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Old 06-16-2008, 12:06 AM   #31
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Re: Boat owners: Liability Waiver?

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Originally Posted by Seacidal View Post
Written and full disclosure of all hazards, defects, risks etc. on the specific boat could be helpful. Particularly if your boat has certain risks. e.g., loose railings, broken accessories (e.g., hatch covers) oily deck, gas cans on deck, unsecured ice chests, cabin doors, etc. etc. Go over these with every client, one by one, then get a signature, and at least you'd have some degree of proof they were put on notice. It may not save your a$$, but it could help be a disincentive to filing suit.
Good points Chip!
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Old 06-16-2008, 12:27 AM   #32
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Re: Boat owners: Liability Waiver?

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You may prevail eventually, but it'll hurt nonetheless.
Thank you for pointing that out! That's yet another reason I'd look into an umbrella policy if I were a boat owner.

Even if a waiver is ironclad, if it is challenged, it will cost money to defend. We don't have the 'English rule' here, so even if a boat owner wins, they're going to pay for the attorney fees on their side. Correct?

All more the reason to rely on an umbrella policy more than a waiver, IMO. I'd rather let the insurance company and their specialized attorneys handle the details if it came down to that.
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Old 06-16-2008, 12:40 AM   #33
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Re: Boat owners: Liability Waiver?

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Thank you for pointing that out! That's yet another reason I'd look into an umbrella policy if I were a boat owner.

Even if a waiver is ironclad, if it is challenged, it will cost money to defend. We don't have the 'English rule' here, so even if a boat owner wins, they're going to pay for the attorney fees on their side. Correct?

Yup.

All more the reason to rely on an umbrella policy more than a waiver, IMO. I'd rather let the insurance company and their specialized attorneys handle the details if it came down to that.
Why not both?
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Old 06-16-2008, 12:43 AM   #34
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Re: Boat owners: Liability Waiver?

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Why not both?
Good idea.

Maybe if I ever become a boat owner, I'll do that. When I take people for a ride in my car, I don't make them sign a waiver. I rely on my insurance policies to cover me if needed. I was thinking like a car driver, not a boat captain.

Your point is taken. Thanks for the thought!
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Old 06-18-2008, 11:23 AM   #35
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Re: Boat owners: Liability Waiver?

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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.
I always have guys on my boat sign a waiver. Hey, I'm just trying to show my buddy's a good time spearfishing but don't want to lose my house, boat, savings, etc over trying to defend myself in court over a simple accident!

I feel that if you make your guest sign something stating they are in great health, address the dangers of being on board a boat a sea and the dangers of spearfishing, plus unseen things, etc, that should give you a fighting chance in court.
The best part of the release form is that I make them name a person and phone number I can reach if there is a problem!

I'm not a lawyer and drafted this example from other release forms I've signed so this is only an example of what might work in court? If you have suggestions to tighten up any loop holes in my form I'd love to hear about it!

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Old 08-08-2019, 08:15 PM   #36
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Re: Boat owners: Liability Waiver?

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Gradyman, thanks for posting. How is the beginning of this paragraph supposed to read?
Might be to late but i think it

translate to

I Assume the risk

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Old 08-17-2019, 12:53 PM   #37
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Re: Boat owners: Liability Waiver?

...A waiver will not protect you from a lawsuit, nor, will it allow you to escape responsibility... ...Admitting to any faults on your boat is committing financial suicide, as you knew of the defect and did not fix it to prevent accidents. If you feel the need to warn of a possible issue, do it verbally....and, like many who testify later, you can always claim lack of recall.... Depending on the circumstances, you may be held all, or, partially responsible, even tho' you had little or nothing to do with the accident ocurrance itself...DEPENDING ON...."The deep pockets theory" (he who has the most money pays).
...All to frequently, "justice" depends on who can afford the best attorneys..The real protection here is good insurance coverage. The insurance company will hire capable attorneys to defend you. The rest depends on a fickle (and, sometimes stupid) civil or criminal jury of your peers (note: yours, not mine)… If they aren't smart enough to get out of jury duty, how can they be expected to understand often complicated aspects of the law?? What? Do I sound a little cynical?...
...In most instances, your insurance company will pay to settle out of court on the theory that it is cheaper to pay something, than go to court and pay excessive defense attorney fees and still, end up paying out a massive jury award for actual and punitive damages if things go sideways. Chancing a jury trial is a roll of the dice, even when the law is on your side...
...Moral: Have good insurance coverage (an umbrella policy is a good idea if you have considerable assets), file detailed reports in the event of an incident(without admitting any guilt) and call your insurance agent immediately to start minimizing the other parties claims.
...When big awards are at stake, attorneys sue everyone, even those not directly involved, hoping for a big settlement, knowing each party will pay out something to end protracted lawsuits that can last years.
...Advice: Good people don't always win the game....do everything possible to stay out of courts, away from attorneys and out of jails.....most of all, MAKE NO STATEMENTS (oral or written) that might be twisted around and used against you later....if in doubt, keep your mouth shut until you talk with your attorney....people who want to, "tell their side of the story" are their own worst enemy!....
...Been there, done that; winning on three, losing on one due to an unprepared attorney who failed to introduce documents from the first trial to show the plaintiff committed perjury at the second trial, hoping to win a million dollar lawsuit....but, life often is not fair....you just have to stand up, shake the dust off and move on with your life...

