Scuba Diving Accident Lawyer: What Injured Divers and Their Families Need to Know

Key Takeaways

• Which law governs a diving injury is a question about facts, not labels. A dive from a boat and a dive from a beach can lead to different legal frameworks, and many recreational incidents are governed by state law rather than maritime law.
• Federal regulations treat injury or loss of life while diving from a vessel with underwater breathing apparatus as a marine casualty. The dive is not treated as separate from the boat.
• A Coast Guard notice may or may not have been required. Vessels subject to the recreational boating accident reporting rule are excluded from that notice requirement, so a missing report proves nothing either way.
• On vessels that carry passengers between ports, federal law voids contract terms limiting liability for negligence. Under 46 U.S.C. § 30502(b), however, that chapter, apart from section 30526, does not apply to covered small passenger vessels. Many dive trips raise exactly that question.
• More than one party may be involved, including a boat operator, a charter, an instructor, an equipment maker, a seller and a maintenance company. Responsibility depends on who controlled what.
• Cruise-line excursion dives are outside this page.

When a Scuba Diving Injury May Qualify as a Maritime Claim

Federal courts hold admiralty jurisdiction, which means the power to decide maritime cases. Under 28 U.S.C. § 1333, federal district courts have original jurisdiction, exclusive of state courts, over "any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." That last clause, often called the saving-to-suitors clause, is why some maritime injury claims are heard in state courts.

Whether an injury falls within maritime jurisdiction is a separate question. In Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995), the Supreme Court described that question as requiring conditions both of location and of connection with maritime activity. For a diver, the location condition points to the water. Federal regulations define navigable waters of the United States at 33 C.F.R. § 2.36 to include, among other things, the territorial seas and internal waters subject to tidal influence. The connection condition points to the activity: a dive boat, its crew and how the trip was run.

For you, the answer reshapes everything that follows: which rules on fault, damages and deadlines apply. Maritime jurisdiction is fact-specific, and many recreational incidents, including many diving incidents, are governed by state law. A dive that began from a vessel on open water presents different facts from a shore dive in an inland quarry. A person in this position may want to set down plainly where the dive started, how they reached the site and what body of water it was.

If Your Dive Went Wrong: How Accidents Happen and Who May Be Answerable

Diving injury cases usually trace back to a few kinds of circumstances:

• equipment that failed or was poorly maintained, such as a regulator, a tank, a buoyancy device or a gauge
• supervision that may have fallen short, such as an instructor's oversight of a student or a crew's count of divers returning to the boat
• the operation of the vessel itself, including where it anchored, how it moved near divers in the water and how it handled a diver in trouble
• dive conditions, including current, visibility and depth, and the decision to run a dive in them

None of these by itself establishes that anyone did anything wrong.

Several kinds of parties may be answerable, depending on the facts. These include a dive boat operator, the vessel's owner, a charter company, a dive instructor or dive shop, an equipment manufacturer, a seller or rental outlet, and a maintenance or servicing company. Under 46 U.S.C. § 30501, the federal limitation chapter treats a charterer that "mans, supplies, and navigates a vessel" at its own expense as an owner. A charter that runs the boat itself can therefore stand in the owner's place under that chapter.

If you are wondering whether what happened to you was someone's fault, a negligence claim generally turns on four questions: whether the party owed you a duty of care, whether it breached that duty, whether the breach caused your injury, and what damages resulted. If the problem was the gear, a product claim against an equipment maker asks instead whether the product was defective and whether that defect caused the harm. A serious injury, even a death, does not prove that any of these elements is met; that depends on the evidence. For a diver or a family, the useful exercise is usually to map who controlled each piece of the day: the boat, the plan, the gear and the supervision. That map is also much of what a conversation with an attorney can help sort out.

What the Coast Guard Reporting Rules Mean After a Diving Injury

Under 46 C.F.R. § 4.03-1, a marine casualty or accident is a casualty involving a vessel that occurs on the navigable waters of the United States or involves a U.S. vessel. The regulation lists events it includes, and among them is "any occurrences of injury or loss of life to any person while diving from a vessel, and using underwater breathing apparatus." Federal regulators therefore treat a diving injury from a boat as a casualty involving that vessel.

Notice is a separate step. Under 46 C.F.R. § 4.05-1(a), "immediately after addressing resultant safety concerns," the owner, agent, master, operator or person in charge must notify the nearest Coast Guard units whenever a vessel to which the part applies is involved in certain marine casualties. These include a loss of life and an injury that requires professional medical treatment beyond first aid. Under 46 C.F.R. § 4.01-3(a), vessels subject to the recreational boating accident reporting rule are excluded from that notice requirement.

If you are trying to learn whether anyone reported your dive, the answer depends on the vessel and the circumstances; not every dive boat falls under the notice rule. Where a Coast Guard report exists, it may record when and where the incident occurred and what the vessel's people said at the time, which can matter later. Where none exists, the reason may be the vessel's classification rather than anything about the dive. Families often want to know which situation applies to their boat.

