Two Other Takes on Protesting a Dive Release

In our September 2009 feature on the Sea Hunter in Cocos Island, our writer mentioned three attorneys on board who tried to change the dive release form, to no avail, and lawyer Larry Schnabel gave his take about protesting a dive release form. Then we got perspectives from two more lawyers.

Here’s how David Concannon, a trial attorney in Wayne, PA, who litigates diving accident cases, sees it: “In my opinion, there is no way that the Sea Hunter Group’s release would be enforced by a U.S. court. In addition to the points mentioned by Schnabel, an American court would make short work of voiding the Sea Hunter Group’s liability release, due to unequal bargaining power between the parties, and on public policy grounds.

“There are plenty of cases that hold liability releases invalid because they were signed only after the participant traveled a great distance and paid for the activity, therefore they had no real choice but to sign the release or lose their money and time. Courts routinely find that this situation creates an ‘unequal’ relationship between the parties to the contract, because the participant had little or no bargaining power. In fact, when asked to enforce a liability release, most judges ask, ‘Where was it signed and how was it presented?’ If the answer is ‘On the dive boat, before leaving the dock,’ the liability release probably will not be enforced.

“Liability releases are generally disfavored, and judges are usually looking for reasons not to enforce a release. Springing an onerous release on an unsuspecting diver after he arrives in a foreign country, and on the ride from the hotel to the boat, is an open invitation for a court to find the release unenforceable because it was signed under duress. This is not to say that some parts of the Sea Hunter Group’s release would not be enforced under different circumstances, but it is the way the release is presented to the diver that matters in this instance.”

Like the lawyers in our story found out, once you’ve paid your money and go aboard the boat, you’re helpless. That’s why you should negotiate the release before you commit, says Steve Coren, an attorney in Wellesley, MA, and author of The Law and The Diving Professional. “The best -- and only -- time to negotiate release language is when a diver first contacts the charterer or agent about a trip and bargains for appropriate release language along with the diving package. Hopefully the need by the charterer to fill the boat may result in a revised release. (Probably the charterer will ask that the lucky diver who gets to change the release not tell any of the other divers).”