Anatomy of a Dive Lawsuit

Most readers may find an analysis of a lawsuit about as enjoyable as a root canal. But this case will prove interesting to divers because it involves issues that directly affect how experienced divers will be allowed to enjoy some of the most exciting and challenging sites without being relegated to a policy of supervised status that would virtually halt the exploration of places like Cocos Island, the Galapagos, Palau, the Solomon Islands, Papua New Guinea, and most of Indonesia. What do these places all have in common? Strong currents and liveaboards that let divers dive independently without supervision or in confined groups led by divemasters.

It’s a complicated case that I worked on for more than four years as an expert witness and litigation consultant before it finally got into court for trial in April 2009. The accident summary in this first of a two-part article sets the stage for the lawsuit that followed. (The names of the plaintiffs have been changed; all other details are exactly accounted for.) Here are undisputed objective facts, followed by excerpts from my opinion as the lead maritime and diving expert for the defense.

Leadup to the Fateful Dive

On May 16, 2003, nine sport divers took part in a dive at Dos Amigos Pequeno, a pinnacle arising from deep water off the west end of Cocos Island, approximately 400 miles offshore from Costa Rica. Cocos Island is a designated National Park and World Heritage Site. As such, it enjoys certain marine and terrestrial conservation restrictions and protections. The area is famous for its profusion of sharks, rays, whales, turtles and schooling fish. It is one of the best diving locations in the world and attracts approximately 1,200 sport divers annually who come to dive aboard one of four primary diving vessels.

These divers were participating in a paid trip aboard the Okeanos Aggressor, a 120-foot, 130-ton diving vessel of Costa Rican flag and registry. The vessel accommodates up to 18 divers plus its crew. The vessel was operated by Aventuras Maritimas Okeanos (AMO), a franchisee of Aggressor Fleet Franchising Inc. Aggressor Fleet Ltd. was a company handling reservations for Aggressor Fleet Franchising Inc,. and also marketed and advertised all the franchised vessels/destinations worldwide.

At the outset of the trip, Randy Wright, an AMO divemaster and instructor, conducted a thorough dive briefing about the dive activities and procedures, including instructions that all divers would be required to adhere to the diving buddy system. Prior to the Dos Amigos Pequeno dive, Wright previewed what to expect, including strong currents, marine life to be seen and their behavior, water entries and exits, personal safety equipment, etc. All guests attended the briefing. The divers then boarded a dive launch, commonly know as a “panga.” A subsequent re-cap briefing was covered at the site prior to commencing the dive. The dive was not a supervised or guided dive, due to current activity and variances of entry times by the diver buddy teams. Divers were briefed to observe the procedures for independent buddy dives and to surface upon reaching a minimum air supply but not to exceed 55 minutes in run time.

The nine divers entered the water from the panga. Jim Smith, age 56, and other divers preceded Wright into the water and descended with no apparent difficulty or problems. Wright entered the water just before John Brown, age 56, and his dive buddy, daughter Jane Brown. He saw neither diver on the dive.

During the dive, Smith became separated from his buddy. Jane Brown entered the water just before her father, John Brown, but never made contact with him at all. She continued her dive despite losing contact with her father, and later surfaced with other divers without incident after a 35-minute bottom time. All seven divers and Wright were picked up by the panga driver. None have any specific remembrances of Brown or Smith. No one saw any signs from them indicating distress or problems. And no one saw them again.

Brown and Smith did not surface with the rest of the group. Wright and the panga driver initiated a search for approximately an hour within a two-mile radius of the site, but found no sign of the missing divers. The panga then returned to the Okeanos Aggressor and a wider search was initiated from that vessel after contacting the Costa Rican Coast Guard. Subsequently, the U. S. Coast Guard also joined the search, which spanned several days and included additional surface vessels and aircraft. The divers were never found. Brown and Smith most likely never surfaced from the dive, and were later declared dead.

What Could Have Happened?

