Posts: 3293
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Destin, FL
http://diversunion.org/liability.htm
Read it then comment here on this thread! Once we have something that people are happy with, its going up as an online faxed petition to state governments and agencies.
This may be followed with an attempt to organize a boycott - if necessary.
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2006-12-09 18:44:07
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There's nothing built in to this law that...
Creates a need for a larger government bureaucracy or new government agencies.
Is ambiguous enough to cause greater job security for the lawyers, lawmakers and judges.
It probably doesn't stand a chance until we get those line items covered!
D
2006-12-09 21:46:44
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It is a near-copy of the Equine Law that is currently in place in 38 states (all are very, very close to this - there are minor state-by-state differences.)
What's it need to happen? You. Other divers. Those who will make this their mission, and start insisting that dive-related business and most importantly certification agencies spend some of their money lobbying for passage.
This isn't a new idea. The Equine industry sees about 100 people a year die in the US from horse-related injuries. About 30,000 are injured, 10,000 of them seriously (most of the serious injuries are to the head and neck - not good places to get hurt.)
Yet despite this, you don't see anyone ask you for a certification card when you buy or hack out a horse (rent one for an hour or more from a livery.) Indeed, the only card you need is a credit card.
And horses - if anything - are more unpredictable than diving ever could be. My daughter is involved with them and I'm around them regularly. They are sweet creatures, but if you forget that they weigh 1,000 lbs and have strength that dwarfs yours, you can and very well might get seriously hurt or killed.
Kinda like diving, no?
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2006-12-09 22:02:48
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Shalimar, FL
I don't know how we got in this situation - anyone who chartered a boat for fishing would never sign away their rights to sue for negligence or incompetence.
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Serenity Now!
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2006-12-10 16:36:26 by jamesgang
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2006-12-10 16:33:57
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Under this, you would not be. In fact, you'd have the same sort of claim that you'd have if you weren't diving (e.g. you were fishing.) I've never been asked to sign anything chartering a boat (other than a credit card slip) for fishing purposes.
We got in this situation because we allowed it. We let people tell us that we "needed" certifications to dive, and then we let them tell us that this wasn't good enough - that "lawyers force us to have waivers."
Of course that's not true.
The truth is that the industry came up with this model originally to suit a purpose, then saw the ability to use it to make a whole lot of money and yet try to shield themselves from even silly levels of negligence (e.g. leaving you out there in the water, running you over with the boat - while in gear, filling your tank full of CO, etc)
Unfortunately when you have your rights taken away one little nibble at a time, you tend not to notice until you have nothing left! Its kinda like raising taxes "just a little bit" - you don't notice the individual bites but when you look back at where you are you say "oh my God, how'd THAT happen?"
Same thing here.
I've been anti-forced-cert, as you know Don, for a long time. You've never seen me ask for a cert on my boat and you never will. But I don't do this for money, which means as long as I don't judge I'm in a pretty safe spot, in that I'm responsible while you're on board but once you willfully step off, its a good bet I can argue that you accepted the risks and since I'm not a pro, I'm not "qualified" to judge.
What I object to is fashioning a system that creates liability, and then claiming that you have to do these things because of it, when you made the situation exist in the first place! That's bullshit.
Its especially ugly when there are examples out there for other recreational pursuits with similar death rates (and much higher injury rates!) than diving, yet they don't have forced certs.
This can be resolved quite easily, as is pointed out in the proposal. If we had shop and agency participation I suspect it would be a slam dunk, and it might be even without it if we have diver participation.
There's something in there for everyone - the dive shop gets a near-impenetrable level of liability, and doesn't have to rely on waivers (dive waivers are good in Florida, but only by case law - and case law can change!), so long as they maintain their gear properly. This cuts their cost significantly as they don't need "dive liability insurance"; general business liability (e.g. slip and fall) is fine. The lawyers get the ability to chase the truly outrageous cases they can't win today. The diver gets the ability to dive where he wants, when he wants and with what he wants, without interference. The instructor is freed from liability (and this one is a biggie, since right now an instructor has to keep his liability insurance for seven years after he ceases teaching, no matter what it costs, to be "safe"!) and it also frees instructors to teach what they want for how ever much money they want, without the rigid gamesmanship of the current system.
There are no losers - except those in the instructor ranks who believe that exploitation of divers is "cool" or "justified." THEY lose. But I suspect that those ranks are relatively small and, honestly, those people deserve to lose.
After all, exploiting people isn't cool and if you can't sell your skills without the use of force, are they really worth paying for?
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2006-12-10 16:59:19
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David Schott
2006-12-10 21:02:59
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David Schott
2006-12-10 21:06:18
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The NACD and NSS/CDS say otherwise, but they're full of shit. The NSS properties, for example, which require you be a member but do not charge a fee do not need any sort of waiver of any kind. They're covered under the Sportsman Act since you're not paying for access to the site (your membership is not a fee for the access.)
But the NSS/CDS and NACD both try to argue that you need a waiver. Why? Because if they start following the actual law, then they lose control!
The waiver gives them the ability to turn the knife and demand the card.
