Ⅰ. Introduction
When tragic death incidents happen in a high-risk commercial activity, will a waiver be sufficient to release the operator from all liabilities?
Even if it is a clear-written waiver with a blatant warning of possibilities of severe injury or death?
Lawyers draft waivers and indemnification clauses quite often. Are they really enforceable? Will they really meet the client’s goal of being absolved of liabilities?
This article has collected clauses of the waiver signed by the passengers who boarded the Titan Sub that imploded and killed all five of the passengers, and relevant laws and comments regarding personal injury and wrongful death cases in the U.S. are also provided.
Ⅱ. About the applicable laws
According to the waiver, the applicable jurisdiction is the Bahamas. The Bahamian law adopts many provisions of the U.S. law. Under the U.S. law, a company can absolve itself of liability for injury or death even if it was negligent, if it fully discloses the risks to the participants. In the U.S., however, whether a business entity is liable for a catastrophe usually depends on the laws of the state where the business operates as well as a court’s ruling on the enforceability and a judge’s interpretation of the waiver.
Other factors such as the participant’s bargaining power and the clarity of the language in the waiver might also affect the outcome. But they might not be important factors in the OceanGate case since the passengers were sophisticated and had access to legal counsel.
The law varies in different jurisdictions and depends on the particular circumstances of the case.
Ⅲ. About the waiver
According to the public news release, wordings of the document signed by the passengers including the waver provide:
“A portion of the operation will be conducted inside an experimental submersible vessel. The experimental submersible vessel has not been approved or certified by a regulatory body and may be constructed of materials that have not been widely used in human-occupied submersibles.” (amp.tmz.com)
“When diving below the ocean surface this vessel will be subject to extreme pressure, and any failure of the vessel while I am aboard could cause severe injury or death.” (amp.tmz.com)
“If I choose to assist in the servicing or operation of the submersible vessel, I will be exposed to risks associated with high-pressure gases, pure oxygen servicing, high-voltage electrical systems, and other dangers that could lead to property damage, injury, disability, and death.” (amp.tmz.com)
And then comes the waiver…”I understand the inherent risks in the activities that will be undertaken during the operation, and I hereby assume full responsibility for all risks of property damage, injury, disability, and death…I hereby agree to defend, indemnify, save, and hold harmless OceanGate Expeditions Ltd…from any loss, liability, damage, or costs they may incur due to any claim brought in violation of this Release” (amp.tmz.com)
The waiver also provides that a passenger shall “assume full responsibility for the risk of bodily injury, disability, death, and property damage due to the negligence of [OceanGate] while involved in the operation,” (nypost.com quoting from TMZ)
The waiver further states that family members of passengers who die riding the submersible shall have no recourse to sue the company: “As lawful consideration for being permitted to participate in the operation, and on behalf of myself, my heirs, assigns, personal representative, estate, and for all members of my family, including minor children, I hereby release, waive, and forever discharge OceanGate Expeditions, Ltd…”
Ⅳ. Other testimonials
From a former passenger, the longtime television writer Mike Reiss:
In the OceanGate submarine case, the company is based in Washington, and the clients were asked to sign a liability waiver. Mr. Reiss said that the waiver mentioned the possibility of death multiple times within the document, “before you even get on the board, there’s a long, long waiver that mentions death three times on page one”. He also provided testimony that the submarine had signs of mechanical failure and required to be repaired during his experience.
From the director of Titanic, James Cameron:
In an interview with CNN, director James Cameron told Anderson Cooper that he knew the Titan Sub had imploded, and “hoping against the hope that I was wrong but knowing in the bones that I wasn’t”, implosion was not a surprise and he felt bad for the families having to go through the false signals of rescue. Most importantly, Mr. Cameron harshly criticized OceanGate for designing, building, and operating the small submarine Titan for commercial passengers. Mr. Cameron has descended to the Titanic wreck over 30 times in a submersible built on his own, and he would not take on passengers and allow anyone else to share that risk. He said that if he were designing a vehicle to carry passengers he would put it through certification and test protocols, and “I think it was unconscionable that this group did not go through that rigorous process”, he told CNN.
Mr. Cameron further commented on the carbon composite used in the Titan submersible, “it’s completely inappropriate for a vessel that sees external pressure.” He further explained that carbon fiber is very helpful when used for applications subject to internal pressure, like scuba tanks, but “for something that’s seeing external pressure, all of the advantages of composite material go away and all the disadvantages come into play.”
From a whistle-blowing employee David Lockridge:
He/she raised alarms about OceanGate in 2018 over its decision to operate its subs as experimental vessels, and he raised “serious safety concerns” but was ignored.
Ⅴ. Comment
This article solely reflects the author’s personal views and should not be regarded as formal legal advice or conclusions issued by BZW Law Firm or its lawyers. Should you wish to reproduce or quote any content from this article, please contact us via email. If you are interested in further exchanging views or discussing this topic, you are welcome to leave a message.
