Anatomy Of A Diving Lawsuit

Text by Bret Gilliam

Most readers would likely consider the analysis of a diving fatality lawsuit about as palatable as a root canal. But I think this case will prove interesting to you because it addresses issues that directly affect how experienced divers will be allowed to enjoy some of the most exciting and challenging sites uninhibited by a policy of supervised ‘lowest common denominator’ status that would virtually halt the exploration of places like Cocos Island, the Galapagos, Palau, the Solomon Islands, Papua New Guinea, and most of Indonesia.

What do they all have in common? Strong currents and liveaboards that let divers dive independently without supervision, or in small groups led by divemasters.

It’s a complicated case that I worked on for over four years as an expert witness and litigation consultant before finally getting into court for trial in April 2009. The accident summary sets the stage for the lawsuit that followed. The names of the plaintiffs have been changed; all other details are exactly related. Here are undisputed objective facts followed by excerpts from the opinion I gave as the lead maritime and diving expert for the defense.

The Facts

On May 16, 2003, nine sport divers took part in a dive at Dos Amigos Pequeno, a pinnacle arising from deep water off the west end of Cocos Island located approximately 400 miles (645km) offshore from the Costa Rican mainland. Cocos Island is a designated National Park and World Heritage Site. As such, it enjoys certain marine and terrestrial conservation restrictions and protections. The area is famous for its profusion of large marine species particularly sharks, rays, whales, turtles, and schooling fish. It is considered one of the best diving locations in the world and attracts approximately 1,200 sport divers annually who come to see the marine life underwater from four primary diving vessels.

The divers were participating in a paid trip aboard the Okeanos Aggressor, a 120-foot (36.5m), 130-ton (120 metric ton) diving vessel of Costa Rican flag and registry. The vessel accommodates up to 18 divers, along with its operational and diving crew. The vessel was operated by Aventuras Maritimas Okeanos (AMO), which was a franchisee of Aggressor Fleet Franchising Inc. Aggressor Fleet Ltd. was a company handling reservations for Aggressor Fleet Franchising Inc. and also marketed and advertised all of the franchised vessels/destinations worldwide.

At the outset of the trip, Randy Wright, an AMO divemaster and instructor, conducted a thorough dive briefing encompassing all matters regarding dive activities and procedures including instructions that all passenger divers would be required to observe and adhere to the diving buddy system. Prior to departing the Okeanos Aggressor on May 16, a site briefing was conducted on board by divemaster Wright. This previewed what to expect at Dos Amigos Pequeno including strong currents, marine life to be seen and their behaviour, water entries and exits, personal safety equipment, etc. All guests attended the briefing. The divers then boarded a dive launch, commonly known in Costa Rica as a ‘panga’. A subsequent re-cap briefing was covered at the site prior to commencing the dive.

The dive was not a supervised or guided dive due to current activity and the different entry times of the buddy teams. Divers were briefed to observe the procedures for independent buddy dives and to surface upon reaching a minimum air supply, but not to exceed 55 minutes in run time.

The nine divers entered the water from the panga. Jim Smith, age 56, and other divers preceded Wright into the water and descended with no apparent difficulty or problems. Wright entered the water just before John Brown, age 56, and his dive buddy, daughter Jane Brown. He never saw either diver on the dive.

During the dive, Smith became separated from his buddy. Jane Brown entered the water just before her father, John Brown, and never made contact with him at all. She continued her dive in spite of losing contact with her father and later surfaced without incident after a 35-minute bottom time with other divers.

No other divers have any specific recollections of Brown or Smith, saw no signs from either of them indicating distress or problems, and never saw them again. The seven divers and Wright all surfaced from their dives and were picked up by the panga driver. It is unknown what happened to Brown and Smith.

When they did not surface with the rest of the group, Wright and the panga driver initiated a search for approximately an hour within a two-mile (3.2km) radius of the site. No sign of the missing divers was found. The panga then returned to the Okeanos Aggressor and a wider search was initiated from that vessel after contacting the Costa Rican Coast Guard. Subsequently, the U. S. Coast Guard also joined the search that spanned several days including additional surface vessels and aircraft. The divers were never found.

INJURIES: John Brown and Jim Smith most likely never surfaced from the dive, went missing, and were later declared dead.

