LEGAL RIGHTS OF A RECREATIONAL DIVER

About Delise & Hall

Delise & Hallis a New Orleans, Louisiana, based law firm whose primary area ofpractice involves the representation of recreational and commercial divers in all aspects of maritime law.Since 1974 Delise & Hall has represented the interests of commercial andrecreational divers from the Gulf of Mexico to the Gulf of Cadiz, from the British Isles to the MarshallIslands in matters concerning the Jones Act, maritime contracts and vessel charters, products liability,personal injury and wrongful death litigation, salvage rights and vessel documentation. In an effort topromote diver safety, the firm also sponsors diver safety seminars and related activities.

For further information on any maritime legal matter, or to receive the firm's publications Your Rights asa Diver,The Legal Rights of a Commercial Diver, or The Diver's Legal Log, please call, write oremail us at:

Bobby J. Delise, attorney, is a native of New Orleans, Louisiana, and a founding partner of the firm. Acertified diver since 1976, Mr. Delise's primary specialty is the representation of an international clienteleof oilfield, inland, and construction commercial divers and recreational divers in personal injury litigation.In addition to his litigation practice, Mr. Delise has engaged in the representation of individuals andenterprises in international and commercial litigation and contracts.

Mr. Delise received his Bachelor of Science from Louisiana State University in 1976, his Juris Doctor(J.D.) from Loyola Law School in New Orleans in 1979 and a Master of Laws (LLM) from Tulane LawSchool in 1990. He was admitted to the Louisiana State Bar Association in 1979 and has been admittedpro hac vicein numerous Federal and State Courts all throughout the United States. He is admitted tothe Texas Bar Association. Mr. Delise holds membership in the Association of Trial Lawyers of America,The Louisiana Trial Lawyers Association and an associate membership in the Undersea and HyperbaricMedical Society. He is a visiting skills professor at Loyola Law School in New Orleans and a member ofthe faculty of the National Institute of Trial Advocacy. He has presented lectures and legal divingseminars before the Undersea and Hyperbaric Medical Society, DAN, the Association of Trial Lawyers ofAmerica and numerous other professional societies and organisations.

Patrick M. Amedee, attorney, is a native of New Orleans, Louisiana and a founding partner of the firm.Mr.Amedee's primary specialty is the representation of commercial divers in personal injury litigationwith exhaustive experience in hyperbaric medical and legal issues. In addition to his diving specialty, Mr.Amedee concentrates in the field of environmental law, toxic tort litigation and wildlife conservation law,as well as international trade and commerce. Mr.Amedee received his Bachelor of Science fromLouisiana State University in 1977, his Juris Doctor (J.D.) in 1980 from Louisiana State UniversitySchool of Law and a Master of Laws, (LLM), in Environmental Law, in 1992 from Tulane Law School.

Alton J. Hall, Jr., attorney, is a native of Natchez, Mississippi, and has been practicing admiralty lawsince 1991. Mr. Hall has been a PADI open water instructor for over a decade, with a Master ScubaDiver Trainer rating, teaching every level of diving, including many specialties. He is also a certifiedNACD cavern instructor, a cave diver through NACD and NSS-CDS, and a recipient of the Wakullaaward. Mr. Hall has extensive experience in mixed gas diving, deep diving, cave exploration and wreckpenetration. He has served as a member of national and international cave and wreck divingexpeditions. Mr. Hall received his Bachelor of Science from Mississippi State University in 1986, and hisJuris Doctor (J.D.) from Tulane University in 1991. Areas of expertise include all aspects of admiraltylaw, with specific emphasis on diving, salvage, treasure, major personal injury, charter party andcollision litigation worldwide. Mr. Hall is admitted to all Louisiana State and Federal courts, as well asthe United States Fifth Circuit Court of Appeals, the Federal Maritime Commission and the United StatesSupreme Court. He has been admitted pro hac vicein numerous Federal and State courts throughoutthe United States.

INTRODUCTION

Recreational (sport) diving in the United States and throughout the world has reached a zenith. In the United States alone there are more than three million certified divers and this vibrant sport continues to grow daily. While diving for some remains simply a hobby, for many it has become a way of life or vocation. Diving as a sport was once confined to the ex-military and thrill seekers, but through advances in technology and instruction, diving has become a sport which the entire family can enjoy.The diving community is comprised of a variety of participants, including equipment manufacturers, retailers, charter operators, instructors, and guides. As a result of the interplay between the diver and others in the diving community an entirely new body of law is slowly evolving to address the rights and responsibilities of the sport diver.

Some of this law, such as salvage and treasure law, finds its roots in ancient maritime law. Other areas of diving law, most notably personal injury and employee rights, are relatively new creations of Congress, state legislatures and the courts.

The purpose of this publication is to explain in general terms the law as it affects divers and others in the diving industry.This booklet addresses diving accidents, employee benefits under the Jones Act, treasure and salvage law, products liability law, and the effect of waiver or liability releases. These and additional subjects are updated regularly through our free publication, The Diver's Legal Log.

Every legal dispute is different. The scope of this publication is to provide a general overview of the law, rather than legal advice for specific cases. Our hope is that this overview will generally explain the law and raise a consciousness of issues and events which effect everyone in the diving community.

DIVING ACCIDENTS

Although man evolved from marine life, humans now exist on land at a pressure of one atmosphere, breathing air composed primarily of nitrogen, oxygen and carbon dioxide. The underwater world is an alien one; consequently, divers must safely adjust to an environment lacking breathable air and cope with variants in pressure with every increase or decrease of depth. Divers are also presented with the challenges of adapting to changes in the perception of sound and vision and fluctuations in temperature. It is an environment which depletes one's energy faster and at a different rate than on land. To enjoy this environment, divers should be sufficiently equipped, trained and prepared both physically and mentally.

Proper physical and mental training as well as employing modern equipment greatly reduces the risk of injury. While even perfectly conducted dives can result in diver injury, for the most part, serious diving injuries are caused by one of the following factors: improper decompression, rapid ascent, inadequate training, diver fatigue, equipment problems, diving and smoking, alcohol and/or drug usage, dehydration or diving with physical or mental contraindications such as obesity, heart problems, seizure disorders, lung disorders, significant central or peripheral nervous system disorders or pulmonary dysfunction. A number of accidents, unfortunately, result from a simple oversight, incompetence or a complete disregard for diver safety.

Dive Shop or Charter Company Negligence

When a diver contracts with a dive shop or charter boat for a diving trip, a legally recognized relationship is created. In return for certain consideration (an agreed upon price) the dive shop or charter operator obligates itself to provide a certain service. The nature of this relationship is determined by the specific agreement.

At minimum, a dive shop or charter company is responsible for providing safe transportation to and from a dive site. Often, the agreement encompasses the duty to provide not only safe transportation, but also lodging, equipment, dive masters or guides and supervision for the duration of the voyage and dives. It is imperative, therefore, that before leaving the dock, each party obtains a complete understanding of what services are expected from the dive shop or charter company.

