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Brendon- Wait till i get a reply from shake and bake, then we can discuss this further.....but if the DM assembled the guys gear then he relieved the guy of his responsibilty. Lets wait till we have more facts and re visit this later.
Tortuga- This DM didnt let a diver jump in without a mask on(flippin obvious). He did however overlook something that could bring liabilitys his way ifsomeone was injured or killed in the process.
So you keep saying; yet you have failed to provide any evidence to support your opinion
tomfrcrist's position isn't mere posturing. It is something that is drilled into every DM student and every instructor student from day one of their classes. Once you, acting in a professional capacity, provide a service to a student, the quality and safety of the service you provide will be something that can be used in court. If the facts are as stated, this one wouldn't have even gotten to court in the event of litigation. Once the insurance investigator heard the facts, they would offer to settle.
If the operator is going to assemble gear, turn on air and (as was on the last boat I was on -- instruct the divers to not touch their tanks!) then the operator is assuming at least some liability for ensuring that the tanks are turned on.
Now, in general it is not the DM's role to treat divers like DSD students. But once a company institutes a policy where the DMs are assembling gear and turning on air, then they have assumed that responsibility and will be held liable for performing those tasks at the level of a prudent professional (at least in US courts).
Tortuga- Unlike you, i have seen the ugly side of this buisiness. I hope you never have to see it. But if you do decide to become a DM, and take the "oh thats not my responsibility" attitude that you have with you, you will see the ugly side. Maybe not right away, but eventually you will see it.
No, Im not a lawyer, but i have been witness in a courtroom during one of these procedings. Believe me when i tell you that saying "he signed a waiver" isnt going to hold its weight. If a burglar can sue you and win forfalling through your skylight, do the math...you will lose.
No, im presenting a valid point. You however are trying to make a point that isnt leagally sustainable. The DM has a liability as soon as he messes with the guys gear, regardless of the waiver.
Better yet lets get to the bottom of this...OP.....Can you do me a favor and tell us what kind of boat you were on, sea state, when the gear was assembled, by who, and if you specifically saw anything on the waiver stating that the dive boat crew was going to assemble your gear for you? Also, could you tell me what dive operator this was? I'm not trying to get anyone in trouble, i just want to see what their SOP is.
The boat was small, not specially-designed or modified for diving with the exception of tank-holders in the back. There were moderate swells (this was off San Pedro, Ambergris Caye.) We sat in the front; final gear set-up was performed by the DM in the back. They said verbally that they would set up the gear before every dive, and clean and store it at the end of the day. After the first day, it was on the boat when I arrived. I don't recall any specific language in the waiver on that topic. Nor do I recall language similar to that quoted above, but it might have been there. It was a PADI shop, so I imagine they used standard PADI forms.
I am myself an attorney. It may make perfect sense to experienced divers to say the diver was 100% responsible, and the operator bore no responsibility. But if the diver had died I promise you that a jury, 9 times out of 10, would disagree. Whether the waiver would bar the claim is a separate issue. Sometimes they hold up, sometimes they don't.
As you know, I have PM'd you the name of the operator. Bout I won't make that public.
They said verbally that they would set up the gear before every dive, and clean and store it at the end of the day
Did they say they say you didn't need to do a buddy check? Or check your own gear? Or that they would turn the air on for you? Or not to touch your gear after they 'set it up' for you? Did they define what 'set it up' means?
We're not talking about students here; the OP is about certified divers
That doesn't matter. The DM set up the gear. That means the DM assumed responsibility to ensure the gear was set up in a way that a reasonably prudent DM would set up the gear. A reasonably prudent DM would not fail to turn the air on while preparing for a dive.
I'm not a lawyer, and I don't play on on the internet. But I have spent quite a bit of time learning about liability both as an instructor and as a DM. I read the incident reports in various agency publications. I follow court cases. The second the DM decided it was his or her job to touch the gear, they assumed some measure of liability.