liability release

[Arnaud]

As Mike F. pointed it out, waivers and releases are all about insurance.

You're on a trip in Fiji and a problem happens, are you going to hire a local attorney in Fiji and sue the dive operation while you're back (hopefully) in your home country?

Another question: would you rather dive with a lousy dive op. that doesn't make you sign the waiver or a good one that needs the waiver? Obviously, if you find a good op. that doesn't need the waiver, even better, but will it change the way you dive?

The bottom line is that the paperwork is meant to handle a situation after the facts and decide who gets to pay what. You need regular insurance and dive insurance when traveling. You need to make sure that you know the operation that you dive with. After that, who cares about the waivers? How good would it make you feel to know that you can sue if your tank is filled with say CO instead of air?

Again, it's all about insurance. In Europe, this kind of waivers is only legal among commercial operations, not between an individual (consumer) and a commercial operation. This means that the commercial operations buys insurance for them and for you, and charges back a portion of their premium through whatever they sell you. In other parts of the world, you need your own insurance as a consumer. OTOH, if you were, for instance, a corporation leasing office space in Europe, the lease would likely contain the same kind of waiver. You would in turn buy insurance to cover the waiver.

Finally, don't make this a PADI thing. It's something very common in and outside of the dive industry.

My $.02.

 

[jhelmuth]

jkomorowski once bubbled...

In France but my testimony concerns Fiji.


I don't want to do anything about it. I just want to understand :
- Can such liability release form originate from PADI ?
- What may be the consequences of signing such liability release when a negligent diving shop provokes an accident ?

Here is my $.02...

I'm not PADI (NAUI certs), but in the first 3 mins. of my OW class, the instructor talked to us about the assumption of risk (which was also in our books). In summary, he told us that what we were embarking on was a life-time of training on assuming a serious life-threating risk such that we would manage that risk to a minimum. Emphasis on "we would manage that risk", where we was each individual. Note: He has continuously cautioned and reminded us of the risks and that we must take the traing and responsibility seriously (I've taken other classes with him and frequent his dive shop).
If you were to strickly follow your training, you would not be placing yourself in any greatly increased risk. I can say that because one of the top priorities/tenants to diving is to call a dive if you are not comfortable with any part of it.
I have to side with MikeF and Arnaud - it's an insurance thing. If you felt that they were less than professional in their attitudes, preparedness, equipment, etc. then you should NOT dive with them AND you should inform PADI (or their affiliate) about their practices. THAT will get their attention. If on the otherhand, you felt comfortable with them (other than this document), you can dive with them and assume the responsibility of this sport. There is no doubt - it is a risk everytime you jump into the "pool".

... anyway, that's my take.

 

[DivePartner1]

jkomorowski once bubbled...
You seem to agree that the wording I quoted is not only excessive but rather legaly nonsense.

No, I don't agree at all. Reread my post more carefully. I choose to accept those types terms and understand why my local club, dive shops and their insurers impose them.

You are free to dive under those terms or not. No one is forcing any of us to dive. It is foolhardy, however, to sign something you sincerely object to on the uninformed belief that it may be unenforcable.

 

[DivePartner1]

Arnaud once bubbled...
As Mike F. pointed it out, waivers and releases are all about insurance.

My $.02.

Arnaud, I agree that this language can be driven by insurance, but that is not always the case. The US is an environment of company-killing litigation, where plaintiffs lawyers have Letters of Marque to attack any entity and take their 50% cut. This is equally true of industries that can no longer find adequate insurance because they seem 'deep pocket' in high risk places.
This is no longer limited to OBGYNs and asbestos companies. If LDS's could obtain affordable insurance they would still need this language to protect themselves. Most US states, for example, would allow the dive shop to sued for the smallest ordinary mistake. In someone of the most hystercial jurisdictions (particularly those with elected judges, according to the plaintiffs bar), if the dive caused the injury but a sympathetic jury is enticed that any oversight equalled the diver's errors, people like Mike are out of business.

The language disclaims that but allows claims for gross negligence. The definition of gross negligence is generally acting in wanton disregard of risks, not offending the sensitivites or your customers.

 

[diverbrian]

Our LDS's liability insurance would not pay without that release. This allows you to be sued and not have quite the legal expenses in defending yourself as like auto insurance, the insurance companies and certifying agencies lawyers tend to "pick up from there" the minute that you are sued.

