Posted by ChrisM on November 19, 2001 at 16:45:05:
In Reply to: Re: Disagree...... posted by MHK on November 19, 2001 at 16:33:11:
Yes, PADI/NAUI/SSI whatever has trained you and, knowing all the risks, you can voluntarily and knowingly waive those risks and go dive Farnsworth.
And, BTW, altho I am not as much of a PADI basher, I have my issues as well.
That said, *practically* I still disagree with your argument that a captain shouldn't be able to make on the spot judgments. Yes, the diver has a C Card. Yes, they signed a release. No, the captain was not grossly negligent (or, as is the legal standard in California, did not "increase the risks inherent to the sport").
However, there are costs to being sued over and above a judgment. I;m sure I don't need to tell you, but most cases settle for business reasons. There is still the hassle of dealing with the lawyers hired by your insurer - depositions, gathering documents, answering questions, going to mediation - and yes a good release will survive summary judgnent and he'll be dismissed(well, as long as there are *no* questions as to the captain's actions, that can be tricky with a good lawyer on the other side). But there are costs other than $$.
You know, this to me is the lesser of two evils. I sure as hell wouldn't want a captain to tell me I couldn't dive a certain spot. But I think - as the focus of liability - they should have the right to. I don't think an OW certified diver should do oil rigs on their first ocean boat dive. But they could.
It's not a black and white issue (but what is)? But, as a lawyer, and as you pointed out - we have to advise our clients, and that is how I am approaching it. If I had a client boat captain who called my office with a similar situation I'd say if you don't want to end up in court, don't let him dive - and that is a particular pathology of the legal industry in which our actions are dictated by fear -- but that's for another topic.
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