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September 2016    Download the Entire Issue (PDF) Vol. 31, No. 9   RSS Feed for Undercurrent Issues
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Find Yourself in Deep Trouble?

dont count on your dive guide to bail you out

from the September, 2016 issue of Undercurrent   Subscribe Now

It was a perfect day. The sun glistened off the deep blue sea as the dive boat, loaded with divers chatting enthusiastically, skipped across the calm surface. Meanwhile, the skipper wondered if his charges were all up to the task ahead of them -- simply, to go underwater, have a good time and come back safely.

The safety scenario is one that anyone running a scuba diving business is familiar with. If a customer gets hurt, or worse, it's a disaster for the business and may end up in personal ruin for the proprietor -- and, depending upon the country they work in, even time in jail. That said, at the moment the divers enter the water, their safety is delegated to the hired help, the dive guides. Are they up to the job?

It is the responsibility of any company to ensure that customers are kept out of harm's way.

Often, these are young people with little practical experience for when things go wrong. They may have delivered explicit dive briefings -- depth limits, no-stop diving limits, buddy separation procedures, air reserves clearly defined, etc. -- but people are willful, forgetful and, at times, just plain stupid.

Although the most responsible dive guides can be conscientious toward their divers, even oppressively so, things can go wrong. So, to what extent is your dive guide required to save you, even from the results of your own folly?

The Duty of Care

"Duty of care" can be defined as, "A requirement that a person act toward others and the public with watchfulness, attention, caution and prudence that a reasonable person in the circumstances would utilize. If a person's actions do not meet this standard of care, then the acts are considered negligent, and any damages resulting may be claimed in a lawsuit for negligence."

Businesses have a duty of care toward their clients. It is the responsibility of any company to ensure that customers are kept out of harm's way. In some countries, there are statutory laws in place, but justice is also dependent upon civil law. Is the dive guide required to risk his own life to save a client?

Where there are government agencies with teeth that enforce strict laws regarding the employment of divers, including diving instructors, there have often been cases where companies have been prosecuted for malpractice. However, how far must they go? In the world of diving, training agencies everywhere take the position that if no training agency rules are broken while diving and if its standards and procedures are maintained, the training agency has no further interest. If there is a problem, it has no power other than to disbar an instructor. It's a touchy subject, so we contacted PADI for its policy, but, in common with some other training agencies, PADI declined to comment.

Things are different once a certified diver is let loose to pursue his own interests on a dive. Can the company a dive guide works for expect that guide, an employee, to risk his own life or health to keep a customer out of harm's way? The short answer is, "No."

Sean Harrison of SDI/TDI World HQ offered, "The one overarching message that must be made clear here is, all divers and snorkelers or any person involved in adventure sports has to have personal responsibility. It is never wise to exceed one's ability with the only back-up plan being "someone else is going to rescue me."

That's not to say that negligence is never a factor, but it needs to be proved. Nevertheless, it is often the selfless actions of such dive guides that stop a diver's thoughtless behavior from turning into something worse. Such individual acts of heroism are almost common. Dive guides, like everyone, usually have a natural empathy for others.

Bret Gilliam, a familiar contributor to Undercurrent and a professional dive trial witness, with tens of thousands of professional dives in his logbook, told us: "Diving certainly has a variety of situational emergencies where the survival of a guest (usually less experienced than the guide) is dependent on immediate effective assistance or rescue. Personally, I have always accepted that responsibility and trained my staff the same way.

"If you're maintaining the proper 'awareness' and a dangerous event begins, early response can mean minimizing the risk to both people and get a positive outcome. Yes, I would risk DCS to save someone under my supervision ... and I have done that several times ... It's a matter of personal character. Dive professionals have to make the call based on their experience, physical ability, and confidence. The dive guide must always assume that if things can go wrong, they will, and usually all at the same time. If that mindset is maintained, the dive guide will be prepared to react."

What Some Dive Operators Say

Undercurrent asked a number of dive operators about how they instructed their crews, and they were much in agreement. Craig Stephen, the operations manager of Mike Ball Dive Expeditions based in Queensland, Australia, explains that they are governed by a legal code. He said, "Dive guides are not expected to risk their own health or safety to aid a rescue; however, they are also not expected to sit on the sidelines as a spectator. This comes back to their 'duty of care,' and as such, it is expected that they would conduct a rescue to the best of their ability without endangering themselves; not making a rescue attempt would certainly come under scrutiny ... Under the statutory Queensland code-of-practice, [dive guides] should not be expected to dive to depths in excess of 130 feet ... The decision to initiate a rescue [if a diver sinks beyond 130 feet] could only be determined by the dive guide at that time; with the outcome seen as either heroic or foolish. The decision would be down to the individual and his or her experience, confidence and ability to assess the situation and act cool under pressure."

Alexander Bryant, who operates nine Emperor and Constellation Fleet liveaboards in the Maldives, said, "Dive guides are required to look after and monitor the safety of divers ... Essentially, they are part tour guide, part majority safety control officer. However, they should never put their own safety at risk -- how can they help if they are also in trouble? I firmly believe that to look after others, you must firstly look after yourself and be a role model."

Mark Shandur of the Siren Fleet said, "We do not require our guides to risk their lives attempting to rescue other divers. Nevertheless, when faced with a diver in peril, our guides have been known to give whatever aid is needed, regardless of the personal sacrifice involved."

