Is It Worth Protesting a Dive Release You Don’t Like?

Check the first paragraph of this story about diving the Sea Hunter, and you’ll see our writer’s description of three lawyers who had problems with the dive release but went on the trip after writing a statement that they were signing it under protest. So we wondered, is there any value to doing that? We asked Undercurrent contributor Lawrence Schnabel, a member of the California State Bar, counsel to the Los Angeles-based law firm Lewis Brisbois Bisgaard & Smith and a certified divemaster, what you should do if you were in these people’s fins. Here’s his take:

First, I obtained the current Sea Hunter release. It indeed releases various entities from gross as well as ordinary negligence. It does not contain a choice of laws or forum clause. This is important because if a diver were to sue Sea Hunter entities in the U.S., it is less likely the court would use Costa Rican law, or rule the suit needed to be filed for convenience purposes in Costa Rica. (Note: read more about these clauses in Schnabel’s story “Divers, Sign Your Life Away” in our August 2008 issue). If a suit is brought in the U.S., however, keep in mind the court must be able to assert “personal jurisdiction” over the person or entity sued, which can be a problem for a person bringing suit where the person or entity sued is located outside the U.S..

Is there any value to writing a protest? In my opinion, there is little, if any, legal value to this, under general principles of contract law. By signing the release and then going on the dive trip, a court or jury would probably find that the diver accepted the contract. His “protest” would be viewed as a “grumbling acceptance” of the contract, or his going on the trip would be considered acceptance of the contract by conduct. I see the contract here as the diver’s agreement to pay, sign the release and obey the boat rules while aboard. The dive operator, in turn, agrees to supply transport, diving, food and accommodations. Once the diver has completed his trip, he’d have a difficult time trying to cancel (rescind) the contract and seek his money back. This is because his acceptance of the benefits by completing the trip would be seen as affirming the contract rather than rescinding it.

So what options do you have if confronted with an unpalatable release? You can almost always view a copy of the release before leaving home. It should be on the operator’s Web site, or they should send you it on request ( I called Sea Hunter’s 1-800 number and its Florida office e-mailed it to me the same day, no questions asked). The first option is to sign it. If the indigestible term is void by law (as is a release of gross negligence in almost every U.S. state), then you can sue the operator post-trip if you’ve been injured by the operator’s gross negligence. Keep in mind a dive release’s purpose is not to release liability for “inherent risks,” although a release’s wording will often mention that term. A dive operator needs no release for it since by definition an inherent risk is one innate to diving and can’t be minimized by the operator’s due care. So the operator, absent a few peculiar situations, isn’t liable for injuries caused by such risks because they occur without negligence on the operator’s part. A recreational release is intended to release the operator from simple negligence (versus gross negligence or willful/wanton misconduct), and this is what most states’ laws allow the dive release to accomplish.

Your second option is to seek a modification to the release. This would require the operator to agree to strike the objectionable clause. Both the diver and the operator should initial it so there is less chance of a later conflict over who agreed to what. But the operator will usually refuse to do this, feeling any release form that is printed must be valid and enforceable.

The third option is to refuse to sign the release, go home and then - - after the operator refuses to refund his money - - sue the operator under a claim of conversion or restitution. The legal argument would be that no contract ever arose because to accept the contract, the diver would have had to have signed the release. This is a risky option because it forces you to either hire an attorney (whose hourly fee will soon cost more than you can ever expect to recover) or sue in Small Claims court, with the headache of trying to serve the complaint on an out-of-state or country operator, establishing the court’s jurisdiction over the operator, then trying to collect on any judgment you’re lucky enough to obtain.

So unless you can get the release modified, with assent by the operator, the wisest course is to sign, dive and know that if you are injured, at least most U.S. state courts won’t enforce a gross negligence provision or other invalid clause.