Training and Standards

Helium_diver

Genisis ,

Well said I agree whole heartily. I have reached the end of my rope with dive shops and instructors and certifying agencies.

Helium_diver

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"If I look unconscious I probably am " Bill Hartman

Mixaddict

Genesis,

At the risk of starting an all out war, I believe that your views are quite frankly overly simplistic and one sided. As a dive shop owner with substantial assets at risk every time a student goes on a dive along, takes a class, goes on a shop sponsored trip, or just goes diving by themselves, I would not even remotely consider being involved with any of this without the added shield of agency certifications, liability insurance and waivers to help shield me from the blood thirsty legal sharks.

The agencies go to bat for us as instructors. The agencies help underwrite the insurance that has our backs, and the agencies cooperate with each other defending shops, resorts and instructors. The legal sharks are vicious and although some instructors have no assest besides a rusty set of doubles and a pick up truck, there are others in the industry with substantial assets that make a huge target, (Please spare me the rhetoric about corporate veils, trusts and other somewhat ineffective ways to shield instructors and shops from lawsuits.) Those of us in the industry depend on the tried and true agecny route to help shield and protect us, which to date, have almost 100% success with in trial defense.

My observation to you is that until YOUR butt is on the line, don't be so quick to point a finger at the people who actually have their butt on the line every day of the week.

Regards,
Randy (now donning my flame retardant suit!)

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Randy Thornton (MixAddict)
Inspiration, Evolution, Hammerhead & Sentinel
CCR Instructor

dgschott

Randy - While I agree with you that you can get insurance from the agencies, that doesn't give you (instructors as a whole) the right to rape divers with more and more certification requirements. If I don't go to you for training, you're not responsible. I'm responsible for what I do, and how I do that. But back to the issue - the fact is, that John Jones said that I couldn't take a DPV course without having my full cave rebreather certification. WTF? I have my speciality IANTD Meg cert, and I'm Full Cave trained. What more do you want from me? Besides another $1000 bucks?

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David Schott
Liquid Productions, LLC

Captain Randy

I agree that the current system is out of control. You can get a private pilots licence then fly a variety of single engine airplanes. Why not a course for SCR, one for mCCR and another for eCCR. If these units are really that much different a 1 day type rating costing $200-$300should be sufficient to go from 1 eCCR to another. Basic skill sets are the same, why do we have to redo them in every class.

Randy

aknelson

The concerns by some resonate with my personal impression about the cards.
I was stunned when someone told me at a Resort I could not have Nitrox without a card. I was wondering when the same people did not know that Rebreathers could require Nitrox. This after I showed the 96 TDI Rebreather certification. Thats to my card experiance.
Too many cards !!
Too many agencies thinking every manufacturer is different. Remember the principles are too simular for all SCR or CCR. And lots of folks run their machines manually anyways since we can not trust our computers.
Running stuff manually is overriding engineering flaws and should deeply concern any engineer.


It seems it is time the training agencies gets their house cleaning done.

I personally believe when someone has a basic certification; then it is up to the individual to get more training.
I also believe if someone wants the classes so have him take the class .
If someone wants to use a different Rebreather it is fine to suggest to take formal crossover training or for new-comers formal training. Requiring a class irritates me, as some other folks. Personally, if I feel I'm needing help; I will seek training .
As an engineer it is common sense to seek advise when I dont have adequate knowledge.
It gets down to finding a Instructor which is willing to teach what I need to know and want to know.

The cards are only good for those which think they need them, at the end knowledge counts.

