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Old 06-14-2008, 01:32 PM   #1
Chris Oak
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Boat owners: Liability Waiver?

I had a talk with a buddy last week about his new boat. He was asking me if I ever had anyone sign any liability forms before they come on my boat. I told him it was pretty much all my buddies that come on and I didn't worry about it. He reminded me that they might have family and kids that will think otherwise.

That really hit home, I was waiting for a friend a few months ago and one of the smaller scuba charters was also there and I heard the capt say, "Just sign this liability waiver and we are ready to go". I was surprised because I had never heard of that before.

What do you boat owners think? I hate to be a dick and bring this up, but times have really changed in California. Does anyone have a standard form? I know a good lawyer can beat a waiver, but I'm guessing a little precaution is better than none. I figure spearing is a fairly dangerous sport, shallow water blackout, cuts, tangles, etc.
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Old 06-14-2008, 01:40 PM   #2
Bill McIntyre
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Re: Boat owners: Liability Waiver?

Chris,

I think its a realistic concern, although I haven't done anything about it.

An attorney on the board posted quite a bit on the subject a couple of years ago, and I think he had written waiver forms for boats for hire, but he didn't offer free copies for us non-commercial types. And I can hardly blame him. He makes his living doing legal work, so why should he give it away?

And I suppose there is always the possibility that we could sue him if his waiver form didn't stand up in court, so why expose himself to risk if he isn't being compensated for taking the risk?

So thinking out loud, I guess the only way we could get a form that had a good chance of protecting us would be to get a good lawyer to write it, and a good lawyer won't write it without being paid.

Now do you feel better?
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Old 06-14-2008, 01:42 PM   #3
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Re: Boat owners: Liability Waiver?

Chris,

I don't think you are being a dick at all. I think we all are burying our heads in the sand.

The thing you have to worry about is the fact that someone can easily make a claim that you should have warned about (*fill in the blank*) and due to the lack of warning, they got hurt.

The claims have to be adjudicated in court but meanwhile, your life is turned upside down.

How about the fact that you have no appropriate rescue gear on board?
How about the fact that everyone, including the boat captain, abandons the boat to jump in the water. Is that prudent seamanship and does that contribute to Mr. XYZ getting hurt?
How about the fact that you collect $ for rides--does that impose a standard of care commensurate with that exercised by commercial boats?

I think this is a timely topic, given the recent price of gas and the fact that more and more boaters will be taking out buddies to share gas.

Finally, your buddy may not make a claim if he gets hurt--not too badly hurt. But if he's seriously hurt and out of work, and you have an insurance policy, he may rationalize it as just collecting from your insurance and not you. Then if something really bad happens, can you be sure that the estate (wife?) will be as forgiving?

Good topic.
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Old 06-14-2008, 01:48 PM   #4
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Re: Boat owners: Liability Waiver?

Not a boat owner, but I would have absolutely no problem signing a waiver for you guys, and I don't think you should feel bad about asking. I think you are taking alot of risks taking people out on your boats, especially guys that you barely know. I think if anyone had an issue about signing a form would leave me cautious of them in the first place.
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Old 06-14-2008, 01:52 PM   #5
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Re: Boat owners: Liability Waiver?

Chris,

I have been thinking about this for a long time now. I agree that our (boat owners) arses are hanging out....I would love to be able to download a form. The form should spell it out that there is a high probabilty that participating in such a dangerous sport, something very bad might happen to you.
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Old 06-14-2008, 01:53 PM   #6
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Re: Boat owners: Liability Waiver?

Bill,

Realistic concern but here's one lawyer's view.

Nolo Press provides forms, information etc. all the time. With the appropriate disclaimer "i.e., This form is for educational and discussion purposes only. The author makes no warranty regarding the form. Please consult your own attorney before using the form, yada yada yada". I would think it is possible to post a form for, hmmm, discussion and debate and educational purposes and with the understanding that everyone needs to go and consult an attorney before actually using it.

Last I checked, we still have a First Amendment right to discuss and debate, right?
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Old 06-14-2008, 01:56 PM   #7
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Re: Boat owners: Liability Waiver?

Ahem, anyone want to take a crack at doing a basic form? I used to have a family lawyer cd but it won't run on my current mac. Would a lame form be better than nothing?

Chip any ideas/thoughts?
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Old 06-14-2008, 01:57 PM   #8
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Re: Boat owners: Liability Waiver?

I nominate Chip.
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Old 06-14-2008, 02:54 PM   #9
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Re: Boat owners: Liability Waiver?

Quote:
Originally Posted by Seacidal View Post
Joe, It was my understanding that the First Am. doesn't apply to privately operated fora such as these. Also, last I heard, my rights to discuss and debate were being curtailed.

I have prepared relevant documents for clients on prior occasions. Been there, done that!

As stated, part of the risk involved with putting such a document out for public use is that, regardless of whatever disclaimer was placed on it, I could still be dragged into court (or worse, before the Bar!) on some type of trumped up claim.

With boat owners accepting funds or other contributions greater than that required, i.e. such that the captain has the day's fuel paid for, there may be significant additional issues that arise. The distinction between buddies pitching in for gas and an advertised dive trip begin to become very fuzzy. No matter what you call it in a document, it is what the court (& DFG) decide it is.

For good friends, I will on occasion have discussion of sample documents. But not in an uncontrolled and audience of unknown extent, in which there are known to be some unreceptive and hostile opinions.
LMAO. Ok Chip.

