Attorneys trying scuba diving cases must understand admiralty law, contract law, and diving itself—the training, the techniques, and the risks

By Robert K. Jenner
Originally published in American Association for Justice, August 2001

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Recreational scuba diving dates back to the 1950s, when spearfishing and hunting lured most divers to the sport. Formal training was virtually nonexistent, equipment was rudimentary, and injuries were not uncommon.

Jacques Cousteau’s underwater exploration specials and the television series Seahunt brought scuba diving into our living rooms in the 1960s. Diving attracted water enthusiasts worldwide, and recreational diving dominated the sport in the 1970s and 1980s as warm-water resorts and underwater photography increased its popularity.

Despite advances in training and technology, scuba diving can be dangerous, and tragedies occur. To determine whether an injured diver has a viable case, the plaintiff attorney must understand the dangers of the sport and the training required to dive safely. The attorney should also be familiar with the parties involved in scuba diving excursions.

The first step in becoming a scuba diver is getting certified as an open-water diver. A person must complete a multiweek course— including both classroom training and swimming pool instruction—and then perform a “checkout” open-water dive, often in an ocean, lake, or quarry. Dive shops, YMCAs, and beach resorts are the customary providers of certification courses. A dive shop will not permit a diver to rent equipment without a valid certification card, nor will a professional dive boat permit such a diver to board.

Certification courses emphasize the risks of diving. Instructors and instruction manuals focus on how to recognize, avoid, and prevent these risks, and no diver completes a certification course without recognizing the inherent dangers of the sport.

One of the most widely recognized risks is decompression sickness, sometimes referred to as “the bends.” During a dive, the increased pressure causes nitrogen from the air a diver breathes to dissolve into his or her body tissues. How much nitrogen the diver absorbs depends primarily on the depth and duration of the dive. Decompression sickness occurs when the diver ascends too rapidly, so that nitrogen gases are not properly dispelled from his or her tissues before the diver surfaces.

Decompression sickness can result in serious, permanent injuries, including paralysis and death.¹ By regulating depth, the time underwater, the rate of ascent, and the interval between dives, a diver can reduce the risk of developing the bends.

After certification, a diver might arrange a dive trip, through a local dive shop. The shop may contract with a dive resort, which will either have its own boats or contract with the owner of a vessel that takes divers to interesting sites. A lawyer should evaluate the potential liability of all these parties.

As in any potentially hazardous sport, liability releases are ubiquitous in diving. They are usually worded both specifically and broadly to exonerate every person or entity involved in the scuba diving venture.

To participate in a certification course or a course on techniques for specialty dives, such as wreck dives and night dives, students typically are required to sign a release that exonerates the instructor, the dive shop or resort sponsoring the class, and the organization certifying the diver. A typical diving-excursion release exonerates all participating dive shops and the ship owner, captain, and crew. Depending on the wording of the release, the jurisdiction, and applicable law, the release may preclude an injured diver from any recovery.

State law governs releases. Most states recognize them as valid and have upheld them in cases involving scuba diving.² A few states hold that releases are void as a matter of public policy.³

For a release to be enforceable, state laws generally require that it be signed knowingly and willingly. “Knowingly” means the party who signs the release understands its contents, and “willingly” means the release was not signed under duress.⁴ Under most state laws, a person is presumed to understand the documents that he or she signs and cannot be released from a contract for failing to read it.⁵ The law requires courts to scrutinize releases against the party relying on them. If a release is clear and unambiguous, however, the court will uphold its validity as a matter of law.

