Legal & other issues from SG Mishap

[Boatlawyer]

Corrected... my brain works better than my fingers.

I'm not sure that Schultz has anything to do with the theory of liablilty you are espousing. That seems like a suit against a dive boat operator and the issue was the validity of the release. (I'm glad we can now lay the issue of release validity to rest )

I still can't see the on-going duty to maintain/repair an artificial reef (wreck for that matter.) In order to impose a duty, that duty must be possible. When the SG ended up on its side when it was placed, was there a duty to right it? No question that the ship on its side would be more challenging to dive that with it up-right? Mother nature stepped in where man failed and took care of that problem. However storms have not been so kind to other artificial reefs in the keys and SW coast. Some have been severely damaged, torn in two. Does the government have to fix those back-up so they are like they were the day they were sunk?

Clearly Schultz does not apply, that's why I prefaced the post, "The following case seems to lay out the state of law in respect to scuba accidents and dive ops, but of course, NOT the issue being discussed here" (emphasis supplied)

Well, this is not a case of maintaining the boat from deterioration, or in the same condition as sunk (although that original condition might be an issue). And of course I am enlarging on facts only hinted at in the reports, i.e. that this particular entry had been chained to keep divers out, but that the chains had been cut.

Most local diviers know that after Hurricane Dennis righted the boat, it was closed for inspection to make sure it was stabilized in an upright position. So, it's not simply a matter of "Well, once we dump it, we forget about it." I suspect there are periodic inspections as to the safety of this particular vessel, after storms, at the very least.

It's a matter of degrees, not absolutes. It is not necessary to create a duty to maintain artificial reefs as if they were Little Tykes toys, in order to find liability here.

 

[wedivebc]

Maybe some legal types on here can verify this but if a dive operator takes divers to a site he is not responsible for what happens once they leave the boat any more than a taxi driver who drops off a passenger in a bad neighborhood. But when he starts telling people what to carry or how to dive he is in effect acting as a de facto dive master and the expectation of care is increased. It would seem a boat operator would be less liable if he said nothing to a diver other than "have a nice dive"

 

[rockhound13]

Perhaps, but this assumes you know the risk. Who put it there isn't the issue...if it is deemed unsafe, either the lawyers or the government will shut it down. The fact that I set up a bakcyard swingset doesn't shield me from liability if it is unsafe.

The issue isn't worth arguing over... there is no evidence that this particular site is any more dangerous than others and the answer, as we both would agree, lies in better screening and education of those who use the sites, not in restricting access to them.

I disagree, from day 1 every instructor/ divemaster I've ever had any interaction with say if you are not familiar with a particular site, the responsibility is on the divers to find out the not only the "must see" attractions to a particular site, but more importantly the risks themselves. This isn't Disney, the responsibility is on each individual diver in to act in a safe and responsible matter to ensure the safety of themselves, their buddy or buddies depending on how they dive, and more importantly to go home to their loved ones at the end of the day. I'm not implying that any of the divers that day made knowingly bad decisions, sometimes accidents happen, I just don't agree with it's someone else's fault.

 

[maj75]

So... ummm... going from the Port at Tavernier... out to sea and then back to the Port at Tavernier doesn't constitute 'going between ports'... what a facinating quibble. By this I would assume that tour boats who go out to look at the nice fishies and then return to port are also exempt...

This has GOT to be wrong... I fail to see any difference between in the functional role of a ship transiting individuals between port 'A' and port 'B' and a vessel transiting people between port 'A' some arbitrary GPS location 'B' and back to port 'A'.

The activities undertaken enroute also seem that they should be irrelevant...

... but then I'm only the 5 lb 8 oz. gorilla in the room...

[Interesting though... please ya'll proceed... I'm almost to the point of thinking about going for a law degree... this is FACINATING...]

The argument is rather esoteric but I will try to simplify. The Plaintiff signed a release for the dive boat. She dies. Her estate sues. The dive operator produces the release and claims that it is not liable. It is at this point that the Plaintiff's estate argues that the release is invalid under 46 USC Section 183. Sect. 183 limits the ability of vessel owners/operators to limit their liablilty under Admiralty Law. The Court does an analysis of the law and basically says that Admiralty Jurisdiction may exist, (so does diversity jurisdiction) but since Admiralty law has no authority regarding the validity of a release in the recreational scuba diving context, it applies Florida law that such releases are valid. This case answers the question as to whether a dive release is valid for a Florida dive operator (assuming the language of the releases is similar).

We have moved beyond that issue to whether the government is responsible for the artificial reef once placed.