Andreas

go-n-deep

Wow Genesis you rock man! Very well said and exciting. dgschott thanks for the topic, needed to be thrown out there. I agree with seeing many divers with a handful of cards but no real understanding of the concept of gas physics and very poor dive skills. I have also seen and heard of many instructors that were not good communicators/teachers of the portion of the information they did know correctly. One such incident made a well known publication concerning an instructor teaching a class on nitrox and making statements that were not true. The agencies are not consistent, The instruction is not consistent, The logic behind the rules is not consistent with trying to grow the sport and keep people safe. What has corrupted it? Power and Money! YOU CANNOT DIVE UNTILL YOU PAY ME THIS MONEY AND I SAY YOU CAN. DOESN'T MATTER WHAT LEVEL OF SKILL AND UNDERSTANDING YOU HAVE. WHY ISN'T THERE AN EVALUATION THEN A RECOMMENDATION FOR SKILLS THAT NEED WORK TO SAFELY DIVE AT THIS LEVEL? I BELIEVE THAT THERE IS MORE MONEY FOR THE UNDERWATER INDUSTRY IN KEEPING TRAINING EXPENSE REASONABLE THEREFORE AVAILABLE TO MORE PEOPLE WHICH IS SAFER FOR THE MASSES. THE LIST OF CLASSES NEEDED TO DIVE OC TECH IS REDICULOUS. IT IS AMAZING THERE IS ANYONE DOING IT!

dgschott

I agree go-in-deep! I would truley wish that the NSS-CDS reconsider the need to compete with other agencies in this scenerio. I believe they should teach cave diving, and they do that well. But the addition of Rebreather certs seems to me to be a ploy, and a bad one at that in an attempt to follow the footsteps of other agencies that are pushing multiple RB certifications in an attempt to make as much money as possible - yes - I will say the word again... Greed.... Or as Genisus noted, in a more considerate way, *****s.

When instructors are taking out newly certified Rebreather divers for hypoxic tri mix training after the student has 30 or 40 hours on thier unit, there is probably a reason for this - and that's called income and greed.

It is also suspect that John Jones, as the NSS-CDS training chairman, would be pushing for such additional certs. I don't personally know John, but from the posts on this board, he is obviously pro diverite, pro optima, and probably wants to make some extra cash teaching Rebreather cave courses and it is in his best intrest to get these extra standards and certs added to the CDS so the CDS can deny rebreather divers additional training without rebreather cave training.

Shouldn't the NSS-CDS stick to teaching the fundimental elelments of cave diving and cave conservations, and those techniques will be with you whether you're on a rebreather or open circuit.

__________________
David Schott
Liquid Productions, LLC

JaceCady

As a staunch Libertarian, I definitely agree with the "**** certification, my blood is on my own head when I *choose* to participate in dangerous activites". And I'd point out that rock climbing can be *just* as dangerous as scuba diving, but no one asks me for any kind of card when I buy rope and carabiners.

On the other hand, the certification mess is not so much its own problem, but a *symptom* of the ligitious society we live in. Fix society, and the problem goes away. Don't fix society, and it'll never stop coming back.

JaceCady

With all due respect, you should be blaming the legal sharks and the society that produced them, not divers frustrated at having to pay thousands of dollars for often redundant training.

You don't need a license to fly ultralight aircraft; you can buy one, hop in it, and fly off. The only rules for unlicensed ultralights is they're not allowed to carry passengers, and they're not allowed to fly over populated areas -- the idea being you're allowed to risk *your* life, but not others. This is a good system IMHO; we should all push for similar regulations on diving.

Quite frankly, idiots who buy the fanciest gear in the store and jump in the water with zero training benefit the human gene pool by removing themselves from it; it's called "evolution". Anyone sane will learn; anyone who's that big an idiot won't learn no matter how many classes he's forced to attend.

Genesis

As I've pointed out, as someone who ran a business for more than FIFTEEN YEARS I am fully aware of the issues surrounding asset protection, insurance and other related matters.

The simple fact of the matter is that you organized your business to make it a tasty target for lawyers.

That is not my responsibility as a customer - it is yours as a business owner.
My butt was on the line every day of the week, 24 hours a day, for more than fifteen years running a business with more employees than ten average dive shops put together.

There is no such thing as "somewhat ineffective" means of asset protection. They are tried, true, proven and 100% effective if followed religiously and executed IN ADVANCE of the event which causes the exposure.

Properly executed, these forms of asset protection form the very foundation of corporate life in America.

Absolutely nobody would ever take ownership in a significant business were it not for limited liability. NOBODY. If you could be personally sued for being an owner of a corporation, exposing you to risk beyond the certificate's value in the market, you'd NEVER own stock. Ever.

Now if you do not follow the rules - and there are several which must be religiously observed - you can in fact get screwed. This is not a game - its a business. You had damn well better run it like one.

