Legal & other issues from SG Mishap

[stevetim]

That is exactly the point I was making and it was in response to a "provocative" and incorrect statement made by a non-lawyer.

Dive Waivers are the product of a lot of litigation and the idea is to fully inform the divers of the risks they are waiving liability for. In addition, they contain certain promises and representations on the part of the diver.

The issues invite oversimplification because most people just don't have the time, training or desire to fully examine the issues, whereas lawyers, who make a living at analysis and application of the law, have every reason to.

As an aside, after 14 years in practice, I have noted that the people who are the first to criticize the legal profession, are ironically the first to run to the courts for help.

In the same context, do 'experienced' hikers need to be told or sign a waiver in a national park telling them not to venture too close to the edge of a cliff for fear of falling over and killing themselves? Probably not, since it would be an assumed risk associated with such an activity as mountain hiking.

I feel terrible for the friendships and family ties that were lost on the SG, but the bottom line is, no matter what level divers we are, there are going to be mistakes made. It just matters more to our mortality if we happen to be too close to the 'edge of the cliff' that day.

Peace to condolences the family and friends of the deceased.

 

[Boatlawyer]

In the same context, do 'experienced' hikers need to be told or sign a waiver in a national park telling them not to venture too close to the edge of a cliff for fear of falling over and killing themselves? Probably not, since it would be an assumed risk associated with such an activity as mountain hiking.

I feel terrible for the friendships and family ties that were lost on the SG, but the bottom line is, no matter what level divers we are, there are going to be mistakes made. It just matters more to our mortality if we happen to be too close to the 'edge of the cliff' that day.

Peace to condolences the family and friends of the deceased.

Well, to make your example more analagous to the facts reported so far, you would have to include facts such as an Artificial Cliff Committee constructing an artificial cliff and leaving some areas open for hikers while cordoning off other, more dangerous ones. Then add that one of the cordoned off areas had been cut prior to the hikers arrival. Oh, and add that the committee collects a fee from each hiker to maintain the aritificial cliff.

In that case, it could be argued the hikers had a reasonable expectation that the opening they went through was presumed safe for hikers. The committee had arguably "assumed a duty" to make the area safe.

This situation is also unlike the example of "warning that the ocean is deep" posted by another. The Spiegel Grove was made an artificial reef as a tourist attraction, unlike many "natural" wrecks and unlike caves and caverns. The UKARC undertook making safe pass throughs and blocking other unsafe ones. In addition, the UKARC collects a fee for each diver who dives on the SG. There may be a reasonable expectation that open passageways are intended for divers.

The releases signed by the divers release only the dive operator from liability, not the UKARC. That's the argument I would expect.

 

[H2Andy]

The Spiegel Grove was made an artificial reef as a tourist attraction, unlike many "natural" wrecks and unlike caves and caverns. The UKARC undertook making safe pass throughs and blocking other unsafe ones. In addition, the UKARC collects a fee for each diver who dives on the SG. There may be a reasonable expectation that open passageways are intended for divers.

can the UKARC be held liable when experienced divers chose not to follow industry standards (for lack of a better word) and penetrate the wreck without a guideline and sufficient air reserves, having assumed the risk of a dangerous sport (penetration wreck diving)?

the only way to avoid liability under your scenario is for the UKARC to prohibit ALL penetration into the wreck and block off ALL means of entry. otherwise, if anyone dies inside the wreck, they're liable.

i would argue that they have no duty to make the wreck safe for divers in terms of penetration, as entering the wreck (for certified divers) is such an obvious and open danger, that implied assumption of the risk (absent a waiver as to UKARC) must surely apply.

let me know your thoughts. this is an interesting issue.

 

[Thalassamania]

this is an interesting issue.

It's a very interesting issue. What is the UKARC's corporate status? Might it enjoy soverign immunity? Has it any resources or insurance? Absent those, if their status shields it's officers' / members' assets, it'd be hardly worth the trouble of filing.

 

[Boatlawyer]

At the outset, I would hope for their sake that the UKARC is somehow blessed by the state and enjoys some kind of sovereign immunity.