Courts have been reluctant to invalidate releases related to voluntary recreational activities, and they usually consider scuba diving a private and voluntary activity in which the diver freely agrees to waive any negligence claim against the parties identified in the release.⁶ For example, in Marshall v. Blue Springs Corp., the court upheld a release signed by the plaintiff, who was enrolled in a class and was injured while preparing for a dive.⁷ The release stated in part:

I understand that diving with compressed air involves certain risks, [and] injuries or death can occur. I understand that neither [the dive shop] [n]or its staff may be held liable in anyway [sic] for any occurrence in connection with this diving class that may result in injury or death.⁸

The plaintiff argued that he signed the release under economic duress. The court said that for a release to be signed “willingly,” the bargaining between the parties must be “free and open.” The court found that the diver participated in the class only for personal enjoyment and was under no compulsion to sign the release. If he were not willing to sign it, the court reasoned, he could have shopped for a course that did not require a release, or he could have chosen to forgo the sport.⁹

In Hewitt v. Miller, the court recognized that a diver’s failure to surface is an inherent danger of scuba diving.¹⁰ A diver in an advanced class failed to surface; no trace of him or his equipment was ever found. The court decided that by signing a release, the diver had acknowledged the possibility of his death from the “inherent dangers” of scuba diving and had agreed that his instructors were not to be deemed the guardians of his safety.¹¹

Not all courts have upheld releases. In Turnbough v. Ladner, a diver who suffered decompression sickness after a certification dive sued the instructor, alleging that she was negligent in planning and supervising the dive.¹² The defendant moved for summary judgment based on a release that the plaintiff had signed.

The court said the release was too general and did not specifically shield the instructor from liability for negligent scuba diving safety instruction. Because the contract was not negotiated and contained a broad waiver of negligence claims, the release was strictly construed against the instructor as the party seeking to enforce it. As the court noted:

Although waivers are commonly used and necessary for some activities and the attendant risks and hazards associated with them, those who wish to relieve themselves from responsibility associated with a lack of due care or negligence should do so in specific and unmistakable terms. The agreement in this case fails to do that.¹³

The issue of clarity in the language of a release also arose in Reuther v. Southern Cross Club, Inc. 14 A diver was injured when a large wave struck the boat on the way to the dive site. The plaintiff sued the boat owner, alleging that he should not have started the trip until the bad weather had passed. The release referred only to “the potential dangers incidental to scuba diving, instruction, or snorkeling.” It did not address injury that might occur on the dive boat.

This language led the court to conclude that the purpose of the release was to waive liability for injuries incurred only while diving. Because the injury occurred on the way to the dive site, the court did not consider it “incidental to scuba diving.” As the release was ambiguous in that respect, the court construed the release strictly and held that it did not bar the plaintiff’s claim.¹⁵

Many courts also will not uphold a release if the defendant’s conduct constitutes recklessness or gross negligence, or if the clause is “so inconspicuous that reasonable persons could reach different conclusions as to whether the document was unwittingly signed.”¹⁶ For example, in Baker v. City of Seattle, the court stated that the enforcement of a disclaimer of liability inconspicuously placed in the middle of a golf cart rental agreement “would truly be unconscionable.”¹⁷ Baker was thus deemed an unwitting signer and was relieved of the consequences of signing the agreement.

Since the first dive training courses offered by the YMCA, “buddy diving” has been encouraged for all new divers.¹⁸ Teaming up with a buddy is the standard of care for all new divers, as each can provide reminders and assistance to the other and can see things a solo diver might not.¹⁹

For example, a buddy should inspect his or her partner’s equipment before the dive and ensure that the dive plan is safe. A buddy should monitor his or her partner’s equipment and air supply when underwater. Buddies should stay within a few feet of each other during a dive, generally diving side by side.

If one diver runs out of air, the buddy must share his or her air supply. If a diver becomes tangled in debris, the buddy must assist in extradition. If a diver becomes cramped or incapacitated from exhaustion, illness, or injury, the buddy must provide assistance, without unreasonably placing himself or herself in danger. If a diver is panicking and can be approached safely, the buddy must try to make physical contact and get his or her buddy to the surface. Buddies who panic or refuse to help where it is feasible and safe to do so may be legally responsible for their partner’s injuries.

From a legal perspective, dive buddies enter into a “contract” that makes them legally responsible for each other’s safety.²⁰ The law of releases generally does not apply to buddy liability, as a release does not govern the negligence of someone who is not a professional employed by the sponsoring dive organization.

