SCUBA - An inherently dangerous activity

[pt40fathoms]

The minute a government regulation, classification, or control is placed on SCUBA. The death of a thousands cuts will have dealt its first slice. The problem is not the few idiots who go diving without any training and ultimately kill themselves. They are merely idiots who have found a very inventive way of purging themselves from the gene pool. Good riddance! The advocating the abolition of C Cards because these morons exist, and pointing to them as a sound reasoning for such a stance is a completely flawed argument. The real cause of the obscene rise in insurance costs is NOT rooted in any one industry that is affected by the increased of these costs. It is caused by rampant use of litigation for any and every ill or injury sustained by an individual regardless of where the fault for the mishap lies.

The American Bar Association lobbied successfully against any reforms to the legal system that would have made such laughable and ludicrous law suits such as the McDonalds coffee spilling incident possible. The one reform that would have effectively changed the very fabric of litigation in American courts is simply known as “looser pays”. We have it here in Canada, and it simply states that if you sue and loose, or are being sued and loose, you are on the hook for all legal fees and costs incurred by both parties. This has placed the lawyer in a position of asking “Is this case real, and does it have merit”. It also prevents self-representative piranhas from clogging up the system, while costing defendants countless thousands of dollars defending themselves, or more often settling out of court because it is cheaper.

So stay away from trying to regulate SCUBA. You will only cause far more damage than you can ever imagine. Instead, focus your efforts to where it will do the most good, and reform your legal system.

 

[Snowbear]

even though I'm a government employee, I'm all for less government. In my not always humble opinion, I think it's wrong for the government to legislate personal safety. I suppose government regulation of PUBLIC safety has it's place. The example was given for fire codes. For public buildings, this is appropriate - landlords and other building owners who are in it for the $$ will not provide expensive sprinkler or alarm systems or adequate fire escapes unless there are financial penalties. OK, I can live with that.

Seatbelt and helmet laws are examples of legislating personal safety. I always wear a seatbelt (if available) when in a moving vehicle on a roadway and wear a helmet when I ride a snowmachine or motorbike. I've seen what happens when people don't. But - I resent the government telling me I have to or I'll get a $50 fine. If people want the "freedom" of the wind in their hair (and bugs in their teeth) of riding helmetless, let 'em. It's their life, let them be potential organ donors if they want. On the other hand, if parents don't care enough about their kids to put them in a car seat or seatbelt - hit 'em where they do care - their wallet! Oh dang - there's the hypocrite in me coming out again wink

So - to sum up my ramblings - government regulation of my personal recreational activities is offensive to me.

 

[Kamala]

Yeah, and its almost never imposed in state courts. It IS in federal court....

So why the big deal over cards? If the waiver is "completely valid", its enough. Obviously its not enough, and case law can be reversed. Murley's family spent a LOT of time and money, and ended up costing everyone involved on the other side a lot of time and money, and yet even though their claims were barred (as originally asserted) the defendant's fees did not get paid by the plaintiffs.

This needs to change.

You can have a waiver upheld but if it costs you $50,000 to defend yourself you still lost. The law should reflect that such suits shall be dismissed on a petition for summary judgment, and all costs and fees shall be awarded to the party(s) sued.

First, a point of law here. It seems more like you want this to be dismissed much earlier than upon summary judgment; if your proposed change was actually able to remove the ability to sue, these suits would be dismissed for failure to state a claim (Federal Rule 12(b)(6)).

Second, Federal Rule 11 sanctions are rare compared to the massive numbers of suits filed each year, particularly since filings for Rule 11 sanctions have decreased in the wake of the 1993 amendments.

As to Genesis' actual proposal, what about the economics of the situation? Assuming your proposal would stand up to legal scrutiny (which I'm not sure it does), it shifts a great deal of responsibility away from LDS, Instructors, and Dive Operators. With no liability for scuba diving activities, the economic barriers to being in the dive business are reduced, resulting in a disincentive to carry insurance, perform diligently, and equip operations (in material and knowledge) responsibly. Although I'm a rookie, it seems the scuba world is already one where there seem to be plenty of shady businesses on the margins; further reducing the economic need be a "good" business would only encourage more predatory scuba businesses. Yes, people should absolutely bear much more personal responsibility than the current American lifestyle indicates they should, but we operate in a world where parties, particularly consumers have imperfect information about risk. Yes, scuba diving is inherently risky, but is it more or less risky when you're on vacation in an area where you don't know the reputation of every dive operator? Now the choice is don't dive or dive in what could be a riskier situation than what would exist without shifting the entire burden onto the participant.

In addition to seeing the increased cost of their own dive insurance, divers would not likely see a decrease in the other costs of diving even though the cost of doing business would decrease for scuba businesses. Unfortunately, business has a tendency to capture the gains from cost reductions of items (like insurance) that business use to justify increased cost to consumers.

