Judge rules-Abandoned diver can sue charter company

[almitywife]

FYI some new developments for the abandoned divers out there....


Abandoned diver can sue LB company - Press-Telegram (http://www.presstelegram.com/breakingnews/ci_8705946)

Abandoned diver can sue LB company
From wire services
Article Launched: 03/26/2008 02:27:31 PM PDT


A recreational scuba diver abandoned in the ocean off Newport Beach in 2004 can take to trial his $4 million lawsuit against the dive shop that planned the trip, along with the company that owned the boat and its crew, a judge has ruled.

Los Angeles Superior Court Judge Edward A. Ferns denied a motion by Sundiver Charters of Long Beach and Venice-based Ocean Adventures Dive Co. to dismiss Daniel E. Carlock Jr.'s case on grounds he assumed the risk of being left in the ocean and that there were therefore no triable issues.

"While (the diving companies have) shown there is a risk inherent in the sport of diving that a diver will become separated from other scuba divers, it has not been shown that there is a risk inherent in the sport ... that divers will forget and abandon their co-participants in the ocean ...," Ferns wrote.

The judge took the dismissal motion under submission March 4 and issued his five-page ruling last Thursday.

Carlock's lawyer, Scott P. Koepke, hailed the decision, saying it will benefit the hundreds of thousands of divers in California who could potentially find themselves in the same position as his client.

"The risk of scuba diving does not include being left unaccounted for ... and left floating on your own," Koepke said.

Jeffrey C. Stodel, an attorney for Ocean Adventures, said he had not seen the ruling and could not immediately comment.

Attorney Matthew W. Monroe, for Sundiver Charters, could not immediately be reached.

The trial, scheduled for June 9, will deal with the allegations of negligence and intentional infliction of emotional distress in Carlock's suit, which he filed in January 2005.

Carlock's story grabbed international attention. Then 45, he was left in the ocean amid foggy conditions roughly seven miles off Newport Beach the morning of April 25, 2004, after getting separated from about 20 other divers who had been aboard the motor vessel Sundiver, owned by Sun Diver Charters.

When Carlock realized he was no longer with his "dive buddy," he says he swam to the surface and made many attempts to be noticed, including using his whistle and waving a yellow inflatable tube. But the Ocean Adventures staff, and the captain and crew of the Sundiver, "failed to maintain a proper lookout and notice Carlock in the water," his suit alleges.

Sundiver Capt. Ray Leslie Arntz, and Zacarias Reyes Araneta and dive buddy Andy Huber, who were also with the dive shop, failed to account for all divers before leaving for a second dive site, the lawsuit alleges.

At the second location, the boat staff noticed Carlock was gone, but called the U.S. Coast Guard to the second dive site to look for him, not the first site, where he had been abandoned, his suit states.

For nearly four hours, Carlock floated, prayed, took pictures of himself and kept a log of what was happening with a waterproof pencil and slate attached to his wetsuit.

He says he expected to die, but eventually was rescued by those aboard the tall ship Argus, which was carrying an adult supervising crew, young Sea Scouts and Boy Scouts.

He was treated for hypothermia, and the Coast Guard was radioed to retrieve him. Carlock says he was also badly sunburned from being in the ocean for hours and developed skin cancer. He had the cancerous lesions removed but continues to suffer physical and emotional trauma, according to his lawsuit.

[Teamcasa]

This should be real interesting.

[almitywife]

im sorry... but i found this funny (obviously because we know the diver was found & safe)

"....he expected to die, but eventually was rescued by those aboard the tall ship Argus, which was carrying an adult supervising crew, young Sea Scouts and Boy Scouts...."

saved by the Boy Scouts!!!! now that deserves a badge!

[Teamcasa]

I'v been on that boat. Hmmm

[merxlin]

I've made over 100 dives on the Sundiver and can tell you that for at least for the last 2 1/2 years since I've been diving on it, it has always been very safe. I can't comment on this incident, and I'm sure neither can they until the litigation is done, but I have no reservations at all about diving with them.

[mike_s]

Los Angeles Superior Court Judge Edward A. Ferns denied a motion by Sundiver Charters of Long Beach and Venice-based Ocean Adventures Dive Co. to dismiss Daniel E. Carlock Jr.'s case on grounds he assumed the risk of being left in the ocean and that there were therefore no triable issues.

.



holy crap..... I can't believe a dive company would say something SO STUPID. None the less act that way towards a customer.

I hope he sues their ass off!!

[almitywife]

I've made over 100 dives on the Sundiver and can tell you that for at least for the last 2 1/2 years since I've been diving on it, it has always been very safe. I can't comment on this incident, and I'm sure neither can they until the litigation is done, but I have no reservations at all about diving with them.

do you sign a waiver before you get on the boat??

me thinks its being re-written right now.. on the grounds that you should assume you will be left out in the ocean (insert stiring smilie here)

[merxlin]

holy crap..... I can't believe a dive company would say something SO STUPID. None the less act that way towards a customer.

I hope he sues their ass off!!

Because everything you read in the news is accurate?

[Beachlover]

Not that being left alone in the ocean is ok, but the guy was only out there for four hours, not four days. Don't get me wrong, I would be plenty pissed off, scared,etc., but I can't say that I would sue all of these people. He claims skin cancer from THESE four hours of exposure, give me a break! California is the "sue capital" of the U.S.A. No wonder businesses can't afford insurance, workers compensation and the like. I hope all he gets is a free dive weekend out of this, and that it helps the dive industry to improve their safety standards so that things like this do not happen to other divers.

[merxlin]

do you sign a waiver before you get on the boat??

me thinks its being re-written right now.. on the grounds that you should assume you will be left out in the ocean (insert stiring smilie here)

You sign all kinds of waivers but in California you can't assign away your rights, so they are more a tool to acknowledge that you understand risk. And I am sure some things changed after the incident. But now there is a roll call before you leave the dock, after every dive (verbal reply and face to face sighting with crewmember), and before leaving to return to port. A couple times I had to poke my face out of the the head because my muffled "Here!" from in there wasn't good enough. I doubt anything like that would happen again.

[Clammy]

You sign all kinds of waivers but in California you can't assign away your rights, so they are more a tool to acknowledge that you understand risk. And I am sure some things changed after the incident. But now there is a roll call before you leave the dock, after every dive (verbal reply and face to face sighting with crewmember), and before leaving to return to port. A couple times I had to poke my face out of the the head because my muffled "Here!" from in there wasn't good enough. I doubt anything like that would happen again.


You gotta wonder if they would be doing that kind of careful check had they NOT left him out there and weren't getting sued! They should have been doing that BEFORE so that he didn't get left in the first place!

[almitywife]

easy guys.... i think its great that they seem to have increased their safety measures in regards to headcounts

lets not forget the last time the aussies left some divers out there, they werent missed for a day or so and to date no bodies have been found

this case could have ended up alot worse

[mike_s]

Because everything you read in the news is accurate?

while that is true, I've seen dive operators that were stupid enough for this...

according to the article this was a statement by the dive shops lawyer. Now I know the lawyer is just trying to get the lawsuit thrown out, but in reality he was still slinging mud on the face of his client.


regardless of whehter the media embelished the story or not, still doesn't make me want to sign up for a charter with this dive organization. :)

[dannobee]

I've made over 100 dives on the Sundiver and can tell you that for at least for the last 2 1/2 years since I've been diving on it, it has always been very safe. I can't comment on this incident, and I'm sure neither can they until the litigation is done, but I have no reservations at all about diving with them.

I've been on the Sundiver quite a few times, too, and second that they're very safe.

[merxlin]

You gotta wonder if they would be doing that kind of careful check had they NOT left him out there and weren't getting sued! They should have been doing that BEFORE so that he didn't get left in the first place!

Things happen, and this was a bad thing. I'd hate to be left. Since I didn't dive with them before then I can't say what they did or didn't do, or why this happened. Just making a point that this was a while ago and that today they are, to me, a very safe operation and a great boat to dive on.

[divebunny13]

I really don't think getting left out in the middle of the ocean is accounted for on an assumption of risk agreement. That was plain old bad divemastering. BUT just like Jack in the Box was the safest place to eat after the E Coli outbreak they had because their safety measures were doubled, this charter is probably the most thorough charter in SoCal now... $4 million for 4 hours though? THAT just screams "sue happy" American. THIS is why my insurance rates are so high.

[merxlin]

while that is true, I've seen dive operators that were stupid enough for this...

according to the article this was a statement by the dive shops lawyer. Now I know the lawyer is just trying to get the lawsuit thrown out, but in reality he was still slinging mud on the face of his client.


regardless of whehter the media embelished the story or not, still doesn't make me want to sign up for a charter with this dive organization. :)

This was in 2004. The dive boat industry is not exactly booming here in SoCal. Sundiver is still around and doing well. IF there were safety issues (especially in California), between the liability and the competition they would be long gone.

This is why I hate soundbites (written or audible). Makes a good headline but not the whole story.

[jeraldjcook]

California is the "sue capital" of the U.S.A.

At least three time a week I hear, "The rule of law in California is that no plaintiff can leave the courtroom without money" from one of my law professors.

[Scared Silly]

My WAG is that this will get settled out of court. The boat screwed up and guy was probably in distress but the cancer sounds dubious. The boat's insurance company will probably make an offer to make it go away and the guy will take it cause he will have to spill his guts to the world.

That said I am glad the boat has improved it safety. But for 2004 it should not have happened in the first place.

[Teamcasa]

Not that being left alone in the ocean is ok, but the guy was only out there for four hours, ....

Not to make light of this situation but given the speed of the Sundiver, I, supprised they could not still hear his whistle!



You sign all kinds of waivers but in California you can't assign away your rights, so they are more a tool to acknowledge that you understand risk. And I am sure some things changed after the incident. But now there is a roll call before you leave the dock, after every dive (verbal reply and face to face sighting with crewmember), and before leaving to return to port. A couple times I had to poke my face out of the the head because my muffled "Here!" from in there wasn't good enough. I doubt anything like that would happen again.


Mike is right, they make us sign waivers and take safety seriously.
(But, it is a sloooow boat!)

[Thalassamania]

You screw up, you pay. They screwed up, their gonna pay. How much is someone else's call. What is it really worth? Who knows? I just hope that its worth enough to send a clear message that this kind of screwup is intolerable.

[Beachlover]

Just because someone sues someone else, that does'nt guarantee that the same mistake will not happen again. It does guarantee that everyone elses costs go up( insurance,workers comp.ins).

[Spady]

If he incurred physician bills or missed work because of his hypothermia, dehydration, and/or sunburn, then it is certainly reasonable to ask for economic damages to make him 'whole' again. However, the amount of money this guy is asking for just stinks of greed. This is why the whole idea of non-economic damages for 'pain and suffering' is ludicrous and undermines the very ideals under which the tort system was founded
Just my 0.02

[Clammy]

Just because someone sues someone else, that does'nt guarantee that the same mistake will not happen again. It does guarantee that everyone elses costs go up( insurance,workers comp.ins).

There are no guarantees but it's a hell of an incentive to make sure it doesn't happen again.

I threatened to sue a certain establishment (only for medical bills) after the owner called me and said that they would not be taking care of any of the medical costs (a few thousand dollars) even after the manager did. The owner was quite rude with me at that (before I said anything about sueing). After I mentioned my lawyer, his tune changed immediately and said he'd look into things. However, he never called me back or responded to my letters. It was only after my lawyer sent a certified letter that lowe and behold, he responded and was much nicer. Anyways, his insurance company settled with me and all I asked for were medical bills. The next time I returned there, they had noticeably and properly taken precautions to make sure the same accident would likely not happen again.

The owner happily thought he could bully me since he had more money and resources. It was only after the realization of "Oh no, I could have potentially lost a lot of money" did they take precautions. He would have gladly not cared if I didn't do anything.

[Beachlover]

I hear what you are saying. I just think that too many people jump at the opportunity to sue. You sound as though you are a decent person, not everyone is willing to just accept medical bill reimbursement. And what about 4 million dollars, kind of excessive,don't you think?

[Clammy]

I hear what you are saying. I just think that too many people jump at the opportunity to sue. You sound as though you are a decent person, not everyone is willing to just accept medical bill reimbursement. And what about 4 million dollars, kind of excessive,don't you think?

Agreed, but not once during my injuries did I think my life was in danger. I don't know how much angrier I would have been and what I would have done if I thought I had been left to die.

[Kevfin]

I remember this story... it was called "Drifting Dan" . Do a Google search on that phrase and you can read a lot about it.

I have been on the Sundiver and it is a great boat and crew. I'd have no hesitation going on it.
I like Capt. Ray and he does a great job maintaining that boat (yeah, it is kind of slow).

This whole incident changed the dive industry in SoCal. Many Charters were very upset with Ray over it because the charter business slowed way down (some say dried up) for several months after. I don't know if he ever recovered his reputation with other boats. I do know that safety protocols followed by all boats did change.

I have also heard some of Rays side of the story and the stress he has incurred over the last several years as the lawyers prepared to sue. He has already lost a lot of money in legal fees.

The whole thing is sad... personally, I don't think it's a 4 million dollar case. But, I'm sure Dan's lawyers think it is.

[MaxBottomtime]

The one thing that always sticks in my mind is that Dan surfaced, saw the boat and signalled, yet didn't make any attempt to swim toward it. He said he figured they were going to come and get him. The DM then screwed the pooch and Ray made the mistake of trusting him. Dan then went on the talk show circuit and not once accepted any part of the blame.
I was diving the same rigs from the Great Escape once. When I surfaced, the boat was gone. They had left to go after another diver who didn't follow the briefing and surfaced down-current. I began climbing the ladder of the rigs to radio the boat until I heard them from the other side of the rigs. I was only at the surface for about thirty minutes. Maybe I should sue for a half million. :)

[BKP]

Bottom line, the guy *was* left there. He's got a valid complaint.
$4 million worth of a complaint? Laughable (and yes, I'd think so even if I was the one bringing suit). Skin cancer from *this* one particular episode? Don't think so...

Should dive ops do roll-calls instead of headcounts? Absolutely -- should be mandatory... I won't go out with an op that doesn't do a roll-call after each dive, *prior* to pulling anchor/mooring.