For example, in Kuntz v. Windjammer Barefoot Cruises, Ltd., a diver participated in a beach resort scuba course designed to introduce the novice to the rudiments of scuba diving. The instructor left the diver unattended, and she drowned. The district court found that “if [the instructor] had instituted and maintained a partner system during the deep dive, as required by the practice and standards of the scuba diving instructors and the [National Association of Underwater Instructors] . . . , this mishap would not have occurred.”²¹

Dive buddies have been impleaded as defendants to defray the liability of a ship that struck and killed a diver as he surfaced outside the dive ship’s safety zone. In Lyon v. The Ranger III, the trial court found that the diver and his buddies had failed to use floating safety flags, which indicate the presence of divers. The court found that the divers had “joint control of risk” in executing the safety features of the dive plan when they surfaced outside the 100-foot safety zone established by Massachusetts law. The court found the diver and his buddies 45 percent responsible for the diver’s death.²²

Scuba gear is life-support equipment. It must be carefully manufactured and maintained. Essential components of scuba equipment include the buoyancy control device (BCD), which is a vest that inflates and deflates to help the diver regulate buoyancy; the regulator, or mouthpiece, which controls the flow of air from the tank; and the pressure gauges, which indicate the diver’s depth and remaining air supply. Defective scuba equipment can lead to disaster.

If properly maintained, scuba equipment is enormously reliable. On rare occasions, however, equipment does fail. General products liability theories—strict liability, breach of warranty, and negligence—have been used in suits against the manufacturers of defective equipment.

For example, in Thornton v. Sea Quest, Inc., a diver’s estate sued the manufacturer of his malfunctioning regulator, which failed to deliver air to him at depth.²³ In Sinclair v. Soniform, Inc., a diver filed suit against the manufacturer of his BCD. A valve malfunctioned, causing the diver to ascend too rapidly. He suffered from decompression sickness and was left permanently disabled.²⁴

Dive boats have also been targets of products liability claims. Propellers are often unprotected by a cage, and divers have been killed when engines have been inadvertently left in gear.²⁵

When analyzing an injury that occurred on or from a dive boat, an attorney must first determine which law will apply to the case: general maritime law or substantive state law. This depends on whether the case falls within the court’s admiralty jurisdiction. If so, substantive admiralty law will apply. However, if diversity is the only basis for federal jurisdiction, then the court must apply the applicable state substantive law²⁶—which generally is much more favorable to plaintiffs.

Punitive damages are not permitted in an admiralty case, and there is no right to a jury trial if admiralty jurisdiction is invoked. That right is preserved for claims based on diversity or claims removed from state court.

The statutory basis for federal admiralty jurisdiction is 28 U.S.C. §1333, which reads, “The district courts shall have original jurisdiction exclusive of the courts of the states, of: any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.”²⁷

In 1972, the U.S. Supreme Court established a two-part test for determining when tort claims fall under general maritime law: First, the wrong must occur on or be located over a navigable waterway; second, the wrong must bear a significant relationship to traditional maritime activity.²⁸ In 1990, the Court revised the test, emphasizing that general maritime law is appropriate only “when a ‘potential hazard to maritime commerce arises out of activity that bears a substantial relationship to traditional maritime activity.’”²⁹

Lower federal courts have reached different conclusions about whether scuba diving accidents fall under federal admiralty jurisdiction. For example, in Duplechin v. Professional Association for Diving Instructors, the plaintiff hired a boat to take him to an offshore platform from which he made several deep dives. He suffered decompression illness, resulting in paraplegia.³⁰

The court found the first prong of the test was satisfied, but the second prong was not, for four reasons. First, the court said, recreational scuba diving has little relationship to navigation. Second, neither the crew nor the diving equipment was alleged to relate to the plaintiff’s injuries; rather, the plaintiff alleged that he was negligently instructed on the dangers of the bends. Third, the plaintiff’s decompression sickness was caused by his error, not by an impediment to navigation. Finally, recreational scuba diving does not implicate admiralty law, which generally addresses issues of seaworthy vessels, navigation, maritime liens, and salvage. Thus, admiralty jurisdiction could not be invoked.³¹

Conversely, in Sinclair v. Soniform, Inc., the Third Circuit held that an action arising from injuries sustained during a scuba diving excursion in navigable waters fell within federal admiralty jurisdiction.³² As noted earlier, the plaintiff developed decompression sickness due to a defect in the BCD he wore while diving. In addition, the crew of the vessel that transported him to the dive site failed to detect his symptoms and administer proper care.