Defining the relationship benefits both parties. This, however, does not mean that every aspect of the agreement must be defined. For instance, the duties of the operator to navigate and captain the vessel safely is implied by nature of the relationship.

When would a dive shop or charter operator be liable for injuries sustained by its guests? When the charter company or dive shop fails to deliver on the agreed upon service and that failure is the cause of injury, compensation may be due the diver. Under those circumstances, the dive shop or vessel owner's failure to provide the agreed upon service may be defined under the law as negligence. What is important to remember is that a dive shop or charter company will only be found legally at fault where the dive shop or charter company has failed to provide the agreed upon service and that failure was the cause of the injury.

Negligence Defined

Generally "negligence" is defined as:

the performance of some act which a reasonably prudent person would not do, or the failure to perform some act which a reasonably prudent person would perform when prompted by circumstances which ordinarily regulate the conduct of human affairs.

It is, in other words, the failure to use ordinary care under the circumstances in the management of one's person, property, or business.

More specifically, dive shop or charter company negligence is defined as:

the doing of some act which a reasonably prudent dive shop or charter company would not do, or the failure to do something which a reasonably prudent dive shop or charter company would do when prompted by the considerations which ordinarily regulate the conduct of similarly situated charters.

In dive accident cases determining the degree of ordinary care expected under the circumstances varies in proportion to the danger known to be involved in the diving operation and is relative to what is reasonably foreseeable under each circumstance.

To better illustrate legal negligence, the following examples may be helpful.

Failure to Properly Recognize and Treat Barotrauma Injuries

Acommon claim for dive shop or charter company negligence occurs when the dive shop or charter company fails to recognize and/or provide prompt appropriate emergency medical care and treatment to a diver experiencing symptoms of decompression sickness or arterial gas embolism. Initial onset of cerebral arterial gas embolism or decompression sickness may first manifest in a diver through presentation of subtle symptoms, such as nausea, irritability, numbness, muscle weakness, vertigo, dizziness, headaches, personality changes and other neurologic changes. Following the onset of these symptoms a patient's condition over time may worsen with the final consequence resulting in permanent paralysis, severe brain damage or even death.

The hyperbaric medical community suggests that the most important factor in reducing the severity

Charter companies and dive shops are obligated under the law to provide prompt emergency medical assistance and, if required, evacuation.

of cerebral arterial gas embolism and decompression illness is the rapid diagnosis of the injury and prompt hyperbaric treatment. As the delay in diagnosis and treatment increases, so does the severity and permanence of the residual damage.

Charter companies and dive shops are obligated under the law to provide prompt emergency medical assistance and, if required, evacuation when a guest diver sustains a diving related injury offshore. Recognizing this legally imposed duty, the dive shop or charter company must ensure that its crew, primarily through the vessel captain and dive master, be properly trained in the recognition and emergency treatment of all of the symptoms of decompression illness and air embolism.

This duty does not obligate dive operators to provide medical treatment on par with a hyperbaric physician, nor does the law require an on-site recompression chamber.The operators are obligated, however, to be equipped to address emergency situations offshore. Aproperly provisioned dive boat should be equipped with a standard O2 unit such as the one found in the basic "DAN Rescue Pak."

The dive vessel should also have appropriate communications capability in order to directly communicate with emergency and medical personnel.

Logistical transportation, support, and communication capability requires that the dive master or charter company be both familiar with the location of the nearest hyperbaric facility and, further, have in place a plan to provide emergency medical evacuation, by air if necessary, for its guests. Being properly equipped and logistically prepared are the earmarks of a prudent dive shop or charter company.

The medical case books are filled with horror stories of injured sport divers reporting subtle symptoms of decompression sickness or cerebral arterial gas embolism to operators only to have their complaints ignored or dismissed. Instead of following an appropriate emergency plan, the vessel captain or dive master instead choses to simply reassure the diver that the injury was minor, or counsels the diver to "take it easy" for the remainder of the trip. This example of negligent administration to the diver often results in lifelong disability, permanent residual injury or death.

Further complicating the emergency is the "macho-like" pressure to "tough it out," an attitude often self- imposed by the injured diver or his

When reviewing the actions of the dive master or vessel captain the seminal question becomes did the dive master or vessel captain act as an ordinarily prudent dive master or captain under the circumstances?

peers. Diving is no place for macho bravado; preparedness, prudence and good sense save lives.

In summary, when reviewing the actions of the dive master or vessel captain the seminal question becomes did the dive master or vessel captain act as an ordinarily prudent dive master or captain under the circumstances? If the answer is "No," the operator may be found legally negligent and liable for the diver's injury and resulting damages.

Failure to Ensure Proper Training and Experience for the Dive

As in any business, the dive charter business is profit motivated. Consequently, operators may market their trips and rent equipment to as many people as possible in order to maximize a profit. While this is at the heart of the capitalist system, it is incumbent upon the operator to ensure that the divers on a charter are properly trained and experienced prior to being admitted on the trip. In addition to certification and experience requirements, the dive master should question each diver to ensure that they are physically able to engage in the vigors of the anticipated dive. Considerations include tides or currents, depth, visibility and other sea conditions.

Furthermore, each diver must be properly equipped for the dive. For example, each diver must have, in addition to normal SCUBA gear, an alternate air source, a buoyancy compensating device, a submersible pressure gauge, a timing device and a method of calculating allowable bottom time. Specialty dives may warrant additional equipment such as computers, lights, surface floats, etc.

While a dive master or vessel captain is not obligated to "baby sit" the divers on a trip, there is a duty to act reasonably within the services contracted.

Dive Planning

Beforeembarking on adive trip,the operator should review withits guests the anticipated maximum depths,bottom times,bottomand surface conditions, ingress and egress procedures,emergency procedures,etc. Thediveguests should be provided afull "preview ofcomingevents" sothatthey can determine aheadoftime whether they are properly equippedand capable physically andmentally to engagein thedive. Failure to provide a properbriefing may benegligence.

Defective Rental Equipment/Bad Air

It goes without saying that a diver who rents equipment has an expectation that the equipment has been properly maintained and inspected according to manufacturer recommendations and specifications. The law recognizes this expectation by holding the shop which rents the equipment to a very high standard of care. The law requires that the shop not only test and maintain the equipment but also assure that the equipment is appropriate for the anticipated dive. The dive shop should require periodic testing and maintenance of its equipment and document its actions with a maintenance log.

The obligation to provide properly maintained equipment extends to air fills. Bad air kills divers. When a dive shop provides air to sport divers, the diver assumes that the air is pure and free from all contaminants, especially carbon monoxide. In some states the law provides for periodic testing and certification of air compressors to ensure they are maintained according to code and manufacturer specifications.

Alcohol and Drug Abuse

Alcohol may be a precipitating cause in many diving accidents and fatalities. Diving safely requires one to be mentally alert and physically capable to confront the physiological changes imposed on a body under pressure. Drinking alcohol or using drugs not only physically alters the body, but also reduces one's alertness, judgment and reaction capability.This altered capacity is further exaggerated when the body is exposed to pressure. Additionally, consumption of alcohol dehydrates the body - a contributing cause of decompression sickness.

