LEGAL RIGHTS OF A RECREATIONAL DIVER

LEGAL RIGHTS OF RECREATIONAL DIVERS

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Prepared by The Law Firm of Delise & Hall Attorneys at Law and Admiralty.

• Dive Shop or Charter Company Negligence
• Negligence Defined
• Failure to Properly Recognize and Treat Barotrauma Injuries
• Failure to Ensure Proper Training and Experience for the Dive
• Dive Planning
• Defective Rental Equipment/Bad Air
• Alcohol and Drug Abuse
• Improperly Provisioned, Equipped or Manned Vessel
• Instructors and Certifying Agencies
• Agency Negligence
• Medical Issues
• Medically Fit to Dive
• Appropriateness of Dive Tables
• Neurological Examinations
• Dysbaric Osteonecrosis
• Law and Diving
• Products Liability Law – Basic Principles
• The Strict Liability Standard
• The Negligence Standard
• Defenses to Claims of Products Liability
• Products Liability and Diving Equipment
• Technical Diving
• The Law Never Rests
• What is the Jones Act?
• Who is a Seaman?
• Comparison of Rights Under the Jones Act and State Workers’ Compensation Law
• Jones Act Death Benefits
• Control of the Vessel
• Liability Insurance
• Extras
• Cancellation Due to Weather or Rough Seas
• Selection of the Dive Site
• Anticipated Dive Profiles
• Overview of the Law
• Language and Form of Release
• Consent of the Parties Must be Freely Given
• Negligence v. Gross Negligence
• What is the Bottom Line?

INTRODUCTION

Recreational (sport) diving in the United States and throughout the world has reached a zenith. In the United States alone there are more than three million certified divers and this vibrant sport continues to grow daily. While diving for some remains simply a hobby, for many it has become a way of life or vocation. Diving as a sport was once confined to the ex-military and thrill seekers, but through advances in technology and instruction, diving has become a sport which the entire family can enjoy.The diving community is comprised of a variety of participants, including equipment manufacturers, retailers, charter operators, instructors, and guides. As a result of the interplay between the diver and others in the diving community an entirely new body of law is slowly evolving to address the rights and responsibilities of the sport diver.

Some of this law, such as salvage and treasure law, finds its roots in ancient maritime law. Other areas of diving law, most notably personal injury and employee rights, are relatively new creations of Congress, state legislatures and the courts.

The purpose of this publication is to explain in general terms the law as it affects divers and others in the diving industry.This booklet addresses diving accidents, employee benefits under the Jones Act, treasure and salvage law, products liability law, and the effect of waiver or liability releases. These and additional subjects are updated regularly through our free publication, The Diver’s Legal Log.

Every legal dispute is different. The scope of this publication is to provide a general overview of the law, rather than legal advice for specific cases. Our hope is that this overview will generally explain the law and raise a consciousness of issues and events which affect everyone in the diving community.

DIVING ACCIDENTS

Although man evolved from marine life, humans now exist on land at a pressure of one atmosphere, breathing air composed primarily of nitrogen, oxygen and carbon dioxide. The underwater world is an alien one; consequently, divers must safely adjust to an environment lacking breathable air and cope with variants in pressure with every increase or decrease of depth. Divers are also presented with the challenges of adapting to changes in the perception of sound and vision and fluctuations in temperature. It is an environment which depletes one’s energy faster and at a different rate than on land. To enjoy this environment, divers should be sufficiently equipped, trained and prepared both physically and mentally.

Proper physical and mental training as well as employing modern equipment greatly reduces the risk of injury. While even perfectly conducted dives can result in diver injury, for the most part, serious diving injuries are caused by one of the following factors: improper decompression, rapid ascent, inadequate training, diver fatigue, equipment problems, diving and smoking, alcohol and/or drug usage, dehydration or diving with physical or mental contraindications such as obesity, heart problems, seizure disorders, lung disorders, significant central or peripheral nervous system disorders or pulmonary dysfunction. A number of accidents, unfortunately, result from a simple oversight, incompetence or a complete disregard for diver safety.

