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March 2017    Download the Entire Issue (PDF) Available to the Public Vol. 43, No. 3   RSS Feed for Undercurrent Issues
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Those Dreaded Liability Waivers

a reminder that the risk is all yours

from the March, 2017 issue of Undercurrent   Subscribe Now

The victory of the family who sued on behalf of their deceased father, who had signed a liability waiver absolving a Hawaiian dive operator of responsibility, may not have changed waiver law in favor of divers in other states, as we reported in January. But it certainly prompted many readers to share with us their points of view.

For a diver, perhaps the best thing about a waiver is that if you read it when you sign it, it may encourage you to practice safe diving as well as alert you to making pre-dive checks, not just of your own gear, but of the entire diving scene.

"If you want to dive with a commercial scuba operator, you are going to have to sign a release, and it will probably shield the provider from liability for negligence."

As Bob Cottle (Berwyn, IL) says, "I always sign the waiver, because I know if I don't, they will most likely ask me to get off the boat. But I also try to be aware of everything happening on the dive boat to see if I detect anything that might cause me or anybody else harm. If I do, I immediately bring it to their attention, whether it affects me or any other person on the boat. It's just common sense to speak up if you notice something is amiss before it becomes a serious matter."

Businesses Need Protection

Certainly, businesses do need to protect themselves from frivolous court cases. Jerry Loveless (Las Vegas, NV) pointed out that although he wished he didn't have to sign a waiver, he recognizes that running a dive operation is financially a high risk, low-profit proposition. "Most operators I've known do it much more for love than for money. We live in a more and more litigious society."

But, Travis Pierce (Cleveland, TX) protests that too many companies (not just in scuba) no longer accept responsibility for anything, their fault or not.

"When you put your life in somebody else's hands, there should be some acceptance of responsibility on their part to keep you safe. You're paying them, but they don't want to incur any liability to keep you safe or guarantee your safety if they make a mistake or injure you. You're on your own. If you don't sign the form, you don't get to go. I tried to refuse once in the Bahamas just to see what would happen and was told in no uncertain terms that if I refused to sign I needed to leave immediately, I would not get a refund and would not be allowed to dive."

But What About Gross Negligence?

Many divers believe that if a dive operator is grossly negligent, they will have a case. A Florida subscriber says, "waivers are not accepted in legal circles, since you cannot sign away your rights. It is merely an attempt on their part to prove you knew the risks and wanted to participate despite them."

A reader who ran dive programs in Colorado had people sign waivers, but she says her lawyers told her that, "it doesn't matter if someone signs a waiver -- in the U.S., at least, a person can always sue, and if the organizer/manager is clearly negligible, the waiver doesn't matter."

One would hope, but as Phyllis Coleman, Professor of Law, Shepard Broad College of Law, wrote in our January issue, "Furthermore, if you want to dive with a commercial scuba operator, you are going to have to sign a release, and it will probably shield the provider from liability for negligence." And, if you're diving in Florida, she says, the courts there have never met a release they didn't like.

The Opinion of a Judge

Supporting Coleman's comments, Undercurrent subscriber the Honorable Victor Kenton (Los Angeles, CA), a retired federal judge, writes, "Divers pretty much assume the risk. You can best protect yourself by picking an operator with a good reputation for safety. Operators likely could not get insurance without such draconian waivers. Ultimately, your chances (or your estate's) in a U.S. Federal or state court will largely depend on that jurisdiction's custom and practice as to the enforceability of waivers, which probably will be treated the same for skydiving, horseback riding, or other sports. There may be individual issues (for example, the waiver wasn't clear, or wasn't in boldface, or was buried on page 3 of a lot of boilerplate). Finally, as with many types of litigation, insurers will often settle to avoid a bad precedent."

He continued, "If every diver spent more time accepting the responsibility of their own decisions and actions, there would not be an issue. I do not think a waiver should absolve the operator of all guilt, even in the face of gross incompetence, but our litigious society has driven them to this, and we all pay the price."

Well said!

But, What About Modifying a Waiver?

Some divers have marked out offensive clauses in waivers when the operator wasn't paying attention, but for the most part that doesn't work. David Stone (Venice, FL) says he has "yet to find an operation willing to let me modify it, with their excuse being that it is their lawyers or insurers who require it as written." Stone has tried to obtain a copy of the waiver before he books a trip, figuring he would have more leverage before they had his money. But even the threat of turning down the trip and explaining the reason has yet to yield him concessions. Perhaps the only way such a tactic would work is if everyone about to board a boat insisted on striking clauses. Would an operator accept the doctored waivers rather than lose all his customers?