Adive shop which provides, allows or encourages the consumption of alcohol before, between or after diving drastically increases the odds that one of its divers will sustain injury. Such activity may expose the operators to potential liability and consequently open themselves to liability.

Improperly Provisioned, Equipped or Manned Vessel

Avessel under charter for sport recreational diving must be properly manned, equipped and provisioned to engage in the anticipated dives and to navigate the seas to and from the dive site.

The dive vessel should be equipped with a well maintained fathometer, appropriate maritime communication capability (to include emergency medical frequencies and the telephone number of the locale's emergency hyperbaric facility) and emergency oxygen, in addition to the usual fittings and gear for a well maintained, seaworthy vessel.

Other important equipment aboard dive vessels should include appropriate means of egress and ingress, dive manuals, emergency hyperbaric treatment tables, appropriate dive tables and a first aid kit with diver-related injuries in mind.

Finally, a vessel should be manned with a Coast Guard approved crew and properly rated captain and dive master who are qualified and certified not only to supervise the anticipated dive, but also to render on-site emergency care and treatment of injured guests.

Instructors and Certifying Agencies

Agency Negligence

Diving instructors are, for the most part, professionals devoted to teaching diving in the safest manner possible. Diving certification agencies, in an effort to standardize training, have established standards and procedures for classroom, swimming

pool and open water training. Failure to adhere to these standards and procedures may result in injury to the diving student and liability on the part of the instructor. Failure on the part of the certification agency to set proper standards and procedures for its instructors may also result in liability.

Adiving student must rely on his or her instructor for proper training and guidance. An instructor must ensure that a student be provided an opportunity to learn every aspect of the course, both in the classroom as well as in the swimming pool and open water.The instructor should also not hesitate withholding certification of divers who are not physically or mentally proficient in the skills presented. Instructors are, and should well be, held to a high standard of care for their conduct in their teaching of future divers.

Medical Issues

Over the last fifteen years, the writers of this booklet have had occasion to question the leading hyperbaric physicians in the world on issues involving hyperbaric medicine. The following is a sample of key medical issues within the undersea and hyperbaric medical community.

Medically Fit to Dive

Under federal law a diver may not pursue a career in commercial diving until the diver has been certified by a qualified hyperbaric physician as "medically fit to dive." In order to continue within the profession, commercial divers must, thereafter, be medically "cleared" annually.

This law was enacted to ensure that maritime workers engaged in diving as a profession are properly screened and examined for any medical condition which would disqualify them from exposure to hyperbaric conditions. The medical community has provided specific standards that prospective and current commercial divers must

Sport diving at times can be as physically strenuous and mentally demanding as commercial diving.

attain. These standards include weight parameters, the absence of hypertension (high blood pressure), a sound heart and vascular system, a full examination of the central and peripheral nervous system and a checklist of fifty-four physical standards that an examining physician must review in determining whether a diver is physically fit to engage in diving as a profession. Additionally, because of the psychological demands of diving the examining physician is cautioned to take care in reviewing the mental status of prospective divers prior to their being cleared to work in a commercial diving setting.

Should similar physical, psychological and medical standards be established for the certification of sport divers? Sport diving at times can be as physically strenuous and mentally demanding as commercial diving. This is especially true for out-of-shape divers or divers attempting technical dives. The recreational diving industry has opposed and resisted government regulation. There is an argument to be made, however, that the risks and consequence of diving related injury may outweigh the concerns of the sport diving industry. Many legal, ethical and medical questions remain as to whether periodic sport diving physicals should be required, as a matter of law.

Appropriateness of Dive Tables

Just how adequate and reliable are the U.S. Navy Diving Tables (or tables based on them) for use by sport or recreational divers? Development of the United States Navy Dive Tables began in 1912 following earlier experiences by the British Navy. From 1912 through World War II and the 1960's, the United States Navy continued to refine and develop its dive tables using as its test subjects young males in superb physical condition,

Scientific literature indicates that many divers are injured albeitastrict compliance with U.S.Navy Dive Tables.

employing state-of-the-art computers, engineering principles and advanced biomedical research. Recreational sport diving has to this day relied upon the research done by the United States Navy in the development of its tables. How appropriate are the U.S. Navy Diving Tables for the recreational diving community?

Scientific literature indicates that many divers are injured albeit a strict compliance with U.S. Navy Dive Tables. One possible reason may be that the U.S. Navy Dive Tables were not designed for the sport diving industry.The bottom line is that there is no substitute for diving conservatively within or well below the operational limits of the U.S. Navy Diving Tables. It is widely accepted that diving the tables to the limits greatly increases the probability of injury.

Aquote from Dr. William Schane, M.D., Staff Physician and Diving Officer of the National Oceanographic and Atmospheric Administration is salient,

At the risk of appearing iconoclastic, we do not have the foggiest idea of how the human body handles gases breathed under pressure! On[e] expert has called decompression theory "the worst form of black magic".

Presently, there are numerous computer software programs allowing divers to customize dive tables to suit specialized diving applications. Great caution should be exercised in utilizing these programs. A court of law will strictly scrutinize employment of these programs if offered within the "casual" diver consumer market.

Neurological Examinations

Commercial diving companies require that all diving personnel be trained and proficient in the administration of a basic neurologic exam for post injury medical protocol. These widely accepted neurological tests have been designed to determine whether the central nervous system has been damaged as a result of air embolism or decompression sickness. The examination is quick, easy to learn and widely accepted within the medical community as the most important technique in the early recognition of decompression sickness or cerebral arterial gas embolism.

The test was designed to be performed in the field by non-medical personnel. The data obtained from the screening is then transmitted to the hyperbaric medical personnel supervising the medical care via marine radio.

How many sport divers or dive masters know of, or are competent in, the performance of this examination? Probably very few. Is it unreasonable to expect that proficiency in the administration of this screening tool be required of dive masters and instructors? (More information concerning this exam may be obtained by contacting our office.)

Dysbaric Osteonecrosis

Dysbaric osteonecrosis is a term used to describe the degenerative changes seen in the bones of individuals exposed to hyperbaric conditions. The most common areas for this affliction include joint surfaces such as the knee, hip or shoulder.An advanced condition may result in arthritis or the collapse of the joint. There is debate within the medical community as to whether this ailment may be caused traumatically or only through repeated exposure to hyperbaric conditions.

Diagnosis of the condition can only be achieved by medical testing done at the direction and oversight of qualified orthopedists, radiologists or hyperbaric physicians. It is recommended by some hyperbaric physicians that sport or "technical" divers who dive with great frequency over extended periods of time be examined by an orthopedist or radiologist if there are any concerns associated with joint pain, discomfort or disability.

PRODUCTS LIABILITY

Law and Diving

Under what circumstance is a manufacturer, designer, or vendor of a product legally responsible when the product malfunctions, or fails to perform to specifications? Or, under what circumstances or conditions may a designer, or inventor of a product be held accountable should the product be designed in such a manner as to render it hazardous to the consuming public?

