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October 2009    Download the Entire Issue (PDF) Available to the Public Vol. 35, No. 10   RSS Feed for Undercurrent Issues
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Anatomy of a Diving Lawsuit: Part II

why the Aggressor prevailed in court

from the October, 2009 issue of Undercurrent   Subscribe Now

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.

* * * * *

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.

The Lloyds of London insurers had placed a $15 million reserve on the case as a possible payout.

Expert Witnesses: A tremendous amount of maneuvering by the lawyers on both sides occurred in the first phase as motions were filed trying to uphold waivers and releases signed by the deceased as the bases for case dismissal, motions as to venue and whether state or federal court would hear the case. Witnesses were deposed to provide their version of events. Reports from Costa Rican and U.S. Coast Guard search teams were submitted and oceanographic “hind-casting” established actual conditions at the time of the dive. A variety of diving industry standards, procedures, training methodology and practice were introduced into evidence. It was nearly six years from the accident to trial, which finally began on April 6, 2009. Hurricanes forced trial postponements twice.

Smith and Jones were not diving together.
Each entered the water with his
assigned buddy and each immediately
became separated from his buddy. They
were never seen again by any person on
the dive, including their buddies.

Eventually light began to emerge from the clouds of obscuring posturing. Expert witnesses are usually the most experienced professionals that the jury or judge will hear from. Based on their professional credentials and licenses, expertise, and experience in similar situations, it’s their job to objectively evaluate the facts, allegations, witness statements, and conditions, and conclude whether fault can be assigned to any party. A credible expert witness with the ability to face a jury and explain his opinions under cross-examination by a hostile opposing lawyer is tossed into an “intellectual gladiator” pit of confrontation.

Walt “Butch” Hendrick was hired by the plaintiffs as their expert witness. He was offered as an expert in diving, liveaboard operations, ocean search and rescue, maritime procedures, and general diving safety in places like Cocos Island, located nearly 400 miles offshore of the mainland of Costa Rica. In his written opinion and subsequent live deposition, Hendrick agreed with all the plaintiffs’ plaintiffs’ allegations of fault and laid the blame for the men’s deaths squarely on all the defendants. However, problems arose almost immediately for the plaintiffs at Hendrick’s deposition.

Hendrick revealed that his captain’s license, which had expired 40 years ago, was restricted to only six or fewer passengers in the protected waters of Vieques Sound off Puerto Rico. He also could not answer questions about navigation, safety regulations, rules of the road, etc. He had never been a professional crew member on any liveaboard diving vessel, had never seen the 120-ft , 130-ton, Okeanos Aggressor, had never been to Costa Rica, and never dived at Cocos Island. He had never conducted an actual ocean search for a lost diver at sea. His primary career was in public safety team training for bodies lost in cars that went off roads and piers, people who drowned at the beach, or other “close to shore” searches for dead bodies, not live persons who might be adrift and employing signaling devices to make their location known.

The site of the accident, Dos Amigos Pequenos, was a small pinnacle of rock that extended about 70 feet above the ocean surface and was swept by a 2-4 knot current. All dives were conducted from a small launch that dropped divers in buddy teams over the steep front slope Hendrick argued that the launch should have anchored, deployed both descent lines and “tag lines” for the whole group to hang on to before descending together with the divemaster. As any professional boat operator should have known, this was impossible due to the current and the steep-sided pinnacle that offered no place to anchor, and that a drifting boat cannot be towing divers on a “tag line” around in a two-knot current.

The Disappearance: The divemaster had provided a thorough briefing as to site conditions including expected waves and current, and the area to descend to at 75-100 feet to establish position to observe the schooling hammerheads that came into the cleaning stations there. The divers were to observe the buddy system since they would be dropped in pairs and no supervision was possible since the divemaster would be assisting divers into their gear throughout the entry process and probably be one of the last to enter the water. The divers were also advised to abort the dive if separated from their buddy and return to the surface. They were also told to abort the dive if any circumstance made them uncomfortable with conditions. The launch remained on station the entire time and would immediately pick them up.

The dive began about 11 a.m. and one diver did abort and was retrieved within minutes. Smith and Jones were not diving together. Each entered the water with his assigned buddy and each immediately became separated from his buddy. Neither surfaced as instructed and they were never seen again by any person on the dive, including their buddies. All other divers completed the dive without incident, drifted to the lee side of the pinnacle, and were picked up before noon.

When Smith and Jones did not surface, an immediate search was initiated in the area of the pinnacle and down current. Both divers were equipped with BCDs, whistles or low-pressure sonic alerts, high-visibility safety sausages, and flashlights. The search was conducted according to established search protocols for over an hour and then the launch returned to the mother ship to refuel and enlist their assistance.

Had the plaintiffs won their case, the
verdict may have eliminated the diving
practices that exist in Cocos Island, the
Galapagos, Palau, Fiji, the Solomon
Islands, Indonesia, PNG… just about
anywhere that currents exist and boats
can’t anchor to deploy divers.