 

[ReefHound]

Ok... this has all been examined from the single perspective of a dive via dive op... let's change perspective just a bit...

I/some friends go out and buy/rent a boat. I/we drive out to SG and anchor out... we elect to do a dive on the SG. No $10 admission required... no medallions handed out... no waivers...

If you ever buy/rent a boat in your name and take friends out diving, you darned better have them sign waivers.

 

[maj75]

It's a matter of degrees, not absolutes. It is not necessary to create a duty to maintain artificial reefs as if they were Little Tykes toys, in order to find liability here.

However, even assuming there was a duty (which I can't conceed:no ), the Plaintiff would have to prove "Notice" Who knew the chain was removed? Was it reported to the authorities? Did they have an opportunity to fix the chain?

If the reports are to be believed, these guys were intent on gaining access to the innaccessible parts of the ship. They could well have gotten themselves killed in some other part of the ship.

There were so many innaccuracies in the news reports that I would not assume that there was a chain in place.

Even if the access point was only chained, there may have been a good reason to secure it in this manner, possibly for future "inspections."

The apparently uncontested fact that the decedents did not use reels could mean that even if there was a duty to replace the alleged chain, their deaths were caused by their negligence and not that of the government.

JMO YMMV

 

[CBulla]

Just to clarify for readers and folks who are posting - the medallions in no way are for the care or maintenance of the SG, they are for paying off what it cost to sink it.

 

[bob1dp]

If divers want to explore areas of a wreck that are designated as dangerous and out of bounds they do so at their own risk. Because of the nature of a wreck or a ski run it is impossible to prevent this behavior. I think it is the responsibility of the people who sink the wreck or manage it to create areas for safer swim throughs with regular inspection and maintenance. Our energies should be spent protecting and informing divers who dive responsibly.

 

[J.R.]

The Court does an analysis of the law and basically says that Admiralty Jurisdiction may exist, (so does diversity jurisdiction) but since Admiralty law has no authority regarding the validity of a release in the recreational scuba diving context, it applies Florida law that such releases are valid. This case answers the question as to whether a dive release is valid for a Florida dive operator (assuming the language of the releases is similar).

We have moved beyond that issue to whether the government is responsible for the artificial reef once placed.

AHHHHaaa... you anticipated my next question... Thanks...

... yer' right. (Dang... but these peripheral issues can be facinating though...)... OK... refocused..

By the way... note to the plethora of lawyers on this thread, I will give ya'll the single highest complement I can think of at this time... "I certainly hope that I shall never need your services... but your committment to this discustions speaks volumns as to your commitment to your profession... and I'd be happy to be represented by any of you..."

 

[Boatlawyer]

However, even assuming there was a duty (which I can't conceed:no ), the Plaintiff would have to prove "Notice" Who knew the chain was removed? Was it reported to the authorities? Did they have an opportunity to fix the chain?

If the reports are to be believed, these guys were intent on gaining access to the innaccessible parts of the ship. They could well have gotten themselves killed in some other part of the ship.

There were so many innaccuracies in the news reports that I would not assume that there was a chain in place.

Even if the access point was only chained, there may have been a good reason to secure it in this manner, possibly for future "inspections."

The apparently uncontested fact that the decedents did not use reels could mean that even if there was a duty to replace the alleged chain, their deaths were caused by their negligence and not that of the government.

JMO YMMV

Of course! There is a litany of other defenses, notice being essential, or perhaps, given the apparent facts that other openings were WELDED SHUT, whether chaining was sufficient.

I never said it was a sure win, only that there may be exposure. In an earlier post, I also addressed the contributory negligence aspect (not carrying reels, etc), and suggested that even if the divers were found 90% negligent and the state/foundation/whomever were found 10% negligent, that could STILL result in a significant plaintiff's verdict in light of the occupations of the deceased (one was a Wall Street broker).

Also, as posted earlier, I have no dog in the fight. I'm not a p.i. attorney. It's really just an intellectual exercise. I do have my concerns about the zeal of the artificial reef crowd, however, and I worry that the race to dump various junk for artificial reefs (and the savings incentives to the donors of unloading this swag on the ocean floor) has and will lead to unintended consequences.

Recall that the initial sinking of the SG went wrong and if I recall, the bow stood out of the water and was a hazard to navigation until "corrected" to sit on its side. And only a month ago it was reported that the "artificial tire reef" here in Broward County was an "ecological disaster." http://www.iht.com/articles/2007/02/18/news/tires.php.

Neither of which result was planned. But ecological problems are one disaster and lost divers are another.