Legal & other issues from SG Mishap

[genenaples]

Similar to the "suggested donation" at a museum

Maybe thats too broad a comparison. My point is that if an inteligent legal discusion is to take place as some have recently suggested; than the facts should be used. It has been suggested that the Keys local gov't or chamber should be held responsible because they charge an entrance fee. Boatlawyer asked a question about Ft. Lauderdale dive boats, they don't charge a $10 fee, etc. Well either does the Keys, its purely and strickly voluntary. If you refuse to pay the donation at the museum, they prob could get you on tresspass charges. Could they do the same on a Keys wreck?

 

[J.R.]

J.R.

I'm a South Florida native and first hand witness to the circus diving is becoming here and in the Keys. As I previously reported, I'm not a trial lawyer, I do vessel transactions and have set up some dive ops. The only dog I have in this fight is a personal concern for the sport and an intellectual curiousity as to how I can help my dive op clients in a changing market. I'm not advocating more regulation or stronger laws. Just setting forth arguments that any first year law student would.

Frankly, you can whistle past the graveyard all you want and postulate on what you believe the law should be. My job is to anticipate the legal risks as the sport becomes more mainstream. To the extent that helps some on the board, I'm happy to contribute, and I don't even mind the constant barbs at my profession to do so!

Cheers and safe diving!

I hope my scribblings weren't percieved as "throwing barbs"... not my intention in the least. If they were precieved as such, please accept my sincere appologies.

My concern is that when we start parsing arguements into special categories we tend to lose the focus on the issue. "Terms" often form the character of the arugement... trying to 'legally define' what is or is not a wreck... what may or may not define an attractiv nusance based on how it became accessable IS an issue that connects to 'risk'... and 'physical risk' to me far outweighs the consruction of 'legal risk'... thus the re-definition of 'underwater structure' v. 'wreck'.

I don't view my position as 'whistling past the graveyard'... I know there's a graveyard there... I know what it means to be in the graveyard and I know how to get into it if I try hard enough... I'm a "survivor" of an incident that SHOULD have taken my life (... caused by my own sheer stupidity and a false faith in the judgements of others)... I don't take risk lightly but would like to believe that I take full measure of it as possible and limit my own actions accordingly.

The problem with institutional safety is the issue of how you point finger at any one part of it as being culpable. As I've noted in a previous post... the dive training of today is much simpler and 'touchy-feely' than 30 years ago... the industry of magazines, organized trips, the plethora of 'specialty certifications' (most of which would barely meet the definition of an 'overview course')... all contribute, in my opinion, to a growing false sense of security. ... as does the instant access to dive sites that, years ago, would have required being rather extensively well heele

The fact is that we can't save people from themselves...

But... as a 'citizen' and a participant in diving... I think I also share some responsibility in understanding legal risks... and not abdicating my responsibility to add my voice, opinion and experience to the debate. I'm a student of history... and I think we can all cite way too many examples of what happens to civilizations when we defer our own judgement to the authority of others.

 

[Boatlawyer]

Maybe thats too broad a comparison. My point is that if an inteligent legal discusion is to take place as some have recently suggested; than the facts should be used. It has been suggested that the Keys local gov't or chamber should be held responsible because they charge an entrance fee. Boatlawyer asked a question about Ft. Lauderdale dive boats, they don't charge a $10 fee, etc. Well either does the Keys, its purely and strickly voluntary. If you refuse to pay the donation at the museum, they prob could get you on tresspass charges. Could they do the same on a Keys wreck?

All I know is that when I went to dive the SG, the $10 was charged and was not-negotiable. The "admission charge" is just one of the facts and less important than the degree of oversight performed by the UKARC in determining whether there was an duty of care assumed.

This is one of the evolving areas that can tilt liability toward the UKARC. It is likely that the contribution started out as purely voluntary and then became a little heavier handed when collected by the dive ops. It's an interesting question.

 

[J.R.]

Ok... this has all been examined from the single perspective of a dive via dive op... let's change perspective just a bit...

I/some friends go out and buy/rent a boat. I/we drive out to SG and anchor out... we elect to do a dive on the SG. No $10 admission required... no medallions handed out... no waivers...

So... what separates a dive-op trip from the one we just made? Mode of transportation.

So... why does the dive op suddenly incure liabilities because they acted as a ferry? Why should the State of Florida... or the makers of my regulator, incure any liabiity for what might happen on a self-directed dive?

 

[Boatlawyer]

Ok... this has all been examined from the single perspective of a dive via dive op... let's change perspective just a bit...

I/some friends go out and buy/rent a boat. I/we drive out to SG and anchor out... we elect to do a dive on the SG. No $10 admission required... no medallions handed out... no waivers...

So... what separates a dive-op trip from the one we just made? Mode of transportation.

So... why does the dive op suddenly incure liabilities because they acted as a ferry? Why should the State of Florida... or the makers of my regulator, incure any liabiity for what might happen on a self-directed dive?

First, this discussion has nothing to do with dive op liability. I have assumed the dive-op's release will be effective.

I'm not sure how or whether the donation issue would effect private party dives, except to provide a recovery fund if the donee were liable. It is just one fact that could be used in the recent case to paint the "amusement park" picture.