Peter Hughes, with a lifetime's experience running dive centers and liveaboard operations, says he always told his employees, "We do not set maximum depth limits such as 100 feet as so many others do. In our dive briefing, we inform divers that we expect them to dive within the safe no-decompression limits as determined by their individual certifying agencies ... It was the [prevailing] opinion of my attorneys that once you set such a limit, then you [the operator] impose upon yourself the liability to enforce that limit."

He also told his employees, "Do not risk your own life ... to rescue someone who is excessively violating, of their own free will, the safe diving standards as taught to them by their certifying agency. This may seems a bit harsh, but it is harsh by necessity -- one life lost is better than two!"

Hughes also told Undercurrent, "I always expected my diver [clients] to dive within their own limits. Surely [individual divers] can be expected to know their own limits better than my dive guides or myself?" Though one must add, many divers today have certifications that may not reflect their real diving abilities.

"The dive guide should expect mistakes and be ready to quickly respond."

Hughes also cited the 'Mike Armstrong Opinion' of 1974, co-authored with the late Captain Don Stewart after the latter experienced his first client fatality at his dive center in Bonaire and was considering winding up his operation because of it: "Once a person becomes certified and has some experience, there becomes a guide/diver relationship, rather than a teacher/student relationship. The guide, acting in an advisory capacity, should warn of known, unobvious hazards, inform of local laws, customs, etc. The guide is then felt to have a minimal responsibility for the diver's actions. But he/she should not be expected to make the basic go/no go decisions when the diver has all the facts before him/her. The ultimate decision is left up to the diver's own good judgment."

Of course, nobody wants anyone to get hurt. In some parts of the world, if there is a fatality, those involved are imprisoned pending the police investigation -- a good incentive to avoid accidents at any cost. In many remote parts of the world, dive guides are considered to have elite jobs with above average pay and do everything they can to preserve them. No business wants the stigma of a diving fatality attached -- so it is a practical and commercial consideration, along with morality, that usually drives the cause of safety.

This is tempered by perceived personal risk. When David Shem-Tov was grabbed by a saltwater crocodile while diving in West Papua (Undercurrent August 2009), there was a distinct reluctance on the part of anyone including the crew to enter the water to save him. David eventually escaped and bore the dive guides no ill will for not trying to tackle the crocodile.

When it comes to safety underwater, the local guides will know about currents and possibly hazardous marine creatures, but their knowledge of more insidious dangers such as theoretical and medical matters may be basic, to say the least. First-world operators put operating procedures in place in an attempt to avoid disasters.

Difficult Choices in a Double Crisis

Then there is the dichotomy between what to do should the boat crew find they have a casualty on board in need of urgent medical attention found only ashore, but with divers still underwater. Divers may have been briefed that in an emergency, a crewmember will repeatedly bang on the ladder or rev the boat engine, but divers often ignore such actions, especially if they have found an interesting subject for their camera. The captain can hardly depart and endanger the rest of these passengers. What to do?

Again, Peter Hughes offers sage words: "One would have to consider the possible variables. How imminent is the death of the injured passenger? How long has the diver been missing [or underwater]? What are weather/sea conditions? What other help is nearby? Are there trained first responders such as the Coast Guard? Was there an alternate means either to transport the injured passenger or to continue to search for the missing diver? Are we on a liveaboard miles from help or are we land-based and minutes from shore?"

Clearly, every boat captain may assess the scene differently, but the truth is, there is no definitive procedure, and a diver in deep trouble cannot necessarily expect the crew to be there for him.

Bret Gilliam added, "It's the essence of triage. A diver who drifted off or an accident that occurred while other divers were only part-way through their dives may not be a life-threatening situation for the other divers. They can surface and float without effort. If possible, I'd deploy a dinghy or launch, or even put another dive professional in the water to try to round up the others while an evacuation was made for the seriously injured person. With today's GPS, locating devices and waterproof marine radios, there is a good chance that you could return and recover those left behind. It's a tough call."

Mark Shandur of the Siren Fleet said, "We do extensive safety planning -- taking into account all manner of 'what ifs' -- to ensure that we never have to choose between two such grossly unacceptable alternatives. In the specific situation described, we would use one of our two skiffs (our fastest vessel) to send the injured diver to shore for medical treatment and use the other skiff (along with the main vessel, other vessels in the area, local marine park rangers, etc.) to search for the missing diver."

Accidents happen. If there is alleged negligence, there is always a lawyer prepared to take on a civil case. It's when liability waivers are tested. However, bear in mind that even in the event of an award by a Court, it might be difficult to enforce a judgment outside of the plaintiff's own territory.

Bret Gilliam summed it up well:

"Depth can be an obstacle, but if a guide has sufficient remaining breathing gas, he should [try to] save the victim. I don't like the idea of embedding an expectation in guests that all guides will come to their rescue no matter what foolish or irresponsible behavior they initiate. But with the 'dumbing down' of dive certification training in the last decade, you're going to see divers make mistakes due to lack of experience and a false confidence. Remember, you can be awarded an 'advanced diver' rating after doing only nine dives. The diver may well believe that they actually are qualified, but professionals know otherwise. The [dive guide] should expect mistakes and be ready to quickly respond."

Finally, there is the only-too-familiar situation where you find yourself paired with a buddy of whom you have no prior knowledge. How much responsibility do you take for that person if his or her diving practices are what you consider to be beyond the pale? You can remonstrate with them after a dive is over, but what do you do if they insist on going to a depth you decide is unsafe, enter an overhead environment, interact with marine life in a risky manner, mismanage their air supplies or ascend too speedily? We've all been there at some time.

Let us know what happened and how you handled it.

Further reading: http://www.undercurrent.org/UCnow/dive_magazine/2011/DiversDeath201102.html

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