Legal & other issues from SG Mishap

[Gombessa]

Boatlawyer,

Forgive me for merely skimming over the Schultz case you so diligently found and posted for us, but it sounds like the court held that under Florida state law, a standard form contract in the form of a dive op liability waiver is valid even through it releases the dive op from liability from their own gross negligence?

In your K experience in the state, does that sound right? My first thought would be for the Pl to claim a contract of adhesion and unconsiconability.

 

[Boatlawyer]

Boatlawyer,

Forgive me for merely skimming over the Schultz case you so diligently found and posted for us, but it sounds like the court held that under Florida state law, a standard form contract in the form of a dive op liability waiver is valid even through it releases the dive op from liability from their own gross negligence?

In your K experience in the state, does that sound right? My first thought would be for the Pl to claim a contract of adhesion and unconsiconability.

Yep you read it right. Florida is very pro-business. The ability to release from gross negligence is a fairly recent development if I recall correctly, within the last 15 years, before that, releases from GROSS negligence were void as agaist public policy.

Is that what you were inquiring about?

And when you think about it, the adhesion aspect is not really the case. Nobody is forcing you to dive. There is a local dive op here that actually makes you read and sign the waiver while standing on the dock, which I think further mitigates that argument. You don't like it, don't sail.

 

[maj75]

Boatlawyer,

Forgive me for merely skimming over the Schultz case you so diligently found and posted for us, but it sounds like the court held that under Florida state law, a standard form contract in the form of a dive op liability waiver is valid even through it releases the dive op from liability from their own gross negligence?

In your K experience in the state, does that sound right? My first thought would be for the Pl to claim a contract of adhesion and unconsiconability.

No, the validity of the dive operator release is really not an issue in this state. It has been found valid in both state and federal courts. The release is only valid for the dive portion of the trip. If the dive boat was involved in some sort of collision or an accident happened to a passenger while on-board, the issue may be different.

 

[Boatlawyer]

No, the validity of the dive operator release is really not an issue in this state. It has been found valid in both state and federal courts. The release is only valid for the dive portion of the trip. If the dive boat was involved in some sort of collision or an accident happened to a passenger while on-board, the issue may be different.

Might be wrong, but I think GOm was alarmed that in Florida one can be absolved from one's own Gross, as opposed to simple, negligence, not whether releases are valid.

 

[Gombessa]

Is that what you were inquiring about?

The gross negligence issue is exactly it, thank you.

And when you think about it, the adhesion aspect is not really the case. Nobody is forcing you to dive. There is a local dive op here that actually makes you read and sign the waiver while standing on the dock, which I think further mitigates that argument. You don't like it, don't sail.

True, but in the uncons. cases I remember (albeit, from TX and NY jursidictions), you don't necessarily need to be "forced" into the activity, so long as it's a take-it-or-leave-it standard form that you as a consumer generally cannot bargain/modify. A line of cases involving public parking garage ticket-stub contracts releasing the garage from liability for gross negligence of their emlpoyees springs to mind (afaik nobody was forced to park in the garage).

Oh well, perhaps a bit off-topic (unless the dive op took the opportunity while waiting for divers to toss overboard a few chum-filled wetsuits that were stinking up his deck?

PS: Was the board offline for the last few hours?

 

[Boatlawyer]

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 Schultz court analyzed like this:

1. Why is this case in federal court?

Answer: Because the court has jurisdiction under diversity (parties from different states and damages exceeding $75K) and/or admiralty

2. Does 46 USC app 183(c) which prohibits liability waivers by vessels carrying passengers for hire "between U.S. ports or between a U.S. and foreign port" void the waiver signed in connection with a dive charter?

Answer: No, because the statute does not apply since the dive boat does not carry passengers for hire between U.S. ports or between a U.S. and foreign port.

3. Is there any provision of admiralty common (not statutory) law that voids this waiver?

Answer: No, either because admiralty law doesn't apply (split jurisdictions) and the only reason the case is federal is because of diversity

OR

Even if admiralty common law applies, the only restrictions on releases in case law have applied to common carriers and this dive boat is not a common carrier, nor did the accident have to do with transport, but rather diving

4. In the absence of federal court prohibitions on the release, is it enforceable under state law.

Answer: Under Florida law, the release is enforceable.

 

[J.R.]

PS: Was the board offline for the last few hours?

I think so... MSN kept telling me I might have "mis-typed" the address...

 

[J.R.]

The Schultz court analyzed like this:

2. Does 46 USC app 183(c) which prohibits liability waivers by vessels carrying passengers for hire "between U.S. ports or between a U.S. and foreign port" void the waiver signed in connection with a dive charter?

Answer: No, because the statute does not apply since the dive boat does not carry passengers for hire between U.S. ports or between a U.S. and foreign port.


OR

Even if admiralty common law applies, the only restrictions on releases in case law have applied to common carriers and this dive boat is not a common carrier, nor did the accident have to do with transport, but rather diving

4. In the absence of federal court prohibitions on the release, is it enforceable under state law.

Answer: Under Florida law, the release is enforceable.

Crappy finding...

1: Did the boat carry passengers?

A: Yes.

2: Did it leave a port and return to a port?

A: Yes.

3: What roll did the vessel or the captain play in the diving?

A: None... diving was an activity that took place being bookended by transport of paying passengers FROM A PORT... TO A PORT... VIA A WAYPOINT.

Not that anybody cares... but to say that a dive boat isn't involved in the trasport of passengers is silly... from a simple common sense point of view if nothing else. After all... if they didn't transport ya'... it would be a flippin' shore dive...

:mooner:

 

[ccso434]

Crappy finding...

1: Did the boat carry passengers?

A: Yes.

2: Did it leave a port and return to a port?

A: Yes.

3: What roll did the vessel or the captain play in the diving?

A: None... diving was an activity that took place being bookended by transport of paying passengers FROM A PORT... TO A PORT... VIA A WAYPOINT.

Not that anybody cares... but to say that a dive boat isn't involved in the trasport of passengers is silly... from a simple common sense point of view if nothing else. After all... if they didn't transport ya'... it would be a flippin' shore dive...

:mooner:

The point you are missing is that the transportation of passengers from port to port is meant from starting point to a ending point different than the starting point.

 

[Gombessa]

The point you are missing is that the transportation of passengers from port to port is meant from starting point to a ending point different than the starting point.

Gotta agree here, with the main point being as BL mentioned, that a vessel for transportation (getting you from point A to point B) as a primary or sole purpose, is inherently different from a vessel intended for diving.

I think you have to look to what the law is intended to cover - ferries and water taxis with the pedestrian purpose of transport, which generally do not encounter long periods of stops, putting up dive flags, watching out for drifting divers, and other complex/dangerous activities, which would justify some sort of waiver or clear division of responsibilities. The lack of heightened risk activities in general personal transport makes it reasonable to allocate risk to the carrier and promote more efficient commercial transactions, whereas a more risky/dangerous scenario (diving, skydiving, etc.) merits clear notice, understanding and ability to contract risks by the parties.

I'd assume the spirit of the law is also meant to cover a dive charter that starts at point A, goes to the dive site, and drops off at point B, but that could easily not be the case as ccso mentions above, and if the statute on its face clearly covers it.