Subscriber Jim Stephens, a Dallas/Fort Worth business consultant, told Undercurrent that in the U.S., "Corporations, by way of financial and legal resources, have essentially managed to nullify many consumer rights and protections. This is partially the fault of the consumer who continues to do business with these companies, sometimes due to having no other viable option; and also to the continued evolution of a litigious society in which consumers and the legal community seek to prosper in-equitably."

It is true that in the unregulated dive industry, accident details seem to be shielded from divers. Eric Taylor (Cambridge, Ontario) makes an excellent point about how dive industry safety is seriously lacking. He wrote, "I hear of accidents but can never find the details. This is the opposite of the aviation industry, where the data is shared as a learning and choice tool. In aviation, if you showed up at an operator and wanted to fly an airplane, they would demand a flight checkout to ensure currency and competence. In diving, the majority of operators seem to focus more on a card and waiver. The only visible difference to me is that in aviation there is a bigger fixed asset to lose."

The Flip Side of the Coin

But, before we condemn waivers, we must listen to those in the industry who need them. Ken Kurtis, the owner of Reef Seekers (Beverley Hills, CA), makes very reasonable points. "There's no doubt that dive professionals make mistakes, and sometimes these mistakes end up with a diver injured or worse. However, most dive accidents are due to diver error rather than professional malfeasance . . . Now, if it's a case where a boat ran over someone or the air was bad, or a dive guide said 'Just meet me at the bottom' not knowing the bottom was at 200 feet (60m) . . . they should suffer the consequences of their mistake. But, in my honest opinion, waivers are designed to protect us in the industry from bottom-dwelling chamber-chasing ethically challenged attorneys, using a family's grief to try to make a quick buck."

Gary Seguin (Albany, NY) operates a scuba business and suggests, "These forms are there for both the divers and resort/dive shop/boat owners to protect them from any liability that could occur. In my opinion, it is not the fault of the one taking them out to dive, but the mere fact that most divers have some sort of medical condition, lack of experience or limitation that could very well cause a catastrophic accident. . . . What about those who say they are in the best physical shape of their lives and die from a heart attack or stroke from high blood pressure because they have not been to a doctor in a long time?"

That's a good point, and a review of American diving fatalities shows many are caused by unknown coronary disease, invisible because the diver never had a thorough physical exam to determine if he could handle the stress of diving. When did you last have a full physical examination that involved a treadmill test?

Well, if you want to dive in Queensland, Australia, you're going to have to offer medical proof you're fit to dive -- and that may entail seeing an Aussie physician.

Don't Sign, Don't Dive

It may be that waivers keep the cost of diving down. Armando Menocal (Jackson, WY) says that the absence of waivers would probably increase the cost of operator insurance, which would inevitably be passed on to the customer. Furthermore, he says without waivers, operators may not be able to get liability insurance.

"No liability insurance almost certainly means no responsible person would invest in and establish a dive operation. Anything you own now and in the future is at risk. The only ones who would are those with nothing to lose. No assets, nor the prospect of income. Is that who you want to be your dive operator?"

He says that sports like diving with small pools of insured to spread loss claims or to provide solid actuarial forecasts are susceptible to price hikes or denials of coverage after a few claims. Without waivers, the price of diving would increase. "Are you willing to pay more so you or someone else can sue?"

Sanguine in his approach, Eric Ohde (Redding, CA) wrote, "I don't see a retreat from releases in diving, as it is inherently a fairly dangerous sport. If the operator gives a good briefing, has the proper medical equipment and training and an accident happens, they should be excluded from lawsuits, but if they are grossly negligent, then it is proper that they can be sued for the loss of life. It has always been my understanding, if you don't sign the liability release, you do not participate in the sport."

And, When Not in American Waters?

So, while a diver in American waters who signs a release may have given up much of his chance of recovering damages, a diver who goes abroad may have no chance. For example, Stuart Cove in The Bahamas never asked John Bantin, a regular visitor, to sign any waiver in 20 years. A full-time professional diving journalist, Bantin's estate would have had a difficult job proving, under English Law, any diving accident was someone else's fault.

Similarly, Jim Jenkins (San Francisco, CA) reminisced about Craig DeWit, captain of the MV Golden Dawn operating in Papua New Guinea. "After many other trips beginning with showing C Cards and signing our lives away, we arrived and boarded and started setting up. I asked Craig, what about the paperwork? Craig laughed and said, "There isn't any. Just try to sue me in PNG!"

- Ben Davison

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