Posted by Ken Kurtis on February 27, 2005 at 22:22:59:
In Reply to: What would happen if. posted by Richard on February 27, 2005 at 17:20:16:
There's no easy answer to your question. (And just for the record, I don't get the impresion that Richard's looking for a "reason" to sue someone.) But it's an interesting point, and one we've (boat captains and charters) actually discussed lately.
The genral standard you're probably going to be held to is "community standards." More specifically, what did everyone else in a similar situation do?
And let's get VERY specific here: The Sand Dollar was the ONLY boat to make the crossing to Catalina last Saturday. Every other boat canceled. What would have happened if a diver on the Sand Dollar had been injured as a result of the sea conditions?
I thinkt there are a lot of factors that come into play.
If the diver had the option of not doing the trip and gettijng their money refunded, but still chose to go, that probably puts more of the onus on the diver.
However, if the diver would have had no option for a refund if they had canceled, that gives the boat much more clout and probably more responsbility.
In a case where there were Small Craft Advisories issued, you can play with the word "advisory" all you want, but the bottom line is that they're an indication of rough sea conditions, yet the boat chose to go out.
In a case where every other dive charter canceled, you're going to be hard-pressed to state a reaason for why your decision to go was a prudent one, especially when there's been an accident.
The questioning on the stand might go something like this:
Q: Were you aware that other boats had canceled?
A: Yes, I was.
Q: So why did you choose to go?
A: Because I thought everyuthing would be fine.
Q: In light of my client's injuries, that was apparently a bad decision, wasn't it?
A: Yes it was.
Q: Knowing what you know now, faced with those same circumstances, would you still make a decision to go?
And this point it's checkmate because if you answer "No" you conceded the point of the plaintiff and if you answer "Yes" then the follow-up question is likely to be "So you think it's okay to injure your passengers?"
I think if there had been some mishap on the Sand Dollar that particular day, waiver or no, it would have been hard to defend. The waiver generally covers mistakes YOU teh diver makes while diving that you may try to hold others resposible for. It doesn't necessarily cover the bad decisions of others over which you may have no control, but which will still have an impact on you.
For instance, if the boat hits the breakwater and you're injured in the collision, the waiver's not going to hold up (IMHO).
Ken Kurtis
NAUI Instr. #5936
Co-owner, Reef Seekers Dive Co.
Beverly Hills, CA