Waiver of Liability for rebreathers?

tele · 9th February 2008, 20:19

Hello all,

I notice that most of the rebreather vendors have liability waivers that they require upon sales of their units. The liability waivers (if I am reading them correctly) basically have the end user give up rights and ability to sue the vendor even if the vendor is negligent.

Normal scuba companies don't seem to have these when they sell components or equipment. Of course there is some release paperwork for courses.

Are there any cases where the equipment vendors have been negligent? Ignored software errors on eCCRs? Ignored problems?

OceanOpportunity · 9th February 2008, 21:45

interesting topic, and I'm curious to see what some of the mfg's have to say.

One reason for sure is that these liability forms are a CYA given that most of the units out there are not tested/evaluated to a specific set of mfg criteria set by some higher governing authority. Such testing is expensive, and would then be prohibitive of the smal business ever making it out of there garage considering the size of the Rebreather market. Likewise, the expense of insurance coverage for RB mfg's is hefty...real hefty. My suspicions are that many of the smaller mfg's do not carry a policy that covers their activity. This is expecially true of the aftermarket parts suppliers that are selling components to alter life support equipment. Again, we're talking such a small market that things like testing, insurance, and IP protection (patents) are rare...especially for the reasonably small companies that are trying to make their break. So, our promise not to sue is about the best that can be done.

diverreb · 10th February 2008, 00:04

Someone in the know please correct me if I'm wrong, but I believe that here in the US, no matter what you sign, gross negligence won't be dismissed in a lawsuit, even if a waiver is signed.

Extreme example.... Drunk Captain runs over a diver & injures or kills him/her. No matter what was signed, the Captain would likely be held liable in a lawsuit.

Grey areas would be decided by a Court or Jury.

Richie

zmcave · 10th February 2008, 01:14

Quote: (Originally Posted by diverreb)

Someone in the know please correct me if I'm wrong, but I believe that here in the US, no matter what you sign, gross negligence won't be dismissed in a lawsuit, even if a waiver is signed.

Extreme example.... Drunk Captain runs over a diver & injures or kills him/her. No matter what was signed, the Captain would likely be held liable in a lawsuit.

Grey areas would be decided by a Court or Jury.

Richie

Not sure how its done in the US, but that's exactly how it works down here... when I have my scuba students read and sign agency required waivers I know the waivers are worthless if I am considered negligent, the same would apply to a rebreather waiver.

Zé.

mountain diver · 10th February 2008, 05:04

It is only worth the paper it is written on, the key word is (negligence).
Knowing that there is a problem with the equipment and /or teaching but failing to make the required correction.
Just a matter of time before it hits the fan.
this is where it all starts.

all the best.

**nigelh** · 10th February 2008, 08:57

I don't remember one in the UK.
You just buy things.

Quote: (Originally Posted by Unfair Contract Terms Act 1977 as amended)

2 Negligence liability
1 A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.
2 In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness.
3 Where a contract term or notice purports to exclude or restrict liability for negligence a person’s agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk.

I look at disclaimers and as soon as I see it trying to get me to sign away my rights if they are negligent I know it's an illegal document and it's safe to sign. Even the fact that I read it and signed it isn't admissable. The law here is very clear that you can't sign away rights.

Rob Dobson · 10th February 2008, 12:51

Before signing the waiver I was sent I ran it past a mate who is an American solicitor (living in the UK these days). His take on it was "Just sign it. It has limited legal application and whoever wrote this must know that - it has clearly been written to scare off time wasters."

I can understand the need for the manufacturers to try and cover themselves, especially when so many post sale mods are done outside of their control.

OceanOpportunity · 10th February 2008, 13:01

I don't think anybody disputes the assumed risk and negligence issues that have been raised above.

I think that if there were to be an issue, it would be a performance claim of the mfg not working out and causing injury. For example, if someone stated 'rated to 100m'. Well, they better be damn sure that the equipment is capable of going to 100m. If something consistently malfunctions or just doesnt perform at 50m and casues an injury, they are in deep $#!T. Again, hence why we probably see so little actual hard data on Rebreather's from the mfg's and few if any are held to any specific higher test stds prior to going out the door.

The reality is that any of us can strap anything we want on our backs and do whatever we want with it...anything goes wrong OUTSIDE of the published/tested/documented specs, then it is our negligence, and our own fault.

mountain diver · 10th February 2008, 16:43

Quote: (Originally Posted by OceanOpportunity)

I don't think anybody disputes the assumed risk and negligence issues that have been raised above.