These questions take on special importance in light of the life-sustaining characteristics of dive equipment. In few other activities, save aviation or sky-diving, does a participant in a recreational activity so heavily rely upon a consumer product to sustain life through its use.

The area of the law which addresses instances of product failure is known as products liability law. While specific legislation may vary from state to state the general legal doctrine remains constant nationwide.

Products Liability Law - Basic Principles

Products liability law is based on the very simple principle that the law must regulate how manufacturers, designers, or vendors interact with the consuming public in the sale, use and distribution of products. In regulating this relationship, the law imposes requisite duties and responsibilities on both parties to the consumer transaction. Briefly stated, those who place consumer products in the stream of commerce must ensure that the product is safe. Contemporaneously, the consumer is obliged to use the product within its specifications, paying heed to the warnings and instructions provided by the manufacturer.

The duty imposed on the manufacturer, designer, vendor, or developer of a product requires that a product which is defective not be placed on the market. If the manufacturer, designer, vendor or developer

Those who place consumer products in the stream of commerce must ensure that the product is safe.

of that product breaches that duty, then it is responsible under a strict liability doctrine. Additionally, the court will view the actions of the designer, manufacturer, developer, retailer, or distributer of a product under a negligence theory in reviewing whether the entity acted reasonably in the manufacture, design, development, distribution, or sale of the product.

The law mandates that the consuming public uphold its duty to use a product according to its specifications and that the product not be misused, or used without first being attentive to product specifications or instructions. Additionally, the consuming public is required to have appropriate skill and training before using a particular product. In any analysis, should the consumer, developer, manufacturer, distributor or vendor fail to uphold its duty, appropriate legal consequences will ensue.

The Strict Liability Standard

Under a theory of strict liability, a manufacturer, developer, or vendor is legally obligated to compensate an injured user of the product upon a showing that the product was defective. The injured party need not show that the manufacturer, developer, or vendor was "at fault" in presenting a product on the market. The injured consumer need only show that the entity sold, developed, manufactured, or invented a defective product.

Defining "defective product" has taken much court time and energy. Stated simply, a "defect" in a product may be defined as a "problem, weakness or omission that is related or connected to its safety or safe use." Taking the analysis one step further, there are many classes of defects which may render a product legally defective, namely, defects in design, manufacturing, or a deficiency in the products labeling, instructions or warning.

When a product is placed in the stream of commerce, there exists the public belief and expectation that the developer, manufacturer, or vendor "stands behind its product." In recognition of this, the law imposes a duty on the provider to warrant that the product is fit for its ordinary or intended purpose or use and that, if a product, through ordinary use, is unreasonably dangerous to the consumer, that the developer, manufacturer, or vendor will be held accountable for damages.

In summary, to prove a claim under a doctrine of strict liability a consumer must establish that the injury was caused by a product that was defective in design, manufacturing, labeling, instructions, or warnings and, in light of that defect was unreasonably dangerous to the injured party.

The Negligence Standard

Unlike a strict liability standard, a negligence theory under products liability law investigates the acts, actions, omissions, or conduct of a party.To recover under a negligence standard, the injured consumer must show that the manufacturer, seller, or distributor failed to act reasonably in the manufacture, design, testing, distribution, labeling, or assembly of the product and that the failure to act reasonably was the cause of the damage done.

The salient question under a negligence review involves defining "reasonable conduct." The reasonableness of an action must be viewed in light of the standards of other similarly situated actors under like circumstances. That is, if the actions of a developer, manufacturer, or vendor are under review, those actions must be viewed in light of other reasonably prudent inventors, manufacturers, or vendors under similar circumstances. Should the actions of the actor fall below the standard of reasonably accepted conduct and cause a consumer's injury, then the unreasonable actor will be held liable and accountable in a court of law.

Defenses to Claims of Products Liability

The primary defense in products liability litigation is simply that the product was not defective and/or the actors not negligent. To support this position the manufacturer, developer, or vendor must show that he acted reasonably and that, in light of all of the technical supportive data, the product was not unreasonably dangerous to the consuming public.

Asecond defense available is that, even if the product was defective, the defect in the product in no way caused or contributed to the injury which the consumer claims.

As mentioned previously, under products liability law, a key element to the legal analysis is an investigation of duties and responsibilities of all the parties to the sale. Thus the defending party can successfully maintain a defense in the event the consumer misuses the product or materially alters its characteristics or specifications thereby rendering the product defective, or fails to adhere to the warnings and/or instructions provided with the product. Aconsumer cannot haphazardly use or misuse a product and not suffer the legal consequences should that misuse or haphazard use cause his injury.

Lastly, there exists the defense that the consumer was a "sophisticated" consumer, who assumed the risk inherent with the use of a particular product. Under an "assumption of the risk" defense, the provider of the product must show that the consumer "voluntarily and unreasonably proceeded to encounter a known danger" and, further, "proceeded unreasonably to use the product after discovering and becoming aware of the danger."

Products Liability and Diving Equipment

Diving equipment is a "special purpose consumer product." Unlike most recreational sports equipment, the consequences of defective diving equipment may have life or death consequences.

Keeping in mind that the law defines a defective product as a product with a "problem, weakness, or omission that is related or connected to safety" it is difficult to imagine any significant problem related to the functioning of a life-sustaining product such as a diver's regulator which would not, per se, result in the legal definition of a defective product. Thus, the very nature and purpose of diving equipment necessitates that a legal forum closely scrutinize particular dive equipment when legal claims are based upon an assertion that a piece of equipment was the cause of an injury or death.

The law demands that all manufacturers and suppliers take special care to ensure that their products are free from defect, that the products be accompanied with adequate warnings and instructions and that, most importantly, they acted reasonably in the design, manufacture and assembly of the equipment. Likewise, consumers of dive equipment and their actions will also be under strict scrutiny in their use of the equipment.

Technical Diving

Every month seems to bring new products, goods and services to the recreational diving community. The end of the Cold War and the emergence of a computer literate generation brings new and exciting technology and equipment which allow individuals to dive deeper and longer with greater access to environments which were previously inaccessible to all except those in the military or commercial diving communities. The advent of computer generated decompression tables, the progress of mixed-gas technology and the promise of consumer accessible closed-circuit breathing systems brings the opportunity and the lure to "push the envelope" and "to go where no one has gone before." Oftentimes, however, access to this technology and equipment far exceeds the training, expertise and "educational curve" of the general consuming public. It should come as no surprise, therefore, that the diving community has recently seen what many believe to be an unacceptable rate of death and injury.

While technology oftentimes moves faster than the market can sustain, the law is fully prepared and able to address rapid changes within the diving community. If manufacturers, providers, inventors or designers "jump the gun" by introducing unproven products without appropriate trial runs or complete development the consuming public may face an unreasonable risk of harm. Should that occur, products liability law will act to ensure the safety of the consumer. Likewise, should the general diving consumer venture into a method of diving beyond their expertise and training, they will be held legally accountable for their conduct.