[ClayJar]

Okay, let's see... my thoughts on this one:

I've been privileged in my diving, as every boat I've been on has called roll religiously. (And that's on top of the other layers of verification.) I plan to maintain a purely academic interest in stories of divers being left, at least if I have anything to do with it (and I do). ;)

As for leaving a diver and not even noticing until on a second site, I'd consider that "gross negligence". To me, that would not fall under waivers, as a reasonably competent person would be expected to know whether they had everyone onboard. If a diver was swept down current and found missing *at the first site*, and if that was reported then, I would consider that to be part of the assumed risks of diving. To leave the site without noticing is a different animal.

Still, while there may have been gross negligence, the suit as described is far beyond reasonable. It is laughable to blame skin cancer on one exposure, for example. While I certainly empathize with people who have been through traumatic experiences (having had some doozies myself), at the same time, "Just get over it, already!" is my default response. Perhaps it was traumatic enough to require a solid month of shore diving on Bonaire in order to work through it, and with all those expensive dinners, round it up to $10k, but $4m? Inconceivable.

[fairybasslet]

$4 million for 4 hours though?
that is just a starting point for negotiations. I'm pretty sure he will settle for less before or during the trial.

[wreckchick]

I am a firm believer that American society has gotten so litigious to make civil court unrecognizable to any of the founding fathers or earlier. However, I do believe that there are legitimate cases out there and this is one of them. The tort system can change the way segments of the country perform daily tasks and although I still laugh at the "Warning! HOT!" label on the top of my carry out coffee there is a very specific case that precipitated that addition. If suing one dive charter company in California and WINNING means that all dive boats know they are vulnerable to a lawsuit if they don't follow good roll call procedures than I think that's a good thing. You can't legislate common sense, but you can make people do the right thing against their will.

Rachel

[=C=]

I really don't think getting left out in the middle of the ocean is accounted for on an assumption of risk agreement.

woah... how you doin? :eyebrow:

[hlsooner]

I don't think the guy really expects to get $4 million, as has been stated that is is merely an anchor in negotiations. But the guy is not seeking compensation for having to float on the surface for four hours. He is seeking compensation for the very real and high percentage chance, imposed upon him by the charter boat, that he would have never been found and died from exposure or other reasons from being lost at sea.

What is it we expect from our dive boats?
1. A Coast Guard approved and inspected vessel that is safe.
2. Transportation to the stated dive sites, and an evaluation of safe diving conditions before the captain puts divers in the water.
3. Safely retrieving all divers from the dive and accounting for everyone.
4. Safely transporting everyone back to the dock.

It's not hard to see that some of these basic expectations were not met on this unfortunate dive trip.

[=C=]

We actually had this happen on a dive boat in Egypt... Fortunately there were 3 boats at the dive loc and our missing man managed to hitch a ride back on another charter. He broke the tour operator's nose with his tank when he got back to the hotel in Hurgada.

I think some kind of response is required. But when you consider the options putting someone out of business for a mistake that could cost a life sounds fair to me. ;)

-C

[Teamcasa]

First let me say I’m not a huge fan of this boat, not for the crew but for the speed, it is a slow boat. I have been on this boat 4 times and admittedly, it was recently. That said, leaving a dive site without a roll call is negligent at best.

The topic of this thread is Can you sue (in California) for being left behind. A California judge says yes. I think so as well, but to what end and how much, that’s up to the plaintiff, his/her attorney and the jury.

Should their be a limit? Should their be a fine? Other consequences for the Captain and/or DiveMaster?

[Night Diver]

I imagine the reason he is alleging his skin cancer claim is to prove some lasting physical injury from the experience. Historically you couldn't recover damages for emotional distress without some accompanying physical impact or injury. This is no longer the law in California but for lawyers, old habits die hard, and if the case goes to a jury his lawyer wants to be able to argue generally that the guy has permanent physical injuries from the exposure.

Unless you've sat in a jury room or participated in jury research where "fake" jury deliberations are recorded and observed, you almost can't imagine the insanity that goes on in there despite the jury instructions and admonitions. While logic and common sense suggest that the guy's cancerous lesions had little if anything to do with his 4 hours of sun exposure that day, if the judge lets that claim go to the jury lord only know what they'll do with it. Which I have to assume is why it's there, as silly as it sounds to us.

[mike_s]

I really don't think getting left out in the middle of the ocean is accounted for on an assumption of risk agreement. That was plain old bad divemastering.

True



BUT just like Jack in the Box was the safest place to eat after the E Coli outbreak they had because their safety measures were doubled,

Thats an interesting view you have on that situation...

you do know that 4 children died from the result of that E Coli outbreak? I'm sure their families have a different view on eating there...




this charter is probably the most thorough charter in SoCal now... $4 million for 4 hours though? .

So just how much is the "going rate" for being left in the ocean to die now days?

[covediver]

And I am sure some things changed after the incident. But now there is a roll call before you leave the dock, after every dive (verbal reply and face to face sighting with crewmember), and before leaving to return to port. A couple times I had to poke my face out of the the head because my muffled "Here!" from in there wasn't good enough. I doubt anything like that would happen again.

I ran ops as a divemaster out of ventura, santa barbara, channel islands, and port hueneme in the 1980s. The type of roll call with visual verification and affirmative response was SOP for the boats back then. And we never left anyone behind...some customers thought it was a pain in the rear but the dive shop owner chartering the boat insisted on it and trained his dm to do it that way. I stopped dm when he started chartering a certain blue hulled boat out of Ventura on which the skipper actively discouraged us from doing so...

[Hetland]

I really don't think getting left out in the middle of the ocean is accounted for on an assumption of risk agreement. That was plain old bad divemastering. BUT just like Jack in the Box was the safest place to eat after the E Coli outbreak they had because their safety measures were doubled, this charter is probably the most thorough charter in SoCal now... $4 million for 4 hours though? THAT just screams "sue happy" American. THIS is why my insurance rates are so high.

My insurance rates are high because insurance companies are greedy. Every year since Katrina my home-owners insurance has gone through the roof, despite the fact that I live in a house built in the 1920's, out of a flood area, and 10 miles from the nearest drop of water. I've also never made a single insurance claim in my entire life (not counting my medical/dental of course). It's the same for everyone else in my area. It doesn't matter that these same companies make HUGE profits every single year (with or without hurricanes). It's just like the drug companies that charge $5 a pill for something that costs .005 to make. They blame the high cost on litigation, when in reality, their marketing expenses outdistance both litigation and r&d expenses by light years.

Your insurance rates are so high because insurance companies can charge anything they want.

[Teamcasa]

Please stay on topic..

The topic of this thread is: Can you sue (in California) for being left behind. A California judge says yes. ....

[Riger]

Is the diving community at large safer because the risk of litigation due to negligence on the part of Dive Operators and their crew is being publicized?

If you answer yes, then what is the price to possibly prevent one or more deaths in the coming years?

One guy may make more than he deserves, one guy may loose more than is fair but, the whole diving community has just scored.

These are, as always just my opinions.

Best Regards
Richard (Riger)

[Airborne!]

I am a firm believer that American society has gotten so litigious to make civil court unrecognizable to any of the founding fathers or earlier. However, I do believe that there are legitimate cases out there and this is one of them. The tort system can change the way segments of the country perform daily tasks and although I still laugh at the "Warning! HOT!" label on the top of my carry out coffee there is a very specific case that precipitated that addition. If suing one dive charter company in California and WINNING means that all dive boats know they are vulnerable to a lawsuit if they don't follow good roll call procedures than I think that's a good thing. You can't legislate common sense, but you can make people do the right thing against their will.
Rachel

The above quote is a thing of beauty. I just have to add that one to my collection. How true it is.

[Thalassamania]

...

Your insurance rates are so high because insurance companies can charge anything they want.And they manipulate their profit/loss calculations with a completely mythical item known as the "contingency reserve." This is money put aside to meet claims that the company "expects" to have to pay. Whenever they appear a bit too profitable to the regulators, it goes into the contingency reserve until the heat is off and then ... "oh gee, I guess we overestimated!"

[fairybasslet]

You can't legislate common sense, but you can make people do the right thing against their will.The above quote is a thing of beauty. I just have to add that one to my collection. How true it is.

Except, of course, when it comes to teenagers.:rofl3:

[lmorin]

How much is his life worth? 4 hrs is ample time to be severely sunburned. Not saying the $4 million is what should be sought in this case, but if he develops a melanoma because of the sunburn, then perhaps it is appropriate. CancerHelp UK (http://www.cancerhelp.org.uk)
Research has looked into the link between sunburn and melanoma. Sunburn definately increases the risk of melanoma. People with melanoma are twice as likely to have been badly sunburned at least once in their lives. The risk is higher if you have had sunburn several times in your life. Sunburn in childhood is even more damaging than sunburn as an adult.

[Tom Winters]

I'm amazed the case has gotten this far. He was likely offered a worthy fraction of the total amount to settle since the dive op's position appears to be entirely indefensible.
$4,000,000 for 4 hours and a sunburn does seem a little excessive though, but he and his attorneys must smell victory in the air.

[Clammy]

Hmm.. about the sunburn... we all dive in SoCal with full suits, gloves, booties, and hoods.... if you kept your mask on... how much of you would actually be exposed enough to get sunburned? I'm not saying it wasn't bad... I'm just saying, what are we talking, a quarter of the face?

[Thalassamania]

What usually happens in these cases is the defense council makes a few extra bucks by painting a rosy picture about how they are going to get the case thrown out. It rarely gets thrown out, so I wonder why the insurers keep falling for that. So until the judge said that the case should go forward, no one was likely making offers, they expected it to go away. Settlement offers will either be made soon, or may wait for the proverbial courtroom steps.

[Jim Ernst]

If he incurred physician bills or missed work because of his hypothermia, dehydration, and/or sunburn, then it is certainly reasonable to ask for economic damages to make him 'whole' again. However, the amount of money this guy is asking for just stinks of greed. This is why the whole idea of non-economic damages for 'pain and suffering' is ludicrous and undermines the very ideals under which the tort system was founded
Just my 0.02


I have to say I agree with you!

Yes if it had been me left out there... Yes I would have been scared of not being found, I would have been Pissed.

I also would have been one very happy person to be rescued and would be greatfull.

But $4 million I dont think so that is very much greed!

As someone else said.... It was 4 hours not four day's .... Yeesh!!

[fisherdvm]

It probably cost the guy $50,000 to get to this point in the lawsuit. If you ask for $5 mil, you'd probably settle in arbitration for $500000 or less. Half goes to your attorney, so he's going to walk home with not much more than 100-200K.

I think that is a fair amount to ask for, if your are going to proceed with a lawsuit. I'd get PTSD if I saw some fins around me. What's that movie? The one where the shark ate up the couple off australia??

[Teamcasa]

$4,000,000 ... he and his attorneys must smell victory in the air.

I’m sure that’s the case.


What usually happens in these cases is the defense council makes a few extra bucks by painting a rosy picture about how they are going to get the case thrown out. It rarely gets thrown out, so I wonder why the insurers keep falling for that. So until the judge said that the case should go forward, no one was likely making offers, they expected it to go away. Settlement offers will either be made soon, or may wait for the proverbial courtroom steps.

Knowing the jury system here, this is likely the case. No insurance company wants a case to be left in the hands of a jury unless they have a lock or an out.


It probably cost the guy $50,000 to get to this point in the lawsuit…

I’m sure it’s a contingency compensation case. I doubt he is out anything yet.

[merxlin]

How much is his life worth? 4 hrs is ample time to be severely sunburned. Not saying the $4 million is what should be sought in this case, but if he develops a melanoma because of the sunburn, then perhaps it is appropriate. CancerHelp UK (http://www.cancerhelp.org.uk)

As mentioned he was covered by his exposure suit and at worst had his face exposed. Also, he was lost in the fog. As far as I know, the UV factor for a foggy day is quite low. I'm sure in 4 hours it may have cleared up, and he received a lot of exposure, but it wasn't like he was in equatorial waters in board shorts for that time.

I'd also like to know if he, being a long time diver, was religious about using sunscreen, wearing hats and long sleeves, and doing all the other things we should all do to avoid sun exposure.

We will never get the whole story. He needs to spin it to his advantage, and the dive op cannot comment while it's in litigation. I'm not saying he doesn't deserve something, but it seems that suing someone has replaced making an honest living, at least here in CA.

[almitywife]

.....We will never get the whole story. He needs to spin it to his advantage......

with all due respect Merxlin.. whether it was 4hrs our 16hrs or a day or 4 days... he was left out there, abandoned out in the ocean

ive witnessed 3 separate vehicle fatalities - that has messed with my mind big time, i cant imagine what being left out in the ocean and watching my only form of rescue driving away would do to me

yes - he didnt die, yes, they came back for him, yes it was "only" 4hrs but how was he to know they would return and when

he started writing notes to his family on his slate, put a price on that sort of trauma

cheers

[Thalassamania]

I spent two weeks "lost at sea." You know, the sailboat dismasted in a storm, the engine out, the radio out, the Coast Guard looking for us, the entire drill. I wrote notes to my family and we worked hard to jury rig and finally limped into harbor. It did not cross my mind to sue anyone, not even the SOB boat owner that had removed the tool kit after our Marine Office had inspected the boat prior to our charter. Looking back on it now ... the price for my experience? I should have paid the SOB. I grew up a lot in those two weeks, and it's a story I've dined out on often.

[Peter Guy]

What (almost?) all of the respondents have seemed to miss is what this ruling is about -- that is, can a diver, in California, sign away his rights to sue for a negligent (or perhaps grossly negligent) act?

The "legal facts" in this case are that "Dan" contracted with an entity to go on a dive trip AND, as part of that contract, signed a "Release of Liability" that probably read something like this (taken from PADI website):


I understand and agree that neither my instructor(s), ____________________________________________ the facility through which I receive my instruction, __________________________________________, nor International PADI, Inc., nor its affiliate and subsidiary corporations, nor any of their respective employees, officers, agents, contractors or assigns, (hereinafter referred to as ‘‘Released Parties’’) may be held liable or responsible in any way for any injury, death, or other damages to me, my family, estate, heirs or assigns that may occur as a result of my participation in this diving program or as a result of the negligence of any party, including the Released Parties, whether passive or active. In consideration of being allowed to participate in this course (and optional Adventure Dive hereinafter referred to as "program"), I hereby personally assume all risks of this program, whether foreseen or unforeseen, that may befall me while I am a participant in this program, including but not limited to the academics, confined water and/or open water activities.
I further release, exempt and hold harmless said program and Released Parties from any claim or lawsuit by me, my family, estate, heirs, or assigns, arising out of my enrollment and participation in this program including both claims arising during the program or after I receive my certification.
I also understand that skin diving and scuba diving are physically strenuous activities and that I will be exerting myself during this diving program, and that if I am injured as a result of a heart attack, panic, hyperventilation, drowning or any other cause, that I expressly assume the risk of said injuries and that I will not hold the Released Parties responsible for the same.
In denying this motion for summary judgment the judge had to have found that "Dan" was absolved from his obligations under the contract with the entity.

