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July 2022    Download the Entire Issue (PDF) Available to the Public Vol. 48, No. 7   RSS Feed for Undercurrent Issues
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Nobody Gets Away Scot Free

diving death shuts down dive operator decades later

from the July, 2022 issue of Undercurrent   Subscribe Now

Around 20 years ago, a certified diver died on a dive with Bahama Divers in Nassau Yacht Haven. The company's owner, Matthew Whiteland, told the Bahamas Tribune that the diver was with his friends and "it was a shallow dive to 25 feet or less. He signaled he was going back to the boat, never made it, and was later found dead."

The death resulted in an unusual case that has raised concern in many foreign dive operators. You see, it's almost impossible for an American to win a wrongful diving death suit in a foreign country. However, Bahama Divers had a sales office in the U.S., so the widow sued in a Florida court, and the court awarded her $9 million. In 2008, the plaintiff filed with the Bahamas Supreme Court to collect the money. Although Whiteland says he was advised that there was no way the judgment could be enforced and the money awarded in the Bahamas, a 12-year legal battle ensued. In early 2020, due to COVID, Bahama Divers closed for several months, furloughing its 15 employees. It reopened in early July 2020, and a few days later, bailiffs finally arrived at his door to collect, though the shop barely brought in $2 million per year.

Apparently, without insurance, or at least sufficient insurance, Whiteland had no way to pay, so he shut down Bahama Divers and walked away, leaving it to lawyers to sort things out. His employees lost their full-time jobs. After Whiteland's Bahamas attorneys and secured creditors got paid, it's unlikely the widow was left with much more than chump change.

The Tribune quoted one anonymous source who said, "It's a crying shame they were shut down." Regarding the lawsuit, "Their paperwork must not have been up to snuff in terms of liability release forms."

Stuart Cove, a prominent Bahamas dive operator interviewed by The Tribune, said, "The increase in litigation was taking the fun out of [running such a business] as clients sued for financial compensation even over instances where they were at fault and the firm blameless."

Sometimes, he said, insurance companies were too quick to settle claims that had no merit. Describing his company's insurance coverage as "very, very good," he added that increased premiums as a result of increasing litigation merely add to the cost of business for himself and other operators in the dive, snorkel, and scuba sector, and is reflected in what they charge for people to go diving.

That said, diving can be a dangerous sport, especially for beginners, and they deserve to be in safe hands. We've written about many trainees who have had insufficient supervision in open water dives, instructors who have failed to help, and dive operators who have neglected their duties. Many divers would still be alive if not for errors of others, and their families suffered greatly.

Still, the U.S. is a litigious society, and not every suit has merit. We recently contacted two prominent U.S. diving attorneys to hear their views about diving litigation. David G. Concannon (Concannon and Charles, Ocean City, NJ) observed, "The issue of frivolous cases and insurance is becoming a crisis in the U.S. DAN Risk Retention Group and First Dive have seen an increase in claims but, so far, they don't settle frivolous cases. They are more likely to deny coverage because the operator violated standards and, therefore, voided the insurance policy. I believe this is a smart move because it makes the operator accountable and more likely to focus on the quality of their services."

Rick Lesser (Lesser and Associates, Redondo Beach, CA) said, "The carriers always want to settle if it is the cheapest alternative. It's the reality today. Justice and fairness have nothing to do with it."

- John Bantin

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