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A written contract expresses the agreement of the parties. The joint will of the parties is self-evident only when the agreement is clear and easy to understand. In order for a release to be valid it should be in writing with language “expressing the will of the parties.”
Nationwide, courts have proclaimed that a party’s intent will be shown only when the document includes language which is clear, explicit and unambiguous. Long, convoluted documents replete with multi syllable words couched in technical legalese may serve lawyers, yet fail to place a party on notice that his signature results in a forfeiture of one’s legal rights. Should the document not clearly convey this message its effect may be worthless.
The release should be in plain simple language drafted for the individual dive shops. The terminology of the document should be such that the average person of common intellect and intelligence is able to understand it. While it is advisable for an attorney to review the releases, the document should not “read” as if a lawyer drafted it.
The language of the release should also be unequivocal. That is, the party agreeing to waive his or her rights should, through the wording of the document, have no doubt as to the effect and consequences of signing the document.
Applying this principle within a diving context, the document should fully address the nature and scope of the anticipated dives or instruction. For instance, if the document seeks to release an instructor teaching a course of all legal liability for his actions, omissions, or errors in the teaching of advanced open water certification, it should read as such. A release referring only to an “open water course” will not protect the advanced course instructor.
Within a student/instructor relationship much is expected of the instructor. In order to be fair to both parties to a release agreement, the student and instructor should be informed of what is expected of each party.
If the release addresses a dive charter, the specifics of the anticipated dive profiles should be expressed in the document. For instance, if the dive site is at 120 feet with a possible overhead or confined environment the release should indicate that the dive is an “advanced” dive. Submitting a boilerplate standard release form appropriate for beginner divers on an advanced dive will ill serve the dive shop seeking to protect itself from possible exposure.
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