 

[MikeFerrara]

Safety...

You don't need a card to dive in most places. I dived for years without one. You don't need a card to dive deep or in a cave or with mixed gasses. You only need a card when doing business in a place where some one is worried about liability. The fact that most people buy air from shops that must meet insurance requirements and agenct standards and mostly dive at resorts or on commercial boats has created the misconception that you need a card.

Because divers think they need a card they are for sale. The diver then thinks he is a diver and they get in the water. LOL. Since the diver thinks they must have a card they have no choice in the matter and they usually go for the cheapest. The market really does make real training hard to sell because of all the card selling going on and very hard to differentiate.

If a card wasn't required divers would only buy training when there was an obviouse benefite and the card seller would be out of business and the teachers would remain.

You don't need a certification to ride a hourse, fly an ultrlite or a hundred other things that are likely to get your neck broke.

I have spent thousands on training that served no purpose other than I needed the card and I could wallpaper a wall with useless cards.

IMO, without bogus certifications that mislead people as to their qualifications we'd likely have less divers diving betonf their skill level because their skill lever would be their primary reference rather than some silly card that says they are a "deep diver" or something.

I have long been an advocate of getting rid of the "C" card.

The very agencies that sell them created the need for them. It has to be one of the biggest con jobs ever pulled on the public.

You don't need a card to buy a compressor, dive equipment or to go to the local lake and jump in. Yet if you do feel the need to buy training good luck in finding anything other than card sellers. I say let them keep their cards and use them themselves.

 

[Scott M]

Scott...seriously...please forgive me if my response came off as a personal attack...I didn't mean it that way, I'm sorry.

I am against meaningless, expensive, draconian, bureaucratic regulations. I sincerely believe that most people (with a brain) when given a choice about personal safety will choose to be safe and ensure that they do what they can to keep themselves safe without having the government tell them what they need to do. In terms of the discussion about diving, I believe that the death rate from diving is insignificant enough to clearly demonstrate that the industry/individuals as a whole know what needs to be done to dive safely on a regular basis. What would additional government regulations add to this equation? Nada...but...the restrictions would almost surely increase. You are in business...doesn't the new manager ALWAYS want to make changes to put their mark on the business? You can bet that adding government in this case would lead to new restrictions...who knows what they could come up with..."all divers must dive with a minimum BC lift capacity of 50lbs, all divers must have a secondary completely redundant air supply with them at all times, all divers must carry a radar reflective flag of no less than 12" x 12"). If the death toll from diving was through the roof because equipment manufacturers were producing crap which killed people or if suddenly, OW divers started showing-up with a 50-50 chance of making it back...then sure...perhaps it's time to take a deeper look at what's going on. In this sport...especially in tech diving...it isn't the case.

I live in Canada. I have some extremely serious issues with our government. Here's a prime example from which I base my frustration with the "safety" regulations governments come-up with to protect us from ourselves. Gun Registry...all guns in Canada have had to be registered with the government...at a cost of well over a BILLION dollars. And guess what...the registry doesn't work for the police in terms of tracking guns or looking them up etc. (As any cop will tell you...anytime you are doing a domestic dispute intervention, you proceed as if the participants are armed and dangerous). And...none of the criminals have registered their guns...so...here they blew a BILLION dollars on a system which doesn't do what it intended to do and doesn't even function correctly and instead makes criminals out of thousands of Canadians who refused to go along with the insanity.

Second...bicycle helmet/skateboard laws. We have legislated that all cyclists and boarders are supposed to wear helmets (in Greater Vancouver)...guess what...it isn't enforced and my wife (a neuro nurse at Children's Hospital) deals with the aftermath everyday...again...another government law which isn't effective but was brought to table by "concerned individuals".

Heck take a look at the stupid annoucement from the TSA today to airlines on international routes that they should do everything in their power to prevent the congregation of passengers by the restrooms for fear they could be planning something en-masse. Give your head a shake...and start carrying large ziplocks

So...smoke detectors good, aircraft maintenance records good (except for Alaska and ValuJet), seatbelts in cars good, etc.

Telling me how to dive, how to rockclimb, how to ski, how to ww kayak...bad...my choice. And if I kill myself...oops. My family knows not to sue as they believe in personal responsibility too.

No problem Brian, no hard feelings. I live 18miles from the Canadian border and have a ton of Canadian friends and know quite well the problems you face. Your position as laid out above makes sense and is probably not far from me own opinion as I read more and more.

Take Care

 

[TCDiver1]

Safety...
You don't need a card to dive in most places. I dived for years without one. You don't need a card to dive deep or in a cave or with mixed gasses. You only need a card when doing business in a place where some one is worried about liability. The fact that most people buy air from shops that must meet insurance requirements and agenct standards and mostly dive at resorts or on commercial boats has created the misconception that you need a card.

