protected under the Jones Act.
Customarily, when one thinks of a diver covered under the Jones Act, one thinks of an oilfield commercial diver.The Jones Act provides protection to any employee who has established "connection to a vessel in navigation." This class of employees protected includes, for instance, deckhands, dive masters, cooks and mates working aboard dive boats or any vessel for which wages are provided for services rendered. Any such employee is entitled to the liberal protection of the Jones Act.
Maritime law contemplates three basic types of charters, namely: the voyage charter, the time charter and the bare boat or demise charter. While these are the commonly recognized charters, it is important to understand that a charter agreement is simply a fancy name for the contract between two consenting parties and may be drafted to fit the circumstances.
Under a voyage charter the vessel owner provides the crew and retains the responsibility of navigating the vessel. The vessel owner simply provides transportation to a specific destination. This is analogous to a taxi ride.
Control of the Vessel
The captain of the vessel in all non-demise charters is viewed under the admiralty law as the master of the vessel. The master of the vessel has full control and jurisdiction over the vessel's crew, her equipment and most importantly, navigation. Prior to the embarking on a dive voyage, there should be a complete understanding between the dive shop, vessel owner and the charterer, relative to who has the final power and authority over the vessel once the voyage begins. An example of such a dispute occurs when the captain of the vessel refuses to return to shore when requested by the vessel's guest or charterer.Aclear understanding between the vessel owner and the charterer is necessary so that when situations arise, such as when a diver gets violently sea sick, there is no argument as to who has final authority to return to shore. The most serious dispute occurs when the captain of the vessel refuses to bring the vessel in when a diver is experiencing subtle symptoms of decompression illness or cerebral arterial gas embolism. Though discussed at length earlier in this booklet, the vessel owner and charterer should understand that in all situations involving diver safety the benefit of the doubt should be given to the diver.
Liability Insurance
Prior to the signing of any charter agreements, the charterer should be assured that the dive shop or vessel owner has in effect adequate maritime liability insurance. The vessel owner should be fully insured by a major insurance carrier to a limit not less than $1,000,000.00 for maritime general liability coverage.
The easiest and most convenient method of assuring that such insurance exists is to ask for the dive shop or vessel owner's Certificate of Insurance. In reviewing the certificate, one should take note of the name of the insurer ("the insurance company"), the name of the insured (who is covered by the policy), the maritime limits of the policy, the effective dates of coverage, the names of the covered vessels and a designation that the insurance is maritime liability coverage or maritime protection and indemnity insurance. Obviously, the consumer must be cognizant of the serious implications of entering into a charter agreement with a company that does not have insurance or is under-insured. Under such circumstances, the consumer is in effect relying entirely on the vessel owner should any tragedy occur.
Negligence v. Gross Negligence
In many states releases do not absolve the conduct of an individual who has acted grossly negligent in causing damage to another.
As mentioned above, negligence may be defined as:
the failure to use ordinary care under the circumstances in the management of one's person, property, or business.
Judges throughout the land have decided that releases do not apply when the conduct of an individual "shocks the conscience." Such conduct is known as gross negligence. Loosely defined, gross negligence is:
an act or omission of an individual which was done maliciously, wantonly, oppressively, or in a completely reckless or callous manner, indifferent to the rights of others.
In applying the theory of "gross negligence" within the diving industry the following example is illustrative. A dive instructor may be found "grossly negligent" in failing to provide assistance or medical treatment for a student who obviously suffers a serious incident of central nervous system decompression illness. If a student has obviously been "bent" and an instructor shows more concern for finishing an open water class than seeking treatment for the injured student, such conduct may expose the instructor to liability even when armed with a signed, otherwise enforceable, release.
Differentiating negligence from gross negligence has been analogized to distinguishing between a fool and a damn fool. It is not an easy exercise. If the conduct shocks ones conscience, it is probably gross negligence.
Just some useful information in case you end up on the jury!