Do YOU think the judge was right to so hold?

[Teamcasa]

What (almost?) all of the respondents have seemed to miss is what this ruling is about -- that is, can a diver, in California, sign away his rights to sue for a negligent (or perhaps grossly negligent) act?

The "legal facts" in this case are that "Dan" contracted with an entity to go on a dive trip AND, as part of that contract, signed a "Release of Liability" that probably read something like this (taken from PADI website):


In denying this motion for summary judgment the judge had to have found that "Dan" was absolved from his obligations under the contract with the entity.

Do YOU think the judge was right to so hold?


We (at least I) don't know if he signed a release, a release like your example or anything else. However, Judges routinely allow cases where it could be considered gross negligence or where the responsible party failed to provide reasonable care, regardless of a waiver.

[Thalassamania]

What (almost?) all of the respondents have seemed to miss is what this ruling is about -- that is, can a diver, in California, sign away his rights to sue for a negligent (or perhaps grossly negligent) act?

The "legal facts" in this case are that "Dan" contracted with an entity to go on a dive trip AND, as part of that contract, signed a "Release of Liability" that probably read something like this (taken from PADI website):


In denying this motion for summary judgment the judge had to have found that "Dan" was absolved from his obligations under the contract with the entity.

Do YOU think the judge was right to so hold?I think that the judge was right. I do not think it is good public policy for someone to be absolved of responsibility for negligent acts that they may or may not commit. That is what they should be buying insurance for.

[DennisW]

About the only thing I expect from a charter company is to take me to the dive site and then return me to the dock. If they leave me out there, I am going to sue. There is no excuse in leaving a diver. If I can't sue, they will suffer in some way. One way or another.

[Peter Guy]

Was there a release form signed? (It seems likely from the L.A. Times story which said the motion for summary judgment was based on "assumption of risk." But, not having seen the paperwork, it is POSSIBLE no waiver was signed -- but when have you done anything in SCUBA w/o signing a waiver? BTW, I've done several classes with one particular instructor w/o signing one!)

B. Thal wrote --
I do not think it is good public policy for someone to be absolved of responsibility for negligent acts that they may or may not commit.
First, I must assume he didn't really think this statement all the way through. Thal, do you really believe it is "not...good public policy for someone to be absolved of responsibility for negligent acts they" did not commit? (If they didn't commit the acts (the ones they "may not" have committed) shouldn't they be absolved?)

Second, I'm glad your position is NOT the standard one. To the contrary, the position outlined in a Scuba wrongful death case here in Washington is MUCH the better public policy. Please read Boyce v. West (http://srch.mrsc.org:8080/wacourts/DocView/appellatearchive/071wnapp/071wnapp0657.htm?hilite=boyce;a483233762fcb89cf516 980159db9ec7;6dec7e0c2738c186e92c1c8067fda19f;cfdf b5549098d7c681a785ff03c6a403;a8cb9d347555bc378ca7a 7ede2c71c8b;c1d2ad5b6ee8cbda5e39664cab10b3c9;2078d dcb22a22c8c74ffc8523cb91b5f;) for a pretty thorough discussion of why it is NOT a violation of "public policy" to permit people to assume the risk and waive liability for Scuba diving.

3. Dennis -- Yes, you may expect the charter to take you out and bring you back, but if they don't bring you back, is that gross negligence or merely negligent and IF you have signed a contract that says you waive any and all rights to sue the charter, why SHOULD you be permitted to ignore the contract you signed?

[Teamcasa]

GROSS NEGLIGENCE - Failure to use even the slightest amount of care in a way that shows Recklessness or willful disregard for the safety of others.

NEGLIGENCE - The failure to use reasonable care. The doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do under like circumstances. A departure from what an ordinary reasonable member of the community would do in the same community.

http://www.lectlaw.com/def2/n010.htm

[frankc420]

I don't think this guy expects $4 million. My guess is he asked for so much to get national attention. He wants his story out there and he wants people to listen to his story. He'll fight it, get an offer, decline, they'll double the offer and he'll accept.

[Hetland]

The insurance company's $600 an hour lawyers will take this through discovery (document exchanges, depositions, etc.) then make a motion to dismiss the case again, and THEN an offer will be made. They do this to discourage casual suits (and cause the lawyers like to get paid). Sometime between that, and the trial, the offers will start being made.

[Clammy]

Was there a release form signed? (It seems likely from the L.A. Times story which said the motion for summary judgment was based on "assumption of risk." But, not having seen the paperwork, it is POSSIBLE no waiver was signed -- but when have you done anything in SCUBA w/o signing a waiver? BTW, I've done several classes with one particular instructor w/o signing one!)

B. Thal wrote --
First, I must assume he didn't really think this statement all the way through. Thal, do you really believe it is "not...good public policy for someone to be absolved of responsibility for negligent acts they" did not commit? (If they didn't commit the acts (the ones they "may not" have committed) shouldn't they be absolved?)

Second, I'm glad your position is NOT the standard one. To the contrary, the position outlined in a Scuba wrongful death case here in Washington is MUCH the better public policy. Please read Boyce v. West (http://srch.mrsc.org:8080/wacourts/DocView/appellatearchive/071wnapp/071wnapp0657.htm?hilite=boyce;a483233762fcb89cf516 980159db9ec7;6dec7e0c2738c186e92c1c8067fda19f;cfdf b5549098d7c681a785ff03c6a403;a8cb9d347555bc378ca7a 7ede2c71c8b;c1d2ad5b6ee8cbda5e39664cab10b3c9;2078d dcb22a22c8c74ffc8523cb91b5f;) for a pretty thorough discussion of why it is NOT a violation of "public policy" to permit people to assume the risk and waive liability for Scuba diving.

3. Dennis -- Yes, you may expect the charter to take you out and bring you back, but if they don't bring you back, is that gross negligence or merely negligent and IF you have signed a contract that says you waive any and all rights to sue the charter, why SHOULD you be permitted to ignore the contract you signed?


The spirit of those contracts is that in the event of an accident within an inherently dangerous activity, that you don't hold the charter responsible. But you can not seriously think that it is okay and within the scope of that contract to expect the charter to NOT be held responsible when they leave someone to die due to gross negligence. Then the Dive operators would have no reason or responsibility to even hire qualified people to run these operations. It's not like they have to take extraordinary measure to figure out that 24 people are on board an 80ft vessel rather than 25.

[Peter Guy]

Hetland, I sure hope the insurance company has a better contract than at $600/hour! Also, since trial is set for June and this may very well be the final pre-trial non-evidentiary motion, I'd be shocked, really shocked, if they haven't done ALL of the discovery already.

The one BIG question is: Is leaving a diver "gross" negligence or merely simple negligence? While I think it was probably negligent (although we certainly don't know what went on -- for example, did someone answer "here" for the missing diver?) to leave the diver, I don't think it should be gross negligence.

[almitywife]

wouldnt this partly form the gross negligence claim

"At the second location, the boat staff noticed Carlock was gone, but called the U.S. Coast Guard to the second dive site to look for him, not the first site, where he had been abandoned, his suit states. "

they didnt even know where they lost him.... just that eventually they realized he was missing

which would imply staff overlooked his failure to return to the boat, didnt have a look out for divers on the surface, didnt log him back onto the boat, didnt notice his absense during the move to site #2 and didnt log him into the water at the beginning of dive #2

alot of failure points there that, well, simply failed

[D_B]

good points

[almitywife]

is anyone else getting threatening PMs about responding to this thread

if yes, please advise - pm will be fine :D

cheers

[D_B]

Hmmmm ... Now that is a telling post

[ClayJar]

I don't see why anyone would be upset about this thread. It's basically come down to an interesting discussion about negligence versus gross negligence. The former is generally covered by waivers and assumed risks, while waivers generally cannot absolve someone of the latter (although even a paralegal student would know to note that it varies by jurisdiction ;)).

Obviously, the question of whether the incident would be simple or gross negligence is worthy of consideration. If it were not, the suit either would have moved forward or would have been tossed out. That is not to say that the operator *was* grossly negligent, of course, just that the question must be considered as to where the line is drawn in this case. Of course, we have but one description of the incident (and I imagine the op is specifically precluded from discussing it, as the suit continues).

Without knowing all the details, it would be foolish to comment on the validity of the claims or defenses in particular, but it is certainly in every boat diver's self-interest to think about responsibilities, both of the boats they ride and of themselves. If leaving a diver behind is *not* necessarily grossly negligent, for example, would that give significant incentive to divers to take more initiative for their own safety (and return trip)? There are useful and interesting thoughts to be had here.

[merxlin]

wouldnt this partly form the gross negligence claim

"At the second location, the boat staff noticed Carlock was gone, but called the U.S. Coast Guard to the second dive site to look for him, not the first site, where he had been abandoned, his suit states. "

they didnt even know where they lost him.... just that eventually they realized he was missing

which would imply staff overlooked his failure to return to the boat, didnt have a look out for divers on the surface, didnt log him back onto the boat, didnt notice his absense during the move to site #2 and didnt log him into the water at the beginning of dive #2

alot of failure points there that, well, simply failed

I'm not trying to justify leaving a diver. It shouldn't happen. But it's awfully easy to paint the picture that everything the boat did ws wrong. The assumption is that the article is factual and not just the verbiage of the plaintiff (notice the end of the sentence "....his suit states"). To play devil's advocate: The only failure points above are the failure to log him back on to the boat, and missing him at roll call. Both biggies. It was a foggy day, so looking for divers on the surface, espepcially when others may be bording the boat, would have been hit and miss. Why would the boat crew be responsible for noting he was missing during the move? Typically they are driving the boat, fixing a meal, and filling tanks once the boat is under way. I don't think we know that divers went into the water at site #2, and how do you log in someone who isn't there?

What if someone answered for the missing diver when roll was taken (that has happened before), the boat moves then discovers him missing. If its discovered that he is mising at the 2nd site, that is where the call to the Coast Guard would have been made, although not necessarily where they were dispatched to. Is it still gross neglegence and worthy of that kind of claim?

And one item that hasn't been discussed. Was he diving with a buddy? If so, why didn't he (the buddy) mention the missing diver or even notice he was missing?

[almitywife]

what is the boat setup? is everyone allocated a seat to attach a whip to for a airfill? do they take their tanks off and get new tanks? if they get new tanks wouldnt someone notice there is one left over? if its the whip then you have an empty seat

either way - maybe makes sense to make yourself noticable on a boat next time so people remember you ;)

and yes - i wonder what happened to the buddy too

[Hetland]

Hetland, I sure hope the insurance company has a better contract than at $600/hour! Also, since trial is set for June and this may very well be the final pre-trial non-evidentiary motion, I'd be shocked, really shocked, if they haven't done ALL of the discovery already.

The one BIG question is: Is leaving a diver "gross" negligence or merely simple negligence? While I think it was probably negligent (although we certainly don't know what went on -- for example, did someone answer "here" for the missing diver?) to leave the diver, I don't think it should be gross negligence.

Doh! I missed that part somehow. You are correct.

$450-$600 an hour for California lawyers is not very unusual, but yes, contract work pays less than "standard" rates.

As for your question, yes, I think leaving a diver behind under these circumstances is gross negligence.

[merxlin]

what is the boat setup? is everyone allocated a seat to attach a whip to for a airfill? do they take their tanks off and get new tanks? if they get new tanks wouldnt someone notice there is one left over?

and yes - i wonder if what happened to the buddy too

The way it is set up today you get a tank (they have tanks on the boat) or you can bring your own. The tanks are on both sides of the stern. Everyone does not always return their tank to the same spot. Tanks are filled in place, but there are no seats where the tanks are. Depending on how organized the group on the boat was, there should have been an empty spot where his tank was. But I have been on the boat with a full load of 24, many with doubles, and you wouldn't know a tank was missing. They do count tanks now too.

[Thalassamania]

...

B. Thal wrote --
First, I must assume he didn't really think this statement all the way through. Thal, do you really believe it is "not...good public policy for someone to be absolved of responsibility for negligent acts they" did not commit? (If they didn't commit the acts (the ones they "may not" have committed) shouldn't they be absolved?)

Second, I'm glad your position is NOT the standard one. To the contrary, the position outlined in a Scuba wrongful death case here in Washington is MUCH the better public policy. Please read Boyce v. West (http://srch.mrsc.org:8080/wacourts/DocView/appellatearchive/071wnapp/071wnapp0657.htm?hilite=boyce;a483233762fcb89cf516 980159db9ec7;6dec7e0c2738c186e92c1c8067fda19f;cfdf b5549098d7c681a785ff03c6a403;a8cb9d347555bc378ca7a 7ede2c71c8b;c1d2ad5b6ee8cbda5e39664cab10b3c9;2078d dcb22a22c8c74ffc8523cb91b5f;) for a pretty thorough discussion of why it is NOT a violation of "public policy" to permit people to assume the risk and waive liability for Scuba diving.
...Thank you, I did not mean to get that second "not" in there. Indeed I do believe that it is not good public policy to permit enforceable waivers that cover the very items and duties that the student contracts with the instructor for. I strongly feel that a student has a right to expect to be returned to land safe and sound and that an instructor who fails to meet that duty (absent willful disobedience on the part of the student) should be held responsible for his actions or lack of action.

I think that the dive that Boyce died on was a classic CF and that West (who may be the nicest guy and earth and who might be the best instructor in the world on other days) was, at best, having a bad day. Like most diving accidents this dive features problem piled on problem, the identification of any one of which could well have saved Boyce's life, but West appears to not have had his head in the game that day. I would, frankly, have had no problem describing West's actions as, "Failure to use even the slightest amount of care in a way that shows Recklessness or willful disregard for the safety of others." An expert description that could have obviated the possibility of the motion for a directed verdict.