Finding that Sinclair’s claims against the crew fell within federal admiralty jurisdiction, the court noted that the plaintiff was on a boat engaged in a maritime commercial venture. The boat could have signaled other boats on the seas for assistance; thus, other vessels could have been diverted. The court also concluded that the transport of passengers bears a substantial relationship to traditional maritime activity. The fact that Sinclair was engaged in this activity for recreational reasons did not change its maritime character.³³

In a scuba diving wrongful death case, admiralty law may be advantageous to a plaintiff faced with an exculpatory release. The Death on the High Seas Act (DOHSA) provides that whenever the death of a person is caused by a wrongful act on the high seas—defined as one marine league, or 3.45 miles beyond the United States and its territories—the victim’s personal representative can bring a damages suit in federal district court or state court under admiralty law.³⁴ Consequently, a state court judge can apply federal law (DOHSA) to a dive case. In many instances this can be significant, as it provides a plaintiff a friendlier forum.

DOHSA provides a wrongful death remedy, but the plaintiff’s recovery is limited to compensation for pecuniary loss. Also, the act does not authorize recovery for pain and suffering before death.³⁵ Under the act, a decedent’s contributory negligence reduces—but does not bar—recovery.³⁶ As such, DOHSA adopts a rule of pure comparative negligence.

Notably, DOHSA claims are subject to the Limitation Act, which states that liability releases are invalid.³⁷ Naturally, this statute is very useful to a plaintiff with a signed release. A plaintiff’s ability to avoid the harsh consequences of a release may depend on whether DOHSA applies to the claim.³⁸ Courts have been divided on this issue.

For example, in Shultz v. Florida Keys Dive Center, Inc., a diver had signed a document releasing the center from liability.³⁹ During her dive, she surfaced far from the dive boat. The attempt to retrieve her from the water was delayed, and she drowned. The court analyzed whether DOHSA applied.

The Eleventh Circuit concluded that because the dive boat departed port in the Florida Keys, brought the divers to the location of the dive, and then returned to port, it was not, as the Limitation Act requires, a “vessel transporting passengers between ports of the United States or between any such port and a foreign port.”⁴⁰ The court also examined the act’s legislative history and found that the practice it was intended to end—steamships’ exonerating themselves from the negligence of the owner or servants by printing release language on the back of boarding tickets—was much different from having a diver sign a liability release to participate in scuba diving.⁴¹ Accordingly, the court found the Limitation Act inapplicable and held there was no federal limitation on the release.

Courts have also held that DOHSA does not apply where the operation of the boat is unrelated to the diver“s death. For example, in Borden v. Phillips, a diver drowned during a certification class when he became separated from the boat. The court ruled that because the crew was negligent in failing to respond to his distress signal, the drowning did not involve the operation or maintenance of the boat but was related solely to scuba diving. Therefore, admiralty law did not apply to invalidate the release.⁴²

Some federal circuits, however, have found DOHSA applicable to recreational scuba diving. Admiralty jurisdiction has been held to exist where scuba divers were struck by boats,⁴³ where the dive boat crew failed to render medical assistance to a diver after an injured diver reached the boat,⁴⁴ and even where a boat was not directly involved in the diver’s death.⁴⁵ A plaintiff lawyer must check the law of the relevant circuit to determine whether admiralty jurisdiction exists.

Recreational scuba diving can be a safe sport if done correctly. Lawyers familiar with it can recognize the potential areas of recovery for clients injured while diving and advise them appropriately.

