Re: A question of legal liability... Some help here please.

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Posted by Ken Kurtis on July 02, 2012 at 10:45:35:

In Reply to: A question of legal liability... Some help here please. posted by seahunt on July 01, 2012 at 18:19:58:

I pretty much agree with what ChrisM posted. Some extra thoughts:

Seahunt: "He had an interesting point that I said I would check on. He said that if there was a fatality, there would be liability for the operator. We know that means the captain."

I don't think that's so cut-and-dried as everyone thinks it is. And while the USCG may try to argue that the captain is ultimately responsible, there seems to be nothing in the CFRs that would back up that claim. This issue was actually raised in depo during Drifting Dan but, for tactical reasons, was not brought up in court. But I feel this is a HUGFE area that needs to be litigated because basically, as ChrisM said, it's putting liability on the operators far beyond anything they can reasonably control.

Even USCG has said to me privately there are limits. They claim they wouldn't hold the captain responsible if someone ran out of air. So where's the line drawn? At what point do we abandon the notion that divers actually have some responsibility to themsevles?

Seahunt: "He said that based that the four main certification
agencies all consider an octopus second stage as standard."

As Chris said, you'll find dsome expert who will say yes and you'll likely find someone who will say no. I would agree that the agencies consider the octo a requirement as a TRAINING standard. But (and he's where the legal parsing comes in), the agencies don't set DIVING standards. They set TRAINING stardards. And while you can certainly raise the argument that you should dive as you were trained, you can't (IMHO) make the argument that it's a requirement and therefore a standard.

There are people (granted not a lot) who dive without an alternate air source. By the same token, there are plenty of people who dive with an alternate air source and have never once in their diving careers used it. So there's an argument to be made that the practical effect of having an alternate air source you never used and not having one at all have the same end result.

The trick would be to look at an accident and argue convincingly that the presecne of an alternate air source would have made a difference and altered the outcome. And that's all going to be speculation.

And to get back to the original point, how can one possibly think it's right to hold a dive operator responsible for the indenependent actions of two divers underwater, with or without an alternate air source, doing things totally and absolutely out of the dive operator's control?

To my mind it would be like arguing during trial that if a juror who has a car accident on the way in to court, ultimate responsibility rests with the judge since it's his courtroom and if he had told the jurors to drive safely or had made it a 10:00 instead of 9:00 court start time, the accident never would have happened.

To me, that's as ridiculous as holding a dive operator responsible for every little thing that happens to someone on and off the boat.

- Ken
Ken Kurtis
NAUI Instr. #5936
Owner, Reef Seekers Dive Co.

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