Not that I'm buying a boat yet. Just a question.

[coulterboy]

I was wondering: What if I had a boat, made an open invitation to whoever wants to dive off my boat, take the group to a destination, then "s...?t happens (somebody dies, or seriously get hurt)? After further investigation, the diver that passed away or seriously got hurt, was really not properly certified/trained for the dive? Can I be sued by their loved ones for whatever charges the law can slap at me?

The reason I ask this, is because, back in 1994, back in Cove 2, we had a planned dive (certain depth, night dive, etc). We asked everybody in the group about their certs and training. Everybody claimed to have the cert, proper training and/or experience. Then as we descended, S..T happened. Long story short, all of us had to do CESA, yelled at the peeps on shore (back then in was still "Seacrest Boathouse") to call 911. Thank God, paramedics came right away. We found out later, that the person rescued only had OW training, less than 20 dives, and without any experience at the planned depth and night dive. Thankfully, nobody got sued.

So, going back to the first paragraph, can a boat owner/operator be sued? Understand, this is not a boat used for business, just a private owner who happens to love diving off his/her boat.

Your thoughts.

[wa_divergal]

My first thought is anyone can pretty much sue anyone for anything, the question is whether they would prevail in court.

Scuba is an inherently risky recreational sport. If I was you, I would have guests participating in such an inherently risky sport sign a short prepared statement to that effect. A good insurance broker would be more than happy to assist you with an appropriate waiver.

I'd also maintain an adequate umbrella liability insurance policy.

I has a similar situation organizing a company sponsored motorcycle ride. Motorcycling also has inherent risks and the company didn't want to be held liable for any possible injuries. Our insurance broker was more than happy to assist us with the waiver.

[Jeff Pack]

Correct. Anyone, can sue anyone one (government excepted in cases). Sadly, the environment today, is that its always someone else fault, and personal responsibility be damned.

Our meetup MC group, we require a liability waiver to be on record. So that the group and its organization is covered.

In your example, if it was me, I'd have everyone sign a liability waiver.

[Alaska-Herb]

I think an additional factor would be Did you ask or recieve any money from anyone on the boat for fuel or other costs ? If you did I postulate that you were not just a group of friends but an unlicensed dive charter which would bring you to a higher standard and more exposed to litigation. Your general liability policy would also then be looking at you and in a position to not provide coverage because it does not cover commercial protection

[coulterboy]

I think an additional factor would be Did you ask or recieve any money from anyone on the boat for fuel or other costs ? If you did I postulate that you were not just a group of friends but an unlicensed dive charter which would bring you to a higher standard and more exposed to litigation. Your general liability policy would also then be looking at you and in a position to not provide coverage because it does not cover commercial protection

That came through my mind. Just asking for "sort of" any monetary donation to cover the cost for fuel. In no way would the boat be operated for business. I know there are peeps on the board having boats and posting for whoever wants to dive with them, cause they have extra room on board the boat for another diver or two.

[eliseaboo]

Yeah, it's a big fat grey area. I think in WI you are covered under your boaters insurance as long as you don't profit (in other words, you can accept gas money equal to what you used) but I'm not sure about WA. If you dive with someone new, it is generally good practice to provide a briefing where you verbally mention that everyone is a certified diver and expected to dive within their limits, but I haven't seen anyone use a paper waiver that isn't operating a charter. If you have any sort of professional rating it gets even more complicated, but if you're current at least you'd have the certifying agency on your side.

Liability really takes all the fun out of diving sometimes...you take a risk every time you get in the water with anyone, it's up to you if that risk is worth it.

[coulterboy]

I used to have a boat back in the '90's, but never took anybody out with me to dive.

