By Doyice Cotten

Carla Dempsey and her husband went on a snorkel tour with Wild Side Specialty Tours. Prior to departure, the Dempsey’s signed a release and waiver of liability. After snorkeling, Mrs Dempsey slipped and fell while walking on the deck while wearing wet snorkeling fins. Dempsey in time filed suit against the tour company claiming negligence in failing to properly instruct and warn passengers about the use of fins aboard the vessel (Dempsey v. Wild Side Specialty Tours, LLC, 2022). The defendants claimed a defense based on the waiver signed by the plaintiffs. Dempsey claims the waiver was not enforceable as a matter of law.

 Admiralty tort jurisdiction applied because 1) the incident occurred on navigable waters and 2) the tort was connected with traditional maritime activity.

Plaintiffs claim that Defendant owed Mrs. Dempsey a duty to provide instructions on safety regarding the snorkeling equipment. They assert Defendant’s failure to provide instructions breached their duty and caused Mrs. Dempsey to fall, resulting in damages.

Statute

Plaintiffs seek to proceed to trial on their negligence and loss of consortium claims. They claim that the waiver is not enforceable and void because it is barred by 46 U.S.C. § 30409 which reads in part:

(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 [Bold added.] —

(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.

The arguments of each side followed:

Plaintiffs argued that Section 30509(a) voids the waiver and release signed by Plaintiffs. It is undisputed that Plaintiffs were fare-paying passengers on Defendant’s vessel. Plaintiffs claim that the federal Maritime Code bars enforcement of the waiver and release that they signed because Defendant’s vessel transported passengers “between ports in the United States” as set forth in Section 30509(a).

 Defendant disagrees. Defendant argues that the statute does not apply in this case because its vessel disembarked and returned to the same port, Waianae Boat Harbor. Defendant claims that the statute does not apply because the vessel did not transport passengers “between ports in the United States.”

 The statute says it applies to “between ports” and in this case the trip was from one port and back to the same port. The court stated that “A statute’s language is the starting point for statutory interpretation.  If the statute does not define the relevant terms, courts give them “their ordinary, contemporary, common meaning,” and “may consult dictionary definitions.” The court stated however, that a statute must be read in its context and in this case, the court made clear in 30509(a) that the statute does not apply only to common carriers, but also to “seagoing vessels and vessels used on lakes or rivers or in inland navigation, including canal boats, barges, and lighters”.

Ruling

Hence, the court ruled that the statute applied to the snorkel tour boat in this case because it was a seagoing vessel. The waiver did not protect the tour company and the case was sent back to the trial court to determine the matter of negligence.

Risk Management Take-Away

Management of tour boats and other boats used in recreational activities on the water need to find out how likely their waiver is to be enforced. If it is questionable, they might need to increase their other financial protection tools.

Photo Credit: Thanks to Catxalot via Flickr.