Dive ops don't "suddenly" incur liability for acting as ferry. They already have the liability unless they are released. Incidentally, under Scuba-do's releases, they still have potential liability for accidents occuring while acting as a ferry (again, not these facts).

Well, under some facts, I can see alot of reasons for holding a regulator manufacturer liable. Say Aeris decides it's cheaper to make o-rings from wadded bits of paper towels dipped in vaseline, and uses them in all their new regs. You buy, use and the reg fails. No reason to hold the manufacturer liable? But I digress.

If the State of Florida, by partnering with the UKARC, undertook a duty to make the SG relatively safe for diving by making pass throughs and cut-outs, and, more importantly, BY BLOCKING DANGEROUS ENTRANCES, and then inspected the SG periodically to make sure those entrances were still blocked, then a jury could find they assumed the duty to maintain the vessel. If the entrance in question should have been blocked, but wasn't, then it may be argued that UKARC failed in that duty and that the failure, in part, contributed to the tragedy. Anyway, that's the argument.

 

[DougNR]

You'd better know the risks, and you'd better READ the waiver of liability that the dive op makes you sign. Otherwise, you have no business being there. (unless you're on your own boat - but you'd still better know the risks involved.)

Agreed. However it's not as black and white as that in reality..

Let's say I'm a first timer on the Grove who has done the homework and is aware of personal limitations and has no intentions of making a penetration. I'm comfortable diving the middle moor to the wheelhouse, but not the stern line to the lower deck based purely on depth. Charter boats heading out on any given day have no way of knowing if they'll get their choice of moors. If I end up on the stern then what? I've paid for the trip whether I get wet or not. If any charters will guarantee where they put you, I am not aware of it. While that's no excuse for diving beyond one's capabilities, it's still a scenario that is more complex than it sounded. I think we can all agree that many divers faced with the situation I describe might be tempted to push their limits rather than blow off the dive.

Ultimately it's still the diver's call and responsibility, but let's bear in mind that the Grove was intended to support diver skill levels from AOW on up. Is this dive off limits to all but those ready to go to the sand bottom? In my opinion no, but the diver of lesser experience may have to be ready to make a last minute difficult decision.

 

[mike_s]

So where does this $10 medallion fee go? I mean who gets it and what audits/controls are in place to keep LDS's from keeping the money when they charge for it?

The reason I ask this is the sinking of the Spiegal Grove was so mis-managed, who or what is to keep the medallion fee from being mis-managed?

I paid my $10 when I went down and dove it. It wasn't that big of a deal or maybe I just wanted to dive it more than I wanted to fuss over the $10 bucks. I find it odd though that we are charged $10 to dive it when it was paid for by taxpayer money. The ship was paid for by federal taxes, the sinking was paid for by local taxes and with federal and state grants. The economic impact by this ship has more than paid for its sinking with lodging tax and sales tax by divers who have come to dive it.

So where does the $10 go now? and who's making sure it's not mis-managed?

 

[timle]

I also paid my $10 fee. However what I wasn't made aware of but found out later this should be a $10 annual fee and I should receive a medallion. Upon learning about this I doubt the $10 was actually given to the Upper Keys Artificial Reef Foundation and was probably kept by the charter as an extra $10 SG charge.

"The Key Largo Chamber of Commerce, under the auspices of the Upper Keys Artificial Reef Foundation, reduces the debt on the sinking of the Spiegel Grove by giving annual dive medallions for a $10 donation, a gorgeous bronze medallion for a $250 donation.

Those who receive the lifetime medallion will have their name (or the name of their choice) inscribed on a bronze plaque that is affixed to the Spiegel Grove. Only 1,000 lifetime medallions will be given away; the foundation is in the process of filling the final plaque.

For more information on the medallion program, write to president@keylargochamber.org or call 1-800-822-1088."

"Annual Sponsor - For a donation of $10, individuals will be given an annual dive medallion, which will be a different color each calendar year. The 2007 version is a deep purple."

http://floridakeys.org/snorkel.htm

 

[CBulla]

All I know is that when I went to dive the SG, the $10 was charged and was not-negotiable. The "admission charge" is just one of the facts and less important than the degree of oversight performed by the UKARC in determining whether there was an duty of care assumed.

This is one of the evolving areas that can tilt liability toward the UKARC. It is likely that the contribution started out as purely voluntary and then became a little heavier handed when collected by the dive ops. It's an interesting question.

The interesting thing is its only charged by dive operators when your diving the SG, not any of the other artificial reefs. Why is it that it is discriminitory towards diving that one location and not all of them if it were to be used for care. Side note to that is - if I bring my own boat down and shoot out 6 miles to the SG and dive, no medallion needed.

 

[mike_s]

The interesting thing is its only charged by dive operators when your diving the SG, not any of the other artificial reefs. Why is it that it is discriminitory towards diving that one location and not all of them if it were to be used for care. Side note to that is - if I bring my own boat down and shoot out 6 miles to the SG and dive, no medallion needed.

Actually I had one dive shop tell me it was for all the wrecks. Really I said? what other wrecks have they sunk since the Spiegal Grove when they started this program? Then he said "oh yeah, it's just for the grove".

I really don't have a problem with the $10 bucks. I just doubt it's actually being controlled like it should. I would like to see a finance report on this program.