[Mattleycrue76]

I'm pretty sure accepting a little gas money does not make you an unlicensed dive charter. A waiver can't hurt but I doubt it'll protect you from gross negligence. Anything other than that is unlikely to result in a lawsuit anyway.Case in point: I was involved in a body recovery in a diving accident ladst year in Maui. The family hired a lawer whom I have spoken to on several occasions since then. He made it clear that there was no reason to go after me (I would have been protected under the good samaritan law anyway) or the the dive operator, since there was no indication of gross negligence on anyone's part. They are looking into legal action against the dive computer manufacturer however.

The Internet is full of rumors and urban legends about evil slip and fall lawyers that are waiting around every corner to sue you. In the real world, I suspect theses cases are usually only taken on when there is some merit to them, or perhaps if the defendant has deep enough pockets to be shaken down for a settlement, because the attorney in question is expected to front the money for the case by the would be plaintiff.

We have several attorneys on this board. Maybe some of them will chime in with the facts.

[boydski]

I think an additional factor would be Did you ask or receive any money from anyone on the boat for fuel or other costs ?

That came through my mind. Just asking for "sort of" any monetary donation to cover the cost for fuel. In no way would the boat be operated for business. I know there are peeps on the board having boats and posting for whoever wants to dive with them, cause they have extra room on board the boat for another diver or two.

Just to clarify, the USCG originally ruled that sharing "Gas Money" constituted a charter (46 CFR 24,10-1), but has since reversed that decision (46 CFR 175.400). If your buddies voluntarily chip in to help pay the Gas fees, launch/moorage fees, etc., The Coast Guard will no longer go after you for running an illegal charter. Running a boat is very expensive so sharing fuel costs just makes sense.

In regards to the original question, anyone that is on your boat can sue if they are injured, (same as anyone in your house). Normally, this is not an issue with your dive buddies, but death/serious injuries can often lead to a boat owner being sued by the family of the deceased. Waivers help a little in that they show the diver was at least aware they are engaging in a dangerous activity (as well as proof that they claimed they were certified). I use them when I run charters, but in court they are barely worth the paper they are printed on. Some technical charter operators actually make the diver's spouse sign the waiver as well, to help avoid the family law suit.

Liability insurance for your boat is a good idea, and usually is not too expensive, but rarely will cover the divers once they leave the boat (i.e. in the water). Charter insurance is very expensive and typically does not cover the divers in the water either.

With all that being said, if you have a boat, take your buddies diving. That's what a boat is for. Use good judgement, bring and use Oxygen if needed (Oxygen is cheap). Keep your first aid kit up-to-date and know how to use your emergency gear (radios, cell phone, life slings, etc.).

46 CFR 175.400
Consideration means an economic benefit, inducement, right, or profit including pecuniary payment accruing to an individual, person, or entity, but not including a voluntary sharing of the actual expenses of the voyage, by monetary contribution or donation of fuel, food, beverage, or other supplies.

[selkie]

A note about Wavers. It is a good idea to have the wavers signed before leaving shore so the person can still opt out.

[Novice]

I am one of the lawyers on the board. All I do is wrongful death/catastrophic injury cases. If you are really curious drop me a PM or we can chat before a dive.

The one thing I will say generally is get insurance and enjoy life. That is the point of having insurance. I have a boat, I got insurance for my boat, it was cheap. I take people out in my boat all the time, diving, cruising, fishing. I don't make people sign waivers.

[Jeff Pack]

But you dont have to pay the legal fees

[ArcticDiver]

I am one of the lawyers on the board. All I do is wrongful death/catastrophic injury cases. If you are really curious drop me a PM or we can chat before a dive.

The one thing I will say generally is get insurance and enjoy life. That is the point of having insurance. I have a boat, I got insurance for my boat, it was cheap. I take people out in my boat all the time, diving, cruising, fishing. I don't make people sign waivers.

Not endorsing this particular lawyer because I have no clue about his professional qualifications, although I'm sure he is a great person, but this is the absolutely best advice given. Laws have a bit different effect depending on facts and circumstances. Pay the few dollars it costs to get specific advice from a lawyer you trust and who has expertise in this area and then Follow It.

