22 A Good Manager is Always Learning

DI VECENTERBUSI NESS. c om J ULY/AUGUST 2014 23

Editors note: As an attorney, and as someone who has been involved in the scuba
industry since 1986, Ive had some occasion to work with some highly skilled dive
industry lawyers. Ive had a front-row seat in scuba-related litigation and I can attest
it can be a gut-wrenching experience for all involved, particularly the dive operator. I
earnestly hope that a dive accident never occurs during training and supervision ac-
tivities through your store or vessel; however, I asked longtime dive industry attorney
David Concannon to explain what happens immediately after a diving accident so that
you will at least be mentally prepared for the chain of events that follow.
Please note, all legal articles are for your information only, and if you or your business
is threatened with litigation, you should ensure that you have proper legal representa-
tion. In addition, the authors opinions are his own, and do not necessarily represent the
views of this magazine or its staff.
A scuba accident that occurs under your boat or
store staffs supervision is the worst nightmare for
any dive center owner. In this article, the author
explains some of the events and occurrences
that follow. We hope you never need this
information, but forewarned is forearmed.
By David Concannon
24 A Good Manager is Always Learning
Scuba instructors are trained to help
divers enjoy scuba in the safest way pos-
sible. Your store hires them to attract and
create customers who will enjoy the div-
ing and dive travel for many years without
adverse incidents.
Most of us have gotten involved in
the scuba industry out of passion for
the activity. We all wish that no one is
hurt or, forbid, dies when we are
supervising or training divers in our
stores or vessels. Like all recreational
activities, however, scuba diving in-
volves risk.
Even under the best of circumstanc-
es and training, people make mistakes.
For example, in a review of 1,000 rec-
reational diving mishaps performed
in Australasia, 87 percent were found
to be caused by human error; inexpe-
rience and insufficient training ac-
counted for 14 percent and 8 percent,
respectively, of the contributing fac-
tors to mishaps. Most diving accidents
happen because participants err, with a
smaller number caused by people get-
ting in over their heads; i.e., engaging
in diving activities for which they are
unprepared.
Meanwhile, static growth in recre-
ational scuba has led to belt tighten-
ing in the scuba industry that has had
an indirect effect on what happens
to a dive industry professional in the
event of an accident, particularly if
that accident appears likely to lead to
litigation. Accidents lead to increased
litigation and insurance claims, which
lead to higher legal fees and higher in-
surance premiums.
Your preparation and understanding
can influence the outcome and help
you protect your business. Ideally, you
and your staff will be part of the effort
to keep scuba accidents to a minimum.
For unavoidable incidents, you need to
know what to do in the event of an ac-
cident to protect yourself and head off
the potential for litigation. This article
describes some ways that can help you
do this.
Investigation
the First Link In the Chain
When a diving accident occurs, an
investigation of some type usually fol-
lows. This is the rst link in the chain
of events.
Scuba accident investigations, particu-
larly in the event of a fatality, attempt to
determine the cause of the accident by
identifying causative factors, primarily
focusing on three areas: medical, equip-
ment and procedural.
Medical investigation looks at a divers
health and medical factors leading to
the cause of the accident or death.
Equipment investigation addresses po-
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tential hardware issues that may have
contributed to a cause of the accident
or death.
Procedural investigation focuses on
whether the diver followed his or her
training, properly prepared themselves
and their equipment before diving, or
went diving in conditions beyond their
training and experience level.
All three areas are typically exam-
ined in a scuba accident investigation,
with varying degrees of competence
and thoroughness. Procedural prob-
lems appear to be more common than
equipment problems, but they are of-
ten difficult to identify. Proper medi-
cal investigation depends on whether
protocols for conducting a proper
diving autopsy are followed, but of-
ten they are not. In the vast majority
of cases, the primary causative factors
are never identified, leading to uncer-
tainty about the cause of the accident
or death.
Furthermore, it is common for inves-
tigators to rule out one area, typically
medical, and then point to another area
as the most likely cause even though
the investigator has no experience in-
vestigating this area and did not do so
because they have excluded their area
of expertise as a contributing factor.
