By Doyice Cotten

Mr. and Mrs. Dempsey went on a snorkeling tour in Hawaii. Prior to the trip, they signed liability waivers intended to relieve the tour company of liability for injuries resulting from tour company negligence.

Mrs. Dempsey, after a dive, slipped and fell while walking on deck in flippers. They filed suit alleging negligent instruction and claimed the waiver was unenforceable due to a federal statute.

Statute

1. Federal Maritime Code Provision Regarding Limiting Liability For Personal Injury

46 U.S.C. § 30509 Provisions limiting liability for personal injury or death, (effective October 6, 2006), provides, as follows:

      (a) Prohibitions.—

(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.

The plaintiffs claimed the waiver did not apply on such a trip because the vessel did not transport between ports – it transported to and from the same port.  So, the whole case swung on how the court interpreted the language of the statute.

In ruling, the court relied on a similar case, Ehart v. Lahaina Divers Inc., 2022. In Ehart, a husband and wife went on a chartered SCUBA and snorkeling tour that departed from Lahaina Harbor on the island of Maui.  The vessel took the passengers snorkeling near Molokini Crater, and Maureen Ehart disappeared while snorkeling on the tour.  The vessel returned to Lahaina Harbor when Ehart was unable to be located. The Ehart court ruled that “between ports” could mean from and back to the same port. The Dempsey court followed precedent and declared the waiver was unenforceable.

So, the defendant may not rely on the release and waiver of liability signed by Plaintiff Carla Dempsey as a defense at trial. The release is void as a matter of law pursuant to 46 U.S.C. § 30509

OF INTEREST: There have been a number of similar cases involving 46 U.S.C. § 30509… some looking at this same issue. It seems that federal courts have not all agreed on this issue. The legislators who write statutes are not perfect; consequently, legislation they write is often less than perfect as well.

Photo Credit: Thanks to Michael Leonard via Flickr.