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Old 08-20-2019, 02:23 PM   #38
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Re: Boat owners: Liability Waiver?

I actually am a lawyer and while PI isn't my field, waivers in this type of situation actually are pretty rock solid.


Essentially, the strength of a waiver depends on the activity. A hospital, for example, can't make you sign a waiver releasing them from liability for negligence. Well, I guess they could make you sign it but it wouldn't be enforceable.

When it comes to recreational activities, however, a waiver of liability generally is enforceable, even for damages caused by negligence.


I don't think you need to hire a lawyer to make a waiver form for your boat. Waiver forms for recreational activities are basically boilerplate.

Disclaimer: this post is for informational purposes only and is not legal advise. Please do not act or refrain from acting based on anything you read in this post.

See? told you I was a lawyer
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Old 08-20-2019, 05:24 PM   #39
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Re: Boat owners: Liability Waiver?

Since my advice is based on real life and not textbook theory, I won't need a disclaimer...
Put any attorney under oath and he would be forced to admit what I say is all too often the truth....
...A waiver certainly won't hurt, but, whether you choose a waiver or not; just remember your first priority should be to protect you, your family and your assets with adequate insurance coverage. The rest will sort itself out eventually and hopefully, will be fair to both sides...

Now, me...if I was going to put together an ironclad waiver, I would hire one of Trump's sharks..They are the grand masters for escaping liability once the dotted line has been signed...

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Old 08-26-2019, 11:01 PM   #40
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Re: Boat owners: Liability Waiver?

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Since my advice is based on real life and not textbook theory, I won't need a disclaimer...
Put any attorney under oath and he would be forced to admit what I say is all too often the truth....
...A waiver certainly won't hurt, but, whether you choose a waiver or not; just remember your first priority should be to protect you, your family and your assets with adequate insurance coverage. The rest will sort itself out eventually and hopefully, will be fair to both sides...

Now, me...if I was going to put together an ironclad waiver, I would hire one of Trump's sharks..They are the grand masters for escaping liability once the dotted line has been signed...
No dude, you have no position where someone could theoretically say your misleading post was a violation of a duty you have. That's why you don't need a disclaimer, because you're a layperson.

A person can write a legal complaint against you even if they signed a liability waiver. So you were right in saying the best defense is to stay out of court by making sure accidents don't happen. An insurance policy is a must for completely different reasons than the risk someone might sue you. That would be for everyone on board and their family's benefit. And obviously avoiding gross negligence is pretty much the key.

But if there's an accident that makes someone want to sue you, a waiver serves a dual purpose in dissuading many from doing it because they see it as futile, and if you end up in court, it seriously in reality does protect you. Assumption of risk might cover the same things in CA that a waiver does, I really don't know, but I think a waiver or prominent warning sign is a strong factor in your favor.

Funny thing about the law, it's a place where "textbook theory" and real life are more often than not one in the same thing. I'm surprised I even have to tell you how much of the "real life" in law is just a bunch of bullcrap "textbook theory" brought to life by courts compelled to take that theory as fact. The distinction, in this context, shouldn't even be made.

I don't even get what you're trying to argue here, that waivers don't work? Or that just because they don't completely block a lawsuit from its inception, that somehow means they aren't nevertheless great protection? You keep going on and on about jury trial, but that's the whole thing about waivers -- if legally valid, they very often result in a summary judgment against the plaintiff. They would need at least a tenable argument that you were grossly negligent to even get to a jury.

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Old 08-27-2019, 02:08 PM   #41
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Re: Boat owners: Liability Waiver?