The Law Never Rests

Products liability law remains ever vigilant in addressing the providence and use of products, goods and services within the consumer market. While technology may develop at breakneck speed, the ever changing status of the law should bring solace to both the consumer and the producers of diving equipment; the bottom line...buyer and seller beware - irresponsible behavior will not be tolerated.

EMPLOYEE RIGHTS UNDER THE JONES ACT

"I know that I am a diver, but am I a 'Jones Act Seaman'?" That, without a doubt is the most frequently asked question by commercial divers, divemasters, vessel crewmembers and instructors contacting our office. The answer to this question has extraordinary consequences for employees of dive vessels or their survivors.

What is the Jones Act?

In 1920, the United States Congress passed the Jones Act. Beginning at 46 United States Code, Subsection 688, the Jones Act reads as follows:

Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury...and in the case of death of any seaman as a result of any such personal injury, the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury...

Under the Jones Act, a maritime worker is entitled to recover damages upon a showing that his injury is attributable to an unseaworthy vessel or negligence on the part of his employer or a co-employee. Having proved that the damages were caused by such negligence, the injured seaman is entitled to recover a monetary award for past, present and future physical and mental pain and suffering, a dollar- for-dollar loss of earning capacity, medical expenses and recovery of any other provable monetary loss resulting from loss of employment as a maritime worker, i.e. savings plans, medical disability insurance, life insurance or contributions by the employer to a pension plan.

Additionally, seamen are afforded the protection of maintenance and cure. Under admiralty law all seamen are entitled to receive free medical treatment for any injury or ailment received during the worker's service to the vessel. Additionally, the seaman is entitled to a daily stipend or allowance covering the reasonable expenses of room and board until the seaman is fit for duty.This right to maintenance and cure extends until the worker has achieved maximum medical improvement. Additionally, the right is extended to the worker even if the injury occurred through no fault of the vessel owner or employer. Willful failure or refusal by the employer to provide an injured worker with these benefits exposes the employer to a judicial award of attorneys fees, costs and damages to the employee for such refusal.

With the Jones Act as a foundation, U.S. seamen worldwide are armed with federally mandated law which protects them as they face "the perils of the sea." Interpreting this law, admiralty courts throughout the United States treat seamen as "wards of the admiralty" and, in doing so, provide them with the security of knowing that employers are answerable to their employees for injury caused by negligent practices or procedures, or an unseaworthy vessel.

Who is a Seaman?

To enjoy coverage under the Jones Act, a maritime worker must be a seaman. To qualify as a seaman, the maritime worker must establish connection to a vessel in navigation and, further, the work must contribute to the function or mission of that vessel. Typically, the captain, crew and divemaster aboard a dive boat are seamen. As long as the worker establishes the connection to a vessel and that the work contributes to its function or mission, he or she is protected under the Jones Act.

Customarily, when one thinks of a diver covered under the Jones Act, one thinks of an oilfield commercial diver.The Jones Act provides protection to any employee who has established "connection to a vessel in navigation." This class of employees protected includes, for instance, deckhands, dive masters, cooks and mates working aboard dive boats or any vessel for which wages are provided for services rendered. Any such employee is entitled to the liberal protection of the Jones Act.

Comparison of Rights Under the Jones Act and State Workers' Compensation Law

Differences between benefits due under the Jones Act and State Workers' Compensation statute are significant. Workers' Compensation statutes under state law afford an injured employee only an allowance or daily stipend for a specified period of time in addition to medical care and treatment.

Under the Jones Act, however, in addition to the workers' rights to maintenance and cure, the employee is entitled to monetary compensation for all of the damages sustained by the injured worker including pain and suffering both physical and mental, the loss of a limb, depression or any other psychological injury, and a dollar-for-dollar loss in earning capacity.The disparity in compensation is clear.

Jones Act Death Benefits

The Jones Act provides a remedy for seamen who are fatally injured during the course of their employment. This remedy is available only to the personal representative of a seaman. The action can be brought only against the seaman's employer. Because the Jones Act is the exclusive remedy available to the family of a seaman killed by his employer's negligence, state statues regarding wrongful death cannot be utilized.

If, however, the seaman's death is caused by the negligence of someone in whole or in part, other than his employer, his representative can bring an action under the general maritime law which, in most cases, is similar to state wrongful death statutes. Aseamen killed as a result of the unseaworthiness of a vessel owned by his employer, or a third-party, has an action under the general maritime law. Finally, a seaman (or anyone else) killed outside the territorial waters (beyond three nautical miles) has an action under the Death on the High Seas Act, which can be found at 46 United States Code, Section 72.

The family of a seaman killed as a result of negligence or the unseaworthiness of a vessel is entitled to recover funeral expenses, loss of financial support, value of lost services, loss of probable inheritance for children and loss of nurture, care, guidance, support and training. Additionally, the seaman's estate can recover for pre-death conscious pain and suffering.

TRAVEL AND CHARTER DISPUTES

Aquablue waters, white sand beaches and abundant undersea life often inspire a parting of hard earned money in return for a holiday of diving, fine cuisine and an escape from everyday trials and tribulations. Such tranquil settings, however, are for the most part distant in terms of miles, time and money. Purchasing airfare, lodging, equipment and on-site transportation individually can be prohibitively expensive. Travel and charter packages, as well as resort sponsored dive excursions, have filled the cost gap making "one-price-pays-all packages" available to even the modest traveller.

Many a traveler is disappointed when non-anticipated problems occur. These may include inadequate or primitive lodging, hidden costs such as airport fees and taxes, or undisclosed penalties and charges for changes in itinerary.

It is important to note that all package travel plans or dive charters in the eyes of the law are nothing more than contracts between the traveler and the provider of such travel services. When entering into such a contract or charter, it is imperative that the company or agent who receives funds provide a written contract clearly spelling out all of the services included under the agreement.

Any agreement between a sport diver and a dive shop or vessel operator for a boat trip should be memorialized in a document known as the charter. Different charters provide different services which may range from simply providing transportation from the dock to the dive site, to a full service charter wherein the dive shop or owner of the vessel provides not only transportation, but also dive equipment, dive guides, dive masters and other amenities. In determining which type of charter is best suited to your needs, the diver should first consider the different types of charter agreements.

Maritime law contemplates three basic types of charters, namely: the voyage charter, the time charter and the bare boat or demise charter. While these are the commonly recognized charters, it is important to understand that a charter agreement is simply a fancy name for the contract between two consenting parties and may be drafted to fit the circumstances.

Under a voyage charter the vessel owner provides the crew and retains the responsibility of navigating the vessel. The vessel owner simply provides transportation to a specific destination. This is analogous to a taxi ride.

A time charter, like the voyage charter provides that the vessel owner both man and navigate the vessel, however, only for a specific time period with the destination of the voyage being up to the charterer.This is similar to renting a limousine for a night on the town.

A demise or bare boat charter provides that the charterer assume possession and complete responsibility of the vessel from the vessel owner. Under a demise or bare boat charter, the charterer mans, provisions and navigates the vessel for a specific time. One would analogize this to renting a car for the week.

