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Instructor sentenced after diver's death

Discussion in 'Scuba Related Court Cases' started by European, Feb 3, 2018.

  1. European

    European Dive Travel Professional

    # of Dives: 500 - 999
    Location: EU
    25
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    A German Instructor aged 27 has been sentenced to a fine of EUR 3,150 (US$ 3,930) by a local court in November 2017.

    He was found guilty of culpable negligent homicide (range of sentences in Germany: prison term up to 5y or fine) as an unexperienced diver aged 34 had died in the Lake Walchen ('Walchensee'), Bavaria (800m/2,627ft ASL) in July 2016.

    The Instructor had guided an Austrian couple who did't neither have experience in cold water diving nor with mountain lakes. The diver was known as one with high air consumption and 25 logged dives. The couple was equipped with 12l/110cuft tanks and 5mm wetsuits.

    After reaching 30m/98ft the couple signaled to the instructor the wish to ascend due to an already low air supply of the respective diver. The arising panic caused a fast ascent by the couple. The instructor did not immediately notice the critical situation and got the couple to hold at least at about 10m. The three divers retained each other but sagged again and staggered into the deeps. The other diver was able to free herself and initiated her ascent again. The instructor left the panicked diver at about 33m/108ft meters and initiated his ascent as he was in mortal fear on his own.
    The accident diver remained alone in the depth and could only be salvaged dead later.

    The judgment and the accident itself had provoked a lot of controversy and discussions in the German speaking media.

    Sources:
    www.sueddeutsche.de/muenchen/wolfratshausen/unglueck-am-walchensee-du-laesst-niemanden-unten-1.3764715
    Urteil im Walchenseer Tauchunfall-Prozess: „Man lässt niemanden unten“ | Kochel am See
    Urteil gegen Münchner Tauchlehrer nach tödlichem Tauchunfall im Walchensee - Diveinside News
     
  2. BurhanMuntasser

    BurhanMuntasser Dive Charter

    # of Dives: I'm a Fish!
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    Sounds like a very light sentence.
     
    kelemvor likes this.
  3. boulderjohn

    boulderjohn Technical Instructor Staff Member

    # of Dives: 1,000 - 2,499
    Location: Boulder, CO
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    This case involves a familiar argument on ScubaBoard. What is the liability of a dive guide when guiding certified divers?

    First, let's fill in some details I got from translating articles with google--which is clearly how much of the phrasing of the OP came into existence. The instructor in the case was not teaching a class--he was guiding a dive that had been given to the female diver as a gift certificate. The male was her boyfriend. The dive shop through which they did the dive failed to provide the requested higher capacity tanks for divers with a known problem with air consumption. They also provided 5mm suits for a dive at temperatures around 5 degrees C (41 degrees F)--nowhere near enough thermal protection. Finally, the divers were apparently seriously overweighted as well. During the dive, the guide did not monitor air consumption, leading to a rapid ascent from great depth. The guide stopped them and dumped air from their BCDs. He apparently dumped too much, and the overweighted divers plummeted. The female finally got to the surface, but at depth the guide panicked and went to the surface alone, leaving the male at the bottom.

    In a typical ScubaBoard argument, some people argue that a guide of certified divers is just a guide, with no responsibility for the safety of the people being guided. Others argue that the guide does indeed have a responsibility for the safety of customers--that's primarily why they are hired to guide the dive. This is especially true in this case, where the customers had nothing but minimal warm water diving experience and had no way of knowing the dangers involved with diving at such temperatures and are likely to trust the guide's experience in telling them that their 5mm suits were OK for those temperatures, that their weighting was correct for those wetsuits, and the small (10L) tanks they were using had enough gas for the depths they were diving.

    The liability in such cases varies greatly with local law. When Gabe Watson's wife perished on a dive in Australia, he had to plead guilty to manslaughter based on a local law that held him liable for her rescue, even though he was not a professional. In Malta recently, a diver was indicted for murder in a case when divers died of natural causes on a dive, simply because he was the most experienced diver in the group and supposedly should have known that the conditions were too rough and would lead to a diver having pulmonary immersion edema. (Those charges were eventually dropped.)
     
    EvaFin, Brian Khan18, Dan_T and 7 others like this.
  4. drrich2

    drrich2 Solo Diver

    # of Dives: 200 - 499
    Location: Southwestern Kentucky
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    Appreciate the clarification, BoulderJohn; I was confused from the original post.

    That cuts to the core of it. What customers 'expect' (and/or should have a reasonable expectation of) may change over the course of their diving. I generally expect a dive briefing with a description of conditions & known hazards on the boat, and the guide to basically navigate the dive with depth & time course not likely to trigger an NDL violation or run someone with fair (or better) gas consumption out of air...but monitoring my gas supply, depth & NDL, and communicating if a problem arises (or ascending if I need to) are on me.