EMPLOYEE RIGHTS UNDER THE JONES ACT

“I know that I am a diver, but am I a ‘Jones Act Seaman’?” That, without a doubt is the most frequently asked question by commercial divers, divemasters, vessel crewmembers and instructors contacting our office. The answer to this question has extraordinary consequences for employees of dive vessels or their survivors.

TRAVEL AND CHARTER DISPUTES

Aquablue waters, white sand beaches and abundant undersea life often inspire a parting of hard earned money in return for a holiday of diving, fine cuisine and an escape from everyday trials and tribulations. Such tranquil settings, however, are for the most part distant in terms of miles, time and money. Purchasing airfare, lodging, equipment and on-site transportation individually can be prohibitively expensive. Travel and charter packages, as well as resort sponsored dive excursions, have filled the cost gap making “one-price-pays-all packages” available to even the modest traveler.

Many a traveler is disappointed when non-anticipated problems occur. These may include inadequate or primitive lodging, hidden costs such as airport fees and taxes, or undisclosed penalties and charges for changes in itinerary.

It is important to note that all package travel plans or dive charters in the eyes of the law are nothing more than contracts between the traveler and the provider of such travel services. When entering into such a contract or charter, it is imperative that the company or agent who receives funds provide a written contract clearly spelling out all of the services included under the agreement.

Any agreement between a sport diver and a dive shop or vessel operator for a boat trip should be memorialized in a document known as the charter. Different charters provide different services which may range from simply providing transportation from the dock to the dive site, to a full service charter wherein the dive shop or owner of the vessel provides not only transportation, but also dive equipment, dive guides, dive masters and other amenities. In determining which type of charter is best suited to your needs, the diver should first consider the different types of charter agreements.

Maritime law contemplates three basic types of charters, namely: the voyage charter, thetime charter and the bare boat or demise charter. While these are the commonly recognized charters, it is important to understand that a charter agreement is simply a fancy name for the contract between two consenting parties and may be drafted to fit the circumstances.

Under a voyage charter the vessel owner provides the crew and retains the responsibility of navigating the vessel. The vessel owner simply provides transportation to a specific destination. This is analogous to a taxi ride.

A time charter, like the voyage charter provides that the vessel owner both man and navigate the vessel, however, only for a specific time period with the destination of the voyage being up to the charterer.This is similar to renting a limousine for a night on the town.

A demise or bare boat charter provides that the charterer assume possession and complete responsibility of the vessel from the vessel owner. Under a demise or bare boat charter, the charterer mans, provisions and navigates the vessel for a specific time. One would analogize this to renting a car for the week.

As a consumer, the diver must weigh the legal effects of any charter before entering into such an agreement. It is unwise for the consumer to enter an agreement without understanding the legal consequences of that agreement or not willingly accepting all the terms of the agreement.

In some states, the law recognizes that a consumer may be at a distinct disadvantage in bargaining power when presented with a form contract which grants benefits only to the service provider. Under such an agreement, known under the law as an adhesionary contract, the consumer

It is unwise for the consumer to enter an agreement without understanding the legal consequences of that agreement or not willingly accepting all the terms of the agreement.

is placed in a compromising position and is faced with either doing without the services or “adhering” (hence, the term adhesionary) to its terms and affects. Non-maritime examples of such adhesionary contracts include airline ticket contracts or automobile or equipment rental contracts. Under such adhesionary contracts, where the consumer may in effect waive many of his or her rights, the law in some states refuses to recognize all the terms of the agreement.

LIABILITY WAIVERS AND RELEASES

It’s one hour before the scheduled departure of the M/V DIVEBOAT.The student divers traveled several hours the day before to reach the Coast, and then partied most of the night. It’s early in the morning and the students are anxious about the dive and anxious to prove to their instructor that they are now ready to be certified.