You need professional advice to pull this off properly. You must also religiously follow that advice. The problem with most "small" business is that either (1) they're improperly organized or (2) the people who own the stock do things that "pollute" the corporate veil.

A couple of the more common ones are holding yourself out as "Dave" instead of "DiveShopCo" some of the time and comingling personal and corporate assets, especially money (that one is murderously bad!) Then there's the "I'm gonna pay myself when I feel like it" one. There are all sorts of pitfalls which you can fall into if you're too foolish to get educated - or too lazy to care.

In short, if you run your place like a proprietorship (an extension of your person) no matter what you call it, you're gonna get reamed.

But if you properly follow all of the formalities then liability stops at the boundary of the corporate walls. There is absolutely nothing wrong with operating a business that inures to the benefit of the shareholders yet retains little or no net worth. This is not only legal IT IS WHAT YOU ARE SUPPOSED TO DO WITH YOUR FIDUCIARY RESPONSIBILITY TO THE SHAREHOLDERS IF YOU ARE A DIRECTOR OR OFFICER OF A CORPORATION!

Yes, I realize that this has potential tax consequences you might not like (especially in a "C" corp, but even in a Sub-S or LLC to some extent.) So what? You want the protection, you play by the rules.

I have very close associations with a number of attorneys, from high-powered M&A guys to general corporate law to product liability to intellectual property. I am not an attorney but I've spent a SHITLOAD of money on lawyerly advice over the years for exactly the purpose being discussed here.

When I sold my company one of the things the M&A folks commented on was that of the several HUNDRED small firms they had done transactions on over the previous 20 years, Macro Computer Solutions, Inc. (dba MCSNet) was the ONLY one which had no material defects in the corporate records.

Yes, we carried liability insurance. For slip and falls along with other common things. We carried ZERO product and professional liability insurance (it was shitzall expensive and properly structured the company had no real need for it), and the firm retained essentially no earnings beyond immediate operating needs.

Diving liability insurance is IMHO stupid. Period. As I see it you people in the industry who are playing this game are idiots. I'm sorry, that's just how I see it. By having issued such a policy you have painted a big fat red bulls-eye right on your pucker spot, and invited the landsharks to find a reason worthy of coming to take a bite.

You have to understand the plaintiff's bar to figure this out.

Let's say that your spouse cacks themselves in a diving accident. You, bereft and pissed off, go see a barrister (this is if he or she doesn't call you first when they see the obit in the paper!)

You go in for a consulation and lay out what you think happened. Let's say that for the sake of argument the decedant was diving a rebreather and has no formal certifications at all, but "that damn shop let him get on the boat! Damnit, if they had carded him he never would have dove and would still be alive!"

Sounds like an open and shut case, right? Even if there's a signed waiver.

It doesn't matter. What matters is whether there's a prayer in hell of collecting anything, assuming you can actually win.

The first thing the lawyer is going to do is search public records for the shop and boat operation (which, if you have any brains whatsoever are two separate corporate entities!)

Now what does he find? Well, let's say he finds that the shop is a traditional dive store and is an "Agency X" operation. He knows that this means it has a $2m diving liability insurance policy. The BoatCo also is an official "Agency X" boat (and a bit of investigation shows that THEY are insured for $1m for diving liability.)

Oh boy! Mr Lawyer, who works on contingency, now smells blood! He can file suit and potentially collect $3m in total. 1/3rd of that, which is his customary fee, is a cool million dollars. Ms. Bereaved is gonna get $2m, which isn't bad at all.

Now to get that (which will be a settlement; it won't go to trial) he'll have to put in a couple hundred hours of work, all told, between himself and a couple of paralegals. There'll be depositions and discovery, and there'll be costs. At $300 an hour he's got $60,000 in this game - figure another $20k for expenses and you're right up around $80-100,000 invested.

For a million bucks that's a hell of a deal! 10:1 payback - man, I love those odds. Bang - you (and the agency, and the boat company) get sued. Why? Because even if he only wins one of five of those cases he's still way ahead, and he knows that if the facts are as you told him, the insurance company is likely going to try to settle for half the policy limits or somesuch very early on, realizing they could get hit for the whole thing.

Ok, now scenario #2.