    But that's my view as an (I hope) intermediate diver. When much newer to it, I didn't know experientially how long a tank would last me at around what depth. Or what thermal protection I needed for various temp.s (I'm chubby, cold-resistant, and even for me a 5-mm full wet suit (7 mm hood & boots, 5 mm gloves) is borderline in 45 degree water (quarry bottom, where I don't stay long).

    I don't like a blame-externalizing litigious nanny state approach. At the same time, many new OW-certified divers don't know what they don't know, and are more dependent on others' judgment of situational assessment and preparation than ideal.

    This could have been an issue if he were a more seasoned dive buddy leading friends, instead of a hired guide (and I say believing what happened to Gabe Watson made Australia's system look idiotic).

    Richard,
     
    Dan_T, EireDiver606, Saboteur and 2 others like this.
  5. tomcatbubba

    tomcatbubba Technical Instructor ScubaBoard Supporter

    # of Dives: 2,500 - 4,999
    Location: Washington, DC
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    Thanks for the additional data John.

    I see this a bit different. If the guide wouldn't have dumped air from their BCDs, causing the extremely negative buoyancy and drowning, would he still be negligent? Thermal protection and weighting should really be the responsibility of the diver, if they are certified. As should buoyancy control and air supply. Sure, they could have been bent or had a barotrauma which might have been rectified on the surface Drowning usually isn't easily fixed.....

    It's easy to play armchair quarterback in situations like this. But, it appears the guide made a bad situation worse by his actions.

    This whole dive sounds like a major s*%t show; and there is a lot of blame to go around.
     
    EvaFin, Dan_T, kelemvor and 5 others like this.
  6. boulderjohn

    boulderjohn Technical Instructor Staff Member

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    I have no idea what agency certified these divers, but PADI tells new OW divers that before they dive in conditions with which they are not familiar, they should get assistance from someone familiar with those conditions. They did that. They contracted with a shop who give them an instructor go guide them. Never having dived in anything other than warm water, they relied on the professional guidance for the amount of thermal protection they needed. Never having worn wetsuits of the kind, they relied on professional advice for the amount of weight they would need. They did know that they were not good on their air, so they asked for larger tanks and then accepted the professional's judgment that the smaller tanks would be enough.

    So what is the purpose of getting local advice in new conditions if it is still your fault when the local advice given by professionals is dead wrong? How is someone like that to know that the professoinal advice you are being given is wrong?
     
    EvaFin, Birddog1911, dcg69 and 8 others like this.
  7. tomcatbubba

    tomcatbubba Technical Instructor ScubaBoard Supporter

    # of Dives: 2,500 - 4,999
    Location: Washington, DC
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    Weighting calculations are in every major agency’s ow manual; as are thermal recommendations for suit vs. temp. Divers took tanks they had not requested. And, if I get in 41 degree water with a 5mm; I’ll be out in about 2 minutes, figuring out real quick it’s not sufficient.

    I’m guessing no one held a gun to their head to take the tanks.

    I’m not saying it’s not the guides fault. But, the divers share in the blame.

    This IMO is the same as diving a profile as set by the guide without doing your own planning, then complaining when you get a hit. If you can’t do the planning yourself, you need another class. If you won’t, you shouldn’t be diving.
     
  8. Wookie

    Wookie ScubaBoard Business Sponsor Staff Member ScubaBoard Business Sponsor

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    I'm sorry, but if I go into a dive shop with a gift certificate for a guided dive with a dive professional, who one would assume is being paid for his services, I have a reasonable expectation that the dive guide will do everything in his power to keep me safe. Yes, I'm certified. But the second the guide dictated weight, assigned wetsuits, and then manipulated their buoyancy, he was responsible for them. Could they have backed out any minute? Yes, and sadly they came to their senses too late, but once he had to take over their dive, he had a obligation to get them back to the surface safely.
     
  9. Steve_C

    Steve_C Divemaster

    # of Dives: 500 - 999
    Location: Raleigh, NC USA
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    Charts on weighting are not tailored to the individual.

    During my travels I have hired a DM. We discussed the dive but in Vancouver when we rented a 10/14 for a shore dive I had no idea what my weighting would be and went with what the DM recommended.

    I took his recommendation that the suit would be warm enough.

    Now if I had gotten in the water and immediately been cold or weighted wrong I would have bailed. But the point is there are times that you ask others for their advice.
     
    drrich2 and Landau like this.
  10. tomcatbubba

    tomcatbubba Technical Instructor ScubaBoard Supporter

    # of Dives: 2,500 - 4,999
    Location: Washington, DC
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    I agree with manipulating the bcd 100%, Per my original post. That was bad. At that moment the diver lost any decision making capability. It was done, presumably without his choice.

    Up to that point, he was part of the decision making process, and thus partially culpable, as he made the final choice to get in the water.

    If I’m on your boat and you assign me 50 pounds of weight and I’m in a 3mm and a single al80, in no way does that mean I’m required to dive with that all, nor would I be bullied into taking it by any guide.

    If this was a discover scuba; then my answer would change of course.
     
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