The instructor assembles the students at the stern and presents to them, for the first time, a document which reads:

I, _________ , have voluntarily enrolled in a scuba course offered by ABC Dive Shop. I am aware that my participation in scuba diving and the sport of diving INVOLVES MANY RISKS OF INJURY INCLUDING DEATH and I FREELY ASSUME THOSE RISKS.”

As a lawful consideration for being permitted to enroll in this course, I AGREE TO RELEASE FROM ANY LEGAL LIABILITY AND AGREE NOT TO SUE ABC DIVE SHOP, their owners, officers, agents, or employees for any and all injuries or death caused by any act of negligence.

I AM FULLY AWARE THAT THIS CONTRACT IS LEGALLY BINDING AND THAT I AM RELEASING MY LEGAL RIGHTS BY SIGNING IT.

The instructor tells his students, “Hurry up… look over and sign this piece of paper.” He distributes the document and closes his introduction by admonishing his charges with “Let’s go, we’re burning daylight and the tide’s falling….we’re running late!”

The students quickly comply, finish stowing their gear, and position themselves on the boat as directed. The vessel leaves and an hour later the divers reach the site of their first open water check out dive. Because of strong currents at the anticipated dive site, the instructor decides to dive at an alternate site which is 35 feet deeper than the original 60 foot site. Once at the new site the instructor watches his students as they begin the dive. Unfortunately, the certified assistant instructor called in sick and the instructor now has ten students to supervise alone. Nevertheless, the instructor decides to continue with the check out dive even though the student/instructor ratio and the maximum depth exceed his certifying agency’s standards.

On bottom the instructor loses site of a pair of students; he leaves the group within his sight and begins a search for the missing pair. While away, one of his students panics when his BCD malfunctions. He streaks to the surface in a stream of bubbles. The student embolizes, nearly dies, and is left paralyzed for life. The instructor is reassured, however, that the liability waiver will insulate him from any responsibility, or so he thinks.

In today’s litigious society, more and more consumers are confronted with liability waivers or releases as businesses and private individuals seek to protect their assets. Courts, lawyers and insurance underwriters grapple with their validity. Technically, these documents are also known as “contractual covenants not to sue, releases, liability waivers, disclaimers or exculpatory agreements.” Do they provide ironclad protection, rendering liability insurance unnecessary? Are they unfair documents imposed upon unsuspecting consumers, drafted in “legalese” to deny an aggrieved individual of his or her day in court? Is the over-use and misuse fair? Are they worth the paper they are written on?

In today’s litigious society more and more consumers are confronted with liability waivers or releases as businesses and private individuals seek to protect their assets.

It is impossible to completely answer these questions within these short confines; yet, an overview of the applicable law may be presented. With the exception of certain states, such as Louisiana, which bar releases as a matter of law, the courts will recognize liability releases so long as specific guidelines and parameters are met.

TREASURE AND SALVAGE LAW: FINDERS KEEPERS?
NOT NECESSARILY!

While spearfishing in the keys off South Florida, a diver spots a large grouper.As he pursues his prey, it darts behind a nondescript object. As the diver closes in pursuit, the object comes into focus, it is a cannon affixed to the remains of an 18th Century English vessel. The diver forgets the grouper and further explores the area, which reveals an array of cutlasses, onion bottles and other objects. Treasure! Instantly the diver envisions himself much like the captain of a pirate ship about to return to port with his booty. Fantasy? Read on.

On July 20, 1985, after several years of costly search, Mel Fischer and his company,Treasure Salvagers, Inc., discovered the wreck of the Nuestra Senora de Atocha which yielded a cache of gold and silver currently valued in the hundreds of millions. As they neared the site, they were tipped off by thousands of neatly stacked silver ingots.

In 1982, after years of exhaustive research and field work divers located the notorious pirate ship Whydah, which, laden with plundered cargo, capsized in a raging storm off the Cape Cod coast, disappearing beneath the sea and evading discovery and salvage for the next 265 years. Millions of dollars worth of treasure were recovered.