The circumstances that precipitated the disappearance of Brown and Smith are unknown and thus subject to conjecture and speculation. However, the various issues brought forward in the plaintiffs’ complaint (and the opinions of their experts) failed to focus on the most probable causes of the two men’s disappearance, and the circumstances that most likely led to their deaths.

Both men were qualified, experienced divers with hundreds of dives in various sites around the world. Both men had experience in current dives and with live boating procedures, wherein a dive boat is not anchored or moored to a fixed position. They were aware Cocos Island had the potential to present challenging conditions of waves, currents, rain and stormy weather conditions. Both were aware of the potential for marine life threats, including attack by predator sharks in large numbers.

They were also aware that Cocos Island was a substantial distance from the mainland and beyond any reasonable expectation of timely Costa Rican or other national search and rescue teams. Both men were aware they could choose to not participate in any dives that they felt were beyond their level of expertise or comfort. Full and adequate briefings were performed by the Okeanos staff before each dive and the two men participated in those briefings. Both were aware of the vessel’s policy that all divers follow the buddy system and return to the surface if separated. Finally, both men understood that their diving activities required them to exercise independent skills and problem solving because the dive activities were not directly supervised or led.

The dive on which they disappeared was conducted at Dos Amigos Pequeno. Previously that morning, they had dived the adjacent site of Dos Amigos Grande, less than a hundred yards away and featuring nearly identical conditions. All divers that day were equipped with open-circuit scuba systems and 80 cu-ft. aluminum cylinders. Each wore a BCD that provided up to 60 pounds of lift. For the depths of the planned dive, the scuba system would have provided life support not exceeding one hour.

There is no credible evidence that either man ever surfaced from the dive. Two pieces of equipment were located in the subsequent search: an empty scuba tank and a safety sausage.

If the men surfaced, whether independently or together, it would have been within a window of not more than 60 minutes from the time of initial descent. Throughout that timeframe, the panga driver was helping other divers into and out of the water, and observing the ocean surface for divers. It is beyond credible belief that either man could have surfaced and failed to be detected by the panga driver, the other divers, or divemaster Wright. The men were equipped with safety sausages visible up to one mile. Both men had either a low-pressure sonic signaling device or a whistle, effective at up to one mile.

Only a handful of probable scenarios can be presented based on the known facts and the predictable behavior of the divers if they surfaced:

• If the divers had aborted the dive early due to comfort issues, equipment considerations, or failure to reach the bottom ledges because of current, it is overwhelmingly likely that they would have been seen by the panga driver or other occupants of the launch. Other divers did surface soon after beginning the dive, and were seen and swiftly recovered. Both men had effective signaling devices to make their locations known. As no one saw them surface within the first 55 minutes, it is highly unlikely that they did so.

• If the divers had no difficulty on the dive and felt no imperative to ascend following separation from their buddies, they would have been forced to surface within the 60-minute window of life support afforded by the capacity of their tanks. They would likely have surfaced within the immediate vicinity of the pinnacle and been seen. However, they were not seen by the remaining seven guests and two crew, which reinforces the conclusion that neither diver ever successfully completed the dive and surfaced.

Several facts support this conclusion. Divers adrift on the surface have every motivation to make themselves visible and detectable, and will aggressively employ all methods to attract attention. Despite safety sausages, sonic devices and whistles, no one heard or saw them, even though they would have surfaced within sight and sound ranges. It is inconceivable that either diver would intentionally jettison his tank or safety sausage. The empty tank had approximately six to eight pounds of positive buoyancy and was a contrasting color to the ocean, making detection from a search vessel or aircraft more likely. The same logic applies to the safety sausage. Further, both men were equipped with large-capacity BCDs capable of floating them indefinitely. It is beyond credible belief that any diver would deliberately abandon his BCD. Regardless, the plaintiffs and their experts opined that the two men came to the surface and were simply not found by the liveaboard crew nor by the Costa Rican Coast Guard or the U. S. Coast Guard.

