October 2009    Download the Entire Issue (PDF)

Vol. 24, No. 10   What's this?

Anatomy of a Diving Lawsuit: Part II

why the Aggressor prevailed in court

from the October, 2009 issue of Undercurrent  

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This continues the saga of the prolonged lawsuit resulting from the disappearance of two divers from the Okeanos Aggressor at Cocos Island in May of 2003.

Bret Gilliam, who wrote the piece, was retained by the defendants, essentially the Aggressor fleet, as an expert witness. For 35 years he has held a 500-ton USCG Master’s License. He has logged more than 18,000 dives and a thousand at Cocos Island, including 43 dives at the site of the tragedy, Dos Amigos Pequenos site; he dived there just the week after the disappearance in more extreme conditions. He served as NAUI board chairman and founded TDI and SDI training agencies. He has been hired as an expert witness in more than 225 cases. Here is the second part of his story.

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I was retained in March of 2005 by the defense as an expert witness to offer opinions as a diving industry professional and licensed maritime master. I would also provide limited expert opinions about medical aspects including the effects of hypothermia and the likely period of survival to persons drifting at sea in water temperatures of 82 degrees F. and in the existing sea conditions. By hiring one person who could qualify in multiple areas of expertise, it simplified the defense and could possibly lead to a judge’s ruling that the plaintiffs had to proceed with only one expert as well. Since there are few people with actual professional credentials and field experience in multiple roles, it proved to be a shrewd move for the defense.

The families (plaintiffs) of the two divers who disappeared filed wrongful death claims in Louisiana against various defendants including the Okeanos Aggressor, Aggressor Fleet, Aggressor Fleet Franchising, AMO (the Costa Rican company owning the vessel), and the divemaster Randy Wright who was aboard the dive launch that took the divers to the site that morning, May 16, 2003. The plaintiffs alleged a litany of actions or failures by the vessel staff that contributed to, or caused, the deaths of the two men, Smith and Jones (the names have been changed for this article).

The complaint affixed blame for the small dive launch not having direct contact by VHF radio to the mother ship anchored in a protected bay about six miles away. It also alleged that the ocean conditions were too rough, the current too strong, that no descent lines were used, and that the nine divers should have been required to dive together supervised by the divemaster. They argued that when divers surfaced at various times over the course of approximately 55 minutes -- but Smith and Jones did not -- that an improper search took place. They blamed all the defendants for the divers’ disappearance and alleged that the vessel’s search procedures did not find them, causing Smith and Jones to drift away to a lingering death....