On the subject of waivers: I never, never have anyone sign a waiver for anything unless it is an out and out commercial situation. Waivers, in my experience, are more traps that reliefs. My opinion is that for most people most of the time waivers are a liability in themselves.

[boydski]

The one thing I will say generally is get insurance and enjoy life. That is the point of having insurance. I have a boat, I got insurance for my boat, it was cheap. I take people out in my boat all the time, diving, cruising, fishing. I don't make people sign waivers.

I think Novice's advice is spot on and some of the best I've seen in a long time!

On the subject of waivers: I never, never have anyone sign a waiver for anything unless it is an out and out commercial situation.

I also agree with ArticDiver, the only time I use waivers is when I'm being paid to drive the boat and that is mostly because the Insurance Company requires them for every diver on the boat. I don't think most people even read them.

[CaptnJack]

I take people out on my boat all the time. While I do have insurance, in case of a legitimate accident with no neligence on anyone's part, its your obligation to have an appropriate amount of life insurance. I don't make people sign waivers, most everyone I take has been diving a long time. I feel that's its a bit rude to make people sign waivers for my personal non-charter boat honestly. I respect you enough to invite you, respect me and my boat enough not to misrepresent yourself.

If I don't know them or my guests are new I go someplace <60ft so that no matter what their continuing education, a court would have a hard time saying I got them in over their head.

If you die and your spouse sues me its rather pointless. I have boat, do you think means I have money too?

[coulterboy]

I am one of the lawyers on the board. All I do is wrongful death/catastrophic injury cases. If you are really curious drop me a PM or we can chat before a dive.

The one thing I will say generally is get insurance and enjoy life. That is the point of having insurance. I have a boat, I got insurance for my boat, it was cheap. I take people out in my boat all the time, diving, cruising, fishing. I don't make people sign waivers.

+1 When are you heading south again to dive with us?

[pensacoladiver]

Some great advice here. I have buddies out with me all the time. I have never to this day asked for gas money. I have however been fortunate enough to have at least one of the folks onboard always understand that running my boat aint cheap and they usually, publically offer up their share of what it takes to keep gas in the boat and keep diving.... $20.00

Most others follow suit. I have even had some divers tell the other oblivious divers about helping to share gas money. I figure, what 2 people say between themselves is their business and I am not one to butt into that.

Also, like Richard said, "know your audience". I had to learn a few lessons the hard way as I was building my dive buddy database. I wont mention any names, but on a dive in the San Juans, I had a guy who claimed to be experienced hop in for a drift dive. For whatever reason, I was live boating that dive, Momma must not have felt like coming that day. We were along a wall along an island and not even 10 minutes into the dive he is popped to the surface and bitching about being out of air.

Current was running, of course, and we were about 1 minute away from hitting some rocks... no big deal, 1 minute is MORE than enough time to get folks back in the boat. Not this guy. He was "slightly" overweight and would huff and puff at the dive ladder. He even climbed onto it once as I have a platform on the back, kneeled down and just flopped right back off the side like a fu#%*ng sea lion.

Now we are about 10 seconds away from the rocks and I either gotta move or get this dude in the boat. If I move, there is no way this model of physical fitness is going to be able to swim to me. Needless to say, my patience was at its end. I told him "Man up and get your fat ass in this boat, or I am leaving you right here". He actually made it into the boat. lol

My point to that story is, when its your boat, YOU are the captain, period. Not open for discussion. You have to make the calls to keep everyone safe and get them back to the dock. Sometimes that may make you unpopular or even a down right dick... so be it.

Since those early days, I have several times, after watching someone who "claimed" to be AOW certified (they had the card anyway) dork around with their gear on the boat, told them, "this dive aint for you, you are gonna sit this one out".

Those people usually don't roger up to go next time I take the boat out.... and I'm just fine with that.

I also agree that having folks sign a waiver open up a potential whole new can of worms should something happen.

