|Diving into Scuba Litigation|
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,
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
- PADI, Adventures in
Diving 76 (International PADI, Inc. 1991).
- 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).
- 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).
- Marshall, 641
N.E.2d 92, 96.
- See, e.g., id. ;
Fultz v. Cox, 574 N.E.2d 956, 958 (Ind. Ct. App. 1991).
- 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.
- Marshall, 641 N.E.2d 92,
- Id. at 93.
- Id. at 96.
- Hewitt, 521 P.2d
- 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).
- 754 So. 2d 467 (Miss.
- 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).
- 785 F. Supp. 1339 (S.D.
- Id. at 1343.
- 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).
- 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).
- See generally Jon
Hardy, How to Be a Great Dive Buddy, available at
- 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).
- 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.
- 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).
- 858 F.2d 22 (1st Cir.
- 999 F. Supp. 1219 (N.D.
- 935 F.2d 599 (3d Cir.
- 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.
- 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.”).
- 28 U.S.C. §1333(1)
- Executive Jet Aviation,
Inc. v. City of Cleveland, 409 U.S. 249, 251 (1972).
- Sisson v. Ruby, 497 U.S.
358, 362 (1990) (quoting Foremost Ins. Co. v. Richardson, 457 U.S. 668,
675 n.5 (1982)).
- 666 F. Supp. 84 (E.D.
- Id. at 87-88.
- 935 F.2d 599 (3d Cir.
- 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”)).
- 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).
- Id. at 215 n.1;
Dooley v. Korean Air Lines Co., 524 U.S. 116 (1998).
- 46 app. U.S.C §766
(2000); see United States v. Reliable Transfer Co., 421 U.S. 397,
- 46 app. U.S.C. §183c(a)
- See, e.g., Borden
v. Phillips, 752 So. 2d 69 (Fla. Dist. Ct. App. 2000).
- 224 F.3d 1269 (11th Cir.
2000) (per curiam).
- 46 app. U.S.C. §183c(a)
- Shultz, 224 F.3d
- Borden, 752 So.
2d 69, 72-73.
- See, e.g., Neely,
63 F.3d 166, 179-80; In re Pacific Adventures, Inc., 5 F. Supp.
2d 874, 877-78.
- Sinclair, 935
F.2d 599, 600-02.
- See Kuntz, 573 F.
Supp. 1277, 1289 (holding DOHSA applicable where scuba diver drowns
during a resort diving course).
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