Also, you really wouldn't like my IANTD releases. They make you copy the release by hand to make sure that you read it and didn't just "sign on the dotted line". For two classes, I had writer's cramp by the time that I finished copying my release.

 

[Arnaud]

DP1, I hear you. I was trying to avoid getting into an argument about litigation & punitive damages in the States, since the issue took place in Fiji (and I have to acknowledge a complete lack of knowledge about the Fiji legal system )

Regardless of the legal system, someone has to pay for insurance (including self insurance). A waiver system implies that each party pays for their coverage. A non-waiver system implies that one party pays for both (or that someone forgot about the paperwork, but that's another issue )

 

[jkomorowski]

Arnaud once bubbled...
You're on a trip in Fiji and a problem happens, are you going to hire a local attorney in Fiji and sue the dive operation while you're back (hopefully) in your home country?

If I am handicapped for life because of provable & evident (at least for me) negligence of a dive shop, I do. Otherwise, probably not.

Arnaud once bubbled...
... don't make this a PADI thing.

Since that was my first contact with a PADI affiliated dive shop and their weiver was presented to me as originating from PADI, I percived the phenomenon as PADI-specific.

Arnaud once bubbled...
... would you rather dive with a lousy dive op. that doesn't make you sign the waiver or a good one that needs the waiver?

When I addressed the quoted fijian dive shop (BTW, the first PADI affiliated dive op I ever entered in) I couldn't know whether they are "good" or "lousy". Their office was tidy and the people polite. After reading the waiver I couldn't resist to my impression that if they need that unlimited liability release they cann't be professionals.

Arnaud once bubbled...
In other parts of the world, you need your own insurance as a consumer.

It may be a precious information.
- Do you mean that as a French citizen wanting to dive with a PADI affiliated dive shop I should have a particular personal insurance covering dive accidents ?
- Do you think that an insurance company will accept that I release the dive shop from any liability, even that relative to their negligence ? Such liability release may cause that my insurance company position may be weakened with respect to the dive shop's insurance company.

jhelmuth once bubbled...
If you felt that they were less than professional in their attitudes, preparedness, equipment, etc. then you should NOT dive with them AND you should inform PADI (or their affiliate) about their practices. THAT will get their attention. If on the otherhand, you felt comfortable with them (other than this document), you can dive

with them and assume the responsibility of this sport.

But if I have just met them, the weiver becomes the only element on which my opinion starts to develop.

DivePartner1 once bubbled...
I choose to accept those types terms and understand why my local club, dive shops and their insurers impose them.

Thanks for the clarification.

DivePartner1 once bubbled...
It is foolhardy, however, to sign something you sincerely object to on the uninformed belief that it may be unenforcable.

I agree. This is exactly why I didn't sign.

 

[Phish-phood]

In my club one of the main reasons they make people sign these waivers is because people lie through their teeth when filling out the original fit to dive forms sometimes intentionally and sometimes through no fault of their own.

For example - the recreational drugs question many people will say no to even if they do take them. Or in my own case, there is a history of Glaucoma in my family, because Glaucoma is not specifically mentioned on the forms it never occured to me to mention it but Glaucoma is in fact an indicator pf potential diabetes.
As an instructor you want to be sure that if anything like that occurs or you do happen to end up on a dive trip with an 'I know it all better than anyone diver' you are not going to end up being held liable for it. Sure it may be a bit of covering your own ass but let's face it, as with anything else you do, you have to take some responsibility for your own actions whether you are the diver, the guide, the instructor whatever.

 

[chiara]

jkomorowski once bubbled...

- Do you mean that as a French citizen wanting to dive with a PADI affiliated dive shop I should have a particular personal insurance covering dive accidents ?

What agency do you usually dive with?

If it's FFESSM an insurance is included in your annual affiliation fees.

This is not the case with PADI, that's why so many of us have a DAN card (albeit this is not the only option).


I agree. This is exactly why I didn't sign. [/QUOTE]

You didn't sign and they let you dive?

As long as I know this is a direct violation of PADI standards outside Europe, as I stated before the liability release is illegal around here, please correct me if I'm wrong.

 

[Arnaud]

chiara once bubbled...


If it's FFESSM an insurance is included in your annual affiliation fees.

This is not the case with PADI, that's why so many of us have a DAN card (albeit this is not the only option).

Correct. There's no membership fee with PADI (plenty of others, though) unless you're a pro.