Here's the link to the statute:
http://www.flsenate.gov/Statutes/index.c....
I've argued in the past for extending the Sportman Act. I can see resistance there, however, due to the explicit "no fee" portion of the statute. I suspect that legislators would have a shitfit about extending that law to the diving industry specifically when there is profit involved.
Part of the reason I think we need a new law is that in reality there are things that a dive instructor or shop can do that I think ought to expose them to liability which they cannot waive. One of these would be pumping your tank full of pollutants such as carbon monoxide. Another obvious one is leaving you out in the water after a dive (by not checking to see that everyone is back on board!) or running you over and turning you into chum with the screws. A third obvious one is an instructor or divemaster that is drunk or stoned.
One of the problems that I have with the waiver system is that it creates absolute immunity for Divemasters and Instructors while at the same time these folks claim you need them! That's not acceptable - if I need a divemaster (especially if I judge that I do and hire them of my own free will, rather than being TOLD I need one), then I have every right to expect that this person is of sound mind, and that at minimum means that they're not drunk or stoned on something, or disqualified from diving generally due to some known physical ailment.
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2006-12-10 21:28:24 by genesis
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2006-12-10 21:22:35
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I don't believe membership in the CDS is limited by certification, but I'm not sure. I think they do have an issue with people diving Cow without the abe davis / 100 dives - which we all know that issue - that it is after full cave cert....
So - Even with the law change - the CDS could tell people that they can't dive on their sites without membership/proof of cert......
PS: I was corrected: The CDS does NO require Abe Davis for Cow, but the y do require Full Cave Cert.
Abe David IS required for Cathedral,Alachua,and School because of the depth
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David Schott
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2006-12-18 06:18:58 by dgschott
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2006-12-10 22:12:25
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Further north now where the grass is blue
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DeWayne
"Heres to beer so amber and pure,though not as sweet as a woman's lips, a damn sight more sincere"---Old Irish saying
2006-12-10 22:43:35
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You own the land, you make the rules in terms of who can enter. You just can't charge a fee for that access, or for anything else on that land in the process.
The Sportsman Act came into being because hunters were being increasingly told "no" by landowners, including the state, and a big part of the reason was liability. Some idiot would step in a hole and break his leg, then sue. Or he'd get shot by some other idiot, and they'd argue that the landowner was "negligent" because the other idiot either had no hunter-safety training (required in some cases), was drunk and the landowner should have known, etc.
So the Sportsman Act was passed to fix it. And it has largely fixed the problem in that realm. This is a good thing.
While I used to think we could extend that to diving, I'm no longer convinced that its the right path forward. There's language in there that indicates pretty strongly that the legislature was hellbent on preventing that act's provisions from being used if you made any money off your property at all.
For this reason, and because there is an industry-specific law out there that provides a better balance in the Equine Law - it appears that is a better approach. It also stops the nonsense with trying to waive things you can't waive and puts people on notice that any such attempt is void) as DeWayne noted....
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2006-12-10 23:26:53 by genesis
2006-12-10 23:25:01
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LaPlace, LA
2006-12-11 20:37:31
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2006-12-11 20:47:33
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"Clearly, an act that becomes law is a way to prevent/restrict potential law suits to limit, not erase, litigation. Frankly, you do not want to remove all liability least the dive boat can leave you in the middle of the ocean. Karl's "law" would need some work. Note that it doesn't specifically address rebreathers or technical diving. As a dive shop owner, I like the idea. Getting it put into law that is passed is a different matter. The legislature has to deem it an necessary and worthwhile. Also, the lawyer lobbyist will be against it. In a state like Florida, this would be a big thing. In our state (PA),... I know a couple if representatives. I will run it buy them."
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David Schott
2006-12-11 20:54:15
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Obviously not - it says quite clearly:
Quote:
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:
.....
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.
Gee, you think you'd read something before you said that thing isn't addressed in the proposed bill!
BTW, the lawyer lobby in Florida would likely love this bill, because dive waivers in Florida are basically impenetrable due to case law. This would actually give them some circumstances under which they can manage to get somewhere with a lawsuit (beyond a quick motion to dismiss, that is.)
It does not specifically address rebreathers or technical diving on purpose. Indeed, it defines "diving" broadly enough to cover anything from snorkeling to a 14,000' dive in Wakulla, irrespective of hardware used.
This is intentional - assumed risk is assumed risk, and the gear used does not control whether it should be in effect or not.
BTW the list of exclusions is not set in stone. So long as they don't void the general sense of the law - self-determination and personal assumption of risk - I'm good with it. If you think there are specific egregious acts (or categories of them) that should not only not be immunized but should be unable to be waived, I'm all ears - I did add one after some comments from others (instructor who is demonstrably unfit due to intoxication or medical condition they know about.)
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2006-12-11 21:51:47 by genesis
2006-12-11 21:30:48
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David Schott
2006-12-11 22:36:15
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2006-12-11 23:16:20
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David Schott
2006-12-12 11:02:22
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2006-12-12 21:34:39
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2006-12-13 21:02:46
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David Schott
2006-12-13 21:12:43
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2006-12-13 21:56:32
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