Liability form question

[a-marshal]

That is a question you need to be asking your insurance agent. If you don't have an insurance agent then your lawyer. Your liability depends on too many variables to get a clear answer here .. or from PADI.

 

[TMHeimer]

It can't hurt for you to actually see the waiver or have them sign again. Of course I'm no lawyer, but I would GUESS you'd be in the clear if the shop (owner?) told you all paperwork would be signed before you meet them. A verbal contract, perhaps?

 

[tdtaylor]

While that may be true in the US, It's not true in Europe. Especially in scuba court cases that waiver gets pulled out and the whole thing just becomes irrelevant.

You must not have as many lawyers per square mile as we do :shocked2:

 

[daniel f aleman]

Waivers are important, the courts do consider them evidentiary. And at the least, they are signed agreements between two people that acknowledge the inherent risks involved.

 

[sealark]

My statement was based on taking marine lawyers out on dive charters. The same two repeat customers for years. They had been marine lawyers for many years. One was a judge in No. La.

Sent from my DROIDX using Tapatalk 2

 

[Wookie]

A waver isn't worth the paper they are written on. Nothing releases anyone from careless wrongful actions. A waver just makes the person think they can't do anything against someone.

Sealark obviously hasn't been protected by a waiver. I have. Sealark is wrong in this case.

 

[JS1scuba]

As a Divemaster signing in dive passengers to your boat you would best be served to: 1. See a Valid Certification Card and 2. Have the Dive shop send over a MANIFEST of all Dive Passengers with a statement at the bottom that shop has recived a completed Liablity Waiver Form from each name listed above and have THAT signed by a shop employee. You then keep that manifest for your evidence.

You as the boat operator might also consider having YOUR waiver signed at the dive shop and have the dive passenger bring you that form. Check with your insurance agent for proper methods of doing this.

No C-Card, No Waiver, NO Diving

Cheers

 

[goflyplanes]

As a brief half hijack. The shop I was working for this summer was a MESS (that is putting it extremely politely). I was out on a charter as a DM and luckily this situation didn't happen to my group, but I did suffer some of the effects. Basically what happened what our shop never ever asked for c-cards for anyone other than the primary on the reservation. So we would get the dive boat list and we would have 8 divers listed as John Smith aow because John Smith made the reservation. In addition we would get an absolute bollocking if we asked anyone anything other than their name as that was a waste of everyones time and not our job etc etc. So basically we learned how to creatively figure out what level our divers were. Asking them about where they've dived, how long ago, possibly throwing in what level diver they are etc. Well basically one day we have 2 boats that are going out with a total of 40 divers and 6 staff. They're broken up into groups of 10 originally with 1 instructor per group and 2 groups have DMs. Well until we found out that we had a charter of 7 intro divers that did their DSD somewhere else and no one had bothered to ask for c-cards since the person who made the reservation was an OW. (Please note I don't agree with how this was handled and quit shortly after). But the owner happened to be captaining the boats and made the decision to chuck them all in the water with 1 instructor per 2 intro divers and then divided the 22 other divers between the 2 DMs.

What I walked away from that situation with was that I will never ever take a diver diving that I haven;t seen their paperwork myself. And by paperwork I mean c-cards and waivers. Just because I want to do my job right doesn't mean that the people in the office aren't going to miss something or half-ass it.

 

[DivemasterDennis]

If you can't rely on your co-workers to have paperwork properly completed at check in, then there is another issue. However, if you yourself are insured, independently or under the shop's policy, I would not stress. A liability waiver has value, but it is not a protection against all forms of liability depending on your conduct. Keep up your insurance, act as a reasonably prudent dive master would act, and for more detailed advice ( I am a lawyer and DM) PM me. But what you describe as to paper work is typical just about everywhere I have ever dove, or ever worked.
DivemasterDennis

 

[Cert1967]

Sealark obviously hasn't been protected by a waiver. I have. Sealark is wrong in this case.

Captain Frank is correct, in Florida exculpatory contracts are valid and the federal courts have upheld their usage.
Perhaps one of the esteemed lawyers on this board – ideally someone has a background in admiralty law – would opine on the issue of the validity and usage of dive boat liability releases commonly used in Florida. My opinions are that of a layman.


Like Captain Frank, Florida dive boat operators typically require a broad liability release – including language that releases the operator from most forms of negligence – including their own. Venue and severability are commonly addressed. Many posts to this board erroneously claim that these releases are not valid. Case law would seem to indicate otherwise. Below is a list of cases for review.