That's not to say that I am unmoved by the existence of waivers. I feel that it is perfectly reasonable for people to take on responsibility for their actions and decisions. The runner in Atlanta (Williams v. Cox Enterprises Inc.) is, I think, absurd.

I guess what it comes down to for me is that whenever a student dies as the result of something I think a competent instructor should have been foreseen and dealt with, I think that instructor should be held liable. The instructor did not do his or her job. I find repugnant the idea of a CYA codicil that says, "gee ... if I screw-up and kill you, sure, it's my fault ... but I don't have to take stand up like an adult and take responsibility for the duties that I contracted to provide to you."

Face it, it would be strange if we did not have different views on the subject, you are a lawyer and I am a university diving safety officer.

[Papa_Bear]

I'm not trying to justify leaving a diver. It shouldn't happen. But it's awfully easy to paint the picture that everything the boat did ws wrong. The assumption is that the article is factual and not just the verbiage of the plaintiff (notice the end of the sentence "....his suit states"). To play devil's advocate: The only failure points above are the failure to log him back on to the boat, and missing him at roll call. Both biggies. It was a foggy day, so looking for divers on the surface, espepcially when others may be bording the boat, would have been hit and miss. Why would the boat crew be responsible for noting he was missing during the move? Typically they are driving the boat, fixing a meal, and filling tanks once the boat is under way. I don't think we know that divers went into the water at site #2, and how do you log in someone who isn't there?

What if someone answered for the missing diver when roll was taken (that has happened before), the boat moves then discovers him missing. If its discovered that he is mising at the 2nd site, that is where the call to the Coast Guard would have been made, although not necessarily where they were dispatched to. Is it still gross neglegence and worthy of that kind of claim?

And one item that hasn't been discussed. Was he diving with a buddy? If so, why didn't he (the buddy) mention the missing diver or even notice he was missing?

The DM logged him in at the second site! The wreck of the Olympic.... One of the problems with the first site was that the boat does not tie off our anchor! The boat keeps station while the divers go in and get out.... The Captain must stay alert at the helm because of currents and traffic! This was a DM and Buddy deal, but the Captain lost his ticket because of poor choices by a DM provided by the Chartering Shop! This is when all involved wish there were do overs, the Captain should sue the DM and her trainer and maybe the shop to indemnify him and the boat! He was buddied with two other divers and they all got separated as soon as they entered!

[pir8]

I'm sorry but no excuses for the crew to not notice that they were missing someone at the first site , but then to log him into the second is criminal.

[Puffer Fish]

is anyone else getting threatening PMs about responding to this thread

if yes, please advise - pm will be fine :D

cheers

Nope... but then this is my first post..

Papa Bear's comments on the dive seem to be a fairly reasonable description of the events.

I happen to agree with you (and several others). The sole purpose of going on a dive boat is to dive. Assumed in that process is the getting on and eventually getting off the boat. It it the only reason for the whole thing to exist.

If, as the Captain, someone else messes up...should that make the Captain take a free walk? Don't think so.

If you sign a waver, does that or should that give up all responsibility for the boat to do their job correctly? Don't think so.

I've taken a lot of groups on dive boats... sometimes the captain decides to keep track of people, regardless of what I do, sometimes there is an expectation that I would do that accurately. I believe that it would be reasonable to expect the captain still has overall responsibility (although "legal" and rational don't always go together).

Regarding "Gross" versus not gross. Given the job, and what the reasonable expectation is... even if the mess up was due to someone else...it would be hard for it not to be "gross".

I do have a major issue with the Buddy and DM information presented. Not sure what the correct legal issue is... but there is clearly some responsibility here (but this is a far more debateable concept).

On a moral point of view... if you are diving with someone (even an insta-buddy) I believe you have a responsibility to communicate if they don't come back to the boat.

[fairybasslet]

is anyone else getting threatening PMs about responding to this thread

if yes, please advise - pm will be fine :D

cheersYou're joking, right? Unbelievable. :shakehead:

[jasondcrawford]

Not that being left alone in the ocean is ok, but the guy was only out there for four hours, not four days. Don't get me wrong, I would be plenty pissed off, scared,etc., but I can't say that I would sue all of these people. He claims skin cancer from THESE four hours of exposure, give me a break! California is the "sue capital" of the U.S.A. No wonder businesses can't afford insurance, workers compensation and the like. I hope all he gets is a free dive weekend out of this, and that it helps the dive industry to improve their safety standards so that things like this do not happen to other divers.

Amen. It indeed would have been a terrible experience, but $4,000,000 to float around for a few hours? In all seriousness and honesty, if he had died they'd be liable for much much less than that. How is it that if someone lives and sustains 'emotional trama' they think they're entitled to so much money that they'd never have to work another day in their life. This just isn't right and I hope loses bigtime.

[scarefaceDM]

The boat, the crew are liable regardless. That waiver is useless. you accept the risk of diving, not the risk of being left in the open ocean. They left a diver in the water. They are negligent in there duties to provide a safe diving environment in which they have full control above water on there boat. Not taking a head count is asking for trouble. They would have discovered a missing person once the head count was taken.

[ianw2]

What (almost?) all of the respondents have seemed to miss is what this ruling is about -- that is, can a diver, in California, sign away his rights to sue for a negligent (or perhaps grossly negligent) act?

In denying this motion for summary judgment the judge had to have found that "Dan" was absolved from his obligations under the contract with the entity.

Do YOU think the judge was right to so hold?

Thank you!

I would also expect that the arguments included the “reasonable man test”. While, as a diver engaged in an inherently dangerous sport, I take responsibility for myself and my actions in the water pursuing my hobby/sport. However, it is reasonable to expect that the dive boat operator will take me to a safe dive spot and return me to the dock. While I have a great deal of control over what happens to me in the water, I have little if any control over what happens to me relative to the boat operations as transportation to and from the dive sites.


Yes, you may expect the charter to take you out and bring you back, but if they don't bring you back, is that gross negligence or merely negligent and IF you have signed a contract that says you waive any and all rights to sue the charter, why SHOULD you be permitted to ignore the contract you signed?

Again, it is beyond the expectations of a reasonable man to not expect the dive operator to provide transportation BOTH ways. While the diver has control over choices made in the water and in diving, as a passenger, that diver has little control over the operation of the boat.

Is it negligence, gross negligence or even criminal negligence? I don’t know. That is for the jury to decide, should the case go that far. I am not privy to the entire body of facts surrounding this case.

The amount of the requested compensation seems to be bothering a number of people. This is not a case where it can be broken down into a dollar amount per hour. The length of time in the water is not significant. The fact that the diver was left in the water at all is what is significant. It is that action that is being tried, not the length of time.

Whenever the magnitude of a circumstance is in question, I am reminded of the story regarding Churchill and arch-nemesis Lady Astor. Reputedly seated next to each other at a fund raising dinner, Churchill asked Lady Astor if she would go to bed with him for Ł1,000,000 to the charity. She replied that she would. Churchill then asked if she would go to bed with him for Ł1. Angrily, she asked if he took her for a prostitute. He retorted that that fact has already been established and they were merely haggling prices.

In other words, 4 hours or four days, it doesn’t matter to the man who watches the boat disappearing into the fog. He’s been left behind.

Ian

[SCUBAJENNIFER]

Not to make light of this situation but given the speed of the Sundiver, I, supprised they could not still hear his whistle!

Sorry to have come so late to this thread...but I just had to acknowledge this post...

I laughed loud enough that someone in the next office came to check on me.

I love the Sundiver, have always been treated well and wouldn't hesitate to dive with Ray anyday...

[Dive California]

Perhaps what the DIVERS need to do...is come up with a waiver ourselves...something to effect that no dive boat/charter will leave my a$$ out in the open seas. Then have the charter/dive operator people sign it...no sign, no cash. How many divers wouldn't want something like that signed. How long would these dive operators be in business if they didn't sign something like that? Food for thought...hopefully it doesn't get to something like this...but if you make some Liability Waiver binding...one has no recourse but to fight back with a waiver ourselves. Liability Waivers DO NOT COVER ACTS OF STUPIDY...and leaving a diver behind is an ACT OF STUPIDY....period. How much is that worth...for a jury to decide.

[fairybasslet]

How about if a new system was instituted? Pay when you get off the boat. That way they will be sure not to leave you behind.:D

[Rick Murchison]

The bottom line here is that if a large award is made, all of us will end up paying higher prices for dive boats, because liability insurance rates will skyrocket for everyone in the business.
The same sort of thing all but killed general aviation, and could do the same for the diving industry.
That sucks.
Rick

[Hetland]

Amen. It indeed would have been a terrible experience, but $4,000,000 to float around for a few hours? In all seriousness and honesty, if he had died they'd be liable for much much less than that. How is it that if someone lives and sustains 'emotional trama' they think they're entitled to so much money that they'd never have to work another day in their life. This just isn't right and I hope loses bigtime.

Why would you think that? Think of lost earning potential, loss of spouse/father, etc.

[Peter Guy]

I'm amazed that so many of the posters are so well read in the law of negligence in California! (insert sigh here)

The sole purpose of a liability waiver IS to absolve a party of liability for his negligence. You are NOT liable for actions which are reasonable (and here, of course, I'm talking theory, not jury practice) and so you do not need a "waiver" for reasonable actions. You only need a waiver for "unreasonable" actions.

Yes, one contracts with a boat to take them out and back in. The boat didn't fulfill that contract here. That is irrelevant to the issue of whether the waiver is:

a. Valid under California law (and apparently it is); but

b. In this case, something that gave notice to the diver that it was possible he could be left behind (again, apparently the judge ruled that being left was NOT within the scope of the activities covered by the waiver -- look at the PADI waiver I posted earlier and see if there is anything in that language which would cover being left behind).

I happen to believe that waivers ARE good public policy -- especially for "frivolous inherently risky activities" such as Scuba. In my mind, there is NO public policy goal that is enhanced by letting people off the hook for signing away their rights to sue. But then, as Thal pointed out, I'm a right-wing former trial attorney.

[hubert]

I think Ken Curtis (who is well extremely well respected in the LA diving community) wrote a long article somewhere about the case (maybe it can be found on the reefseekers.com web site, or we could ask him). He pointed out several mistakes that the diver himself had made - mistakes that do not change the essence of the issue, but help explain why he may have gotten forgotten.

I have doved over the years in many places and on many boats. I DO find that dive boats and dive operators, in general (there are exceptions) have lowered the standards of their performance considerably. Just like agencies have lowered the standards of their certifications. It would be a good thing if this lawsuit led to defining a certain chart of quality for services rendered. One point that always troubles me is how you get assigned ``instabuddies'' by the DM without a proper introduction of any kind, and without, in most cases, having the DM check that the people are compatible in terms of experience, motivation etc. I am not asking for micromanaging: but typically, on a dive boat like the Sundiver, there'll be *mostly* people who know each other, and then one or two lone souls who have to be paired, or, in the worst cases (such as this one) added on an already existing pair. For these lone souls, a little extra attention should be provided, something more than, "OK, tom dick and larry, you'll get in together, right?"

I don't really think demanding a little more work from the DMs would make things too costly to operate. I know many people who don't go on dive boats just because they are very uncomfortable with the idea of not being buddied up properly - typically, people who are in CA for a few days only. They would be easily lured in by the promise of a little more attention.


In my opinion, the truly responsible people here are the guy's buddies. WHO can get in the water paired with someone, come back later without him or her, and not at any point wonder what has happened, whether the other person is safe etc?

(and yes, I have had so often bad experience with buddies than I go solo or not at all now, but that's another story).

Finally, although I feel for the diver who got abandoned, and I think he is entitled to compensation, I hope the story of the skin cancer is a mistake in the article or something. Making this point for a four hours stay in the water is ridiculous, and throws doubt of the seriousness of the whole issue!

[djanni]

Having been abandoned myself (my wife & I) I may have a different perspective than some of you. Although I could see the shore line off in the distance and was left floating for about a half hour it was intimidating and unsettling.

We were left because their proceedure for ensuring all the divers were back onboard was a headcount. There were 24 divers on the boat and head counts don't work!!!

The last thing I want to see are esculating fees for dive trips because dive operators have to carry the burden of higher insurance rates; however, if it will encourage or even require dive operators to improve their proceedure then I'm all for it.

[shoupart]

Thanks, Don Janni.

I too once floated for about 45 minutes alone, during a night dive, before the (private) boat was able to find me. (I had a Light Cannon and a whistle, and it was still difficult)

I am curious to know if any of the people here who are dismissing a "mere four hours" left floating in the ocean have ever had a similar experience of being adrift by themselves at sea, and wondering if they were going to survive or not.

It's easy to be flippant towards it when you haven't personally experienced it.

By the way, I didn't sue or think of suing, because I was just glad to be back on board. I'd made some mistakes and so had the boat operator, but I had no hard feelings or anything. But since I didn't experience anything close to what Drifting Dan did, I'm going to withold judgment.

[merxlin]

I reply to many posts above, I don't think anyone is saying that it is a diver's fault for being left, but that there are actions that a diver and/or his buddy(s) can take that can compound a problem. What is of concern is how it happened. Since we have some facts, conjecture, and courtroom theatrics here it is hard to tell what the whole story is. But in this case, it is obvious that at least on this one boat the procedures changed for the better and they have made every effort to make sure no one is ever left behind again. That should not be considered an admission of guilt, but the proper response to a problem. Hopefully it carried over to the other So Cal (if not all) dive ops and we are all a bit safer since then. I can't recall any other divers being stranded since this event.

As far as what this situation warrants in punitive damages, the consensus seems to be somewhere between $1 and his asking price of $4 million. That's why the court is there. Should we be concerned with the amount? I think we should, because it will be reflected in the costs we all pay to dive as dive ops pay more for insurance. I also have some bias against personal awards that seem out of place with the circumstances.

I also find it interesting that we are looking at the boat as the villain here, but what about the shop that chartered the boat? Do they have a responsibility to know who their divers are, and if they were all accounted for? What about the "buddies" that by all accounts did not stay with him or report him missing? How much of this is on their shoulders?

[Jim Kerr]

$4 million for 4 hours though? THAT just screams "sue happy" American. THIS is why my insurance rates are so high

Would it sound unreasonable if it were "you" out there in 55 - 65 degree water wondering if you're spending the last moments of your life on earth? 4 hours in tropcal waters would seem like an eternity but 4 hours in California or colder waters?