In such cases, a victims wife may
be told by a medical examiner, your
husband was the picture of health, so it
must have been his equipment, when,
in fact, the medical examiner did not
conduct a proper diving autopsy or he
is unaware that actual equipment prob-
lems account for less than 10-15 per-
cent of all fatalities.
Depending on where the accident
takes place and where you are in the
process, there could be multiple inves-
tigators, each with a different agen-
da. The police or other authorities
charged with ensuring public safety
will conduct an investigation at the
scene of the accident or shortly there-
after to determine if any laws have
been broken; the medical examiner
or coroner in the jurisdiction where
the accident takes place (or where the
body is brought to shore) will conduct
a medical-legal investigation to de-
termine the cause of death; and your
insurance company or personal attor-
ney will conduct an investigation to
determine whether litigation is likely
and to prepare for such litigation.
In each instance, you need to know
the investigators objective so you can
prepare for the type of information you
will be asked to provide so the inves-
tigator can fulll the purpose of their
investigation.
If the police become involved, their
approach is to look for any evidence of
a homicide. If a homicide is not indi-
cated, the police quickly lose interest in
the matter. In fact, I have seen instances
in which police have left the scene of an
accident as soon as a diver is placed in
an ambulance and without conducting
any witness interviews simply because
the body was recovered after the time
when a diver would have been expected
to run out of air.
On many occasions, the police
simply secure the divers equipment
before turning it over to the medical
examiners office or the divers fam-
ily without examining the equipment,
or to a local dive shop to analyze the
gas and determine whether the equip-
ment was assembled properly. This is
because local police often lack the re-
sources and expertise to conduct scu-
ba accident investigations. If no laws
were broken, they have little incen-
tive to investigate further. This means
that when dealing with the police, you
need to be aware that they seek infor-
mation to determine whether a crime
was committed. That is, was the diver
unlawfully injured or killed? If the an-
swer is no, the police will often ask
no additional questions.
In many states, the medical examiner
or coroner has the legal authority to de-
termine the cause of death. (A medical
examiner must be a licensed physician,
whereas a coroner is often an elected
ofcial who does not have to be a li-
26 A Good Manager is Always Learning
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DI VECENTERBUSI NESS. c om J ULY/AUGUST 2014 27
censed physician.) In most cases, diving
accident investigations are conducted
by investigators for the medical exam-
iner or coroners ofce. But this is not
true in all cases.
In most states, the coroner or medical
examiners authority is set by state stat-
ute, usually named something like the
Death Investigation Act. These laws
specify certain types of death for which
the medical examiner has authority to
investigate, including instances of sud-
den death, death occurring under violent
or suspicious circumstances, when foul
play is suspected, or when the cause of
death is unexplained. Death by drown-
ing is usually considered to be one of
these circumstances.
In most states, the coroner or medical
examiner is charged with determining
the manner of death, which is legally
classied into one of ve categories: nat-
ural, accident, suicide, homicide and un-
determined. Once the manner of death is
determined to fall under one of these ve
categories, the investigation is not obli-
gated to go any further. Accordingly, it is
often the case in scuba diving accidents
resulting in a fatality that the medical
examiner will determine that the diver
drowned; therefore, the manner of death
was accidental. The medical exam-
iner is not obligated to determine why
the diver drowned, and many times the
investigation will go no further unless
there is some obvious cause like a heart
attack or obvious equipment failure.
Like the police, investigators working
for the medical examiner or coroner of-
ten lack any knowledge of scuba diving
or the expertise to conduct a scuba diving
accident investigation. This is particular-
ly true in geographic areas where scuba
diving is uncommon.
Consequently, the investigators will
often rely on outside experts that are
familiar with scuba diving, but perhaps
not too familiar. I know of some juris-
dictions that use commercial divers to
investigate recreational scuba diving ac-
cidents, and recreational dive shops to
investigate technical diving accidents.
If I had to guess, I would say that
fewer than half of the 100 or so scuba
fatality investigations I have been in-
volved with have used competent out-
side experts. Moreover, there is often a
delay of days or weeks before outside
experts are called in to help, which
means critical evidence is often lost or
spoiled before it is ever looked at or
even collected.