A nearly 2100-foot mountain was between the dive site and the ship’s anchorage, so radio transmissions were blocked since VHF signals are “line of sight.” Once in radio range again, the launch called ahead to activate the Okeanos Aggressor’s emergency plan and the Aggressor got under way immediately. The second launch also joined the search and the three vessels looked for the missing divers until nearly 2:00 a.m., 14 hours after the last diver surfaced. At that point, they were ordered back to the primary anchorage by the Costa Rican Coast Guard and the search was taken over by the U.S. Coast Guard with aircraft, surface ships, small craft, helicopters, and computer- generated current drift predictions from experts. The search continued more than three days and covered more than 1200 square miles. The only trace of the men found was a safety sausage and a single scuba tank not attached to a BCD. Smith reportedly had more than 500 logged dives while Jones had more than 200 dives including in areas with strong currents such as Palau, Cozumel, and the Red Sea. By any measure, they both were wellexperienced divers who were briefed on the Aggressor’s buddy system policy that they would be diving independently, and both were well equipped with all necessary safety tools.

My Testimony: I had different opinions from Hendrick about the allegations of fault. It was beyond credible belief that two men could have surfaced from the site and not been found with the safety equipment they had at their disposal. I explained that experienced divers are routinely allowed to dive independently, and in fact, expect to be allowed to do so. Further, I cited the USCG’s own analysis of the ocean and current conditions that day that reflected a 1.8-knot current and Sea State 3, only 3-4-foot waves. This was about as good as it gets at Cocos and certainly within the skill capabilities of the two divers The prevailing current would have tended to carry the men to the southwest corner of Cocos Island. Even if they did nothing but drift, they would have ended up within a hundred yards of the protected beach and could have simply gone ashore where they would have been found.

The more likely scenario (as explained in the first part of this article) is that some unknown event took place underwater and that neither ever surfaced, making it impossible to affix any blame to the Aggressor’s crew or search-and-rescue efforts. This was further supported by the extraordinary and unprecedented search efforts by the USCG.

The fact that a safety sausage and unattached tank were found only reinforced my theory that these items became detached underwater since no diver would abandon his primary life support and rescue equipment deliberately.

Following Hendrick’s deposition, the judge disqualified Hendrick as a maritime expert and restricted his opinions to a minimum of search procedures with which he had experience and let the jury decide if they were applicable to this site.

Before the trial began, the Smith plaintiffs made a confidential settlement and withdrew from the case. That left only the Jones plaintiffs and the two-week trial began on April 6 in New Orleans Federal Court. All divers on the launch on the day the two divers disappeared testified that the crew did provide full briefings and found no fault with the conduct of the divemaster or subsequent search effort.

I testified for nearly seven hours on the last day of the trial. At times, there were some heated exchanges between opposing counsel and me, but the jury of nondivers seemed to understand my explanations of how diving actually was conducted at Cocos. The next day closing arguments were made I was the last witness they heard… sort of like batting last in the bottom of the final inning of the baseball game with the game on the line.

The next day, after deliberations that went until almost midnight, the jury came back with a complete “no fault, no monetary award” defense verdict. It was a complete victory after more than four years of grueling work and acrimonious exchanges between both sides.

The Bottom Line: This case had tremendous potential to affect how resorts and liveaboards allow divers to conduct themselves. Had the plaintiffs won their case, the verdict would have been pointed to as a possible precedent in which all divers, regardless of experience, would hydrocarbe relegated to the lowest common denominator theory that all dives will be conducted in accordance with the weakest and least experienced member of the dive team setting the bar for everyone.

It may have eliminated the practice of independent buddy teams (and forget about solo diving completely), diving in currents, in rough water, or from launches without deployed descent lines. In short, it would have essentially discontinued the diving practices that exist in Cocos Island, the Galapagos, Palau, Fiji, the Solomon Islands, Indonesia, PNG… just about anywhere that currents exist and boats can’t anchor to deploy divers.

No one will ever know for certain what happened to the two divers who tragically disappeared in May of 2003. But diving is not a “safe” sport. It has hazards and divers are warned about the litany of things that can quickly turn against them including running out of air, decompression sickness, up and down current drafts, dangerous marine life, personal physical hazards as diver’s age, or simply panicking due to stress, holding your breath and suffering an embolism.

Whatever did happen, although tragic and distressing, their disappearance was not the fault of the dive operation. A jury came to that conclusion based on common sense and an independent deliberative process based on the evidence presented and their perception of the credibility of the experts’ testimony. The verdict supports the continued practice of letting experienced divers pursue exciting diving independently, using their own best judgment as to their skills and ability to participate.

For every diver, that’s a personal call. It’s your decision. Make an informed choice: be properly equipped, never overstate your experience, and abort a dive that you are not comfortable with. After all, it’s your butt on the line and nobody can make that decision except you. Choose wisely.

– Bret Gilliam

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