I think that if there were to be an issue, it would be a performance claim of the mfg not working out and causing injury. For example, if someone stated 'rated to 100m'. Well, they better be damn sure that the equipment is capable of going to 100m. If something consistently malfunctions or just doesnt perform at 50m and casues an injury, they are in deep $#!T. Again, hence why we probably see so little actual hard data on Rebreather's from the mfg's and few if any are held to any specific higher test stds prior to going out the door.

The reality is that any of us can strap anything we want on our backs and do whatever we want with it...anything goes wrong OUTSIDE of the published/tested/documented specs, then it is our negligence, and our own fault.

Very true, negligence does go both ways.
I guess we could call this the other side of the coin.

all the best.

9th February 2008, 20:19	#1 (permalink)
tele New Member Current Rebreather/s: Not Bought Yet Other Rebreather/s: Not Bought Yet Join Date: Aug 2007 Location: Norfolk, VA Posts: 15	Waiver of Liability for rebreathers? Hello all, I notice that most of the rebreather vendors have liability waivers that they require upon sales of their units. The liability waivers (if I am reading them correctly) basically have the end user give up rights and ability to sue the vendor even if the vendor is negligent. Normal scuba companies don't seem to have these when they sell components or equipment. Of course there is some release paperwork for courses. Are there any cases where the equipment vendors have been negligent? Ignored software errors on eCCRs? Ignored problems?
(Offline)

9th February 2008, 21:45	#2 (permalink)
OceanOpportunity for a world of water Current Rebreather/s: Other CCR Dolphin Home Build Other Rebreather/s: Not Bought Yet Inspiration Classic Other CCR Dolphin Home Build Join Date: Nov 2006 Location: Providence, RI USA Posts: 465	Re: Waiver of Liability for rebreathers? interesting topic, and I'm curious to see what some of the mfg's have to say. One reason for sure is that these liability forms are a CYA given that most of the units out there are not tested/evaluated to a specific set of mfg criteria set by some higher governing authority. Such testing is expensive, and would then be prohibitive of the smal business ever making it out of there garage considering the size of the Rebreather market. Likewise, the expense of insurance coverage for RB mfg's is hefty...real hefty. My suspicions are that many of the smaller mfg's do not carry a policy that covers their activity. This is expecially true of the aftermarket parts suppliers that are selling components to alter life support equipment. Again, we're talking such a small market that things like testing, insurance, and IP protection (patents) are rare...especially for the reasonably small companies that are trying to make their break. So, our promise not to sue is about the best that can be done. __________________ Michael Lombardi Oceans of Opportunity www.oceanopportunity.com Elected Director, Society for Human Performance in Extreme Environments MN'07, The Explorers Club Project Manager, Diving a Dream
(Offline)

10th February 2008, 00:04	#3 (permalink)
diverreb DE/MD/NJ Wreck Diver Current Rebreather/s: Optima Other Rebreather/s: Join Date: Mar 2007 Location: Dover, DE Posts: 471	Re: Waiver of Liability for rebreathers? Someone in the know please correct me if I'm wrong, but I believe that here in the US, no matter what you sign, gross negligence won't be dismissed in a lawsuit, even if a waiver is signed. Extreme example.... Drunk Captain runs over a diver & injures or kills him/her. No matter what was signed, the Captain would likely be held liable in a lawsuit. Grey areas would be decided by a Court or Jury. Richie
(Online)

10th February 2008, 01:14	#4 (permalink)
zmcave www.rebreather.com.br Current Rebreather/s: Optima Dolphin Other Rebreather/s: Optima Dolphin Join Date: Apr 2006 Location: Brazil Posts: 171	Re: Waiver of Liability for rebreathers? Quote: (Originally Posted by diverreb) Someone in the know please correct me if I'm wrong, but I believe that here in the US, no matter what you sign, gross negligence won't be dismissed in a lawsuit, even if a waiver is signed. Extreme example.... Drunk Captain runs over a diver & injures or kills him/her. No matter what was signed, the Captain would likely be held liable in a lawsuit. Grey areas would be decided by a Court or Jury. Richie Not sure how its done in the US, but that's exactly how it works down here... when I have my scuba students read and sign agency required waivers I know the waivers are worthless if I am considered negligent, the same would apply to a rebreather waiver. Zé.
(Online)

