By Doyice Cotten
Mark Strickert took his wife and two children on a snorkeling trip. He and his wife signed waivers on behalf of themselves and their children. The trip consisted of six scuba divers and six snorkelers (including the four Strickerts), two crew members and Mr. Neal (the party in charge) who stayed on the boat while the others entered the water. At some point the weather worsened causing extremely high winds and large waves. Neal signaled the snorkelers and divers to return to the boat.

Mary Strickert, her daughter, and another snorkeler returned to the vessel safely – with great effort. Strickert’s son and another snorkeler were barely able to make it to some rocks on shore. Mark was unable to make it back safely and drowned. During their struggles, Mary Strickert urged Neal to go help the three snorkelers to safety, but he ignored her saying that he had to wait until the divers had returned. All six scuba divers and the two crew members made it back to the vessel safely.

Mary Strickert filed suit alleging that Neal

failed to use reasonable care to protect the safety of the passengers aboard the vessel that day, including but not limited to their failing to properly assess the weather conditions, failing to provide the vessel with an adequate number of crew to keep watch over the snorkelers while they were in the water and effect a rescue if necessary, failing to recognize the building danger in a timely manner and recall the scuba divers immediately, and in Mr. Neal failing to go into the water to effect a rescue when he had actual knowledge that Mr. Strickert was in danger of losing his life.

Jurisdiction
The court determined that this case fell under admiralty law, which prevails over state law. It met the two-prong test for admiralty law: 1) it occurred in navigable waters and 2) at least one tortfeasor was engaging in activity substantially related to tradition maritime activity. This was important since under Hawaii law, a waiver of negligence in a recreational activity such as this is not enforceable. Not so with admiralty law.
So the court needed to determine if the waiver was adequate to protect Neal and Molokini Divers, Inc. from liability for their own negligence. The major issue revolved around the fact that the waiver for the Molokini Divers scuba program, Discover Scuba Diving. This was NOT a Discover Scuba Diving program. In addition, and equally important, the waiver listed skin diving and scuba diving as activities; nowhere in the waiver was the mention of snorkeling.

Ruling
The court said that there was a question of fact and rejected the defense motion for summary judgment based on the waiver. Additionally, the court ruled that there was sufficient evidence of gross negligence to create a question of fact; the court rejected the defense motion for summary judgment and sent the case to trial on both issues.

Photo Credit: Thanks to Peter Halling Hilborg on Flickr.