After Divers Die

Roadblocks to Litigation

Ours is a litigious society. And ours is a litigious sport. More often than not, the family of a deceased diver sues, citing everyone in sight as liable. Injured divers sue. So even divers who aren’t harmed suffer a hit to their bank account.

We divers face all kinds of legal obstacles when we think we’re wronged. Besides the cost of initiating litigation, claims are complicated because of releases we sign or because those we pursue are in another state or another nation.

And, let us not forget, sometimes a suit by a fellow diver is just plain cockamamie.

In this two-part article, let us discuss some difficulties we divers face when we’re wronged. We rely in large part on research conducted by Phyllis G. Coleman, Professor of Law at Nova Southeastern University in Fort Lauderdale, whose work appeared in the Journal of Maritime Law and Commerce.

Jurisdiction

One of the first issues faced in a lawsuit is establishing jurisdiction. Obviously, one cannot bring suit for any reason anywhere. However, a legal notion called “admiralty jurisdiction” frequently applies.

For example, cruise ship operators commonly arrange dives for their passengers with local dive operators in their ports of call. In McClenahan v. Paradise Cruises, two passengers sued the Cruise Line for injuries suffered while diving. The cruise line filed a third-party complaint against the independent contractor that had managed the dive, and moved to have the case dismissed. The court rejected the motion because plaintiffs had the foresight to allege that both the cruise line and dive operator had been negligent.

Still, admiralty jurisdiction is not automatic. Three years after the plaintiff had completed a PADI diving course, he made several deep dives to spear a 90- pound amberjack. After the third dive, he began experiencing pain and symptoms of decompression sickness. Because of a delay in getting him to a hospital, he was permanently paralyzed from the chest down. He (Duplechin v. PADI) sued for injuries he claimed he suffered due to improper scuba instruction. Although conceding “admiralty jurisdiction is normally subject to liberal application,” the court found an insufficient nexus between plaintiff’s injury and traditional maritime activity.

While such an injury is surely serious, from our perspective it does seem farfetched to blame one’s training agency three years later.

Personal Jurisdiction

Divers injured away from home often try to sue in their home state to reduce the cost of litigation and, perhaps, to take advantage of more favorable laws. Despite imaginative lawyering, they generally cannot establish sufficient contacts to obtain personal jurisdiction and must seek a venue elsewhere.

In Fournier v. Best Western Treasure Island Resort, a motor boat hit a Massachusetts resident snorkeling in Grand Cayman. The plaintiff had made her travel arrangements in Massachusetts, so she sued there. The court ruled that was insufficient to establish jurisdiction and granted the resort’s motion to dismiss.

Likewise, in Alba v. Riviere, a Louisiana man got bent in Belize. Alleging his injury was caused by two defective decompression computers, he sued several defendants, including the Italian manufacturer and German and American distributors. Finding that the defendants had insufficient business contacts with Louisiana, court dismissed the suit.

In Menendez v. Habitat Bonaire, the widow of a man who disappeared while diving sued in Texas. She named the dive shop where he had signed up for the trip, the travel agency that had arranged the excursion, the resort, the resort’s director of diving operations, and the divemaster who had overseen the dive. The trial judge dismissed the nonresident defendants.

In Addy v. Club Med, a Louisiana couple claimed Club Med negligently managed and operated a scuba diving trip during which Mark Addy sustained injuries while honeymooning at Club Med in Tahiti. Although plaintiffs had purchased their vacation package in Louisiana and reviewed advertising circulars there, the court dismissed their suit because the accident had not occurred in Louisiana and the plaintiffs’ injuries did not arise out of any conduct or contact of Club Med Sales within Louisiana.

Similarly, in Pontliana v. Club Scuba, plaintiffs filed wrongful death and personal injury suits in Minnesota following a dive in Jamaica. Defendants were a Minnesota corporation and a Jamaican corporation. In granting the latter’s motion to dismiss for lack of personal jurisdiction, the court found that the Jamaican company’s only activity in the state was promoting dive vacations and that plaintiffs’ claim had nothing to do with these activities but was based on the dive itself.

Finally, in Calvin v. See and Sea Travel, a Minnesota resident sued Carl Roessler’s company for arranging an “unsatisfactory diving trip.” The court dismissed the suit because defendant lacked sufficient contacts with Minnesota: “advertising in one nationally circulated magazine that happens to be distributed in Minnesota, mailing of brochures to Minnesota, and telephone conversations and correspondence between plaintiff. . .”

Of course, had this suit set a precedent, there would hardly be a travel agent left.

Inconvenience

Divers seeking to get home court advantage face other legal obstacles.

In Cohen v. Holiday Inns, a Pennsylvania diver had been injured while staying at the Acapulco Holiday Inn. When he sued various defendants in Philadelphia, they sought to have the case heard in Mexico. Because plaintiffs’ claim turned on the defective air tanks supplied by the Mexican dive club and assertions that the boat captain and crew were negligent, the court found that Mexico was a “more sensible forum” and granted the motion.

When a Virginia woman was injured off the Mexican coast during a snorkeling expedition, she sued in Virginia (Dunham v. Hotelera Canco) against the hotel, tour operators, airlines, and parties from whom she bought the package. Among other things, the court found that a trial in Virginia would hamper the ability of the defendants to include other parties and would deny Mexico its proper right to adjudicate a matter critical to it; the court agreed to defendants’ request that trial be held in Mexico.

Choice of Law

Because many diving cases involve parties from different jurisdictions, choice of law questions frequently arise. In Kunreuther v. Outboard Marine the decedent and her husband were snorkeling while in Jamaica. She was struck by a propeller designed and manufactured by a Delaware corporation that had its principal place of business in Illinois. The boat was operated by a Jamaican citizen and owned by another. Initially treated in a Jamaican hospital, she was air lifted to Miami, where she died.

When her husband filed a product liability suit in Pennsylvania against the manufacturer, the court was forced to decide whether to apply domestic law, which required propeller guards, or Jamaican law, which did not. Because the case involved an American product, American plaintiff, and American defendant, the court decided Pennsylvania law applied.

Removal

The “saving to suitors clause” prohibits a defendant in a diving case begun in state court from removing to federal court unless a proper jurisdictional basis exists. In Samice v. Harry’s Dive Shop, decedent drowned while diving in the Gulf of Mexico. When his family sued in a Louisiana state court, the defendant dive shop attempted to remove to federal Court. However, finding no nonadmiralty basis for federal jurisdiction, the district Court remanded the case to state court.

— Ben Davison

Coming Up: training agencies, trip sponsors, waivers, and releases.

Excerpted with permission from 29 Journal of Maritime Law and Commerce 519 (1998).