Legal Remedies for Overseas Injuries Unlikely

An injured diver who seeks compensation from a dive operator in a foreign country faces a difficult, if not impossible, task. While there's virtually no chance to recover from an uninsured operator, suing an operator with insurance is a difficult task, as we saw in the case we reported on last month, where attorney Michele Bass sued Ramon's in Belize for her client's serious injuries caused by shattered glass from a boat windshield.

Unlike settling a car accident in your hometown, where your insurance company hammers it out with the other driver's insurance company, you'll need representation - most likely an American lawyer - to deal with a foreign insurance company. You may need to hire a second attorney in the country you're dealing with. Since any insurance company wants to settle for the lowest amount possible, if at all, you may have to threaten and even pursue litigation to get a settlement. If you go to court, good luck. The cost of your American lawyer, foreign lawyers, trial preparation, and the trial itself may be prohibitive. Even if, at great expense, you succeed, you may have difficulty collecting.

Furthermore, the foreign legal system may be against you from the start, as many believe the Mexican system is.

Don't expect big money. If an operator has insurance, it probably has low limits, and foreign courts don't provide big awards or penalties like those awarded in the U.S. For example, in English law, a plaintiff is not permitted to profit from a case but has to prove loss of earnings besides getting a payment for "pain and suffering."

What are the chances of a successful outcome for a diving negligence case in a far-off place? We asked lawyer David G. Concannon (Ocean City, N.J.) who said: "The inconvenience of suing in another country, with a suspect legal system and difficulty collecting any judgment, is a strong deterrent to pursuing a claim. This, plus the fact that an award of $100,000 would seem generous in Mexico, while it would be a pittance in Montana, would make many claimants believe the juice is not worth the squeeze."

Forget a Mexican Lawsuit

Two American marine biologists, Evan Abramson, a faculty member at the University of Washington, and his friend Tom Schaefer, were killed by the reckless captain driving Scuba Cancun's boat, Mr. Tom March 2022. They were diving with Squalo Adventures when Mr. Tom drove over them as they were surfacing.

Relatives of one of those killed engaged Mexican lawyers but are wary of talking to Undercurrent. They worry about the safety of their uncle's friends on Isla Mujeres. Threats were made. Even the Mexican lawyers became nervous. Scuba Cancun continues to operate, and we've received no response to our many queries about the case from them or anyone else in Mexico. The chances of bringing a successful negligence suit with damages awarded in Mexico look unlikely.

In fact, any suit in Mexico can be dangerous. Attorney Rick Lesser (Redondo Beach, CA) told Undercurrent, "I was involved in a death case from bad air at a dive shop inside a well-known resort complex in Baja California, where the primary involved attorney was told to stay out of Mexico if he wanted to stay alive. The PADI 5-Star resort there had no viable insurance at all.

"Diving outside of the U.S. is certainly at your own risk as to any potential problems that arise."

What about U.S. related Operators?

One might think that if one were injured while diving overseas with a U.S.-supported operation such as the Aggressor Fleet or PADI, there might be a successful path if a lawsuit were warranted. However, Aggressor doesn't own the boats it represents, nor does PADI own dive operations marketed with PADI affiliation. Neither do they insure their affiliates. So, it's complicated.

We asked Michelle Bass (Aspen, CO), the attorney representing Lorraine Elowe in the Belize suit (See Undercurrent, May 2021), for her view. "Any attempt to litigate against PADI or the Aggressor Fleet in foreign countries would be futile. Although both PADI and Aggressor (for example) do business all over the world, there would be a jurisdictional fight in any foreign country (determined under foreign law) - with any attempt to sue.

"My experience with the Belize case (involving insurance issued by a Belize company) makes clear that the law, legal procedures, and court systems in foreign countries are a nightmare and involve huge expenses. There is simply no 'traction' in foreign countries for lawsuits against either PADI or Aggressor or individual dive stores and instructors.

"The only avenue to recovery against PADI or Aggressor is in U.S. Courts since both PADI and Aggressor have their corporate headquarters in the U.S. and court jurisdiction is here."

It would be a long, expensive process. There would be continued jurisdictional battles and, if one had signed a waiver, a lengthy dispute over its validity. There have been winners but many more losers.

As we all know, it's just best to dive safely.