In July, 1987, a Spanish galleon was discovered off the coast of Florida about 100 yards from the beach at Juniper Inlet. She yielded several gold and silver coins and other objects including cannons and anchors.

On August 12, 1982, divers discovered the resting place of the S.S. Republic, a White Star oceanliner which plummeted to a watery grave in 1909. This wreck was found off the coast of Nantucket Island.

On May 27, 1987, divers discovered the wreck of the S.S. Central America, which sank in 1957 while carrying 578 passengers and $1,219,189.00 in gold. Soon thereafter, the divers began their long arduous legal battle to prove ownership of the now millions of dollars in gold contained aboard the S.S. Central America.

Although some of the now affluent divers mentioned above set out in search of the pot of gold at the end of the rainbow – and found it – many others simply stumbled upon it while participating in their favorite sport – diving.

In all too many cases, foreign, state and local governments, as well as insurance companies with ancient claims, intervene to separate the “lucky diver” from his find. In the case of Mel Fischer, his investors and the Atocha, the story had a happy ending.

However, Fischer endured a 16-year legal battle before he was able to lay final claim to his discovery. Whether it be a simple artifact such as silverware from the Andrea Doria, a light fixture from the Mercedes, or a porthole from a trawler at your favorite dive site, treasure is treasure in the eye of the beholder. If your treasure has intrinsic value beyond your satisfaction and pride in locating and recovering it, you can be sure that others will soon be disputing your ownership and laying claim to your find. Possession may be 9/10ths of the law, but knowledge of the legal system comprises the final and often most important piece of the puzzle. Fortunately, the law, correctly utilized and applied by attorneys conversant in its subtleties, is on your side.

Those who discover treasure or other property on the ocean floor are initially faced with one basic question – who owns the lost property, the finder or the owner at the time the property was lost? Ultimately, a judge will make the decision and in so doing, will apply either the law of “finds” or the law of “salvage.” Which body of law is applied can have significant consequences to the parties competing for ownership.

Where the law of finds applies, title vests in the person who reduces the property to his or her possession. If, however, the law of salvage applies, the finder of property is entitled to a salvage award.

Whether to apply the law of finds or the law of salvage is an issue which is becoming ever more common, as a result of the development of new means for discovering and recovering sunken property in deep water.

The vast majority of courts apply the law of finds to historic or ancient shipwrecks. The greatest benefit of the law of finds is that if it applies, the finder can acquire title against all the world. The primary concern of the law of finds is to award ownership to the finder and requires a finder to demonstrate:

• abandonment of the property;
• intent to acquire the property involved; and
• possession of that property.

In practice, this means that if you find abandoned property, reduce it to your possession and exercise ownership over it, it is yours. Absent any of these requirements, the finder receives nothing. Success as a finder is measured solely on the basis of gaining control and possession over the abandoned property. Further, because possession

“Abandonment” of the property by its original owner is the key factor in awarding title of the property.

of specific property can rarely be shared, assisting another finder in successfully recovering property earns the assisting party no compensation. As a result, should you find abandoned treasure, you are encouraged to act covertly to hide your discoveries and to obtain possession of the property before anyone else does.

In all cases involving the law of finds, “abandonment” of the property by its original owner is the key factor in awarding title of the property. Whether a sunken wreck or other property is considered abandoned is a question of fact directly related to the intent of its original owner. Such intent may be inferred from all relevant facts and circumstances. Abandonment is established by proof either of expressed or implied acts of leaving or deserting the property in question without the hope of recovering it and without the intention of returning to it. Proof of abandonment must be by “clear and convincing evidence” such as an owner’s express declaration of abandoning title. In addition to such an express abandonment, a court may infer abandonment where the property in question is ancient or long lost. Because of the ambiguity in determining anther’s intent to abandon, it will always be difficult to predict with any certainty whether a given set of circumstances will be sufficien t to result in a finding of abandonment in a court of law. In considering the question of abandonment, some courts have examined the following factors:

• the property being abandoned;
• the time place and circumstances of the loss;
• the actions and conduct of the parties in abandoning the vessel;
• the opportunity or expectancy of recovery; and
• the totality of the circumstances

Noteworthy is that abandonment can still be proven even when a previous owner appears and asserts an ownership interest. However, in such a case, the evidence indicating abandonment must be strong.