No, this is a good thing. It will give dive OPs something to think about besides getting back in time for lunch or for the next dive charter.

[Teamcasa]

, I don't think anyone is saying that it is a diver's fault for being left, but that there are actions that a diver and/or his buddy(s) can take that can compound a problem….

…..Hopefully it carried over to the other So Cal (if not all) dive ops and we are all a bit safer since then. I can't recall any other divers being stranded since this event.

….I also find it interesting that we are looking at the boat as the villain here, but what about the shop that chartered the boat? Do they have a responsibility to know who their divers are, and if they were all accounted for? What about the "buddies" that by all accounts did not stay with him or report him missing? How much of this is on their shoulders?


Mike, The boat Captain is the final arbitrator and decision maker on when to leave a site, This is why many blame the boat. If the Captain empowered a third party to manage the divers, does this relieve the Captain of his responsibility? Probably not in the eyes of the insurance carrier or the plaintiff’s lawyers. It is left to the courts to decide.

As for this incident improving the safety of all divers on charters, I hope so but I have found the concern and attention to safety, both on the SunDiver as well as the other boats I have been on, a top priority.

Instant Buddies. That is a whole other topic. In this case, and since I admittedly do not have any first hand information I just don’t know but after doing some internet research, it appears he left them shortly after not being able to equalize and they never came looking for him after he surfaced. Should they have a share in the blame? I simply do not have enough real information do say one way or the other but you would think they would at least figure out they were missing a man when they surfaced.

Let me add one more thought. The Captain and crew of the SunDiver have always treated me with respect and I have had good times aboard their boat. They take safety seriously and I would not discourage divers from chartering with them. However, I did poke fun about their speed and have been in communication with them about it. To say the least, they were not to happy about my comments. I encouraged them to post a response but I realize commenting on a public forum about a pending case is not a good idea. So, in fairness, I’ll do it for them. (Only about the speed.)

The SunDiver is an older boat, well maintained and sound. With the high price of fuel, their choice of speed is a direct reflection on this and currently, most of the other dive charters have dropped a knot or two in an effort to keep the cost of diving competitive. Fair enough.

[merxlin]

Good points Dave. I too have made jokes about the speed of the boat, but don't hesitate to dive it and do so frequently.

I think one problem with this topic is that it is old news. The occurrence was 4 years ago. I hope we all take a look at what safety procedures are in place on the boats we dive NOW, and that they are where they should be. I'll never complain about being asked to poke my face out the head door for a final roll call because I know why it's being done.

[Rick Murchison]

... No, this is a good thing. It will give dive OPs something to think about besides getting back in time for lunch or for the next dive charter.
I dont' think it's a "good thing" at all.
While a "good thing" is the adoption of procedures that absolutely assure no one is accidentaly left behind, that can be accomplished without setting an industry-killing precedent.
If this case resets the needed policy limits ceiling high enough, many if not most of us won't be able to afford to dive off a commercial boat anymore, and without us, most commercial boats will simply stop selling diving spots.
Nope... not "a good thing" at all.
Rick

[Rich452]

'assumption of risk' can be a legal defense whether or not there is a singed liablility waiver

[Rich452]

btw - that should 'signed', unless the waiver has been scorched

[Skeeter1097]

I am my dive buddy was lost at sea for over two hours. It was cloudy when we dropped. When we Came up 45 minutes later it would seam that we interred a new world. The seas where up the rain was coming down it was dark and the wind was blowing. We hooked off to get some lobster am the ball went down. The boat lost the float.
We where not left out there. Every dive boat, cost Gard boat and some privet boats where looking for us. We where picked up 2hr 15min after servicing.
But to leave a diver and not know if you have everyone. No I cant except that.
Sink the boat.!!!!!

[mike_s]

The bottom line here is that if a large award is made, all of us will end up paying higher prices for dive boats, because liability insurance rates will skyrocket for everyone in the business.
The same sort of thing all but killed general aviation, and could do the same for the diving industry.
That sucks.
Rick


So who's fault is that?

Is it the divers fault for filing the lawsuit?

or the dive boats fault for leaving him?

[D_B]

as Mike (Merxlin) says, this is old news and I'll bet that anyone that has gone out on a boat in the last few years has noticed a very conscientious effort at head counts and roll calls and sign in's .. that's been my (limited) experience

[Riger]

as Mike (Merxlin) says, this is old news and I'll bet that anyone that has gone out on a boat in the last few years has noticed a very conscientious effort at head counts and roll calls and sign in's .. that's been my (limited) experience

Perhaps because of this kind of suite ?


Regards
Richard (Riger)

[RonFrank]

I remember reading about, and commenting on this incident when I first joined SB! Amazing how the legal systems grinds away so slowly! :shakehead:

At the time, I believe the general consensus was that while the diver acted foolishly (can't remember why, but was left with this impression) the crew was at fault for leaving him.

I believe they did a roll call at the first site at the end of the dive, and another diver indicated he was onboard. That would explain why he was accounted for after the first site, but not after the second roll call at the end of the second dive.

I completely agree with Rick, this whole mess will only make things more expensive for the industry, and will do very little at this point in any positive direction. Any positive steps were completed long ago by those involved who did learn from this incident.

And what would we expect from a State who has found Gun Manufactures guilty of the crimes committed by criminals using their product?

The ONLY people who are going to WIN with friveless lawsuits like this are the Lawyers. I'm guessing at this point the prosecution will never let this go because he is doing this pro-bono, and won't get paid until they settle or win. 4M for this wrong is IMO a joke. And it WILL be a joke after the plaintiff receives what is left of the settlement after legal fees/cuts, and taxes. Heck, he may own money! :D

[Papa_Bear]

That is very true! Punitive damages are taxable! The show up on the front page and deducted on the backside! In the 9th district there is a question as to the deductibility of the Attorney fees? He may have more trauma in his future! And yes you remembered right! One of his buddies when they were separated "though he went back to the boat and told the DM he was aboard"!

[Clammy]

btw - that should 'signed', unless the waiver has been scorched

I singe and scorch my waivers all the time after I sign them. They always take them away from me before I can finish though. :dork2:

[Thalassamania]

I dont' think it's a "good thing" at all.
While a "good thing" is the adoption of procedures that absolutely assure no one is accidentaly left behind, that can be accomplished without setting an industry-killing precedent.
If this case resets the needed policy limits ceiling high enough, many if not most of us won't be able to afford to dive off a commercial boat anymore, and without us, most commercial boats will simply stop selling diving spots.
Nope... not "a good thing" at all.
RickGeneral aviation was done in not by negligence questions, but rather by product liability issues for aging aircraft that the companies were still "responsible" for. Very different issue I think.

[BarryNL]

Not that being left alone in the ocean is ok, but the guy was only out there for four hours, not four days. Don't get me wrong, I would be plenty pissed off, scared,etc., but I can't say that I would sue all of these people. He claims skin cancer from THESE four hours of exposure, give me a break! California is the "sue capital" of the U.S.A. No wonder businesses can't afford insurance, workers compensation and the like. I hope all he gets is a free dive weekend out of this, and that it helps the dive industry to improve their safety standards so that things like this do not happen to other divers.

Sorry, but any dive operation that can't manage the simple task of making sure they have all their divers back on board before leaving a dive site deserves to get sued into bankruptcy.

[Katamuki]

Maybe the Boy Scouts should sue the diver for ruining thier sailing day because he couldnt keep up with his dive partner like he was supposed to. At the very least, if he does win he had better make a hefty donation to the Scouts...

[Jim Kerr]

I dont' think it's a "good thing" at all.
While a "good thing" is the adoption of procedures that absolutely assure no one is accidentaly left behind, that can be accomplished without setting an industry-killing precedent.
If this case resets the needed policy limits ceiling high enough, many if not most of us won't be able to afford to dive off a commercial boat anymore, and without us, most commercial boats will simply stop selling diving spots.
Nope... not "a good thing" at all.
Rick


It's a good thing only because it will make Dive OPs like this one more accountable. I don't want to see a bunch of sue happy people either screwing it up for the rest of us. But if that suit woke up some of the dive OPs with similar attitudes and influenced them to hold more rigid roll calls then it's served it's purpose. Checking you on and off a written list as you enter and exit the water should be standard procedure.

I was left behind just this last Nov when I was in Fiji. We had joined 2 other boats at an island where they did a snorkle SI. We were the last boat to arrive and the DM said we would be there for 30 minutes. I was snorkling for about 10 minutes and lifted my head up only to see "my" boat pulling away and the other 2 boats pulling up anchor. Obviously it worked out OK but that's how easy it can happen. No one on the boat I was on (crew or fellow divers) even noticed that they were missing anybody.

Because of that, I think that we as divers should share some of the responsibility (not liability) to look out for each other. Because of incidents like the one we are discussing I have made it a habit to look around when the boat starts pulling away to see if anyone is missing. If I don't see someone then I'll ask the DM if that person is on the boat. So far the answer has always been yes and they're up top getting a little sun or in the head or something. It gives me a little piece of mind knowing that I at least spoke up when I was in doubt before it was too late.

[drbill]

When I posted earlier (in another thread on this subject), I had forgotten the Sundiver was the boat involved. I've never dived on it, but everything I've heard from those who have suggest it is a well-run operation. Sorry this happened to them. I believe this was a charter and that DM's were supplied by the chartering entity, but I may be wrong on that. The memory ain't what it used to be!

[Oside Jimc]

I am shocked the the Coast Guard allowed such a neglegent captain keep his ticket. I properly trained operator should be well aware that when someone is lost at sea time is of the essence to start a search, basic seamanship 101.

This may be a well run operation today, but in 2004 it was not or they would have not abandoned a diver at sea.

Should he get $4mil?, ain't gonna happen.
Should he have accepted an "I'm sorry"? I don't think so here either, serious f'ups require a serious response.

[String]

My take on these sort of incidents.

If the boat had proper accounting procedures and noticed then reported the diver missing within a sensible time frame (ie within a few mins of the max allowed dive time) then they have no case to answer.
If they delayed then they could be guilty of some negligence.

**** does sometimes happen, conditions can change, people can be missed for a short time plus we have no idea if the diver is actually telling the truth.

$4m is a moronic amount of money to claim for. Utterly ridiculous.

[Rick Murchison]

General aviation was done in not by negligence questions, but rather by product liability issues for aging aircraft that the companies were still "responsible" for. Very different issue I think. In this case the product is transportation to and from a dive site. One - as in ONE - multi-million dollar judgement will likely quadruple liability insurance for everybody; two and the industry's dead.
The specifics of the decision just don't matter. If liability can't be limited to a bearable burden, the camel's back breaks.
Hide & watch.
http://www.scubaboard.com/forums/images/icons/icon8.gif
Rick

[almitywife]

.....I'll bet that anyone that has gone out on a boat in the last few years has noticed a very conscientious effort .....
when the longerans were lost in qld it created a nanny state

thats why charters up there insist you return with a certain amount of air in your tank at the end of the dive, they insist dives are a certain length of time and carrying a signaling device is now law plus their headcount procedures fully reviewed and changed.

im also hearing alot of rebreather divers up there now have to do private charters as alot of operators dont want to be fazed with the paperwork to allowed units on their boats

http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/W/WorkplHSaR97.pdf
fun starts approx page 101

[Riger]

I am not an expert at US Law but; is it fair to say that the legal precedent has now been set regarding the onus of the DM (or operator) with regards to their responsibility in the eyes of the law, and that no matter what the financial settlement or award is, this (precedent) is a good thing?

[The Horn]

you pay for the service. You expect to be served. Leaving a person abandoned is just plain silly. 4 M is cheap. If your brain is that far out to lunch why run a dive boat.

[Papa_Bear]

Some are quick to talk about the Captain not paying attention and turn around and talk about him NOT losing his ticket? Well if you would have read the posts you would know he did and you would know that at the rigs you have to station keep and all your attention must be on the helm! This is the fault of the DM and The TWO buddies he was diving with! I can't find any fault with the captain even if the Law does! Sue the DM and be done with it! But the system allows for deep pockets to be sued and who do you think has more assets and insurance?

[almitywife]

......Sue the DM ........
the same DMs that dont get paid and are working for tips?? blahhhh - i knew there was a good reason to be anti-tipping

**** happens and sadly, very sadly, it happend to Sundiver in this case. even more sadly is that the rest of the industy will be affected by the result. increased insurance and boat dive costs will soon follow but a much safer dive industry hopefully

thankfully the diver is alive today - for me, there is no price on that but should he have the right to sue? i still say yes

[D_B]

Again, not that I have a lot of expereance, but boats that I've been on here do not insist on a time to be back on board, they do or have said that if you come back with much less than 500psi that you will be asked why (I'm pretty sure that it is for someone that does so by accident and not by plan ... they let divers dive as their skill level dictates) they do a head count and visual accounting of divers
.. having a SMB on a boat dive just seems like an obvious choice, but I don't remember it being a requirement

[drbill]

Divers in other parts of the States or the world may be viewing this situation from a different perspective. I know in some areas the DM accompanies all divers and it is really a guided dive. Here in California, guided dives are more the exception than the rule. The DM is usually based on the boat to observe divers in the water directly or via their bubbles. Unless a trip is set up as a guided dive, they do not enter the water except to effect assistance.

With that said, it is important to have an accurate check out/in procedure. If there is any doubt on "our" boat, the DM does a roll call, head count and/or often a tank count to verify all are back on board before moving to the next site.

With dive boats that are chartered, the chartering entity (dive shop, club, group) often supplies their own DM's and other personnel, and the vessel the operating crew. Of course under the law, the captain has ultimate responsibility, but often must take the word of the DM(s) in charge of the procedures due to his/her responsibility in operating the vessel.

[116fire]

Hey--leaving somebody is gross negligence. Not knowing you did it is criminal --in my opinion.
If it was me or a loved one the captain and or DM's least problem would be the lawsuit. (that insurence will probably cover)
$4M is of course ridiculous, be it should be enough to hurt--I would say it matters more how much it hurts, punative, than what a few hours drifting is worth. Hell I run into burning buildings for less than $100 an hour.
Waivers--I don't care what you sign, in this case their liable.
Waivers--Say you where doing a deep rec dive and got an undeserved hit--that is the sort of thing a waiver should cover, inherent risks of the activity.
An interesting aside, the NE wreck boats seem to adopt a "no nanny" we give you a ride to the moring line approach. The though is-- the more you try to qualify divers, are you assuming liablility. If you say scutinize peoples gear, saying some is not acceptable, are you making a statement that some is, and if (when) that gear fails are you liable...Food for though.

