Genesis of the Reef Seekers out-of-air policy

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Posted by Ken Kurtis on January 19, 2003 at 14:39:48:

BTW, I should start by saying I've enjoyed reading the various opinions expressed on both the DM authority topic and our (Reef Seekers) out-of-air policy. It's nice to see an exchange of actual ideas and an examination of issues, rather than name-calling and finger-pointing.

In that spirit, I thought you might be interested in knowing how we came to devise out out-of-air policy which, to reiterate, is simply that if you're on one of our charters and you run out of air, you're done diving for the day.

One thing I've always tried to teach our DM and Instructor candidates is that you have to always look at a larger picture. You not only have to be aware of what's going on, but also have to take a look at not only what you're doing but how you'tre doing it, and think about how those actions will be evaualted in court of law should something go terribly wrong and a lawsuit be filed against you. And although you certainly can't anticipate every possible scenario or cover everything, you can certainly be cognizant that when things go wrong, your actions (or inactions) will be viewed very differently than when things go right.

As a store owner, I feel that I have an obligation to be aware of this larger picture and try to design procedures that do their best to insulate both my store and my staff from possible legal actions. I'm also a firm believe in the saying, "You never get sued for an accident that doesn't happen."

With all that in mind . . .

Those of you who know me know that I have an inmterest in dive safety and always review the DAN fatality reports and any other accident reports I can get my hand on to see what we can learn from them.

Over the years, I've been struck by the number of accidents - not a huge number, but enough to make an impression - where something "bad" happened, but the diver kept diving, and then a REALLY bad problem occured. And it also struck me that there were a number of case histories where a diver had run out of air, survived, but then suffered a fatality on a subsequent dive the same day.

So, given that monitoring your air supply should be something every diver does, and given that running out of air is probably one of the more serious mistakes that can be made (since you have very little time to "solve" the problem and failure to do can result in drowning), and given some of the case histories, there seemed to be merit in saying, "If you run out of air, we feel you got lucky once and we don't want to tempt fate twice, so you're done diving for the day."

I also looked at it from the standpoint of supposing that we didn't do anything, and let a diver continue to dive and he/she dies. I'm not a legal expert, but I'd expect the courtroom testimony to go something like this:

Q: Is running out of air a serious problem?
A: Yes, because it can lead to drowning.
Q: Is running out of air due to carelessness?
A: Usually, barring a hose failing or something like that, since it inidcates you weren't monitoring your air supply.
Q: Were you aware that the victim had run out of air on an earlier dive?
A: Yes, I was.
Q: Was that due to a hose failure or equipment problem?
A: No, it was not.
Q: So you were aware that the victim was being careless, yet you did nothing?
A: I didn't feel it was my place to tell him he couldn't dive.
Q: Yet if you had done that, he wouldn't have died on that next dive, would he?
A: I guess not.
Q: So basically, you had within your purview the ability to prevent the victim's death yet you chose not to do so because you were being . . polite?
ATTORNREY: Objection.
Q: Withdrawn. Let me come at this another way. If a student in training ran out of air on the last/fourth training dive, would you certify that student?
A: No, because he's not showing that he had the skills or awareness to be certified.
Q: Yet when a certified diver does that, you don't feel you should hold him to the same standard, especailly knowing that preventing him from diving could prevent an accident and his death?
A: (Stunned silence. How the hell do you answer THAT one???)
Q: No further questions.

Granted the scenario is fictional but the bottom line is that many times we, as dive professionals, do have to evaluate our actions based on how well they might be defensible in court. And many times it may produce a very different reaction than you might make if you're simply a diver without supervisory responsiblities.

Anyhow, given the discussion we've been having, I thought I'd share this with you. Thoughts, comments, questions are welcome.

Ken Kurtis
NAUI Instr. #5936
Co-owner, Reef Seekers Dive Co.
Beverly Hills, CA

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