One final thought, my buddy I am diving with now, off of his boat, which is MUCH bigger and wider than mine I might add, recently brought up the idea of making sure everyone who gets on the boat to dive has some sort of divers insurance, be it DAN or Divers Direct, or whatever.

We do a lot of our dive planning on a open internet forum where I am now and while I doubt we will ever "pubically" post that, I think we will start ensuring that those who come on the boat to dive have the insurance.

[Beefcake]

A slight clarification (opinion, of course!) on the "sharing gas money" issue. My background is fishing, but still involves interaction with the US Coast Guard and state LE. With fishing, the definition of "illegal chartering" is personal gain. The way this plays out is that gas and other actual trip expenses can be divided equally, but can't be "required" (if someone chooses not to pay, they just don't get invited back). Further, by divided equally, they mean that the captain / owner pays his share. With friends, this isn't an issue, we just toss a generous amount of cash in the boat owner's ash tray without discussing it. However, it becomes an issue when fishing with people that I don't know. First, if it is my boat, I don't allow strangers to pay more than the actual cost of gas / bait / ice. Second, I try to never exchange money at the dock (gas station or bar afterward is fine; it's the required cash payment at the dock that gets people in trouble). I know this is a tangent from the liability topic, but I think it might set legal precedence for liability as well.

[Mongo]

.

[H20doctor]

I saw and exp the newb diver with pensacola... Ha ha ha

[ArcticDiver]

The liability release isn't as simple as it sounds. Our attorney in residence might comment on what happens if the boat operator/owner subsequent to obtaining a liability release then directs the behaviour of the diver/passenger in areas that were specifically addressed by the waiver.

[oldsalt]

I've had several boats, and a captain's license. You've got to decide what kind of risk you are willing to take. Like Novice said, I enjoy myself and take my friends diving. Problems can develop with the most qualified divers. In my case, it was with two commercial divers with experience in the Gulf of Alaska and the Bering Sea. One freaked because we descended through the murk with no visual reference. He was used to following the rig down. I brought him back. The other ran out of air very quickly and corked to the surface and was unable to swim back to the boat. I returned to the boat, pulled up anchor and fetched him. In retrospect, I realized that surface supplied divers (and I have been one) don't have to practice air management, navigation, bouyancy control, or swim against the current. I assumed that because these guys had thousands of dives, most in arduous conditions, they could do it all. While most of us couldn't do what they do even with more training and experience, they lacked the skills to do what we do. I still take people out on my boat. Why have it otherwise? I just try to be smart about it.
-Curt

[pensacoladiver]

I saw and exp the newb diver with pensacola... Ha ha ha

IIRC, you might have seen some of the topside follies with this guy, but you were still underwater when he pulled the "take my sweet ass time getting back in the boat after flopping off the dive platform in a kneeling position like an injured sea lion" stunt.

[CaptnJack]

This is why I don't take people who are completely new to me out. Unless its someplace so rediculously benign that I would take someone who just finished open water yesterday there. There are plenty of those sites too; I don't generally do them with my regular buddies I actually save them for people I don't know at all.

[CaptnJack]

A slight clarification (opinion, of course!) on the "sharing gas money" issue. My background is fishing, but still involves interaction with the US Coast Guard and state LE. With fishing, the definition of "illegal chartering" is personal gain. The way this plays out is that gas and other actual trip expenses can be divided equally, but can't be "required" (if someone chooses not to pay, they just don't get invited back). Further, by divided equally, they mean that the captain / owner pays his share. With friends, this isn't an issue, we just toss a generous amount of cash in the boat owner's ash tray without discussing it. However, it becomes an issue when fishing with people that I don't know. First, if it is my boat, I don't allow strangers to pay more than the actual cost of gas / bait / ice. Second, I try to never exchange money at the dock (gas station or bar afterward is fine; it's the required cash payment at the dock that gets people in trouble). I know this is a tangent from the liability topic, but I think it might set legal precedence for liability as well.

With fishing "charters" you also need a license from WDFW. How are you meeting fishing buddies you don't know, fishing forums?