[RonFrank]

This was a much publicized incident, with the diver going on talk show programs, and providing a story to "Readers Digest".

I found some old information on this. Apparently:

This diver was part of a group that signed up though an LDS.

The diver started to descend on the sight, had problems equalizing, and got separated from his two biddies (blame all around on the three divers for poor diving practices).

He stopped his decent at 35', but once he was able to clear, rather than aborting the dive because he had lost his buddies, he instead descended to a depth of 108' looking for them (another poor decision).

When he could not find the oil rig, or his buddies, he ascended, and did a safety stop.

There was current, so he was no where near the boat when he ascended.

His buddies during a role call after the dive answered for him.

I'm sure there is a lot more to the story, but this is what I could find. It's easy to see how the mistake was made. However I think that it should have been avoided, but if one of his buddies just answered for the missing divers, at that point the issue becomes a LOT murkier. I know that they did indicate to the individual running the role call that the buddy was on board, but I'm not clear if they actually answered for him, or if they just responded that he was on board.

In any case, the fact that this is dragging out is bad. I also think the diver is an idiot for not just settling this out of court. Maybe that is not an option as the defense may have a very strong case.

[Thalassamania]

There is a passenger manifest, there has to be by law. How hard is it to check that against the bodies on board?

[RonFrank]

There is a passenger manifest, there has to be by law. How hard is it to check that against the bodies on board?

Well that would depend on the number of passengers involved, right? I mean how hard is it if you are running a cruise line? Likely a VERY difficult task?

Most of us have been on boats with 25+ divers. The DM does not know everyone by name and face, and if he is reading off names, and he gets an answer from each diver, the assumption is they are all there.

I don't know the exact procedure that was used, but I can see how it happened based on the fact that someone did respond for the missing diver.

They in fact picked up the missing diver on the second roll call.

It's easy to sit back and point fingers, and assess blame AFTER the fact. Without knowing the full story however, it's difficult to be an impartial judge.

[Thalassamania]

Well that would depend on the number of passengers involved, right? I mean how hard is it if you are running a cruise line? Likely a VERY difficult task?

Most of us have been on boats with 25+ divers. The DM does not know everyone by name and face, and if he is reading off names, and he gets an answer from each diver, the assumption is they are all there.

I don't know the exact procedure that was used, but I can see how it happened based on the fact that someone did respond for the missing diver.

They in fact picked up the missing diver on the second roll call.

It's easy to sit back and point fingers, and assess blame AFTER the fact. Without knowing the full story however, it's difficult to be an impartial judge.I've run a lot of dives in my life, but somehow we never managed to leave anyone out at sea. I do not know what "standard" procedures where on that boat, or are in that area, but by definition either the procedures were inadequate or the boat was negligent. I'm sure that they would not let someone dive off their boat without a redundant second stage, yet they had no redundant way to assure that all divers were back on the boat (e.g., count noses and cylinders).

[Charlie99]

The topic of this thread is Can you sue (in California) for being left behind. A California judge says yes. I think so as well, but to what end and how much, that’s up to the plaintiff, his/her attorney and the juryWaivers have their limits. In a lot of states waivers will not release someone for liability in the case of GROSS negligence (or criminal acts, such as deliberating abandoning a diver -- didn't happen here, but that's another example of the limits of waivers).

If they guy had been lost in the fog and the boat called the Coast Guard before leaving the divesite, there's good chance that the waiver would have been a defense and gotten a summary dismissal.

But what happened here is that the boat didn't discover him missing until after finishing the next dive at a different dive site. This ups the culpability of the DM, dive shop, and boat.

[Papa_Bear]

Drbill, the more you tell some people the less they listen! You are spot on and in this case the store hired the DM and she didn't dive that day at all! Her only job was to oversee the dive activity on the back of the boat! The only reason he showed up missing is she logged him in at the second sight and he never logged back in! So she assumed he was in the water when see didn't see him on board during the second dive? Then notified the captain when he didn't check in at the end of the second dive! Again she and his buddies are at fault! Don't ever answer for someone else! Never ever assume that responsibility! She never had a real good reputation as a good DM and was not thought of highly from what I have gathered!:shakehead:

[Riger]

OK .... (Here comes the skeptic in me)

How do 2 dive buddies answer for their buddy when they know he was not at the Safety Stop and did not surface with them?

Is it possible that the $4m is to cover Attorney Costs and then split 3 ways?
Is it possible that this was a planned 'setup'?

Just a thought..

Best Regards
Richard (Riger)

[Papa_Bear]

All three got separated and the one buddy thought the buddy he saw going back to the boat was the missing buddy, then once on the boat he dropped his gear saw the other buddy and figured the guy just got on the boat, the inherent problem with three people diving who didn't know each other well!

[Beachlover]

I have to admit that I would not be surprised if in fact it was staged.Kind of sad, but what some people will do for money makes me feel that way.None of us will ever know the whole/true story.

[Charlie99]

I have to admit that I would not be surprised if in fact it was staged.Kind of sad, but what some people will do for money makes me feel that way. Please explain your reasoning for this outrageous statement.

If the boat had noticed he was missing and had called out search and rescue, he wouldn't have had any sort of claim and little chance of compensation.

The only way he for him to have a good shot at a lawsuit would be for him to conspire with the DM to not have him discovered to be missing until after the 2nd dive. That scenario requires us to believe that the DM would do that, and that the diver was willing to take the risk of never being found in the fog.

In one case (discovered immediately) he doesn't have a reasonable chance of compensation. In the other case (boat goes on to the next divesite), he has a very good chance of dieing. Or do you have some other scenario in mind that causes you to say " I would not be surprised if in fact it was staged."

[Geoff_H]

I have to admit that I would not be surprised if in fact it was staged.Kind of sad, but what some people will do for money makes me feel that way.None of us will ever know the whole/true story.

Like Charlie, I am staggered how you can think it is plausible that this was staged.

Too many variables needed to line up, too great a risk of death and too little point.

[Beachlover]

I was replying to two posts prior to mine that were made by"Riger". Did you read that post? In any event, I did NOT say that it WAS planned,I merely said that I would not be surprised if it was.

[Rick Murchison]

The only way he for him to have a good shot at a lawsuit would be for him to conspire with the DM to not have him discovered to be missing until after the 2nd dive. That scenario requires us to believe that the DM would do that, and that the diver was willing to take the risk of never being found in the fog.
For the conspiracy theorists out there, the DM needn't be in on it at all... only the "victim" and his buddy/buddies. Milling around and answering for him during a roll call, which they apparently did do - at least twice - does sound at least more than a little fishy, eh?
--
Personally, I don't believe anyone intended to deceive anyone, and I don't believe anyone intended to be sloppy with a roll call, and I don't believe anyone wanted anyone to be left behind, and I don't believe anyone was casual about their perceived efficacy of their in-place procedure. I do believe there was a monumental screwup on the part of the diver, his buddy/buddies, the DM, and the boat crew - it took a team effort!
I also believe that boats worldwide took notice at the time, and that this incident helped improve procedures to assure it doesn't happen again (though it surely will - no policy or procedure can protect an adequately talented idiot from managing to accomplish his own demise).
The lawsuit is a different matter. Surely the victim in this case deserves some compensation, even though he was apparently contributory to his own situation. The preponderance of the fault lies with those who left, not the one who got left.
However... a lawsuit is not needed to motivate boats to assure they don't leave folks behind - they really don't want to do that; an exhorbitant award will kill the whole industry, and that's my main concern at this point.
Rick

[Geoff_H]

For the conspiracy theorists out there, the DM needn't be in on it at all... only the "victim" and his buddy/buddies. Milling around and answering for him during a roll call, which they apparently did do - at least twice - does sound at least more than a little fishy, eh?


The DM should not accept answers from anyone but the guy he is calling - this is a pretty basic rule of doing roll calls on boats. I don't believe anyone perpetrating a deception would leave the DM being sloppy to chance.

[Jim Kerr]

OK .... (Here comes the skeptic in me)

How do 2 dive buddies answer for their buddy when they know he was not at the Safety Stop and did not surface with them?

Is it possible that the $4m is to cover Attorney Costs and then split 3 ways?
Is it possible that this was a planned 'setup'?

Just a thought..

Best Regards
Richard (Riger)


That would be pretty gutsy. Almost as gutsy as the scam I read about where some "geniuses" decided to pull an insurance scam where they would speed ahead in their "compact" vehicle and then cut off a commercial (big rig) truck and then slam on the brakes causing a rear end collision and collect the insurance money. Their story came to light when a big rig they cut off was not able to stop and ran completely over them. End of story. :eyebrow:

[Beachlover]

That's called "karma", right?

[Oside Jimc]

Some are quick to talk about the Captain not paying attention and turn around and talk about him NOT losing his ticket? Well if you would have read the posts you would know he did and you would know that at the rigs you have to station keep and all your attention must be on the helm! This is the fault of the DM and The TWO buddies he was diving with! I can't find any fault with the captain even if the Law does! Sue the DM and be done with it! But the system allows for deep pockets to be sued and who do you think has more assets and insurance?

I find 100% fault on the Captain, under maritime law the Capt is responsible for all aspects of the operation of his vessel, including the training of his crew (which the DM is an integral part of). He can be asleep in his bunk and he alone bears ultimate responsibility, this has been the law of the sea for centuires and is part of the responsibility you accept when you take the ticket.

Fair? Yes, the sea isn't kind to the stupid or unprepared and it only has one goal, to kill you (I'm not saying the Capt/Crew was stupid, but they were clearly unprepared).

In addition while the Capt might have been at the helm holding station on the dive, he was also at the helm leaving a diver behind, yes this was done based on the incorrect information provided by the DM, but in the end it was his hand on the helm. And again this gets back to the Captians responsibility for training his crew and maintaining proper procedures to insure passenger safety, clearly he did neither.

[Hetland]

For the conspiracy theorists out there, the DM needn't be in on it at all... only the "victim" and his buddy/buddies. Milling around and answering for him during a roll call, which they apparently did do - at least twice - does sound at least more than a little fishy, eh?
--
Personally, I don't believe anyone intended to deceive anyone, and I don't believe anyone intended to be sloppy with a roll call, and I don't believe anyone wanted anyone to be left behind, and I don't believe anyone was casual about their perceived efficacy of their in-place procedure. I do believe there was a monumental screwup on the part of the diver, his buddy/buddies, the DM, and the boat crew - it took a team effort!
I also believe that boats worldwide took notice at the time, and that this incident helped improve procedures to assure it doesn't happen again (though it surely will - no policy or procedure can protect an adequately talented idiot from managing to accomplish his own demise).
The lawsuit is a different matter. Surely the victim in this case deserves some compensation, even though he was apparently contributory to his own situation. The preponderance of the fault lies with those who left, not the one who got left.
However... a lawsuit is not needed to motivate boats to assure they don't leave folks behind - they really don't want to do that; an exhorbitant award will kill the whole industry, and that's my main concern at this point.
Rick

Sadly, this has proven to be untrue throughout history. There will always be operations that do the least possible in the fastest time, and/or hire people who do the same. I agree that there are plenty of folks that do the opposite, but if it were not for laws, unions, and yes, even lawsuits, then we would still have 9 year olds working 100 hour weeks getting their hands chopped off in industrial machery for .07 a day.

On any charter boat operation, what you are really paying for is the ride back home. If your insurance rates go up because of this incident, then I will be happy to pay more on my next trip in order to offset this cost. There is no excuse for leaving a diver behind, and whatever mistakes the diver may have made in this incident, it is clear that the decision makers on the boat dropped the ball, and should be held accountable.

Win, lose or draw, your insurance rates will (and likely already have) go up because of this incident, simply because there is a possibility that it could happen in the future.

[Papa_Bear]

In the eyes of the law the captain did pay! But the DM was not a member of the crew! How hard is that to understand? It has been posted 100 times! The shop provided the DM! The Captain has no reason to challenge or retrain the DM who comes with credentials! In the end it bites him the rear, but morally I don't fault him at all! How far would a bout or army get if the top of command checked all the down line? He might as well do it all himself? How do you think that would work? What is the more important mission of the captain to keep the boat safe or one diver? His overall mission was station keeping and the lives of all on the boat and around it! So what you put the DM in charge of the helm and go double check the work they were trained for? Please! Not one person would do it any other way!

[Scubagolf]

holy crap..... I can't believe a dive company would say something SO STUPID. None the less act that way towards a customer.

I hope he sues their ass off!!

ASSUMPTION OF THE RISK is a legal doctrine what would have been raised as an affirmative defense by the attorneys representing the dive operator in response to the legal complaint filed initially by the attorneys on behalf of the diver. These are not words that would have come out of the mouth of the dive operator.

[Scubagolf]

At least three time a week I hear, "The rule of law in California is that no plaintiff can leave the courtroom without money" from one of my law professors.

As a defense litigator with nearly 30 years of trying civil cases in California courts, I can absolutely tell you this is BS. Most civil cases that go to trial result in defense verdicts. :no

[Papa_Bear]

Scenario: A ferry captain leaves the dock and a truck breaks loss and smashes into the doors opening them up and sinking the ship! The deck crew did their job, they thought, the right way and all seemed okay and ready before departure.... The captain is responsible and should have his ticket pulled? Or did he rely on trained individuals who should know their jobs? Even if it was human error and a crew member for got to install a keeper? Should the Master of the ship inspect every nut and bolt? Pilots inspect planes before every flight and stuff still falls off, should the Captain be fired or the mechanic?

[Teamcasa]

Scenario: A fairy captain leaves the dock and a truck breaks loss and smashes into the doors opening them up and sinking the ship! The deck crew did their job, they thought, the right way and all seemed okay and ready before departure.... The captain is responsible and should have his ticket pulled? Or did he rely on trained individuals who should know their jobs? Even if it was human error and a crew member for got to install a keeper? Should the Master of the ship inspect every nut and bolt? Pilots inspect planes before every flight and stuff still falls off, should the Captain be fired or the mechanic?