This is turning into quite an interesting conversation. FWIW, if you could keep government regulation out of it i think its a great idea. Anything that promotes personal accoutability is a good thing in my mind. What i don't agree with is that you could get rid of all training (c-cards).

It appears, and correct me if i'm getting this wrong, that some of the people here who believe that training today is dangerously inadequate, now believe no training at all would be better if such a law existed?

I don't get it.

I remember going down to the sporting goods store, uncertified, to get a an airfill, because you could, because there was no dive store and being basically unprepared for some of the dangers of scuba. I can't believe anyone is suggesting that.

 

[plsdiver4377]

This is turning into quite an interesting conversation. FWIW, if you could keep government regulation out of it i think its a great idea. Anything that promotes personal accoutability is a good thing in my mind. What i don't agree with is that you could get rid of all training (c-cards).

It appears, and correct me if i'm getting this wrong, that some of the people here who believe that training today is dangerously inadequate, now believe no training at all would be better if such a law existed?

I don't get it.

I remember going down to the sporting goods store, uncertified, to get a an airfill, because you could, because there was no dive store and being basically unprepared for some of the dangers of scuba. I can't believe anyone is suggesting that.

I'm not sure I can explain the way I feel correctly, but I'll try. Most of the scuba training appears to be inadequate at best and downright dangerous at worst. It basically boils down to buying a 'c' card in order to dive because you have to have one in order to get airfills, equipment, etc. (at least through the LDS). There are ways around this of course, so technically it isn't entirely neccessary, but it is perpetuated through the industry.

In the horse industry you get training in order to learn how to do something you want or love to do in order to get better or not kill yourself. I think the biggest reason that most people get training to ride is because either they tried it under semi-controlled conditions or tried it the first time and figured out that a horse is a very large creature that can and more than likely will hurt you if you don't know how to do it properly.

As far as the legislation that keeps being brought up, I think it does bring to light the fact that a horse can hurt you since someone went to enough trouble to a) post such a notice and b) that somebody decided to let you know that if you decide to do it anyway that they are in no way responsible for your actions (or lack of knowledge, training, etc.) legally or otherwise. This does seem to promote personal responsibility versus letting other people lead one around buy the nose. It also promotes the idea that since there are no certifications handed out that the trainer in question is then providing something the student wants, versus something they have to have. This puts the responsibilty for determining what the student does with his/her knowledge or lack thereof soley in their hands.

Personally I despise government regulations pertaining to what I want to do with my life (ie. seatbelts) but occasionally those same regulations do seem to force you to take responsibilty for your own actions.

 

[Genesis]

This is turning into quite an interesting conversation. FWIW, if you could keep government regulation out of it i think its a great idea. Anything that promotes personal accoutability is a good thing in my mind. What i don't agree with is that you could get rid of all training (c-cards).

There is a difference between getting rid of training and getting rid of C-cards. They are not the same thing.

See, you've fallen victim to the dive-shop "sell the card" mentality! You equate the two - but they're not equal in any meaningful sense.

It appears, and correct me if i'm getting this wrong, that some of the people here who believe that training today is dangerously inadequate, now believe no training at all would be better if such a law existed?

That is not at all what some (myself included, and apparently Mike as well) believe.

We believe that training for the sake of training (as opposed to selling C-cards) would be far better than what we have now.

I remember going down to the sporting goods store, uncertified, to get a an airfill, because you could, because there was no dive store and being basically unprepared for some of the dangers of scuba. I can't believe anyone is suggesting that.

Indeed, we are.

What's the difference between that and buying a compressor, other than the money required to buy the compressor?

 

[Walter]

This would not eliminate the need for c-cards.

Using the Florida equine law as an example:

"Nothing in s. 773.02 shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person: ..............................failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity, or to determine the ability of the participant to safely manage the particular equine based on the participant's representation of his ability"

If applied to diving, the section I put in bold would seem to require c-cards or some other evidence of training. The section I underlined would seem to require advanced and/or specialty c-cards or some other evidence of additional training or experience for more advanced dives.

While I think this could eliminate law suits when the diver was clearly at fault. It would not eliminate law suits where the operator was negiligent nor where the diver wasn't certified.

 

[Genesis]

Actually, all it would require is that the operator make some determination of experience consistent with the diver's claims.

A logbook would be such, for example, as would showing up for an "advanced" dive with appropriate equipment. So would, from the equine law, representations that one is indeed qualified.

There are no "C cards" in the equine world nor any way to prove experience by logbook; there is only the representation of the proposed rider, and the observations of the person at the stable as to how they handle themselves around the animal while preparing to ride.