As a consumer, the diver must weigh the legal effects of any charter before entering into such an agreement. It is unwise for the consumer to enter an agreement without understanding the legal consequences of that agreement or not willingly accepting all the terms of the agreement.

In some states, the law recognizes that a consumer may be at a distinct disadvantage in bargaining power when presented with a form contract which grants benefits only to the service provider. Under such an agreement, known under the law as an adhesionary contract, the consumer

It is unwise for the consumer to enter an agreement without understanding the legal consequences of that agreement or not willingly accepting all the terms of the agreement.

is placed in a compromising position and is faced with either doing without the services or "adhering" (hence, the term adhesionary) to its terms and affects. Non-maritime examples of such adhesionary contracts include airline ticket contracts or automobile or equipment rental contracts. Under such adhesionary contracts, where the consumer may in effect waive many of his or her rights, the law in some states refuses to recognize all the terms of the agreement.

Control of the Vessel

The captain of the vessel in all non-demise charters is viewed under the admiralty law as the master of the vessel. The master of the vessel has full control and jurisdiction over the vessel's crew, her equipment and most importantly, navigation. Prior to the embarking on a dive voyage, there should be a complete understanding between the dive shop, vessel owner and the charterer, relative to who has the final power and authority over the vessel once the voyage begins. An example of such a dispute occurs when the captain of the vessel refuses to return to shore when requested by the vessel's guest or charterer.Aclear understanding between the vessel owner and the charterer is necessary so that when situations arise, such as when a diver gets violently sea sick, there is no argument as to who has final authority to return to shore. The most serious dispute occurs when the captain of the vessel refuses to bring the vessel in when a diver is experiencing subtle symptoms of decompression illness or cerebral arterial gas embolism. Though discussed at length earlier in this booklet, the vessel owner and charterer should understand that in all situations involving diver safety the benefit of the doubt should be given to the diver.

Liability Insurance

Prior to the signing of any charter agreements, the charterer should be assured that the dive shop or vessel owner has in effect adequate maritime liability insurance. The vessel owner should be fully insured by a major insurance carrier to a limit not less than $1,000,000.00 for maritime general liability coverage.

The easiest and most convenient method of assuring that such insurance exists is to ask for the dive shop or vessel owner's Certificate of Insurance. In reviewing the certificate, one should take note of the name of the insurer ("the insurance company"), the name of the insured (who is covered by the policy), the maritime limits of the policy, the effective dates of coverage, the names of the covered vessels and a designation that the insurance is maritime liability coverage or maritime protection and indemnity insurance. Obviously, the consumer must be cognizant of the serious implications of entering into a charter agreement with a company that does not have insurance or is under-insured. Under such circumstances, the consumer is in effect relying entirely on the vessel owner should any tragedy occur.

In circumstances where the charter is conducted in international or foreign waters, it is important to assure that the insurance covers events which occur outside of U.S. waters.

Extras

There is nothing more frustrating to a consumer than being asked for an imprint of a credit card at the beginning of the trip and discovering numerous add-ons once the relationship ends. Inquire before hand what items or services are considered extra and what they cost so that there is no misunderstanding with the dive shop or vessel owner. Make sure that the understanding as to extra expenses is documented in any charter agreement. Know ahead of time if there are charges for such items as fuel, snacks, beverages, sun screen, ice, tips, taxes and insurance costs.

Cancellation Due to Weather or Rough Seas

To salty seafarers, "rough seas" may begin with five or six foot waves; "high winds" become threatening only upon gale warnings. It is important to have an understanding as to who makes the decision as to whether the seas are too rough or the weather too inclement for diving. This should be discussed prior to embarking. While it is the legal responsibility of the captain or master of the vessel to make such decisions, the guests aboard the vessel, as fare-paying customers, should have significant input in such decisions. In many cases, the weather may not be dangerous to the vessel, but may be too much for the diver. It is better to breach the subject beforehand so as to avoid unsafe and possibly mutinous conditions while offshore.

Selection of Dive Sites

Prior to the embarking on a dive trip, there should be understanding between the dive shop or vessel owner and the charterer as to the type, nature and location of the dive sites. There should be discussions concerning the complexity of the dive, depth, current, sea state and underwater marine life so that there is no misunderstanding of what will be encountered at the specific dive site chosen.

Anticipated Dive Profiles

The dive shop or vessel owner and charterer should also have a full understanding of the anticipated dive profile. There should be a complete discussion regarding the anticipated bottom times, the anticipated surface intervals and the anticipated time at the dive site.

Emergency Plans

Perhaps the most important aspect of any dive plan is the putting in place of a contingency plan should a diving emergency occur. It is incumbent that the dive shop or vessel owner have in place a detailed emergency plan encompassing such matters as communications capability, evacuation procedures, location of the nearest hyperbaric medical facility, treatment of divers suffering from decompression sickness and first-aid medical supplies for other diving related injuries (such as poisonous stings and bites from marine life).

LIABILITY WAIVERS AND RELEASES

It's one hour before the scheduled departure of the M/V DIVEBOAT.The student divers travelled several hours the day before to reach the Coast, and then partied most of the night. It's early in the morning and the students are anxious about the dive and anxious to prove to their instructor that they are now ready to be certified.

The instructor assembles the students at the stern and presents to them, for the first time, a document which reads:

I, _________ , have voluntarily enrolled in a scuba course offered by ABC Dive Shop. I am aware that my participation in scuba diving and the sport of diving INVOLVES MANY RISKS OF INJURYINCLUDING DEATH and I FREELYASSUME THOSE RISKS."

As a lawful consideration for being permitted to enroll in this course, I AGREE TO RELEASE FROM ANY LEGAL LIABILITY AND AGREE NOTTO SUE ABC DIVE SHOP, their owners, officers, agents, or employees for any and all injuries or death caused by any act of negligence.

IAM FULLY AWARE THATTHIS CONTRACT IS LEGALLYBINDING AND THAT IAM RELEASING MY LEGAL RIGHTS BY SIGNING IT.

The instructor tells his students, "Hurry up... look over and sign this piece of paper." He distributes the document and closes his introduction by admonishing his charges with "Let's go, we're burning daylight and the tide's falling....we're running late!"

The students quickly comply, finish stowing their gear, and position themselves on the boat as directed. The vessel leaves and an hour later the divers reach the site of their first open water check out dive. Because of strong currents at the anticipated dive site, the instructor decides to dive at an alternate site which is 35 feet deeper than the original 60 foot site. Once at the new site the instructor watches his students as they begin the dive. Unfortunately, the certified assistant instructor called in sick and the instructor now has ten students to supervise alone. Nevertheless, the instructor decides to continue with the check out dive even though the student/instructor ratio and the maximum depth exceed his certifying agency's standards.

On bottom the instructor loses site of a pair of students; he leaves the group within his sight and begins a search for the missing pair. While away, one of his students panics when his BCD malfunctions. He streaks to the surface in a stream of bubbles. The student embolizes, nearly dies, and is left paralyzed for life. The instructor is reassured, however, that the liability waiver will insulate him from any responsibility, or so he thinks.

