Another Waiver Fails because the Waiver Failed to Include the Word “Negligence”

by Doyice Cotten

In a 2019 Texas case involving an accident on a  fishing charter boat from New Pelican Charters (New Pelican Charters, LLC  v. Unknown Claimants, 2019) The injuries occurred when the boat struck a shrimp boat. It was in navigable waters, thus admiralty law was appropriate. Both claimants had signed a liability waiver prior to boarding the vessel. The waiver read:

“I, the undersigned, have been informed and understand that there are inherent risks and hazards associated with offshore party fishing and boating. These include, but are not limited to: EFFECT OF SUN, WIND, RAIN AND OTHER WEATHER CONDITIONS, SEASICKNESS, PITCHING AND ROLLING OF THE VESSEL, SLIPPERY DECKS, PERILS OF SEA, ACTS OF OTHER PARTICIPANTS, INJURIES FROM FISHING TACKLE AND FISH, and I hereby assume such risks.

Deep Sea Fishing, Inc. m/v Gulf Eagle, m/v New Pelican, and m/v New Kingfisher operate under and practice seamanship in accordance with United States Coast Guard regulations.

I understand that I have a duty to exercise reasonable care for my own safety and I agree to do so. I further assert that I am physically fit to fish and ride on a boat and I will not hold Deep Sea Fishing, Inc., Deep Sea Properties, Inc., m/v Gulf Eagle, m/v New Pelican, m/v New Kingfisher or their employees, agents or other associated personnel responsible if I am injured as a result of any problem (medical, accidental, or otherwise) which occur while on the boat or otherwise participating in the trip.[color emphasis added.]

I also agree to allow photographs of myself, and all persons in my party, taken by Deep Sea Fishing, Deep Sea Properties and/or any related entity to be published for any purpose and in any format. This release covers photographs taken while on site at Deep Sea Headquarters, Deep Sea Properties, Fins Grill and Icehouse, and Red Dragon Pirate Ship inclusive”

Claimants argued that the exculpatory language was unenforceable because it did not clearly and unequivocally provide a waiver for New Pelican’s own negligence. They point out that “negligence” is not mentioned in the entire waiver. The court noted that under admiralty law, a waiver has to clearly and unequivocally express that it waives negligence. It went on to say that a general term like “any and all claims” is not sufficient to waive negligence.

Subsequently, the court denied summary judgment and ruled in favor of the claimants.

Risk Management Take-Away

This case once more illustrates the importance of specificity and clarity in a liability waiver. It is hard to imagine the author has made this point on this website. Protecting against liability for negligence is the primary objective of a waiver of liability — why not just say that! The addition of a simple phrase stating that the signer is waiving  liability for all injuries, “even if caused by the negligence of New Pelican” would have resulted in a verdict for the defense.  Have someone that knows what they are doing write your waiver.

Photo Credit: Thanks to Kosala Bandara via Flickr.