The subsequent exhaustive searches included an unprecedented effort by the USCG that included surface ships, aircraft, helicopters, high-speed search inflatable boats, searches of the island itself, sophisticated computer-modeling to predict current drift patterns, deployed current monitors, and over four days of intensive search pattern grids spanning more than 1,200 square miles of area. With all these resources engaged, their bodies would have undoubtedly been found eventually floating in their equipment. Again, this did not happen.

This leads to the inevitable and only logical conclusion: that both men did not surface at all due to some event that occurred underwater. The scenarios can include a medical or health event that incapacitated them such as heart attack, air embolism, sudden drowning due to impact with the pinnacle, or equipment failure that introduced water into the breathing system. It is also possible that a marine life attack could have occurred. This site is known to be populated by several shark species known to attack man such as silky, Galapagos, bull, tiger and oceanic whitetip.

Opinions and Conclusions

The plaintiffs’ expert witness offered a series of opinions that the various defendants are somehow at fault for the deaths of Brown and Smith. He also claimed that Wright was not properly taught to serve as a dive leader at Cocos Island, despite his three-month training curriculum at Hall’s Diving Institute, an approved Florida vocational school for professional diving training. The training Wright received there would have qualified him to act as an instructor, divemaster or guide in any subsequent venue, and Hall’s had trained hundreds of instructors who were placed in professional positions on liveaboards worldwide. (Wright also worked for two years aboard the Cayman Aggressor and for eight months prior to the accident aboard the Okeanos Aggressor.) The plaintiffs’ witness also claimed that all divers should have been required to dive as one supervised group, including using “down lines” from the drifting panga, despite a two-knot current that was rapidly pushing the dive launch toward the pinnacle and afforded no possibility to anchor at the site.

The defense argued that the plaintiff’s expert witness was not qualified as either an expert in marine procedures or professional diving in international expedition operations. He had never been to Cocos, never held a license to operate such a vessel, and never been involved in an ocean search for missing divers. His opinions reflecting his lack of expertise drew him to incorrect assumptions and conclusions.

Neither Aggressor Fleet Franchising Inc. nor Aggressor Fleet Ltd. had direct involvement in the operation of the Okeanos Aggressor, but they did provide a proper Operations Manual, supplemented by periodic inspections and other training. If during those inspections any deficiencies were noted, they were communicated to the vessel’s owners, and Aggressor Fleet Franchising Inc. and Aggressor Fleet Ltd. had every reasonable expectation that they would be remedied. The handful of recommendations and requirements on the list had no bearing on either the way the diving operation was conducted or the subsequent search. Aggressor Fleet Franchising Inc. had many successful and professional franchises operating in most of the world’s top diving locations for more than 20 years.

In my filed opinion, neither Aggressor Fleet Franchising Inc., Aggressor Fleet Ltd., Randy Wright, the vessel captain nor crew did anything wrong, and they met all applicable standards of care. My opinion concluded that, while regrettable, the deaths of Brown and Smith couldn’t be attributed to the actions or inactions of these defendants. The above synopsis lays out the primary facts and opinions that I provided as part of the discovery process that preceded the trial.

The survivors of the two missing men filed a multimillion- dollar claim against the various defendants named above. Despite the accident having occurred in Costa Rica, the trial venue was established as New Orleans since the Aggressor Fleet was headquartered in Louisiana, and the plaintiffs wanted a jury trial in the U.S. The ground was now laid for an epic diving legal drama.

In the next issueof Undercurrent, I will detail the trial events, issues of liability contested, and the outcome. Stay tuned.

Bret Gilliam was the founder of TDI/SDI training agencies, Chairman of NAUI, CEO of UWATEC, and publisher of Scuba Times, Deep Tech and Fathoms magazines. He also operated Virgin Diver, one of the first Caribbean liveaboards, and ran Ocean Quest International, a 500-foot cruise ship dedicated to divers. He sold the last of his diving companies in 2005 and currently lives in Maine.