If You Signed a Waiver: What It Does and Does Not Decide

Under 46 U.S.C. § 30527(a), the owner, master, manager or agent of a vessel transporting passengers between ports in the United States, or between a U.S. port and a foreign port, may not include in a regulation or contract a provision limiting liability for personal injury or death caused by the negligence or fault of the owner or its employees or agents. The same applies to a provision limiting a claimant's right to a trial by a court of competent jurisdiction. Such a provision "is void." Under 46 U.S.C. § 30502(b), however, that chapter, except section 30526, "shall not apply to covered small passenger vessels." 46 U.S.C. § 30501 defines a covered small passenger vessel as a small passenger vessel, other than a wing-in-ground craft, carrying not more than 49 passengers on an overnight domestic voyage and not more than 150 on any other voyage. The definition also includes any wooden vessel built before March 11, 1996, carrying at least one passenger for hire.

Section 30526 is the part that still applies. Under 46 U.S.C. § 30526(b), an owner of a vessel transporting passengers or property between those ports may not limit the period for giving notice of a claim, or for bringing a civil action, for personal injury or death to less than two years after the injury or death in the case of covered small passenger vessels. For seagoing vessels, the floor is six months for notice and one year for suit. If your ticket or waiver contains a shorter notice or filing period, this rule may bear on whether that term holds.

Whether section 30527 reaches a particular dive trip is a question for the courts. It depends on the voyage, the vessel and the facts, and no one can assume that a given dive boat is or is not a covered small passenger vessel. Outside that section's reach, waivers are often decided under state law, which treats them in different ways. A signed release does not automatically end a claim; its effect depends on which law applies and what the document says. A person holding a waiver may want to keep in mind both its wording and the kind of trip it was signed for.

Records and Evidence That Often Matter in a Diving Injury Case

The records in a diving case usually answer three questions: what happened in the water, what happened on the boat, and what condition the equipment was in. If you were hurt, the records that usually matter include:

• medical records from the first treatment onward, which show the injury and its timing and bear on causation and damages
• dive logs and dive computer data, which can show depth, time and ascent and bear on breach and causation
• equipment records, including service and inspection history and the gear itself if it was kept, which bear on any product or maintenance question
• rental or purchase records, which show who supplied the equipment and so who may have owed a duty about it
• incident reports and, where filed, Coast Guard reports, which fix the date, the place and the vessel and can bear on maritime jurisdiction
• photos and video from divers, the crew or the boat, which show conditions and the vessel's position
• the names and contact information of witnesses, buddies and crew
• booking documents, tickets and any signed waiver, which bear on the voyage, the vessel's status and the release question above

Families after a death often find these records scattered among the dive shop, the boat, a hospital and the dive group. Gathering them can feel like one more burden at the worst time. These records tend to show which body of law applies and who controlled what, and those two questions shape most of what follows.

Injuries and What the Law May Allow in Damages

The injuries that arise in diving accidents vary widely. They include decompression illness, barotrauma (injury from pressure changes to the ears, sinuses or lungs), injuries from equipment or from contact with a vessel or its propeller, near-drowning, and deaths. This page describes these only in general terms and offers no medical guidance. A diagnosis, and how it connects to what happened on the dive, comes from the treating providers' records.

If you are facing medical bills or time away from work, the law may allow categories of damages that reach those losses: medical expenses, lost income, and pain and suffering. If your family lost someone, the law may allow wrongful death damages, the recovery the law permits certain family members when a person dies because of another's wrongful act. Which categories are available, and to whom, depends on which law applies and on the facts. Maritime law and the different state laws do not treat these questions alike, so a category open under one may not be open, or open to the same family members, under another. The categories themselves say nothing about whether any particular person has a claim. That is why, for a diver facing long treatment or a family facing the loss of a parent's income, the question of which law decides tends to come first.

If You Are Unsure Which Law Applies to Your Dive

Federal maritime reach can extend toward shore. Under 46 U.S.C. § 30101(a), admiralty jurisdiction includes injury "caused by a vessel on navigable waters, even though the injury or damage is done or consummated on land." So an injury that ended on a dock or beach can still raise a maritime question if a vessel on the water caused it. That question also comes up in dock accident injuries.

Your status matters too. A paying recreational diver stands in a different position from crew working the boat, and worker status is decided on its own facts. Readers hurt as crew may find the discussions of yacht accident injuries and vessel deck fall injuries closer to their situation. The way federal law treats passengers on regular routes is covered under ferry accident injuries.

The stakes are practical. The governing law affects the fault rules, the damages that may be available and the time within which a claim must be brought, so a deadline or a category of damages that fits under one body of law may not fit under the other. If you would like to talk through which body of law may reach the dive you took or the loss your family suffered, you can request a case evaluation to discuss it with our attorney.