By Doyice Cotten
Admiralty law applied in a recent Hawaii case in which a man died during a scuba dive trip (Hambrook v. Smith, 2016 U.S. Dist. LEXIS 109484). Hambrook drowned, at least in part, due to negligence on the part of the boat owner and its dive instructor. Suit was filed naming the owner, dive instructor, and Padi Worldwide Corporation as defendants. The defendants relied on a liability waiver signed by the deceased.
The major issue was whether the waiver was enforceable under admiralty law. Relevant statutory law is 46 U.S.C. § 30509 which provides in part (with bold emphasis added):
(1) In general.–The owner, master, manager, or agent of a vessel transporting passengers between ports in the United States, or between a port in the United States and a port in a foreign country, may not include in a regulation or contract a provision limiting–
(A) the liability of the owner, master, or agent for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents; or
(B) the right of a claimant for personal injury or death to a trial by court of competent jurisdiction.
(2) Voidness.–A provision described in paragraph (1) is void.
(b) Emotional distress, mental suffering, and psychological injury.–
(1) In general.–Subsection (a) does not prohibit a provision in a contract or in ticket conditions of carriage with a passenger that relieves an owner, master, manager, agent, operator, or crewmember of a vessel from liability for infliction of emotional distress, mental suffering, or psychological injury so long as the provision does not limit such liability when the emotional distress, mental suffering, or psychological injury is–
(A) the result of physical injury to the claimant caused by the negligence or fault of a crewmember or the owner, master, manager, agent, or operator;
(B) the result of the claimant having been at actual risk of physical injury, and the risk was caused by the negligence or fault of a crewmember or the owner, master, manager, agent, or operator; or
(C) intentionally inflicted by a crewmember or the owner, master, manager, agent, or operator.
This statute replaced a previous statute 46 U.S.C. App. § 183c(a) carrying the same general meaning.
It shall be unlawful for the manager, agent, master, or owner of any vessel transporting passengers between ports of the United States or between any such port and a foreign port to insert in any rule, regulation, contract, or agreement any provision or limitation (1) purporting, in the event of loss of life or bodily injury arising from the negligence or fault of such owner or his servants, to relieve such owner, master, or agent from liability, or from liability beyond any stipulated amount, for such loss or injury . . . . All such provisions or limitations contained in any such rule, regulation, contract, or agreement are declared to be against public policy and shall be null and void and of no effect.
Generally, liability waivers that meet certain conditions are enforceable under admiralty law. These statutes have been referred to as the “cruise ship exception” in that both prohibit the enforcement of waivers on such ships. Generally, this rule is not applied to waivers used for recreational boats such as those used in scuba diving and other water sports.
The U.S. District Court for the District of Hawaii, however, applied another part of the 305 statute —46 U.S.C. § 30502 states that
Except as otherwise provided, this chapter (except section 30503) applies to seagoing vessels and vessels used on lakes or rivers or in inland navigation, including canal boats, barges, and lighters.
The court interpreted this to mean that the restriction regarding waivers is not limited to common carriers such as cruise ships, but applies to “all vessels” used on lakes or rivers or in inland navigation.
Padi was granted summary judgment since it was not an “owner, master, manager, agent, operator, or crewmember of a vessel.” Accordingly, the Court concluded that the waiver at issue was invalid as to the owner and the dive instructor; summary judgment for them was denied.
Established Admiralty Waiver Caselaw
This ruling goes against established caselaw involving waiver enforcement for recreational activities. Below are just a few cases in which courts from many jurisdictions have ruled in favor of enforcement of liability waivers in admiralty cases:
Olmo v. Atlantic City Parasail, LLC (2016 U.S. Dist. LEXIS 56572)
U.S. District Court for the District of New Jersey, Camden Vicinage recognized that waivers are valid and enforceable, and can protect owners of recreational vehicles.
Charnis v. Watersport Pro, LLC (2009 U.S. Dist. LEXIS 76022)
The U.S. District Court for the District of Nevada enforced a waiver against a wakeboarder. The court stated that the clear majority of federal courts addressing the issue had ruled that owners of recreational vessels may disclaim liability by waiver.
Shultz v. Florida Keys Dive Center, Inc. (2000 U.S. App. LEXIS 203)
The U.S. Court of Appeals for the Eleventh Circuit enforced the waiver in a scuba diving case stating that every district court and state court presented with the issue has upheld waivers in recreational scuba cases holding that the statute (46 U.S.C. App. @183c(a)) did not apply or a lack of admiralty jurisdiction.
Waggoner v. Nags Head Watersports Incorporated (1998 U.S. App. LEXIS 6792)
In a jet ski case, the U.S. Court of Appeals for the Fourth Circuit stated that although the Act as a whole applies to pleasure craft, this section (46 U.S.C. App. @183c(a)) “is limited by its terms to common carriers. The limitation reflects the principle that it is against public policy for a common carrier to attempt to limit its liability for its own negligence.”
In Re Aramark Sports and Entertainment Services (2012 U.S. Dist. LEXIS 162227)
The U.S. District Court for the District of Utah Central Division enforced a waiver signed by a man who rented a power boat.
Olivelli v. Sappo Corporation, Inc. (2002 U.S. Dist. LEXIS 18241)
The U.S. District Court for the District of Puerto Rico enforced a SCUBA waiver “because, (1) the dive boat was not a vessel transporting passengers between ports of the United States, and (2) the vessel could not be categorized as a common carrier to which section 183c applies.”