The Captain of the ship is responsible for every facet of the ships operation and the safety of everyone on his vessel. If a Captain decides to relinquish or delegate one or more duties, that is up to the Captain. If in doing so, and something goes horribly wrong, the Captain still is responsible and he chose poorly in his delegation.

Remember the Valdez?

[Papa_Bear]

He was drunk and that is what sunk him! In an area know to have a navigational hazard! In my example the captain was not held to be at fault in a board of inquiry! How many wartime captains would have been busted because a gunner missed an incoming plane? It is beyond his ability to control, that does not say he is not responsible! But liability is something else completely! He is responsible for the safety of his passengers as a whole as to how they relate to the safety of the ship not the individual acts of those passengers! He can't be held liable for someone who jumps overboard during his cruise! All he can do is rely on information provided by train personal at the time! The captain maybe responsible, but he is not Liable because he relied information provided by a "Professional" who is required by law to be insured for when things go bad! "The expectation can't be that the captain is aware of all things at all times! I believe the DM left this man behind based on bad information and her insurance had better be good! As I have said before we are a deep pocket state and if she doesn't have enough on down the line including the captain and boat owner! The negligence is with the DM not the captain regardless of responsibility! Just how I see it!

BTW:The Ferry Captain was found not at fault and still has his ticket! "He did everything within his responsibilities to ensure the safety of the ship"

[Thalassamania]

In the eyes of the law the captain did pay! But the DM was not a member of the crew! How hard is that to understand? It has been posted 100 times! The shop provided the DM! The Captain has no reason to challenge or retrain the DM who comes with credentials! ...

Usually the DM is listed on the Manifest as a crew member, if for no other reason than to keep a passenger slot open. That places the DM under the Captain's command and makes the Captain responsible. I've always felt that this was a bad practice since it may make a DM eligible for coverage under the Jone's Act.


Scenario: A fairy captain leaves the dock and a truck breaks loss and smashes into the doors opening them up and sinking the ship!If you knew anything about Admiralty Law (or Shakespeare, e.g., Midsummer Nights Dream Act 3, scene 2, 110–115 (http://www.enotes.com/midsummer-text/3404#lordwhat)) you'd know that Fairy Captains do not have the same legal requirements as Ferry Captains.:D

The deck crew did their job, they thought, the right way and all seemed okay and ready before departure.... The captain is responsible and should have his ticket pulled? Or did he rely on trained individuals who should know their jobs? Even if it was human error and a crew member for got to install a keeper? Should the Master of the ship inspect every nut and bolt? No, really, whilst a truck breaking loose was suspected in the sinking of the M/S Estonia, I don't think that was proven. But, yes the Captain was responsible, it does not matter whom he relied on and how well trained they are.

Pilots inspect planes before every flight and stuff still falls off, should the Captain be fired or the mechanic?Aviation is not the same as maritime commerce, either in terms of tradition or legality, your simile is specious.

[Papa_Bear]

Dive Shop or Charter Company Negligence

When a diver contracts with a dive shop or charter boat for a diving trip, a legally recognized relationship is created. In return for certain consideration (an agreed upon price) the dive shop or charter operator obligates itself to provide a certain service. The nature of this relationship is determined by the specific agreement.

At minimum, a dive shop or charter company is responsible for providing safe transportation to and from a dive site. Often, the agreement encompasses the duty to provide not only safe transportation, but also lodging, equipment, dive masters or guides and supervision for the duration of the voyage and dives. It is imperative, therefore, that before leaving the dock, each party obtains a complete understanding of what services are expected from the dive shop or charter company.

Defining the relationship benefits both parties. This, however, does not mean that every aspect of the agreement must be defined. For instance, the duties of the operator to navigate and captain the vessel safely is implied by nature of the relationship.

When would a dive shop or charter operator be liable for injuries sustained by its guests? When the charter company or dive shop fails to deliver on the agreed upon service and that failure is the cause of injury, compensation may be due the diver. Under those circumstances, the dive shop or vessel owner's failure to provide the agreed upon service may be defined under the law as negligence. What is important to remember is that a dive shop or charter company will only be found legally at fault where the dive shop or charter company has failed to provide the agreed upon service and that failure was the cause of the injury.

[Papa_Bear]

Negligence Defined

Generally "negligence" is defined as:

the performance of some act which a reasonably prudent person would not do, or the failure to perform some act which a reasonably prudent person would perform when prompted by circumstances which ordinarily regulate the conduct of human affairs.

It is, in other words, the failure to use ordinary care under the circumstances in the management of one's person, property, or business.

More specifically, dive shop or charter company negligence is defined as:

the doing of some act which a reasonably prudent dive shop or charter company would not do, or the failure to do something which a reasonably prudent dive shop or charter company would do when prompted by the considerations which ordinarily regulate the conduct of similarly situated charters.

In dive accident cases determining the degree of ordinary care expected under the circumstances varies in proportion to the danger known to be involved in the diving operation and is relative to what is reasonably foreseeable under each circumstance.

[Teamcasa]

PB, nice cut and paste from The Legal Rights of a Recreational Diver - Prepared by Delise & Hall – Commercial Diving Attorney (http://www.divelawyer.com/lr_recreational.htm)

From the same page:
The salient question under a negligence review involves defining "reasonable conduct." The reasonableness of an action must be viewed in light of the standards of other similarly situated actors under like circumstances. That is, if the actions of a developer, manufacturer, or vendor are under review, those actions must be viewed in light of other reasonably prudent inventors, manufacturers, or vendors under similar circumstances. Should the actions of the actor fall below the standard of reasonably accepted conduct and cause a consumer's injury, then the unreasonable actor will be held liable and accountable in a court of law

[Papa_Bear]

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!

[jasondcrawford]

If the boat had noticed he was missing and had called out search and rescue, he wouldn't have had any sort of claim and little chance of compensation.


Why would they call out the search and rescue if they did a roll call, and it was answered that he was present, as someone said may have been the case. Do you suggest that the DM on board checks drivers licenses and passports before and after each dive? Perhaps we should all have to enter a password into an onboard computer that only we know -- this would prevent someone else from answering for us.

I don't know the details, and am not pretending too, but if it is the case that someone answered he was on board, then there is much less that could have been done to prevent it.

[Papa_Bear]

They seem to know their business!

[Teamcasa]

They seem to know their business!

It is not California law and at least you should give credit to them when you copy thier work.

[jasondcrawford]

The DM should not accept answers from anyone but the guy he is calling - this is a pretty basic rule of doing roll calls on boats.

Man, it would be quite an accomplishment for every dm in the country to learn the names, faces, and voices of every passenger on the ship within the first 20 minutes before a dive. Now that would deserve a tip! A lot of diving boats have 20+ passengers on them, new ones every single day, sometimes 2 or 3 trips a day (morning/afternoon/night).

[Papa_Bear]

I was and you did!

[Papa_Bear]

As I stated in an earlier post "He might be found responsible, but not Liable" & "The law might punish him, but I see no moral guilt". So from Maritime law "Even though a court honorably acquits him of blame he must first assume the responsibility for the ship he commanded." So as with the Ferry and I think in this case the above should apply!

Most Captains lose their commands when something bad happens, but when there is no fault and only responsibility a new command is not out of question as with the Ferry Captain in New Zealand: After the Wahine Disaster and the subsequent Court of Inquiry, Captain Robertson returned to sea at the start of October 1968. He never captained a passenger ship again. In the five years remaining to him he was master of nine Union Steam Ship Company cargo ships, most notably the Kawerau (3,698/1955) for 17 months from 27 January 1969. Command of roll-on roll-off ships in the Union Company’s cargo fleet was offered to him but he declined. In the early 1970s the finest non-roll on-roll off ships in the fleet were the four vessels of the Ngakuta (Nga) Class. Captain Robertson was appointed master of three of them. His very last ship was the Ngapara (4,575/1966) which he commanded from 29 April until 11 June 1973 when he was forced to retire because of ill health.

[Hetland]

I wonder what would happen if you were out of air and your dive "buddy" refused to share his with you?????

[almitywife]

I wonder what would happen if you were out of air and your dive "buddy" refused to share his with you?????
well im guessing the out of air buddy wouldnt have much to say after the event ;)

[ianw2]

Not to disrupt a good argument by inserting actual facts or anything, but...a copy of the Judges Order in the case is at:

http://www.courthousenews.com/BlogArchive/Blog%20Archive%20PDF%20Files/diver.pdf

Cheers...

[Charlie99]

Do you suggest that the DM on board checks drivers licenses and passports before and after each dive? Perhaps we should all have to enter a password into an onboard computer that only we know -- this would prevent someone else from answering for us.
........
I don't know the details, and am not pretending too, but if it is the case that someone answered he was on board, then there is much less that could have been done to prevent it.I assume that somebody snuck an extra tank onboard also, and brought it out of hiding when nobody was looking --- so when they counted tanks the number came out right ????? Clearly, whatever procedures the boat was using for roll call were defective.

I have been on boats where we signed back in. I have been on boats where we left with a DAN tag and put it back onto a board upon returning. I have been on boats with all sorts of measures and backup measures for ensuring that all divers are back onboard.

I haven't yet been on one where people have to show a passport, but if that's what is needed to ensure a good roll call, then that's what that boat should be doing.

There is NO excuse for moving to another divesite leaving a diver behind.
End of story.

Charlie Allen

[Scubagolf]

Not to disrupt a good argument by inserting actual facts or anything, but...a copy of the Judges Order in the case is at:

http://www.courthousenews.com/BlogArchive/Blog%20Archive%20PDF%20Files/diver.pdf

Cheers...

For the non-lawyers in the crowd who give a whit, this came to the Court by way of a "demurrer", which is a pleading device that only challenges the sufficiency of the facts and claims set forth in the complaint that was filed on behalf of the plaintiff. In ruling on a demurrer, the Court assumes the truth of the facts as they are pleaded in the complaint, and then simply rules on whether there are any viable claims set forth in the complaint based on those alleged (but as yet unproven) facts. This demurrer was ruled upon two years ago, which would be consistent with a trial date in June of this year (2008).

[dannobee]

Well that would depend on the number of passengers involved, right? I mean how hard is it if you are running a cruise line? Likely a VERY difficult task?


Cruise ships issue you an ID card that must be scanned before you can depart or board the ship. Although it might seem difficult, they know if any passengers or crew members are not on board (unless they happen to jump overboard or slide down a mooring line).

I've been on cruise ships where the ship was held in port for one or two people. There's normally a big round of applause when they finally return to the gangway. :eyebrow:

[Ann Marie]

They waited? Maybe because they were on a cruise-offered tour. I've gotten off a ship and dove with a LDS and told my husband should I miss the boat (:rofl3:) don't worry, I've got some cash, a credit card, my chapstick, and dive gear.....I'll catch up at some point. (He hits the links while I dive--so we don't meet up until back on the ship, usually :D)

[Riger]

My wife and I were recently diving in the Red Sea with what can only be described as an outstanding operator (Emperor Divers).

After each dive and before the boat moved on, the DM was walking amongst the divers and noting the Pressure in, Pressure out, Depth and Dive Time from each diver directly. This was being done on a spreadsheet list based on names of all divers, guides and guests alike.

It would have been very difficult to leave anyone behind under these circumstances and I never felt at risk of not being noticed as missing if that turned out to be the case.

[Papa_Bear]

Live-a-boards are a little different for a number of reasons! First you have a station and a tank setup! Next they do record and many day operations do as well, but for whatever reason ($?) California boats never have to this point! Next on a Live-a-board everyone gets to know who you are pretty fast! I love the whole type of operation! :D

[Papa_Bear]

I wonder what would happen if you were out of air and your dive "buddy" refused to share his with you?????

First I wouldn't be the one out of air! In 4125 dives I have never to this point "Run out of air" and even when I have had equipment failures I have managed them myself and safely surfaced! On the platform dives you just surface as you would on most open water dives? I guess maybe I am missing something?:confused:

[Papa_Bear]

I assume that somebody snuck an extra tank onboard also, and brought it out of hiding when nobody was looking --- so when they counted tanks the number came out right ????? Clearly, whatever procedures the boat was using for roll call were defective.

I have been on boats where we signed back in. I have been on boats where we left with a DAN tag and put it back onto a board upon returning. I have been on boats with all sorts of measures and backup measures for ensuring that all divers are back onboard.

I haven't yet been on one where people have to show a passport, but if that's what is needed to ensure a good roll call, then that's what that boat should be doing.

There is NO excuse for moving to another divesite leaving a diver behind.
End of story.

Charlie Allen

California is a whole different world! No one counts tanks on a California boat! Some boats have some tanks while some have none and it would be a nightmare! It isn't a neat 48pro with tank slots believe me!

[Riger]

Live-a-boards are a little different for a number of reasons! First you have a station and a tank setup! Next they do record and many day operations do as well, but for whatever reason ($?) California boats never have to this point! Next on a Live-a-board everyone gets to know who you are pretty fast! I love the whole type of operation! :D

Hi there PB, this was not a liveaboard, even though they do have many options for that kind of operation. It may be that because their DM's rotate thru the liveaboard rota's that they have that standard.

We will hopefully do a one week liveaboard toward the end of summer in the Red Sea.

It just seems so easy to come up with a simple plan to be sure you got everyone, why would operators not make a small effort to reduce a huge risk?

[Satori]

(Disclaimer: I don't advocate this course of action...) I think somebody is lucky there isn't a certain oceangoing vessel chilling in the D6

[Papa_Bear]

(Disclaimer: I don't advocate this course of action...) I think somebody is lucky there isn't a certain oceangoing vessel chilling in the D6

That is ridiculous! First how would the plaintiff recover? But most importantly the Boat and captain are top notch and very well liked! I know a lot of people who not just support him, but went to bat for him with the Coast Gard! I am telling you this was the DM! Who no longer is one! It was a carrier ender for her! Many divers would be standing beside the captain to protect him and the operation! So we don't need a Boston Tea Party and I think it is in bad taste! Here if a boat has a bad operation it dies a fast death!:no

[merxlin]

Why does it seem that so many people have either forgotten, not read about, or have chosen to ignore the fact that someone answered for the missing diver during roll call? Bad job by the DM? Probably. But so many replies seem to make it sound like the boat just left without doing any sort of check in. That's not what happened in this case.

