By Doyice Cotten
Steven Gilliam and Calvin Sanders chartered a boat from New Pelican Charters, LLC and both plaintiffs suffered back injuries when, seeing that the boat was about to collide with another fishing boat, tried to quickly move to a safer part of the boat. The collision occurred, in part, because the steering mechanism was faulty.
They filed a maritime law claim alleging negligence in that the boat was not seaworthy (New Pelican Charters v. Unknown Claimants, 2019). Both plaintiffs had signed exculpatory agreements when they boarded the boat. The waiver read, in part:
“I will not hold [Deep Sea or the M/V New Pelican] or their employees, agents or other associated personnel responsible if I am injured as a result of any problem[s] (medical, accidental, or otherwise) which occur while on the boat or otherwise participating in the trip.”
New Pelican claimed that the waiver protected them from liability for the injuries. They stated that the waiver protected even though it did not specify “negligence” protection; they pointed out that the language “any problem” showed the intent of the parties to exempt the company from liability for any problem that arose during the trip, including negligence. They also argued that New Pelican had no advantage in bargaining power because plaintiffs were free to use a different fishing service.
Plaintiffs argued that the waiver was not clear and unequivocal in that it did not specify “negligence.” They further argued that the waiver was unenforceable because New Pelican promised to operate in accordance to Coast Guard regulations.
Maritime law was summarized by the court as follows:
- Maritime law provides that contracts of indemnification or release of one’s own negligence must be clearly and unequivocally expressed.
- A statement releasing a party from “any and all claims” is insufficient, standing alone, to include the party’s own negligence.
- However, the 5th Circuit Court stated that an indemnity provision need not explicitly use the word negligence, – the indemnification need only reasonably indicate the intent to include the indemnitee’s own negligence as part of the agreement.
- Waiver language must clearly and unequivocally make clear whose negligence is being released.
The issue was whether the waiver forms were sufficient to waive plaintiffs’ right to bring suit against New Pelican. The court ruled the forms were insufficient because
- They did not explicitly provide that plaintiffs were waiving their ability to sue if injured due to New Pelican’s negligence.
- The language did not indicate the parties intended to include New Pelican’s own negligence as part of the agreement.
- The language intending to cover “any problem[s] (medical, accidental, or otherwise) which occur while on the boat or otherwise participating in the trip” is equivalent to “any and all claims.”
- Such language, standing alone, is not sufficient to include negligence,
- The agreement did not specify whose negligence was being released.
In summary, the court said that the waiver was not enforceable because it called for all injuries – not specifying injuries due to negligence; further, it reasoned that it was not clear that New Pelican was claiming protection for injuries resulting from New Pelican’s negligence. New Pelican’s motion for summary judgment in its favor was denied.
Risk Management Take-away
The take-away is very simple. While many states do not require the use of the word “negligence,” regardless of the state or jurisdiction, its use in the waiver will leave no doubt as to the intent of the document. Be doubly sure that the intent of the your waiver is clear by 1) specifying “negligence” and 2) specifying that the negligence is that of the activity provider. Miss this and your waiver will fail in many states.
Photo Credit: Thanks to Bernard Spragg.NZ via Flickr.