In treasure salvage cases, which often involve wrecks that are hundreds of years old, the inference of abandonment may arise from non-use and lapse of time. This inference alone, however, is not enough to support the application of the law of finds. Rather, the inference must be accompanied by the owner’s failure to assert any claim to the property.

If the law of “finds” is applicable, title will vest in the finder as long as there is no conflict with the governmental entity having control over the sea floor where the sunken objects or property were found.

Unfortunately, in many cases states and nations do not willingly give up objects found within their territorial waters and, as in the case of the Atocha, extended litigation results.

In contrast to the law of finds, the court may apply the law of salvage which was developed to promote the voluntary retrieval of property from an impending peril at sea or other navigable waters by those under no legal obligation to do so. Asalvage claim may be asserted when three elements are shown:

• the existence of a marine peril;
• the voluntary nature of the salvager’s service; and
• the complete or partial success of the salvager’s effort.

Further, the salvager who seeks a reward for his services must act in good faith. If these requirements are met, the salvager of derelict property is entitled to a salvage award.

Some courts have favored application of the law of salvage when maritime property is recovered from the bottom of the sea by other than the owner at the time of the loss. However, under the law of salvage, the owner at the time of the loss still retains full ownership in the property subject to a salvage award made by a court. Therefore, if you were to find and salvage a wreck or other treasure which you did not previously own, under the law of salvage a portion would become yours. When the value of the item salvaged is unique and intrinsically valuable, as would be the case with any type of ancient treasure, a salvage award in kind (i.e., you get to keep some of the treasure) is most often the result.

If you are lucky enough to find treasure, you can bet your last doubloon that the word will spread quickly and many others will be fast to move in and begin their own salvage attempts. It is possible, however, to “arrest” the wreck and exclude all others from the site as long as the finder is actively and ably engaged in reducing the wreck to their possession. The benefits of bringing an admiralty action to arrest a vessel include the following:

• obtaining exclusive rights to recover the treasure;
• obtaining an injunction to prevent any competing salvagers and/or claimants from interfering with recovery efforts;
• obtaining an award of title to any objects recovered;
• resolving any competing claims to the treasure;
• alternatively, setting the stage for a liberal salvage award if the law of finds does not apply.

The initial steps in bringing an admiralty action to arrest a vessel involve bringing a piece or at least a photograph of the wreck into the court with jurisdiction and asking the court for an injunction covering the location of the wreck. In the Central America case, the salvors brought in a piece of coal from the sunken ship. Assuming that there is sufficient evidence to establish that the wreck is “found,” as a general rule, those beginning a salvage operation are entitled to sole possession of the property. An important right arising from such salvage actions is that the discoverers have the right to exclude all others from engaging in similar operations, so long as the original discoverers appear ready, willing and able to complete the salvage project. Therefore, in order to obtain the right to exclude all others the original discoverers must show that they are actively and ably engaged in reducing the wreck and any artifacts to their possession. From there, the process becomes complicated and if the treasure has high value it often entails years of litigation.

In sum, should you find treasure, you would be well advised to keep the matter to yourself until such time as you have been able to obtain legal assistance. Good Luck and Happy Hunting!

CONCLUSION

We at the law firm of Delise & Hall welcome comments, criticisms or suggestions for additions, supplements or changes to this booklet. This booklet has evolved over 20 years and is provided for the sport diving community in an effort to enhance the safety of diving. Please do not hesitate to call, write, or stop by our office with any comments, changes or suggestions.