Same plaintiff, same dead husband. A public records search shows that DiveShopCo has a building with a 100% mortgage. They refinanced it two years ago on a 30 year commercial note and have essentially zero equity. There is a liability policy for slip and fall and other common hazards, and there's also a facility insurance policy for fire and theft, but the shop has zero liability insurance for diving exposure, and Mr. Shark knows that this peril is named as excluded on the other policies! There's a few bucks in the bank and a big fat line of credit - part of the mortgage - which is largely consumed. The owners are paying themselves well but not exhorbitantly (no claim for "excessive comp" is going to fly) and that's not illegal. He can't get at the corporate record books without getting into formal discovery, but its a damn good bet from what he sees from public records that everything is in perfect order and he's not gonna get through the corporate veil. THIS GUY HAS BEEN PAYING ATTENTION! That's not so good!

Ok, so we go look at the boat. BoatCo has a 100% mortgage too! BoatCo just repowered the boat with nice new engines, but there's no equity in the thing. BoatCo's owners are also paying themselves nicely, but again, that's not against the law. Other than the boat, BoatCo has no assets to speak of.

Between the two companies there's less than $50,000 in net worth. Oh sure, there's a good bit of inventory, but its all either on a floorplan (the shop don't really own it!) or its on the operating LOC (and the bank REALLY owns it!) Everything else from the copier to the PCs in the office to the compressor system, rental gear and tanks are on a capital lease and the shop truck is a leased vehicle! Crap! No assets!

Now let's do that math again. Mr. Lawyer sees $60,000 in his time and $20,000 in hard costs that get flushed down the toilet to get through discovery, but there's nothing to settle with! BoatCo and DiveShopCo might even choose to represent themselves; why the hell not, given that they have nothing to lose! But if they don't, well, shit, they'll spend the last $50,000 in equity on lawyer bills about the time discovery is complete - and this assumes discovery is reasonably quick. Then what? DiveCo and BoatCo walk away and the allow the suit to default; it does, you get your judgment but you can't execute it against a defunct corporation with no assets!

Mr. Landshark is not exactly sure who owns the stock - that's for discovery - but the corporate filings expose officer names, and when he looks there he finds that those people have nothing in their name either except for a car or two and some credit card debt, but they're living in some pretty decent - but not exhorbitant - digs! WTF?! Oh oh, they really ARE smart - there are traces out there (in the form of tax records at the county assessors office) that lead him to believe that they've sequestered all of their wealth in trusts!

Mr. Landshark now has a pretty good picture of what's what. He knows the odds of finding a defect in corporate governance are slim. He knows that without that, piercing the corporate veil is highly unlikely, and he's going to have to dump $50k in discovery costs to find out. He also knows that odds are these guys had good, competent legal advice setting up their personal asset protection too. So even if he gets through the corporation, he then has to get past the second layer - and he's not really sure exactly what's back there even if he succeeds!

At those odds there's no way in hell he's going to throw $50-80k down the toilet when he knows there's no reason for anyone to settle (since there's nothing to pay him off with!) and then he's stuck with a trial that is going to cost another $50,000 of his time.

He tells Ms. Bereaved that he can take a crack at this, but that she's going to have to pony up to the bar with a $50,000 retainer, that this will get him far enough to file and figure out if the corporations are clean, but that the total expenses are nearly certain to exceed $100,000 - and might go a LOT higher. He bluntly asks Ms. Bereved if she's got $250,000 to blow on this if the case goes sideways - that, and three to five years could be the cost of seeing it all the way through.

Ms. Bereaved takes her life insurance money and goes home.

You choose your business model, I choose whether or not to do business with you based, in part, on whether you had a brain when you set up the shop.

You intentionally structure your company so that you can use its lack of personal asset protection as an excuse to rob me, and you're going to get a one-finger salute in response.

Of course all this only applies to the US, although I bet most civilized nations have similar ways of accomplishing the same thing. After all, they have businesses too.

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"A venturesome minority will always be eager to get off on their own, and no obstacles should be placed in their path; let them take risks for Godsake, let them get lost, sunburnt, stranded, drowned, eaten by bears, buried alive under avalanches - that is the right and privilege of any free American."
http://www.denninger.net
http://www.diversunion.org/liability.htm - Fix the Diving Cert racket