In today's litigious society, more and more consumers are confronted with liability waivers or releases as businesses and private individuals seek to protect their assets. Courts, lawyers and insurance underwriters grapple with their validity. Technically, these documents are also known as "contractual covenants not to sue, releases, liability waivers, disclaimers or exculpatory

In today's litigious society more and more consumers are confronted with liability waivers or releases as businesses and private individuals seek to protect their assets.

agreements." Do they provide ironclad protection, rendering liability insurance unnecessary? Are they unfair documents imposed upon unsuspecting consumers, drafted in "legalese" to deny an aggrieved individual of his or her day in court? Is the over-use and misuse fair? Are they worth the paper they are written on?

It is impossible to completely answer these questions within these short confines; yet, an overview of the applicable law may be presented. With the exception of certain states, such as Louisiana, which bar releases as a matter of law, the courts will recognize liability releases so long as specific guidelines and parameters are met.

Overview of the Law

In those jurisdictions which havenobar to releases as amatteroflaw,theCourts almostuniformly decree thefollowing general principle of law.

Arelease will be upheld as valid and enforceable in those circumstances where the parties, within an atmosphere of equal bargaining position, without reservation and with full knowledge and understanding of the legal consequences, enter into the relationship freely and not subject to duress, deception or deceit.

In short, the parties must agree to the release knowing full well that they are giving up their legal rights.

The initial step in reviewing whether a release is valid involves application of basic contract law. In simple terms, a contract is defined as:

An agreement between two or more competent parties which creates an obligation to do or not to do a particular act or action.

For a release to have legal effect the agreement must be in writing and expressly pronounce the intent of the parties obligating themselves to the agreement.

Language and Form of Release

Awritten 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 multisyllable 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. Arelease 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.

Consent of the Parties Must be Freely Given

Arelease is valid only upon the showing that consent was freely given. Consent cannot be procured through fraud, duress, or deceit. As in any legal document, the parties to an agreement must be shown to have entered the agreement with a "free and open mind."

It should go without saying that a student or guest on a dive charter should be fully encouraged to

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.

"read the release" before signing it. While there will be a legal presumption that a signatory to a document has read the document, problems will arise if the document was submitted at an inappropriate time or in an inappropriate manner.

Consider those circumstances where a signature is achieved in a stress filled moment or in the excitement of the occasion. Timing is critical. Arelease tendered twenty miles offshore at a dive site to a group of fully dressed divers will be scrutinized much less closely than the same document tendered before the vessel departed the dock or even before the charter was booked.

Common sense will guide a judge reviewing the document. If a release is tendered at sea or immediately prior to a dive, a court may conclude that the diver's consent was not freely given. The alternative of not signing the document would result in a loss of the expenses of travel, lodging and time.

Apersuasive argument may be made that had the release been tendered at a more reasonable time the diver may have refused to sign it. Faced with an option between not signing the document and sustaining the loss of travel costs, and signing the document "under protest," the diver may assume there is no true alternative.

Intent of the parties is also critical. Obviously, if a

Nationwide, courts have proclaimed that a party's intent will be shown only when the document includes language which is clear, explicit and unambiguous.

shop owner or instructor conceals the release in a bundle of papers and admonishes the students to hurry and sign the documents "as a formality," a court will closely review the circumstances of the release's execution.

Negligence v. Gross Negligence

In many states releases do not absolve the conduct of an individual who has acted grossly negligent in causing damage to another.

As mentioned above, negligence may be defined as:

the failure to use ordinary care under the circumstances in the management of one's person, property, or business.

Judges throughout the land have decided that releases do not apply when the conduct of an individual "shocks the conscience." Such conduct is known as gross negligence. Loosely defined, gross negligence is:

an act or omission of an individual which was done maliciously, wantonly, oppressively, or in a completely reckless or callous manner, indifferent to the rights of others.

In applying the theory of "gross negligence" within the diving industry the following example is illustrative. Adive instructor may be found "grossly negligent" in failing to provide assistance or medical treatment for a student who obviously suffers a serious incident of central nervous system decompression illness. If a student has obviously been "bent" and an instructor shows more concern for finishing an open water class than seeking treatment for the injured student, such conduct may expose the instructor to liability even when armed with a signed, otherwise enforceable, release.

Differentiating negligence from gross negligence has been analogized to distinguishing between a fool and a damn fool. It is not an easy exercise. If the conduct shocks ones conscience, it is probably gross negligence.

What is the Bottom Line?

Common sense dictates when a court of law will uphold a release. Within the recreational diving industry there may be the presumption that divers are aware of the consequences of engaging in the sport of diving. The courts have decided that diving is a matter of choice. The market place is filled with shops who require releases, and few who do not. Should the diver not wish to forfeit legal rights, the diver need not patronize those who require releases. If the diver is confident that the dive operator will never act unreasonably, then it is reasonable for the diver to sign the releases.

Are releases "worth the paper they are written on?" Probably so, as long as the parties signing it do so with a clear mind and pure intentions. If either of these factors are absent, a court will be hesitant to enforce the release.

TREASURE AND SALVAGE LAW: FINDERS KEEPERS?
NOT NECESSARILY!

While spearfishing in the keys off South Florida, a diver spots a large grouper.As he pursues his prey, it darts behind a nondescript object. As the diver closes in pursuit, the object comes into focus, it is a cannon affixed to the remains of an 18th Century English vessel. The diver forgets the grouper and further explores the area, which reveals an array of cutlasses, onion bottles and other objects. Treasure! Instantly the diver envisions himself much like the captain of a pirate ship about to return to port with his booty. Fantasy? Read on.

On July 20, 1985, after several years of costly search, Mel Fischer and his company,Treasure Salvagers, Inc., discovered the wreck of the Nuestra Senora de Atocha which yielded a cache of gold and silver currently valued in the hundreds of millions. As they neared the site, they were tipped off by thousands of neatly stacked silver ingots.

In 1982, after years of exhaustive research and field work divers located the notorious pirate ship Whydah, which, laden with plundered cargo, capsized in a raging storm off the Cape Cod coast, disappearing beneath the sea and evading discovery and salvage for the next 265 years. Millions of dollars worth of treasure were recovered.

In July, 1987, a Spanish galleon was discovered off the coast of Florida about 100 yards from the beach at Juniper Inlet. She yielded several gold and silver coins and other objects including cannons and anchors.

On August 12, 1982, divers discovered the resting place of the S.S. Republic, a White Star oceanliner which plummeted to a watery grave in 1909. This wreck was found off the coast of Nantucket Island.

On May 27, 1987, divers discovered the wreck of the S.S. Central America, which sank in 1957 while carrying 578 passengers and $1,219,189.00 in gold. Soon thereafter, the divers began their long arduous legal battle to prove ownership of the now millions of dollars in gold contained aboard the S.S. Central America.

