Consent of the Parties Must be Freely Given
A release is valid only upon the showing that consent was freely given. Consent cannot be procured through fraud, duress, or deceit. As in any legal document, the parties to an agreement must be shown to have entered the agreement with a “free and open mind.”
It should go without saying that a student or guest on a dive charter should be fully encouraged to “read the release” before signing it. While there will be a legal presumption that a signatory to a document has read the document, problems will arise if the document was submitted at an inappropriate time or in an inappropriate manner.
In order to be fair to both parties to a release agreement, the student and instructor should be informed of what is expected of each party.
Consider those circumstances where a signature is achieved in a stress filled moment or in the excitement of the occasion. Timing is critical. A release tendered twenty miles offshore at a dive site to a group of fully dressed divers will be scrutinized much less closely than the same document tendered before the vessel departed the dock or even before the charter was booked.
Common sense will guide a judge reviewing the document. If a release is tendered at sea or immediately prior to a dive, a court may conclude that the diver’s consent was not freely given. The alternative of not signing the document would result in a loss of the expenses of travel, lodging and time.
A persuasive argument may be made that had the release been tendered at a more reasonable time the diver may have refused to sign it. Faced with an option between not signing the document and sustaining the loss of travel costs, and signing the document “under protest,” the diver may assume there is no true alternative.
Intent of the parties is also critical. Obviously, if a Nationwide, courts have proclaimed that a party’s intent will be shown only when the document includes language which is clear, explicit and unambiguous.
shop owner or instructor conceals the release in a bundle of papers and admonishes the students to hurry and sign the documents “as a formality,” a court will closely review the circumstances of the release’s execution.