[Papa_Bear]

The biggest problem is she marked him back in at the second sight! That one is hard to figure out? The only thing I can figure is that two of the three buddies looked very much alike with the same equipment or wet suit witch helped led to the problem! Then she confused them when the one buddy answered for the other and she continued the confusion? I don't know what else would explain her confusion except just tuning out?:no

[Peter Guy]

A demurrer? I can't believe such is still used!

The L.A. Times story said the judge ruled on a motion for summary judgment.

In any event, the facts in this case ARE a bit bizarre. Hey, if I were the defendants, I would have tried to bring in his "buddies" as being liable third parties!

To me, IF there was negligence, under the facts as I believe them to be (that is, that a buddy, or buddies, said he was back on board) I'd find FOR the Charter and against the buddies!

[Papa_Bear]

I agree and suggested many post before he sue for indemnity both the buddies and the DM! I agree with you 100% as I have stated never ever answer for someone else! Period! end of story!

[Thalassamania]

... But most importantly the Boat and captain are top notch ...That is clearly not the case. A top notch Captain and boat do not leave divers behind, they have systems in place and backups for systems so that they do not have to have apologists rushing about looking for others to blame.

I agree and suggested many post before he sue for indemnity both the buddies and the DM! I agree with you 100% as I have stated never ever answer for someone else! Period! end of story!What the hell is "sue for indemnity?"

[Rick Murchison]

That is clearly not the case. A top notch Captain and boat do not leave divers behind, they have systems in place and backups for systems so that they do not have to have apologists rushing about looking for others to blame.
What the hell is "sue for indemnity?"
OK, Thass... I've started this thread (http://www.scubaboard.com/forums/basic-scuba-discussions/227113-never-leave-diver-behind.html) out in the general discussion area. I invite you to share the "system" that'll always work. Frankly, I don't think any system can defeat a sufficiently talented idiot.
Rick

[drbill]

California is a whole different world! No one counts tanks on a California boat! Some boats have some tanks while some have none and it would be a nightmare! It isn't a neat 48pro with tank slots believe me!

We do, although only as part of the check-in, check-out system.

[Papa_Bear]

DB, there is always the exception and your boat is run more like a resort boat than those docked on the mainland.... Yours is an open boat with a nice configuration and that can't be said for all the SC boats!

[ianw2]

California is a whole different world! No one counts tanks on a California boat! Some boats have some tanks while some have none and it would be a nightmare! It isn't a neat 48pro with tank slots believe me!


We do, although only as part of the check-in, check-out system.


DB, there is always the exception and your boat is run more like a resort boat than those docked on the mainland.... Yours is an open boat with a nice configuration and that can't be said for all the SC boats!

Sorry, PB, on every boat for which I DM, we do a tank count, too. Divers are assigned a number when they check in first thing in the morning. As they enter the water, each diver is checked in (the water) by number. After the divers are in the water, a quick tank count gives us a second data point to confirm the check in tally. If any tanks are left on board, we go looking for the divers who should still also be on board. We want a positive id on anyone not in the water. Once the divers are all checked back in the boat, a quick tank count gives us a way to confirm our check in before we do a roll call.

Oh…this isn’t an isolated format. I DM for a large Southern California SCUBA retailer and this is our policy and procedure for every boat on charter through the chain.

I’m not sure where you get your facts from, PB, but they are not correct.

[Papa_Bear]

I understand and I am use to the number system such as used by Captain Greg and others! I am just saying that many boats have additional tanks on board and some bring doubles and extras! Tank counting is very inefficient on most California boats! The numbers and roll call is the best! I know on the BS you must be on the back deck present and answer for yourself, even if you were in a bunk or the head! My point was an open decked boat with tank stations or racks with only the customers tanks at there stations or the company tanks accounted for is easier to keep track of than a boat like the BS or boats with unusual configurations.... That there are exceptions does not detract from my point at all! California boats are very different from any of the hundreds of boats I have been on around the world! One reason is wet suits and hunting gear to mention a couple that others don't deal with..... ;) BTW 36 years of diving California boats! All of them NO, but a good number of them!

[DanBMW]

I am not an attorney and have not read through all of the threads, but if this were in Florida, I think the "victim" would have to prove damages and sunburn from 4 hours of exposure is not damages. He and his attorney are simply hoping for a settlement, and I hope there is none. Only his estate, and lucky for him, it is not his estate, would really have a claim. He did not die, only got an extended tour of the surface. He should be glad that he was rescued and leave it at that. Four hours adrift, give me a break! The boat learned it's lesson and diving is now safer.

[Oside Jimc]

But most importantly the Boat and captain are top notch and very well liked!
Popularity != safety, if they were a top notch operation they would have known a diver was in the water and not moved on to the next site.


I know a lot of people who not just support him, but went to bat for him with the Coast Guard!
The Captain should have lost his license, simple fact. It should not have been permanent, just a few months to remind him that safety is his top priority.


I am telling you this was the DM!
And I'm telling you the untimate responsibility is the boat Captain's alone. No doubt the DM was a major contributing factor (along with the knucklehead that answered for the diver a roll call), but in the end the Captain sets and enforces procedures on the boat.


Many divers would be standing beside the captain to protect him and the operation!
Then they are clueless about how ruthless the sea is in punishing the unprepared. The rules that hold the Captain ultimately reponsible have been developed over centuries of experience by professional seamen, with the rules written in the blood of many dead men. Through my long personal association with the San Diego long range sportfishing fleet I have seen time and again the sea's unrelenting desire to kill you.

If this Captain had established proper procedures and enforced them then there would be multiple levels of checks such as verifying not only a "here", but making visual contact with the responder, then checking for the number of tanks with regs/BCs attatched, then maybe move to the next site.

Probably good this was a career ender for the DM, she sounds unsuitable for the job, but the Captain needs to grow some balls and take responsibility for his failings in this incident, then move on and be a better, wiser Captain for the experience.

[MaxBottomtime]

Before this thread gets too far off track, I'll remind everyone of a few of the original statements by Dan Carlock after the trip.
1. He had only been certified for a year or two and hadn't dived in over six months. He had no business signing up for a trip to the rigs. They are ten miles offshore and 250-800 feet deep. Dives are conducted live-boat. You are dropped off near the rigs and are instructed to stay within the legs of the platform. All ascents and descents are made in the same location. When a few divers are together at the location, the boat will come close enough for them to swim to it.

2. He didn't have a dive buddy. He planned to follow a group of three divers, including the shop's instructor.

3. When he had trouble clearing he ascended several feet. He did not alert the other divers. After finally being able to clear, he descended to 108 feet but couldn't find the divers nor the rigs. Rather than surface, he made a three minute safety stop with no rig in sight.

4. As he surfaced he said he was 400 yards down current. He saw the boat and signalled, but was too far away to be heard. Rather than swim toward the boat, he said he assumed they would come for him when they noticed he was missing. He made several mistakes on a dive he was not qualified to make. Neither the other divers, DM nor Captain were responsible for Dan becoming lost.

The Divemaster, Zack Araneta made an incredible blunder by counting him aboard after the dive. I don't recall if someone actually answered for him or not, but as a DM, you need to actually see the person before you count them. After the incorrect roll call, he told the Captain that all were accounted for. They then headed for the next site, the wreck of the Ace One. Somehow Zack compounded his earlier error by counting Dan in the water here. Maybe he saw that Dan and his gear were not onboard and assumed he missed him getting in the water. It wasn't until the final roll call that he was finally noticed as missing and the Coast Guard was called. Eventually, Captain Ray had his ticket pulled for thirty days and the lawsuit, which Dan originally said he would not file was allowed to proceed.

[merxlin]

Popularity != safety, if they were a top notch operation they would have known a diver was in the water and not moved on to the next site.
They are still quite successful and well thought of by the dive community. You don't survive an event like this if you aren't a responsible company.

The Captain should have lost his license, simple fact. It should not have been permanent, just a few months to remind him that safety is his top priority.
And he did.

And I'm telling you the untimate responsibility is the boat Captain's alone. No doubt the DM was a major contributing factor (along with the knucklehead that answered for the diver a roll call), but in the end the Captain sets and enforces procedures on the boat...........Then they are clueless about how ruthless the sea is in punishing the unprepared. The rules that hold the Captain ultimately reponsible have been developed over centuries of experience by professional seamen, with the rules written in the blood of many dead men. Through my long personal association with the San Diego long range sportfishing fleet I have seen time and again the sea's unrelenting desire to kill you.........If this Captain had established proper procedures and enforced them then there would be multiple levels of checks such as verifying not only a "here", but making visual contact with the responder, then checking for the number of tanks with regs/BCs attatched, then maybe move to the next site.

Probably good this was a career ender for the DM, she sounds unsuitable for the job, but the Captain needs to grow some balls and take responsibility for his failings in this incident, then move on and be a better, wiser Captain for the experience.

This particular captain is quite familiar with the power of the sea. And the fact is that while this is under litigation the captain and the employees of the dive op and the dive shop that chartered the boat and supplied the DM are not really at liberty to comment, while the plaintiff can hit the talk show circuit, write a book, and put out any info they want. So "growing some balls and taking responsibility" is a bit much:shakehead:. I'm sure if in a similar position you would not just grab you ankles, say "Sorry" and take whatever came down the pike. Thats not the fault of the Dive Op or Captain, that's our legal system at work.

[Oside Jimc]

So "growing some balls and taking responsibility" is a bit much:shakehead:. I'm sure if in a similar position you would not just grab you ankles, say "Sorry" and take whatever came down the pike. Thats not the fault of the Dive Op or Captain, that's our legal system at work.

Touche, good point.

[c_figaro]

I've been boat diving in Belize and Mexico. I will make sure to keep my eye on the dive master at all times! I don't trust the court system of any country to sort out my affairs if I was left in the ocean.

[perdidochas]

Why would they call out the search and rescue if they did a roll call, and it was answered that he was present, as someone said may have been the case. Do you suggest that the DM on board checks drivers licenses and passports before and after each dive? Perhaps we should all have to enter a password into an onboard computer that only we know -- this would prevent someone else from answering for us.

I don't know the details, and am not pretending too, but if it is the case that someone answered he was on board, then there is much less that could have been done to prevent it.


A simple head count would have prevented it.

[sea nmf]

I'm sure this has been answered a long time ago, but what doesn't seem to make sense is that he was buddiless (followed 3 other divers) but someone answered present for him? Who would have done that?

[nereas]

I'm sure this has been answered a long time ago, but what doesn't seem to make sense is that he was buddiless (followed 3 other divers) but someone answered present for him? Who would have done that?

Last time I was diving in San Diego, I asked about this incident, and it is still the talk of the town.

It is all very similar to an incident that happened in Florida a few years earlier, and in the Florida case, the divers (a husband and wife buddy pair) won the lawsuit.

Usually you expect things like this to take place in Mexico or Fiji. But I guess the USA is not exempt from these kind of SNAFUs either.

[merxlin]

I'm sure this has been answered a long time ago, but what doesn't seem to make sense is that he was buddiless (followed 3 other divers) but someone answered present for him? Who would have done that?

From what I understand, he was actually in a buddy group with 2 other divers but lost track of them. He was not diving solo and following a group. I believe one of the other two divers is who answered for him.

We are for the most part a well meaning bunch. Diver "A" think he saw Diver "B' after the dive, maybe going into the head or to the galley. So maybe on the second call of diver "A's" name, he answers for him. I saw two instances of someone answering for another diver just this Sunday. Neither was accepted by the DM who waited for them to answer and do a face to face. Innocent enough as the diver was right behind the one who answered for them, they knew they were there, but many divers don't realize the problem in doing so. These two do now.

[nereas]

...

The Divemaster, Zack Araneta made an incredible blunder by counting him aboard after the dive. I don't recall if someone actually answered for him or not, but as a DM, you need to actually see the person before you count them. After the incorrect roll call, he told the Captain that all were accounted for.

They then headed for the next site, the wreck of the Ace One. Somehow Zack compounded his earlier error by counting Dan in the water here. Maybe he saw that Dan and his gear were not onboard and assumed he missed him getting in the water. It wasn't until the final roll call that he was finally noticed as missing and the Coast Guard was called...

This seems to be the major SNAFU. And according to the newspaper article on this, the USCG was conducting their search in the location of the 2nd dive site, not the first one, based on what the D/M told them.

It turned out to be SNAFU upon SNAFU.

It was the Boy Scout boat that saved the day.

[Empty V]

DB, there is always the exception and your boat is run more like a resort boat than those docked on the mainland.... Yours is an open boat with a nice configuration and that can't be said for all the SC boats!

After omitting the atrocious punctuation you seem to insert into every post I finally understood what you are attempting to convey and you are wrong.

*DISCLAIMER* Papa Bear's views(and bad punctuation) of so-cal boat safety protocol are in no way typical of so-cal boat protocol. There are tank/gear counts on the boats and failsafe systems, at least on the 10+ dive boats that I've been on. I guess that doesn't say much for PB's boat standards. Please PB tell us what boats you go on so the rest of us locals know which ones to avoid.

Billy

[goaler35]

After omitting the atrocious punctuation you seem to insert into every post I finally understood what you are attempting to convey and you are wrong.

*DISCLAIMER* Papa Bear's views(and bad punctuation) of so-cal boat safety protocol are in no way typical of so-cal boat protocol. There are tank/gear counts on the boats and failsafe systems, at least on the 10+ dive boats that I've been on. I guess that doesn't say much for PB's boat standards. Please PB tell us what boats you go on so the rest of us locals know which ones to avoid.

Billy
I am curious what dive boats you would get on since your profile states you are not certified. I have been diving for over 25 years and been on many dive boats and not one didn't require you to be certified to join a charter. So if that is the case then I would be more concerned about those boats.

[Empty V]

I am curious what dive boats you would get on since your profile states you are not certified. I have been diving for over 25 years and been on many dive boats and not one didn't require you to be certified to join a charter. So if that is the case then I would be more concerned about those boats.

Yes, you got me, I'm an active member of the dive community that has never gone through a cert class. I knew eventually some cunning individual would blow my cover!

Billy

[Thalassamania]

I am curious what dive boats you would get on since your profile states you are not certified. I have been diving for over 25 years and been on many dive boats and not one didn't require you to be certified to join a charter. So if that is the case then I would be more concerned about those boats.Why is that? Certification is no indication that you know how to dive and lack thereof is no indication that you do not know how to dive. Intelligent boat owners know that.

[pir8]

He probably never answer the question in his profile and just left it at Not Certified.