Although some of the now affluent divers mentioned above set out in search of the pot of gold at the end of the rainbow - and found it - many others simply stumbled upon it while participating in their favorite sport - diving.

In all too many cases, foreign, state and local governments, as well as insurance companies with ancient claims, intervene to separate the "lucky diver" from his find. In the case of Mel Fischer, his investors and the Atocha, the story had a happy ending.

However, Fischer endured a 16-year legal battle before he was able to lay final claim to his discovery. Whether it be a simple artifact such as silverware from the Andrea Doria, a light fixture from the Mercedes, or a porthole from a trawler at your favorite dive site, treasure is treasure in the eye of the beholder. If your treasure has intrinsic value beyond your satisfaction and pride in locating and recovering it, you can be sure that others will soon be disputing your ownership and laying claim to your find. Possession may be 9/10ths of the law, but knowledge of the legal system comprises the final and often most important piece of the puzzle. Fortunately, the law, correctly utilized and applied by attorneys conversant in its subtleties, is on your side.

Those who discover treasure or other property on the ocean floor are initially faced with one basic question - who owns the lost property, the finder or the owner at the time the property was lost? Ultimately, a judge will make the decision and in so doing, will apply either the law of "finds" or the law of "salvage." Which body of law is applied can have significant consequences to the parties competing for ownership.

Where the law of finds applies, title vests in the person who reduces the property to his or her possession. If, however, the law of salvage applies, the finder of property is entitled to a salvage award.

Whether to apply the law of finds or the law of salvage is an issue which is becoming ever more common, as a result of the development of new means for discovering and recovering sunken property in deep water.

The vast majority of courts apply the law of finds to historic or ancient shipwrecks. The greatest benefit of the law of finds is that if it applies, the finder can acquire title against all the world. The primary concern of the law of finds is to award ownership to the finder and requires a finder to demonstrate:

1. abandonment of the property;
2. intent to acquire the property involved; and
3. possession of that property.

In practice, this means that if you find abandoned property, reduce it to your possession and exercise ownership over it, it is yours. Absent any of these requirements, the finder receives nothing. Success as a finder is measured solely on the basis of gaining control and possession over the abandoned property. Further, because possession

"Abandonment" of the property by its original owner is the key factor in awarding title of the property.

of specific property can rarely be shared, assisting another finder in successfully recovering property earns the assisting party no compensation. As a result, should you find abandoned treasure, you are encouraged to act covertly to hide your discoveries and to obtain possession of the property before anyone else does.

In all cases involving the law of finds, "abandonment" of the property by its original owner is the key factor in awarding title of the property. Whether a sunken wreck or other property is considered abandoned is a question of fact directly related to the intent of its original owner. Such intent may be inferred from all relevant facts and circumstances. Abandonment is established by proof either of expressed or implied acts of leaving or deserting the property in question without the hope of recovering it and without the intention of returning to it. Proof of abandonment must be by "clear and convincing evidence" such as an owner's express declaration of abandoning title. In addition to such an express abandonment, a court may infer abandonment where the property in question is ancient or long lost. Because of the ambiguity in determining another's intent to abandon, it will always be difficult to predict with any certainty whether a given set of circumstances will be sufficien t to result in a finding of abandonment in a court of law. In considering the question of abandonment, some courts have examined the following factors:

1. the property being abandoned;
2. the time place and circumstances of the loss;
3. the actions and conduct of the parties in abandoning the vessel;
4. the opportunity or expectancy of recovery; and
5. the totality of the circumstances

Noteworthy is that abandonment can still be proven even when a previous owner appears and asserts an ownership interest. However, in such a case, the evidence indicating abandonment must be strong.

In treasure salvage cases, which often involve wrecks that are hundreds of years old, the inference of abandonment may arise from non-use and lapse of time. This inference alone, however, is not enough to support the application of the law of finds. Rather, the inference must be accompanied by the owner's failure to assert any claim to the property.

If the law of "finds" is applicable, title will vest in the finder as long as there is no conflict with the governmental entity having control over the sea floor where the sunken objects or property were found.

Unfortunately, in many cases states and nations do not willingly give up objects found within their territorial waters and, as in the case of the Atocha, extended litigation results.

In contrast to the law of finds, the court may apply the law of salvage which was developed to promote the voluntary retrieval of property from an impending peril at sea or other navigable waters by those under no legal obligation to do so. Asalvage claim may be asserted when three elements are shown:

1. the existence of a marine peril;
2. the voluntary nature of the salvager's service; and
3. the complete or partial success of the salvager's effort.

Further, the salvager who seeks a reward for his services must act in good faith. If these requirements are met, the salvager of derelict property is entitled to a salvage award.

Some courts have favored application of the law of salvage when maritime property is recovered from the bottom of the sea by other than the owner at the time of the loss. However, under the law of salvage, the owner at the time of the loss still retains full ownership in the property subject to a salvage award made by a court. Therefore, if you were to find and salvage a wreck or other treasure which you did not previously own, under the law of salvage a portion would become yours. When the value of the item salvaged is unique and intrinsically valuable, as would be the case with any type of ancient treasure, a salvage award in kind (i.e., you get to keep some of the treasure) is most often the result.

If you are lucky enough to find treasure, you can bet your last doubloon that the word will spread quickly and many others will be fast to move in and begin their own salvage attempts. It is possible, however, to "arrest" the wreck and exclude all others from the site as long as the finder is actively and ably engaged in reducing the wreck to their possession. The benefits of bringing an admiralty action to arrest a vessel include the following:

1. obtaining exclusive rights to recover the treasure;
2. obtaining an injunction to prevent any competing salvagers and/or claimants from interfering with recovery efforts;
3. obtaining an award of title to any objects recovered;
4. resolving any competing claims to the treasure;
5. alternatively, setting the stage for a liberal salvage award if the law of finds does not apply.

The initial steps in bringing an admiralty action to arrest a vessel involve bringing a piece or at least a photograph of the wreck into the court with jurisdiction and asking the court for an injunction covering the location of the wreck. In the Central America case, the salvors brought in a piece of coal from the sunken ship. Assuming that there is sufficient evidence to establish that the wreck is "found," as a general rule, those beginning a salvage operation are entitled to sole possession of the property. An important right arising from such salvage actions is that the discoverers have the right to exclude all others from engaging in similar operations, so long as the original discoverers appear ready, willing and able to complete the salvage project. Therefore, in order to obtain the right to exclude all others the original discoverers must show that they are actively and ably engaged in reducing the wreck and any artifacts to their possession. From there, the process becomes complic ated and if the treasure has high value it often entails years of litigation.

In sum, should you find treasure, you would be well advised to keep the matter to yourself until such time as you have been able to obtain legal assistance. Good Luck and Happy Hunting!

CONCLUSION

We at the law firm of Delise & Hall welcome comments, criticisms or suggestions for additions, supplements or changes to this booklet. This booklet has evolved over 20 years and is provided for the sport diving community in an effort to enhance the safety of diving. Please do not hesitate to call, write, or stop by our office with any comments, changes or suggestions.