Coast Guard Involvement
The U.S. Coast Guard normally
performs some type of investigation
Most diving accidents happen
because participants err, with a smaller
number caused by people "getting in over their
heads" ; i.e., engaging in diving activities
for which they are unprepared.
28 A Good Manager is Always Learning
any time there is a death that occurs
when diving takes place from a ves-
sel in U.S. coastal or inland waters.
In general, the Coast Guard is look-
ing for evidence of a maritime safety
violation. However, in some cases, the
Coast Guard is looking for evidence of
negligence that can lead to administra-
tive proceedings seeking suspension
or revocation of a captains merchant
mariner credentials or even criminal
prosecution in federal court under the
Seamans Manslaughter Act, 18 U.S.C.
1115, a 175-year-old law that impos-
es fines and imprisonment for up to
10 years against captains, operators,
charterers and corporate management
for negligence that results in a death of
someone under their care.
I know of at least four recent scuba
diving fatalities in the Atlantic Ocean
that the Coast Guard investigated with
an eye toward having federal prosecu-
tors bring criminal charges against
the dive operators and ships crew un-
der the Seamans Manslaughter Act.
In each case, the captains, operators,
charterers and corporate management
interviewed by the Coast Guard were
not advised that they were facing po-
tential criminal prosecution, nor were
they given Miranda warnings (advis-
ing the arrested person of his or her
Constitutional rights).
They were also unaware that to ob-
tain a conviction under the Seamans
Manslaughter Act, the government need
only prove misconduct or negligence of a
ships ofcers, operator or charterer, that
results in the death of another (known by
lawyers as simple negligence the
same easy-to-prove type of negligence
alleged in a civil suit); and knowingly
or willfully causing or allowing the mis-
conduct or negligence of a ships ofcers
that result in the death of a person in the
case of corporate management (known as
gross negligence, although this negli-
gence can be triggered by knowingly al-
lowing a safety violation such as lack of
an emergency oxygen kit for divers to be
onboard the vessel).
Obviously, the thought of facing crim-
inal prosecution would be scary to any-
one who is present at an accident scene,
but imagine being interrogated by a
Coast Guard investigator on a dive boat,
out at sea, without the presence or advice
of your lawyer to protect you, and hav-
ing no idea why you are suddenly being
treated like a criminal?
The Coast Guard has standardized
methodology for conducting marine
casualty investigations; but these pro-
cedures deal principally with investi-
gating boating accidents and swimmer
drowning, which are commonly seen
by Coast Guard personnel. Unfortu-
nately, many Coast Guard investigating
ofcers (IOs) lack expertise in scuba
diving. In many instances, what little
diving expertise the IOs may have is
limited to their own scuba diving certi-
cations and experience.
Moreover, in many local areas, the
IOs lack access to professionals with
diving expertise. In some regions, like
in Los Angeles/Long Beach, Califor-
nia, the IOs use a team of Coast Guard
Auxiliary members with extensive dive
experience to assist in dive investiga-
tions. Unfortunately, not all local units
have this type of access to expertise
and they have to seek out that infor-
mation from others. This takes time,
which means critical evidence is often
lost or spoiled before it is ever looked
at or collected. This means that when
dealing with the local police, Coast
Guard and/or medical examiners of-
fice investigators after an accident,
you have to assume that they know
little or nothing about diving. You
have to be helpful and courteous to the
investigators; you should explain what
you know about the divers experience,
training and equipment operation; and
you should politely insist that the in-
vestigators photograph everything as-
sociated with the accident, particularly
the divers equipment, dive computer
displays, gas levels and any warn-
ings or beeping emanating from the
divers equipment.
If you are permitted to do so, you
should photograph and/or videotape
this yourself. I have not lost a trial
since 1995; in every scuba diving ac-
cident case I have tried, the difference
between winning and losing has often
come down to the existence of a key
photograph taken at the scene of the
accident by a quick-thinking person on
the boat or on shore.