10th February 2008, 05:04	#5 (permalink)
mountain diver Silent Lucidity Current Rebreather/s: Megalodon Other Rebreather/s: Join Date: Mar 2006 Location: edmonton, ab. Posts: 165	Re: Waiver of Liability for rebreathers? It is only worth the paper it is written on, the key word is (negligence). Knowing that there is a problem with the equipment and /or teaching but failing to make the required correction. Just a matter of time before it hits the fan. this is where it all starts. all the best.
(Online)

10th February 2008, 08:57	#6 (permalink)
nigelh New Member Current Rebreather/s: Inspiration Vision Other CCR Other Rebreather/s: Inspiration Classic Other CCR Join Date: Mar 2005 Location: Brighton, Sussex, UK Posts: 784	Re: Waiver of Liability for rebreathers? I don't remember one in the UK. You just buy things. Quote: (Originally Posted by Unfair Contract Terms Act 1977 as amended) 2 Negligence liability 1 A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence. 2 In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness. 3 Where a contract term or notice purports to exclude or restrict liability for negligence a person’s agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk. I look at disclaimers and as soon as I see it trying to get me to sign away my rights if they are negligent I know it's an illegal document and it's safe to sign. Even the fact that I read it and signed it isn't admissable. The law here is very clear that you can't sign away rights. __________________ nigelh
(Online)

10th February 2008, 12:51	#7 (permalink)
Rob Dobson New Member Current Rebreather/s: Megalodon Other Rebreather/s: Join Date: Dec 2007 Location: Oxford Posts: 50	Re: Waiver of Liability for rebreathers? Before signing the waiver I was sent I ran it past a mate who is an American solicitor (living in the UK these days). His take on it was "Just sign it. It has limited legal application and whoever wrote this must know that - it has clearly been written to scare off time wasters." I can understand the need for the manufacturers to try and cover themselves, especially when so many post sale mods are done outside of their control.
(Offline)

10th February 2008, 13:01	#8 (permalink)
OceanOpportunity for a world of water Current Rebreather/s: Other CCR Dolphin Home Build Other Rebreather/s: Not Bought Yet Inspiration Classic Other CCR Dolphin Home Build Join Date: Nov 2006 Location: Providence, RI USA Posts: 465	Re: Waiver of Liability for rebreathers? I don't think anybody disputes the assumed risk and negligence issues that have been raised above. I think that if there were to be an issue, it would be a performance claim of the mfg not working out and causing injury. For example, if someone stated 'rated to 100m'. Well, they better be damn sure that the equipment is capable of going to 100m. If something consistently malfunctions or just doesnt perform at 50m and casues an injury, they are in deep $#!T. Again, hence why we probably see so little actual hard data on Rebreather's from the mfg's and few if any are held to any specific higher test stds prior to going out the door. The reality is that any of us can strap anything we want on our backs and do whatever we want with it...anything goes wrong OUTSIDE of the published/tested/documented specs, then it is our negligence, and our own fault. __________________ Michael Lombardi Oceans of Opportunity www.oceanopportunity.com Elected Director, Society for Human Performance in Extreme Environments MN'07, The Explorers Club Project Manager, Diving a Dream
(Offline)

10th February 2008, 16:43	#9 (permalink)
mountain diver Silent Lucidity Current Rebreather/s: Megalodon Other Rebreather/s: Join Date: Mar 2006 Location: edmonton, ab. Posts: 165	Re: Waiver of Liability for rebreathers? Quote: (Originally Posted by OceanOpportunity) I don't think anybody disputes the assumed risk and negligence issues that have been raised above. I think that if there were to be an issue, it would be a performance claim of the mfg not working out and causing injury. For example, if someone stated 'rated to 100m'. Well, they better be damn sure that the equipment is capable of going to 100m. If something consistently malfunctions or just doesnt perform at 50m and casues an injury, they are in deep $#!T. Again, hence why we probably see so little actual hard data on Rebreather's from the mfg's and few if any are held to any specific higher test stds prior to going out the door. The reality is that any of us can strap anything we want on our backs and do whatever we want with it...anything goes wrong OUTSIDE of the published/tested/documented specs, then it is our negligence, and our own fault. Very true, negligence does go both ways. I guess we could call this the other side of the coin. all the best.
(Online)

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