Federal admiralty statues can over-ride these releases (contracts) in limited circumstances, as can intentional torts. Admiralty statutes –the steamship ticket release issue – override state exculpatory contracts in certain circumstances. One of the cases speaks to this – it involved a SCUBA diver who was injured by the props of a boat while diving and prevailed in his case due to admiralty law overriding FL law.


I suspect that you won’t be boarding Captain Frank’s boat without signing his release and if you don’t understand what it means perhaps you should consult with an attorney. When you sign a document you should take as much care as you do when you check your gear before diving - perhaps more.


Concepts
Admiralty Statutes/ Common Law
Admiralty jurisdiction in recreational scuba diving cases
State courts have concurrent jurisdiction with federal courts over admiralty cases under the savings to suitors clause
Exculpatory Contracts
Steamship “Ticket Releases”
Jurisdiction – Subject Matter/ Diversity
Negligence – Common/Ordinary/Gross/Intentional
Venue
Severability

Tort (Twisted or Wrong, torquere)


****************************


In Borden the court held;


“The language of the release is clear and unambiguous, reflecting the decedent's assumption of the risks inherent in scuba diving and his intent to release Appellees from all liability, including any liability resulting from their own negligence. Although viewed with disfavor under Florida law, such exculpatory clauses are valid and enforceable when clear and unequivocal. Theis v. J & J Racing Promotions, 571 So.2d 92, 94 (Fla. 2d DCA 1990), rev. denied, 581 So.2d 168 (Fla.1991). The release expressly states that the decedent "understands and agrees" that none of the "Released Parties" (Appellees) "may be held liable or responsible in any way for any injury, death, or other damages to me [decedent] or my family, heirs, or assigns that may occur as a result of my [decedent's] participation in this diving class or as the result of the negligence of any party, including the Released Parties, whether passive or active." The release goes on to state that the decedent intends to exempt and release Appellees from all liability or responsibility whatsoever ... "HOWEVER CAUSED, INCLUDING, BUT NOT LIMITED TO, THE NEGLIGENCE OF THE RELEASED PARTIES, WHETHER PASSIVE OR ACTIVE."


In Schultz the court held;


“No court, as far as we have been informed, has ever relied upon federal common law to invalidate a liability release for scuba diving, even where the scuba diving involved the use of a dive boat. The federal common law's limitation on common carrier liability releases does not extend to the liability release signed by Patricia Shultz.”


In Theis the court held;


“The essential issue for our determination is whether the release and waiver signed by the decedent was clear, unambiguous, unequivocal, broad enough and specific enough to protect appellees from liability for their own negligence, even if their actions constituted gross negligence. We hold that the release was so clear, unambiguous, unequivocal, broad and specific.”


Law
46 U.S.C. app. § 183c(a)


Cases
Borden v. Phillips, 752 So. 2d 69 - Fla: Dist. Court of Appeals, 1st Dist. 2000
Shultz v. Florida Keys Dive Center, Inc., 224 F. 3d 1269 - Court of Appeals, 11th Circuit 2000
Theis v. J&J Racing Promotions, 571 So.2d 92, 93-94 (Fla.2d DCA 1990)
***************
Cutchin v. Habitat Curacao, 1999 AMC 1377, 1380-81 (S.D.Fla.1999)
Thompson v. ITT Sheraton Corp., No. 97-10080, at 4-7 (S.D.Fla. Feb. 2, 1999)
Courtney v. Pacific Adventures, Inc., 5 F.Supp.2d 874, 878-80 (D.Haw.1998)
Keith v. Knopick, CL 95-3845 AF, Palm Beach County, Florida (Mar. 18, 1997)
Mudry v. Captain Nemo, Case No. 94-0265(1), 2d Cir. Haw. (Feb. 13, 1996)
Kanoa, Inc., 872 F.Supp. 740 (D.Haw.1994)
Tancredi v. Dive Makai Charters, 823 F.Supp. 778 (D.Haw.1993)
Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1335 (11th Cir.1984)
Bisso v. Inland Waterways Corporation, 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955)


Articles
Jeffrey T. Woodruff, Please Release Me—The Erroneous Application of 46 U.S.C. App. § 183c to Scuba Diving Releases in Courtney v. Pacific Adventures, Inc., 23 Tul. Mar. L.J. 473 (1999)
Best, Arthur, and David W. Barnes. 2003. Basic Tort Law: Cases, Statutes, and Problems. New York: Aspen