In the event of an accident during an
organized dive through a dive store, ei-
ther on a dive boat or in training, your
certification agency and/or insurance
carrier will normally conduct an inde-
pendent investigation under the direc-
tion or supervision of an attorney. In
some cases, the attorney will dispatch
an investigator to research the case,
interview those involved, and collect
the equipment, or the attorney may do
these things himself. In addition, your
membership agreement with your cer-
tification agency often requires that
you submit an accident report to the
agency for an internal investigation
to be conducted through the agencys
quality assurance process. Again, this
process takes time, but at least your
certification agency and/or attorney
specializing in scuba diving accident
litigation has the requisite experience
to understand and properly investigate
the accident in question.
The Reservation
of Rights Letter
As the scuba industry tries to cut
costs to help come out of the recent re-
cession and compete with myriad other
recreational activities, I have observed
significant changes of which you need
to be aware. As you know, insurance
companies make money by collecting
more money in premiums than they
pay out in claims. Particularly in this
environment, if the insurance compa-
nys investigation determines that you
violated professional standards, the
insurance company might deny cover-
age for your claim. Most professional
liability insurance policies say that
DI VECENTERBUSI NESS. c om J ULY/AUGUST 2014 29
adherence to professional standards is
a condition of coverage. Read the fine
print its in there.
However, denying coverage is not
the same as denying you a defense
of any claims that may be brought
against you. A lawsuit for professional
negligence cannot succeed unless the
plaintiffs attorney alleges that you
breached a standard of care,
i.e., the recognized stan-
dards applicable to super-
vising and teaching scuba.
Insurance companies know
this, which is why an al-
legation that you violated
the professional standard of
care will not automatically
lead to a denial of coverage,
but proof at trial that you
violated professional stan-
dards will.
For this reason, your in-
structor liability insurance
company will provide you
with a defense of any law-
suit filed against you, but
normally only after the in-
surance carrier has issued a
letter known as a Reserva-
tion of Rights. This letter,
which is ominous in tone
and often scary to read, will
say something like, The
following allegations have
been made against you, if
proven they constitute a
violation of this and that
provision of your profes-
sional liability insurance policy, which
are conditions of the carrier providing
insurance coverage; nevertheless, the
carrier will provide you a defense of
these claims and, if proven, the carrier
reserves the right to not pay any judg-
ment entered against you at trial and
recover any attorneys fees expended
on your behalf from what is left of
your measly assets.
Do not be frightened by this type of let-
ter. Simply cooperate with your attorney
and everything should be ne.
Lawyer Up
Although it may seem self-serving for
me to say this, if one of your customers
has an accident, you really should con-
sult with your own knowledgeable at-
torney as quickly as possible. Accidents
happen infrequently, but they often
have grave consequences for the diving
industry professional. You cannot af-
ford to act without legal representation.
At the very least, you should have your
own attorney ll out and submit your
incident report to the certication agen-
cy. This way, you know the attorney is
working for you and anything you tell
your attorney will be unquestionably
protected by the attorney-client privi-
lege and work product doctrine.
Immediately hiring your own attorney
also eliminates the time delay that you
can experience in starting a competent
investigation by the authorities. Believe
me, I rarely see accident victims or their
families wait more than a day or two be-
fore consulting with an attorney, and I
have seen several instances in which the
victims attorney actually directs the of-
cial investigation conducted by the police,
Coast Guard and/or medical examiner.
You would never think that police
reports could be changed to have facts
altered or inserted by a plaintiffs attor-
ney, but I have seen it done. I have seen
the Coast Guard withhold dive computer
data from disclosure to a defendants
lawyer at the request of a divers family
even after litigation has been threatened,
and I have seen investigators destroy,
lose or damage critical evidence more
times than I care to remember. These
things happen all the time. Now that you
are aware of them, you can take steps to
at least level the playing eld in the un-
fortunate event that an accident happens
despite your best efforts. Its the smart
thing to do.
The thought of facing
criminal prosecution
would be scary to anyone present
at an accident scene, but imagine
being interrogated by a Coast
Guard investigator on a dive boat,
and having no idea why you are
being treated like
a criminal?