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Waivers are not always ironclad, and it is not uncommon for judges to reject them if there is evidence of gross negligence
Published : 23 Jun 2023, 02:12 PM
Liability waivers signed by passengers on a submersible lost at sea during a dive to the Titanic wreck may not shield the vessel's owner from potential lawsuits by the victims' families, legal experts said.
The Titan submersible vanished on Sunday roughly two hours into its dive and was found in pieces on the ocean floor after what the US Coast Guard said on Thursday was a "catastrophic implosion" of its pressure chamber.
The passengers, who paid as much as $250,000 each for the journey to 12,500 feet (3,810 meters) below the surface, are believed to have signed liability waivers. A CBS reporter who made the trip with OceanGate Expeditions in July 2022 reported that the waiver he signed mentioned the possibility of death three times on the first page alone.
Reuters could not independently confirm the terms of OceanGate's waivers.
OceanGate did not immediately respond to requests for comment on Thursday.
Waivers are not always ironclad, and it is not uncommon for judges to reject them if there is evidence of gross negligence or hazards that were not fully disclosed.
“If there were aspects of the design or construction of this vessel that were kept from the passengers or it was knowingly operated despite information that it was not suitable for this dive, that would absolutely go against the validity of the waiver,” said personal injury attorney and maritime law expert Matthew D Shaffer, who is based in Texas.
OceanGate could argue it was not grossly negligent and that the waivers apply because they fully described the dangers inherent in plumbing the deepest reaches of the ocean in a submersible the size of a minivan.
The degree of any potential negligence and how that might impact the applicability of the waivers will depend on the causes of the disaster, which are still under investigation.
"There are so many different examples of what families might still have claims for despite the waivers, but until we know the cause we can't determine whether the waivers apply," said personal injury lawyer Joseph Low of California.
The families could not be reached on Thursday. It is possible none of them will sue.
OceanGate is a small company based in Everett, Washington, and it is unclear whether it has the assets to pay significant damages, were any to be awarded, but families could collect from the company's insurance policy if it has one.
Families could also seek damages from any outside parties that designed, helped build or made components for the Titan if they were found to be negligent and a cause of the implosion.
'DEATH ON THE HIGH SEAS'
OceanGate could seek to shield itself from damages by filing a so-called limitation of liability action under maritime law, which lets owners of vessels involved in an accident ask a federal court to limit any damages to the present value of the vessel. Since the Titan was destroyed, that would be zero.
But OceanGate would need to prove it had no knowledge of potential defects with the submersible and would carry the burden of proof, which legal experts said is a difficult burden to meet.
If OceanGate were to fail in such a case, families would be free to file negligence or wrongful death lawsuits.
Another maritime law, the Death on the High Seas Act, allows people who were financially dependent on someone who died in a naval accident to seek only the portion of that person's future earnings that they would have otherwise received. Plaintiffs cannot recover losses for pain and suffering in those cases.
What OceanGate knew about the vessel’s safety and what the passengers were told about it would be the central questions during discovery, a process during which parties share information about a case.
Plaintiffs could potentially cite allegations of safety lapses at OceanGate made by a former employee in a 2018 lawsuit against the company in Washington federal court. The employee, David Lochridge, said he raised "serious safety concerns" but was ignored. That case was settled on undisclosed terms, court records show.
A group of industry leaders also wrote to OceanGate in 2018 expressing grave concerns about the vessel's safety and the company's decision not to certify the Titan through third parties such as the American Bureau of Shipping, a leading classifier of submersibles.
