Titan submersible customers signed liability waivers covering death, can OceanGate face a lawsuit?
Oceangate made the passenger sign liability waivers, highlighting the risks and dangers involved in the journey.
OceanGate, the operator of ill-fated Titan submersible that plunged 5 passengers to death made the customers sign liability waivers before entering the submersible. It de-limited their risks in stark terms, including the chances of death, physical injury and emotional trauma. The submersible is a 21-foot vessel, designed to drive 4,000 meters under the sea’s surface. It vanished on 21st June after approximately 2 hours into its drive and later was discovered in pieces on the ocean floor.
The waiver plays an important role in whether the families of the deceased passengers have legal rounds to take legal actions against Oceangate.
David Pogue, CBS News correspondent, highlighted the company’s liability waiver. He travelled on the Titanic sub the previous year and logged that the paperwork points to the risk of death three times including other dangers. The waiver also emphasizes the issues with the sub that are listed by the experts prior to that doomed sub.
The waiver stated that "This operation will be conducted inside an experimental submersible vessel that has not been approved or certified by any regulatory body, and may be constructed of materials that have not been widely used in human-occupied submersibles."
According to Associated Press, passengers waived their rights to take action against "personal injury, property damage or any other loss" that they encounter during the journey.
This legal paperwork protects the company from the liability of its passengers and ensures that the customers acknowledge the dangers and risks involved in the activity. Such documents are signed before recreational activities, like scuba diving or skydiving.
Global waters
Craig Goldenfarb, an attorney who practices admiralty law and maritime, and the founder of the law firm Goldlaw, noted that the question of liability gets complicated as the incident occurred in international waters. Therefore, the provision of “choice of law” becomes an extremely crucial point of the waiver.
He adds, "The choice of law provision gives jurisdiction to a country in case any litigation ensues from the contract."
According to the waiver received by the AP, any controversies would be administered by the laws of the Bahamas, where OceanGate is registered. The Bahamas is considered to be a business-friendly jurisdiction as the legal system is based on English Common law. Whereas the right to sue the company depends upon Bahamas laws governing liability waivers.
Goldenfarb highlighted that if the passenger who has signed the waiver does not comprehend the language of the waiver dies of disabilities or any other issues, then their families may have the power to sue the company. On the grounds that the victim was not completely aware of the risk or danger. Furthermore, the judge can reject the waivers if there is evidence of flagrant negligence.
Patrick Luff, a former law school professor and the founding partner of Luff Law Firm stated that"You can waive liability standard for negligence but not gross negligence. Gross negligence will vary, but it's generally something like, 'acting despite your knowledge of extreme risk'."
"Experimental submersible"
Some legal experts said the families of the passengers can't sue the company on the grounds of being an "experimental submersible" or not being certified by an industry group. As the liability waiver emphasized the risks and dangers of diving in the submersible, showing that the passengers were well informed.
In an email to CBS MoneyWatch, John Uustal, founding partner of Kelley | Uustal Trial Attorneys said that "If that information had been hidden, then of course that would be actionable. It seems to me this kind of verification of informed consent is entirely appropriate, and in general, they are legally valid."
Uustal said he would want to advise the passengers' families to analyze the document for unrevealed issues, he said, "I would suggest looking closely at the exact language of any release terms and see if there is any misconduct that was not covered. That may provide grounds for a lawsuit if indeed there was such misconduct."
Goldenfarb asserted supplementary legal issues can present themselves as more is to be learned about why and how the vessel imploded. The investigation into the Titan's failure arises, with a deep-sea robot looking for debris, this weekend, from the submersible.
