Time To Reform Diving Liability Law

Scuba Diving has become a big business with myriad abuses, and nowhere are they more apparent in the "forced certification" model. Agencies come up with their own idea of what should be required to dive at a given level, without public comment or scientific basis. They then conspire with both equipment manufacturers (in some cases) and diving venues, including boats and land-based diving locations (in virtually all cases) to attempt to turn these "certifications" into licenses!

This is wrong. Diving is an inherently personal risk - you, and you alone, are the one who is hurt if something bad happens while you are diving.

While DiversUnion does supports the goal of training and education, we believe that this must be an entirely voluntary process. That is, cajole, warn, write 100-page documents on why one must receive training to be "safe" - but in the end, leave us as divers alone!

Even more odious is the prevalence of waivers that purport to cover literally everything. Under the current waiver system you cannot sue your dive instructor if he is drunk on the job, taking drugs, hung over, incompetent or careless, even if the shop and/or agency knew about it beforehand! The shop you buy your air from can fill your tank full of Carbon Monoxide, and if you got that tank on a dive trip they ran on their boat, and you die, your wife or husband cannot sue them because the waiver you signed excludes negligence!

This must change. We believe that while personal responsibility is the mantra all divers should undertake, we also recognize that truly outrageous actions like running compressors without proper monitoring, running over people with a dive boat or stranding them at sea are egregious acts that must not be allowed to be disclaimed via a waiver.

As such we believe that the proper fix is to do away with separate waivers and "required" certifications entirely. Instead, we believe that the industry must adopt the model from the Equine (horse) business - a line of recreational where about the same number of people die every year from injuries sustained (roughly 100), there are inherent risks (just as there are when diving) and yet you will never see a certification class for horseback riding nor will you have a C-card demanded of you - and yet there are many different "levels" of riding just as there are scuba diving!

Its time for us, as the people with the money (that would be ordinary divers) to clean up the diving business. Towards that goal here is a proposed model law, and once there has been sufficient discussion, a petition will be set up to fax certification agencies and state governments.

Here's our Model Law - take a read and then head over to the forum to make your comments!

 

Model Diving Liability Law

 

Section 1 – Definitions

1. Diving activities means intentionally traveling under the surface of any body of water, whether of artificial or natural origin, including but not limited to a swimming pool, lake, river, stream, bay or ocean, whether open to the air above or with an overhead obstruction, when using Artificial Means to breathe. Diving Activities commence upon voluntarily entering the water and cease when the Participant, of their own volition and on their own power, returns entirely above the surface of the water.
2. Artificial Means includes the use of scuba diving or snorkeling equipment of any sort, including but not limited to Scuba Equipment, Snuba Equipment or a Snorkel.
3. Participant is a natural person who is engaged in Recreational Diving.\
4. Snorkel means a tube with a mouthpiece that extends above the surface of the water and allows the user to breathe while their face is submerged, using lung power alone for operation.
5. Compressed Breathing Gas means any mixture of gases intended for human consumption and stored under pressure in a cylinder or other device and intended to be used while engaged in Diving Activities.
6. Scuba Equipment means equipment intended to meter compressed gas carried by the user, whether for single-breath use (“open circuit”) or re-use (“rebreather”), and optionally includes devices for adjusting the user’s buoyancy and trim while in the water.
7. Snuba Equipment means equipment intended to meter compressed gas supplied from the surface, whether such gas comes from a tank or an active, operating compressor powered by mechanical or human means.
8. Recreational Diving means any Diving Activity undertaken for the purpose of personal recreation or pleasure, and explicitly excludes any Diving Activity in which Compensation is received for either the act of diving itself or any act performed while under the surface of the water.
9. Compensation means any form of money or property having real or intangible value when provided as an inducement to engage in or foreswear any activity related to Recreational Diving.
10. Recreational Diving Professional means a person who is engaged to provide instruction or supervision in any form of Recreational Diving for Compensation.
11. Recreational Diving Business means any commercial establishment providing services in support of Recreational Diving on a non-discriminatory basis to the general public in return for Compensation, including but not limited to land-based dive shops, charter diving boats and land-based diving locations.
12. Diving Physician means a medical doctor who specializes in medicine related to recreational diving, including but not limited to those physicians in the employ of Divers Alert Network (DAN.)
13. Inherent Risks include but are not limited to air embolism, decompression sickness, medical emergency occurring during Diving Activities, attack or injury caused by aquatic organisms, exhaustion of the user’s breathing gas supply, malfunction of the user’s equipment, disturbance of silt or reduction in visibility by any cause, loss of lighting or propulsion, equipment malfunction, collapse of or entrapment in structures, carbon dioxide poisoning, oxygen toxicity, inert-gas narcosis, hypo or hyperthermia, contact with submerged and semi-submerged objects, entanglement in objects, current, wave action or flow of water, and drowning.

