Filmmaker Rob Stewart's family files wrongful death lawsuit

[oldschoolto]

Sometimes you have to ask yourself a few questions like, all inspected vessels are required by law to hold a lifejacket drill within 24 hours of getting underway to include all passengers. Ever seen it done, except on a liveaboard? Every inspected passenger vessel is required to hold and log a fire drill monthly. Ever seen it done? Every inspected passenger vessel is required to hold a MOB drill monthly. Ever seen one? The requirements are easily found. 46 CFR 122.520 - Abandon ship and man overboard drills and training.

You mean like a truck driver signing they have check their tractor trailer rig up down and front to back at the start and end of every day.. They check brakes, front end, drive train and looked for all oil ,water and air leaks from the hundreds of feet of hoses and the 100+ fittings.. checked every nut and bolt for being loose or missing...

Jim...

 

[Wookie]

Yes, but does that account for a loose nut behind the wheel? In my case anyway....

I do not think that locking the thread serves a purpose at this time. Boulderjohns post is indeed excellent, but this thread is important to the dive industry. It asks a tremendous number of questions that will be answered here in court, it asks what duty does one diver have to another, and this is a question in contention here. I am told that Mr. Sotis was along for the ride, that Mrs. Sotis was along for the ride, and that there were no safety divers designated. Now, Mr. Sotis was Mr. Stewart's instructor, but this wasn't an instructional dive. There is some question as to whether Mr. Stewart was even certified to the depth dived.

The Chairman earlier stated (in the Missing Rob Stewart thread) that he believed that Mr. Sotis owed a duty of care to Mr. Stewart. If they were merely buddies, does that still hold? Do all buddy teams owe a duty of care to each other? So far the law holds that they do not, that we are all solo at the end of the day.

And does the boat really owe a duty to a diver? When is a diver a passenger? What qualifications does a boat crewmember have to have to be a deckhand? Does that change for the type of diving? Does a technical diving captain need any certifications other than his Captain's license? Are our divemasters properly trained to be deckhands, or are they someone with the right certification picked up at the dock in the morning? By all accounts, this crew in this situation was trained, I'm not trying to cast aspersions, but a LOT of American liveaboard deckhands are NOT divemasters. and a lot of day boat divemasters are NOT deckhands.

I can tell you that the coast guard has a working group to look at further regulating dive boats. We have not met yet. I will also tell you that the DAN tried to get a class for dive boat owners going to tell them of their responsibilities as far as the Coast Guard goes. Dive boat owners were not receptive. Dive boat insurance companies tell us to just do our best, and give us no further guidance.

I think this is going to be a big deal to the dive industry, at least in the USA. I would not like to see this discussion closed.

 

[EricTheDood]

The Lawyers must think they have a very solid case, demanding trial by Jury.

Actually, the opposite. Juries are swayed by emotions. You demand a trial by jury if you think you need to appeal to the "human side".

If your case is rock solid and very technical in nature, like a financial business dispute, you ask for a bench trial, where the Judge decides all. Judges have their quirks but juries are much more unpredictable.

Wrongful death appeals to emotions and by virtual default are decided by juries.

 

[mdb]

Actually, the opposite. Juries are swayed by emotions. You demand a trial by jury if you think you need to appeal to the "human side".

If your case is rock solid and very technical in nature, like a financial business dispute, you ask for a bench trial, where the Judge decides all. Judges have their quirks but juries are much more unpredictable.

Wrongful death appeals to emotions and by virtual default are decided by juries.

Good informative post.

 

[scagrotto]

Is it a diving accident when the dive is over and the divers are apparently safely back on the surface and trying to get on the boat, or is it a "boating" accident?

I think a good rule of thumb is that what kind of accident you've had is determined by the cause of the accident rather than the location of the accident. Like the earlier example of DCS that doesn't present itself until a while after being back on the boat, I think it's extremely clear that this was a diving accident, but ...

What appears to be the tactic here is that the plaintiff wants this handled as a "boating" accident

I think a better characterization is that they want to establish that the boat crew had a duty because the diver was at the surface, and the boat crew failed to perform that duty. That duty isn't diminished in any way just because the initial problem started underwater.

in ... most jurisdictions ultimately the employer is responsible when the Contractor messes up

I don't think it's quite that simple. As I understand it (and of course this could vary by jurisdiction, and IANAL) employees are agents of the employer and therefore the employer is responsible in any civil case that results from the actions of the employee. OTOH, if you hire a contractor or sub-contractor you're their customer, not their employer. You may be responsible to a third party, but that doesn't mean that the contractor isn't also responsible to the third party, or to you.

 

[Capt Jim Wyatt]

Dive team captain tells fire board, 'I'm out' | KeysNews.com

 

[tridacna]

The Chairman earlier stated (in the Missing Rob Stewart thread) that he believed that Mr. Sotis owed a duty of care to Mr. Stewart. If they were merely buddies, does that still hold? Do all buddy teams owe a duty of care to each other? So far the law holds that they do not, that we are all solo at the end of the day.

Frank, why do you suppose that the law holds that two dive buddies do not owe a duty of care to each other? The law suggests otherwise in NJ. Is Florida an anomaly here?

 

[Wookie]

I do not know either Florida or NJ law, I can only speak to federal law, as this happened in federal waters. Federal law does not address dive buddies. Nor does any Florida statute or case law that I can find.

Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the acts of the plaintiff

But this (if you can slog through it) is probably the most comprehensive document to date on the subject, which backs up your claim that I don't want to be a buddy in New Jersey, but it wouldn't be so bad in Massachusetts. https://poseidon01.ssrn.com/deliver...3066115073088123084105090067019008100&EXT=pdf

 

[MX727]

NetDoc and Wookie,

I was just down in KL for three weeks, read the articles about the Fire Rescue Team and gathered from conversations from a local captain, that the original plan was to return to the wreck the next day and the hook wasn't brought up so that it and the ball would be in place the following morning. After the second dive, the film crew and Stewart decided they didn't need to come back. At that point he two divers elected to go down for the final dive. Is that remotely true?

 

[Wookie]

NetDoc and Wookie,

I was just down in KL for three weeks, read the articles about the Fire Rescue Team and gathered from conversations from a local captain, that the original plan was to return to the wreck the next day and the hook wasn't brought up so that it and the ball would be in place the following morning. After the second dive, the film crew and Stewart decided they didn't need to come back. At that point he two divers elected to go down for the final dive. Is that remotely true?

That's how I understand part of the circumstances of the last dive. I understand there is more to the story, but what you have is correct as far as it goes.