And obviously, as with any accident in the absence of a release, there will be arguments as to assumption of risk, or "contributory negligence." Another interesting aspect. Say a jury finds the divers 90% negligent and the UKARC only 10%. That means the divers would be responsible for 90% of their damages, but the UKARC would bear responsibility for 10%. With a wall street trader among the dead, and earnings expectancy of even ten million, that could be a substantial verdict.

To my mind, the issue lies in the decision to block off some areas while allowing others, and then for some reason one of the blocked areas is breached and in the decision to require the medallion purchase. I am sure that the UKARC inspects the SG from time to time for this and other reasons, such as stability.

This is an interesting set of facts because the other deaths on the SG have not been of divers trapped in the hull.

I would bet that the UKARC has latched onto State sovereign immunity somehow, though.

 

[DiveMaven]

I thought they collected the fee to pay off the loan they took out to sink the Spiegel Grove. I've never heard it is for maintaining the wreck.

From the Fla-Keys website: "Sales of medallions are defraying the costs of sinking the Spiegel Grove."

 

[Boatlawyer]

It's a very interesting issue. What is the UKARC's corporate status? Might it enjoy soverign immunity? Has it any resources or insurance? Absent those, if their status shields it's officers' / members' assets, it'd be hardly worth the trouble of filing.

Well, there's the $10 fee each diver pays whenever ANY of the UKARC wrecks are dived. It's supposed to be an annual fee granting access to all wrecks. But, I am sure most people pay every time. That alone could add up to some serious scratch.

I would almost guarantee there is some kind of insurance, even if the UKARC falls under sovereign immunity. In Florida, that only limits damages to $100K without legislative approval of a greater amount.

 

[Boatlawyer]

I thought they collected the fee to pay off the loan they took out to sink the Spiegel Grove. I've never heard it is for maintaining the wreck.

From the Fla-Keys website: "Sales of medallions are defraying the costs of sinking the Spiegel Grove."

I read the costs were in the area of a million dollars. I guess the question is how much has been collected over the past five years. If donations and fees exceed the million, where is the rest of money going?

And if, in fact the UKARC has made any repairs to the ship post sinking, it could be argued that they undertook the duty to maintain, regardless of what the advertising says the money is for.

It will be interesting to see how the liability issues were dealt with in negotiating the artificial reef program.

 

[H2Andy]

well, the medallions are sold by the Key Largo Chamber of Commerce (Artificial Reef Committee)

UKARC just accepts contributions

And if, in fact the UKARC has made any repairs to the ship post sinking, it could be argued that they undertook the duty to maintain, regardless of what the advertising says the money is for.

is the duty to maintain the same as the duty to prevent all possible penetration accidents from happening?

i would say not

 

[MikeFerrara]

can the UKARC be held liable when experienced divers chose not to follow industry standards (for lack of a better word) and penetrate the wreck without a guideline and sufficient air reserves, having assumed the risk of a dangerous sport (penetration wreck diving)?

the only way to avoid liability under your scenario is for the UKARC to prohibit ALL penetration into the wreck and block off ALL means of entry. otherwise, if anyone dies inside the wreck, they're liable.

i would argue that they have no duty to make the wreck safe for divers in terms of penetration, as entering the wreck (for certified divers) is such an obvious and open danger, that implied assumption of the risk (absent a waiver as to UKARC) must surely apply.

let me know your thoughts. this is an interesting issue.

I'm no lawyer but might they be creating a duty once they start deciding what entrances to leave open and which to close? ie, If I do nothing and I tell you that I'm not going to do anything, you would be silly to expect that I've done it well. On the other hand if I do something, and you come to depend on what I did, might you be justified in expecting that I have done it?

I think if I was going to make an artificial reef, I would only do the cleaning and prep needed to make it a good reef. I wouldn't do anything in the interest of making it "safer to dive" and I would make sure that everyone knows I didn't do anything. Then if they want to dive on that "reef", it's between them and the reef. If it isn't safe, that's a shame, but I never said that it was. In other words, I'd go way out of my way to not establish a duty of care.

I'd do the same if I ran a dive charter. I'd be very careful to be an expert in driving the boat. I'd leave it to the divers to be the experts in diving.