Notes

1. PADI, Adventures in Diving 76 (International PADI, Inc. 1991).
2. Baschuk v. Diver’s Way Scuba, Inc., 618 N.Y.S.2d 428 (App. Div. 1994); Hewitt v. Miller, 521 P.2d 244 (Wash. Ct. App. 1974); Marshall v. Blue Springs Corp., 641 N.E.2d 92 (Ind. Ct. App. 1994); Shultz v. Florida Keys Dive Ctr., Inc., 224 F.3d 1269 (11th Cir. 2000). But see Wurzer v. Seneca Sport Parachute Club, 411 N.Y.S.2d 763 (App. Div. 1978) (question of fact existed as to whether a recreation center contravened law barring liability releases for places of amusement or recreation); Salazar v. Riverdale Riding Corp., 701 N.Y.S.2d 878, 880 (Sup. Ct. 1999) (law barring releases inapplicable to horseback-riding lessons).
3. See, e.g., Dalury v. S-K-I, Ltd., 670 A.2d 795, 796 (Vt. 1995); Yauger v. Skiing Enters., Inc., 557 N.W.2d 60 (Wis. 1996) (holding release in application for season ski pass void as against public policy because it was not conspicuous and did not explicitly waive applicant’s right to bring negligence action); Cf. Brough v. Hidden Valley, Inc., 711 A.2d 382 (N.J. Super. Ct. App. Div. 1998).
4. Marshall, 641 N.E.2d 92, 96.
5. See, e.g., id. ; Fultz v. Cox, 574 N.E.2d 956, 958 (Ind. Ct. App. 1991).
6. See, e.g., Madison v. Superior Court, 250 Cal. Rptr. 299, 305 (Ct. App.1988). Public policy generally does not discourage entering into an agreement that exculpates one from the consequence of his or her own negligence.
7. Marshall, 641 N.E.2d 92, 95.
8. Id. at 93.
9. Id. at 96.
10. Hewitt, 521 P.2d 244, 248.
11. Id. ; see also Estate of Mitchell v. Lang Sales, Inc., No. 87-0050, 1987 Wis. App. LEXIS 4091 (Wis. Ct. App. Sept. 23, 1987); Madison, 250 Cal. Rptr. 299. Other courts have upheld releases for recreational activities such as horseback riding, Shumate v. Lycan, 675 N.E.2d 749, 752-53 (Ind. Ct. App. 1997); motorcycle training courses, Terry v. Ind. State Univ., 666 N.E.2d 87 (Ind. Ct. App. 1996); motorcycle racing, McAtee v. Newhall Land & Farming Co, 216 Cal. Rptr. 465 (Ct. App. 1985); and skiing, Moore v. Sitzmark Corp., 555 N.E.2d 1305, 1309 (Ind. Ct. App. 1990).
12. 754 So. 2d 467 (Miss. 1999).
13. Id. at 470; see also Gross v. Sweet, 400 N.E.2d 306, 310-11 (N.Y. 1979) (refusing to enforce a release in a case that involved negligent skydiving class instruction).
14. 785 F. Supp. 1339 (S.D. Ind. 1992).
15. Id. at 1343.
16. See, e.g., McCorkle v. Hall, 782 P.2d 574, 576 (Wash. Ct. App. 1989); Lago v. Krollage, 575 N.E.2d 107, 110 (N.Y. 1991); Wheelock v. Sport Kites, Inc., 839 F. Supp. 730, 736 (D. Haw. 1993).
17. 484 P.2d 405 (Wash. 1971), superseded by statute as stated in Buttelo v. S.A. Woods-Yates Am. Mach. Co., 864 P.2d 948 (Wash. Ct. App. 1992); see also In re Pacific Adventures, Inc., 5 F. Supp. 2d 874 (D. Haw. 1998) (invalidating in its entirety a scuba release that contained clauses eliminating both ordinary and gross negligence because the clauses were not severable and public policy prohibits a release that exonerates a party from gross negligence).
18. See generally Jon Hardy, How to Be a Great Dive Buddy, available at www.scubadiving.com/ training/instruction/howbebuddy.shtml.