 

Section 2 - General Provisions

Except as otherwise provided in this act, any person, Recreational Diving Business or Recreational Diving Professional, shall not be liable for an injury or death to a participant in Diving Activities resulting from the inherent risks of these activities, and no Participant nor any Participant’s representative shall have any claim against or recover from any Diving Activity sponsor, Recreational Diving Professional, Recreational Diving Business, or other person for injury, loss, damage, or death of the participant resulting from any of the Inherent Risks of Diving Activities.

 

Section 3 – Limitation of liability for Diving Activities

Nothing in this act shall prevent or limit the liability of a Recreational Diving Professional, Recreational Diving Business or natural person if that individual or business:

1. Provided equipment for the use of Participant which was known to be or should have been known to be defective to a degree that was partially or totally responsible for the injury or death of the Participant.
2. Is a Recreational Diving Business or a Recreational Diving Professional and provided goods or services without making a reasonable inquiry as to the proficiency of the Participant. A written acknowledgement of competence by Participant contemporary with the sale shall be conclusively binding in any dispute over whether reasonable inquiry was made.
3. Provided Compressed Breathing Gas which, upon later analysis, was shown to be contaminated with Carbon Dioxide, Carbon Monoxide, hydrocarbons or other foreign materials beyond safe limits and this contamination was partially or totally responsible for the injury or death of the Participant.
4. Left Participant in the water who boarded their vessel for the purpose of a Diving Activity, as evidenced by departing the dive site without the Participant on board and without reporting them as overdue prior to departure to local, state or national authorities.
5. Struck a Participant with any portion of a vessel who boarded for the purpose of a Diving Activity if (a) the vessel had propulsion engaged at the time the Participant was struck or (b) the vessel had remaining way on from previous maneuvering at the time of the impact.
6. As a Recreational Diving Professional, was impaired by any physical condition, substance or device which, in the opinion of a Diving Physician, would render the Recreational Diving Professional unfit to perform these functions.

 

Section 4 – Posting and Notification

1. Every Recreational Diving Business and Recreational Diving Instructor shall:
   • Post one or more signs which contain the warning notice specified in Section 4(2) in any fixed place of business or upon any vessel. The warning notice shall appear on the sign in black block letters of at least one inch in height, and shall be on a contrasting background so as to be clearly distinguishable.
   • Obtain from each Participant a signed written document containing the warning notice specified in Section 4(2), signed by Participant. If the Participant is a minor then the signature of at least one legal guardian of said minor is required.
   • The provisions of this section shall not apply to a natural person who is not a Recreational Diving Business or a Recreational Diving Professional.
2. The sign and document referenced under Section 4(1) shall contain the following warning notice:

Under <INSERT STATE> Law, a Recreational Diving Business or Recreational Diving Instructor is not liable for an injury to, or the death of, a Participant in Diving Activities resulting from the inherent risks of Diving Activities.

 

Section 5 – Preemption

In order to protect Participants from willful, reckless and wanton acts, any waiver proffered to a Participant seeking to limit or deny any of the limitations in Section (3) of this legislation is void in its entirety as contrary to the public policy of this state.

 

---- End Model Law Text

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