I love ya man.

I'm going to see if I can drag up some samples and have it up here for viewing and debate.

If anyone wants to drag me in court for posting information for public discussion in a hobby forum, when I make clear that the form is for education and debate and I am not their lawyer and they need to go get their own damn lawyer to look at it, be my guest. My underlings will have fun cutting their teeth at First Amendment litigation--they always bitch and moan for court experience anyway.

Not everyone can afford our lawyer rate and even if the form is imperfect, the knowledge gleaned from discussing them would be worthwhile. If the knowledge helps one boat owner, cool enough for me.

Out diving. Be back later.
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Last edited by zenspearo; 06-15-2008 at 09:55 PM.
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Old 06-14-2008, 02:58 PM   #10
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Re: Boat owners: Liability Waiver?

Quote:
Originally Posted by zenspearo View Post
I'm going to see if I can drag up some samples and have it up here for viewing and debate.
Thanks Joe. I went to Nolo in hopes of finding something to start with, but was unsuccessful. Maybe I didn't try hard enough. When I searched Nolo for "release of liability" I got links to some other sites, but those wanted to charge for downloading samples. The fees were not excessive, but I was too cheap to start a shotgun approach.
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Old 06-14-2008, 03:10 PM   #11
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Re: Boat owners: Liability Waiver?

How about the guy that organizes a group shore dive? No different than a boat owner. I think the dive clubs have a liability release form. Might be a place to look.

Mike
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Old 06-14-2008, 03:31 PM   #12
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Re: Boat owners: Liability Waiver?

Thanks for giving this a shot guys, I'll see what I can come up with as well. I was thinking somewhere online must have a liability waiver for scuba/etc that we can modify. Chip thanks for the advice, I really do understand your situation and appreciate your insight.

Mike rather than having you organize a shore dive, maybe you can say "I am diving in pv at this spot at this time" and leave it open, that way no one can claim that you organized a dive.
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Old 06-14-2008, 03:50 PM   #13
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Re: Boat owners: Liability Waiver?

How about something like this? By the way if you use this document you are under your own risk, I am no lawyer and I am putting this out as general information.

Boat Travel and Freediving (snorkeling/swimming under the water without scuba tanks) Voluntary Release, Waiver, and Assumption of Risk
I,___________________________________________, hereby affirm that I am a competent diver and that I thoroughly understand the hazards of freediving including those hazards occurring during boat travel to and from the dive site. I understand that these hazards include, but are not limited to, air expansion injuries, drowning, shallow water blackout, swift currents, entanglement by fishing line or the like, speargun accidents, shark or other animal injuries, sea sickness, slipping or falling while on board, being cut or struck by a boat while in the water, injuries occurring while getting on or off a boat, and other perils of the sea. By signing this release, I certify that I am fully aware of and expressly assume these and all other risks involved in making such a dive or dives.
I understand and agree that neither (YOUR NAME HERE) captain or crew, owner(s) of the vessel, or assigns of the above listed
individuals and/or entities (hereinafter “Released Parties”) may be held liable or responsible in any way for any occurrence on this dive trip which may result in personal injury, property damage, wrongful death or other damage to me or my family, heirs, or assigns that may occur as a result of my participation in this boat trip and dive(s) or as a result of the negligence of any party, including the Released Parties, whether passive or active.
I further state that I am a competent individual and understand all of the above information and am able to sign this liability release, or
that I have obtained the written content of my parent guardian.

I ___________________________________________, BY THIS INSTRUMENT,
DO HEREBY EXEMPT AND RELEASE ALL THE ABOVE LISTED ENTITIES AND/OR Individuals from all liability and responsibility for personal injury, property damage or wrongful death, however caused, including, but not limited to, product liability or the negligence of the released parties, whether passive or active. I acknowledge that I have read the foregoing paragraphs, fully understand the potential
dangers incidental to engaging in this boat trip and dive(s), am fully aware of the legal consequences of signing this instrument, and that I understand and agree that this document is legally binding and will preclude me from recovering monetary damages from the above listed entities and/or individuals, whether specifically named or not, for personal injury, property damage or wrongful death caused by product liability or the negligence of
the released parties, whether passive or active.

Printed
Name______________________________________________ ________

Signature______________________________________

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Old 06-14-2008, 08:21 PM   #14
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Re: Boat owners: Liability Waiver?

You know what they say about friends: A friend will help you move- a REAL FRIEND will help you move the body!!Get sick on my boat, I am there to help you. Get hurt, or Die on my boat??? "Gee, mrs. so and so, he swam right up to a GWS, and got ate. There was nothing left."

"Where did my anchor and spare weight belts go??? I, uh....I threw them at the shark trying to protect your husband. Yeah, that's it!!"
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Old 06-14-2008, 09:38 PM   #15
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Re: Boat owners: Liability Waiver?

I think the best way to protect yourself as a boat owner is through insurance. Yep, much as I hate insurance companies, I have a rider policy attached to my boat. When I combined all my insurance needs to one company, they were able to throw in the 2 million rider policy on boating related incidents. If you own a house or several cars and insure with different companies, look into this. I ended up doing it when I found out my old employer was not paying any insurance for us to drive boats for the Marine Corps and pocketing the profit to the tune of 10K per month. Cover your ass gentlemen, and then insure it as well.
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