First off, my name isn't "dude"...that shows a disrespect toward your elders and would indicate you want to show how much you know by starting a keyboard battle over some abstract issue of law...Secondly, I am not arguing anything unless you want to show your supposed expertise to rebutt me...I merely stated an opinion based on my real life experiences...If there is an argument, it is in favor of having good insurance coverage against loss, including possible lawsuits from boating and diving accidents...
...A waiver is merely an exhibit to demonstrate a person knowingly entered into a risky hobby...I again state, that a waiver will not let you avoid a lawsuit if other aspects come into play, wherein, they can demonstrate that you knowingly exposed them to risks they were not expected to be aware of...This, then, becomes a very tricky area to navigate, lawbooks or not... One cute teary-eyed widow with four little kids in the front row (two kids borrowed or rented), can often wipe out your legal arguments once emotion is brought into play before a jury..and, that,, son, is real life; not to be found anywhere in your lawbooks....
....p.s...no disrespect intended by my disclaimer comment above...
...The all-time classic textbook on how to win cases using emotion is, "The Defense Never Rests" by F. Lee Bailey. It is must read material for anyone interested in how the "law" really works....It is in my library of classics and should be mandatory reading for every new attorney....but, hey, I only have 6 credits toward a masters degree...what do I know...

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Old 08-27-2019, 02:27 PM   #42
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Re: Boat owners: Liability Waiver?

Dude... Dude.... Dude
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Old 08-27-2019, 03:02 PM   #43
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Re: Boat owners: Liability Waiver?

...Another perfect example of why children and millennials should be seen...and, not heard.... he,he,he...

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Old 08-28-2019, 05:11 PM   #44
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Re: Boat owners: Liability Waiver?

Hey guys, I just want to say I love reading through these threads! I always learn so much, so I just want to say thank you and encourage us all to keep communicating!

BTW, I am the founder of the Red Rum Intl. clothing brand. I am interested in doing some diving across south Florida from Miami to Palm beach here in the late summer-fall while I am traveling the state trying to put my brand in stores. I will also be compiling footage for a massive Spearfishing video and want to include as many local divers in their towns as possible. These videos will be shown in shops across Florida. If you are interested please reach out to me on here or on Instagram: daniel_delsol

Also, you can checkout the current videos on our YouTube channel here:
https://www.youtube.com/channel/UCN8...llFSlk6GdMlqwA

A subscribe would be greatly appreciated!
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Old 08-29-2019, 02:17 AM   #45
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Re: Boat owners: Liability Waiver?

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First off, my name isn't "dude"...that shows a disrespect toward your elders and would indicate you want to show how much you know by starting a keyboard battle over some abstract issue of law...Secondly, I am not arguing anything unless you want to show your supposed expertise to rebutt me...I merely stated an opinion based on my real life experiences...If there is an argument, it is in favor of having good insurance coverage against loss, including possible lawsuits from boating and diving accidents...
...A waiver is merely an exhibit to demonstrate a person knowingly entered into a risky hobby...I again state, that a waiver will not let you avoid a lawsuit if other aspects come into play, wherein, they can demonstrate that you knowingly exposed them to risks they were not expected to be aware of...This, then, becomes a very tricky area to navigate, lawbooks or not... One cute teary-eyed widow with four little kids in the front row (two kids borrowed or rented), can often wipe out your legal arguments once emotion is brought into play before a jury..and, that,, son, is real life; not to be found anywhere in your lawbooks....
....p.s...no disrespect intended by my disclaimer comment above...
...The all-time classic textbook on how to win cases using emotion is, "The Defense Never Rests" by F. Lee Bailey. It is must read material for anyone interested in how the "law" really works....It is in my library of classics and should be mandatory reading for every new attorney....but, hey, I only have 6 credits toward a masters degree...what do I know...
I think "dude" is pretty friendly considering you've repeatedly belittled me, my career and my expertise, which is quite far from "supposed," especially when it comes to jury trials and how the "the law really works." You don't know me (clearly) or my level of experience (even more clearly.) Maybe no disrespect was intended, but on the other hand, maybe it was, and I did in fact take it that way.

Everything you said in here is entirely in line with what I said, so I still don't see what your issue is, besides maybe quibbling over the importance of waivers. I wasn't trying to keyboard war you, it's you who continues to reply and you write in this way that just seems incredibly condescending and self-aggrandizing.

You need to worry less about who's respecting you and worry more about how you're treating others. Whatever you think of my generation, I'm quite far from a child. I respect my elders, and I didn't even mean "dude" in an expressly disrespectful way; it was more of an expression of my exasperation with the way you're seeming to talk down to me. Your later comment about my generation and children being better seen and not heard only confirms that you were in fact talking down to me, and the disrespect I inferred was intended. I don't appreciate it and I don't think it was remotely called for.
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