19. See, e.g., Tancredi v. Dive Makai Charters, 823 F. Supp. 778 (D. Haw. 1993), overruling on other grounds recognized by McClenahan v. Paradise Cruises, Ltd., 888 F. Supp. 120 (D. Haw. 1995) (It is a breach of the standard of care in the recreational dive industry for a dive charter company to conduct a dive without assigning “buddy” teams.); see also Weeks v. Alonzo Cothron, Inc., 466 F.2d 578, 581 (5th Cir. 1972) (“The defendants’ practice of permitting a single diver to work alone under the barge without visual or physical connection to another member of the crew . . . amounts to unseaworthiness.”); In re Adventure Bound Sports, Inc., 837 F. Supp. 1244, 1249 n. 7 (S.D. Ga. 1993).
20. There has been a recent movement in the diving community to recognize that, for some divers, the buddy system may be dangerous by fostering dependence, by making diving a distraction, and by involuntarily imposing legal liability on a diver. Accordingly, some professional dive organizations are now offering solo diver certification for experienced divers. See Brett Gilliam, Solo Certification: It’s Time, Scuba Diving, Apr. 2001, at 53.
21. 573 F. Supp. 1277, 1282 (W.D. Pa. 1983), aff’d, 738 F.2d 423 (3d Cir.), cert. denied, 469 U.S. 858 (1984); but see Madison, 250 Cal. Rptr. 299 (holding that release exculpates defendants from liability for negligence in failing to enforce buddy system).
22. 858 F.2d 22 (1st Cir. 1988).
23. 999 F. Supp. 1219 (N.D. Ind. 1998).
24. 935 F.2d 599 (3d Cir. 1991).
25. See, e.g., Neely v. Club Med Mgmt. Servs., Inc., 63 F.3d 166, 179-80 (3d Cir. 1995) (en banc) (scuba diving instructor injured by propeller blades sued owner of boat alleging, under maritime law, that the vessel was unseaworthy); see also In re Adventure Bound Sports, 837 F. Supp. 1244.
26. See, e.g., Bodnar v. Hi-Lex Corp., 919 F. Supp. 1234 (N.D. Ind. 1996); see also Mink v. Genmar Indus., 29 F.3d 1543, 1547-48 (11th Cir. 1994) (holding that once the court determines that it has admiralty jurisdiction, substantive admiralty law applies even if the court also has diversity jurisdiction); Schumacher v. Cooper, 850 F. Supp. 438, 447 (D.S.C. 1994) (“[C]ases involving a tort committed on navigable water, whether brought under federal admiralty jurisdiction, in state court . . . or in federal court under diversity jurisdiction, are governed by admiralty law.”).
27. 28 U.S.C. §1333(1) (1999).
28. Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 251 (1972).
29. Sisson v. Ruby, 497 U.S. 358, 362 (1990) (quoting Foremost Ins. Co. v. Richardson, 457 U.S. 668, 675 n.5 (1982)).
30. 666 F. Supp. 84 (E.D. La. 1987).
31. Id. at 87-88.
32. 935 F.2d 599 (3d Cir. 1991).
33. Id. at 602-03 (citing Foremost Ins. Co. v. Richardson, 457 U.S. 668, 675-76 (1982) (“existence of admiralty jurisdiction does not turn on whether a vessel was used for commerce or recreation”)).
34. 46 app. U.S.C. § §761-768 (2000). The Supreme Court has recognized that state courts have concurrent jurisdiction over DOHSA actions. Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986).
35. Id. at 215 n.1; Dooley v. Korean Air Lines Co., 524 U.S. 116 (1998).
36. 46 app. U.S.C §766 (2000); see United States v. Reliable Transfer Co., 421 U.S. 397, 407 (1975).
37. 46 app. U.S.C. §183c(a) (2000).
38. See, e.g., Borden v. Phillips, 752 So. 2d 69 (Fla. Dist. Ct. App. 2000).
39. 224 F.3d 1269 (11th Cir. 2000) (per curiam).
40. 46 app. U.S.C. §183c(a) (2000).
41. Shultz, 224 F.3d 1269, 1271.
42. Borden, 752 So. 2d 69, 72-73.
43. See, e.g., Neely, 63 F.3d 166, 179-80; In re Pacific Adventures, Inc., 5 F. Supp. 2d 874, 877-78.
44. Sinclair, 935 F.2d 599, 600-02.
45. See Kuntz, 573 F. Supp. 1277, 1289 (holding DOHSA applicable where scuba diver drowns during a resort diving course).

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