DISCUSSION: The circumstances that precipitated the disappearance of Brown and Smith are unknown and are, therefore, subject to conjecture and speculation. However, the various issues brought forward in the plaintiffs’ complaint (and the opinions of their experts) failed to focus on the most probable causes of the men’s disappearance and the circumstances that most likely led to their deaths.

Probable Causes

Both men were qualified and experienced divers with hundreds of dives at various sites around the world. Both men had experience diving in currents and with ‘live boating’ procedures, in which a dive boat is not anchored or moored to a fixed position. They were aware in advance that Cocos Island had the potential to present challenging conditions by virtue of waves, currents, rain, and stormy weather conditions. Both were aware of the potential for marine life threats including attack by predator sharks in large numbers.

They were also aware of the fact that Cocos Island was located a substantial distance from the mainland and beyond any reasonable expectation of timely assistance from Costa Rican or other national search and rescue teams. Both men were aware that they could choose not to participate in any dives that they felt were beyond their level of expertise or comfort. Full and adequate briefings were performed by the Okeanos staff before each dive and the two men participated in those briefings.

Both knew the vessel’s policy for all divers to observe the accepted buddy system, which included returning to the surface if separated underwater. Finally, each man clearly understood that their diving activities required them to exercise independent skills and problem solving since the dive activities were not directly supervised or led.

On the day of their disappearance, the dive was conducted at Dos Amigos Pequeno. Previously that morning, they had dived (without incident) the immediately adjacent site known as Dos Amigos Grande, which is less than 100 yards (91m) away and features nearly identical conditions. All divers that day were equipped with open circuit scuba systems and 80 cubic foot aluminum cylinders. Each wore a diver’s buoyancy compensator device (BCD) that provided up to 50-60 pounds of buoyant lift via either low-pressure inflation from their scuba regulators or via oral mouthpiece. For the depths of the planned dive, the scuba system would have provided life support not exceeding one hour, or less.

There is no credible evidence that either man ever surfaced from the dive. Two pieces of equipment were located in the subsequent search: an empty scuba tank and a signaling device known as a ‘safety sausage.’

If the men surfaced, separately or together, it would have happened within 60 minutes of their initial descent. Throughout that period of time, the panga driver was on-station helping other divers into and out of the water and observing the ocean surface for divers at all times. It is beyond credible belief that either man could have surfaced and not be detected by the panga driver, the other divers, or divemaster Wright. The men were equipped with ‘safety sausage’ surface signaling devices that recent independent tests (Scuba Diving Magazine, October 2007) have shown to be visible up to one mile (1.6km). Both men had either a low-pressure sonic signaling device or a whistle. The same independent tests have shown these devices to be effective at up to one mile (1.6km).

Only a handful of probable scenarios can be presented based on the known facts and the predictable behaviour of the divers if they surfaced.

If the divers aborted the dive early due to comfort issues, equipment considerations, or failure to reach the bottom ledges due to current, it is overwhelmingly likely that they would have been seen by the panga driver or other occupants of the launch. Other divers did surface soon after beginning the dive and were seen and swiftly recovered. Both men had effective signaling devices to make their location known. As no one saw them surface within the first 55 minutes, it is highly unlikely that they did so.

Didn’t Likely Surface

If the divers had no difficulty on the dive and felt no need to ascend following separation from their buddies, then they would have been forced to surface within the 60-minute window of life support afforded by the volume capacity in their scuba tanks. Absent anything to breathe, it is obviously impossible to remain submerged. They would likely have surfaced within the immediate vicinity of the pinnacle and been seen by all observers. However, they were not seen by the remaining seven guests and two professional crew. And this reinforces the conclusion that neither diver ever successfully completed the dive and surfaced.

Several facts support this conclusion. Divers adrift on the surface have every motivation to make themselves visible and detectable and will aggressively employ all methods in attracting attention to their location. In spite of safety sausages, sonic devices and whistles no one heard or saw them in spite of the fact that they would have surfaced within sight and sound ranges. It is inconceivable that either diver would intentionally jettison his tank or safety sausage. The empty tank had approximately six to eight pounds of positive buoyancy and was a contrasting colour to the ocean making detection from a search vessel or aircraft more likely. The same logic applies to the safety sausage. Further, both men were equipped with large capacity BCDs capable of floating them indefinitely with no swimming effort. It is beyond credible belief that any person would deliberately abandon such a primary life-saving device. Finally, the prevailing current’s set and drift would have tended to move the diver’s on the surface directly toward the southwest corner of Cocos Island and then wrap around to the east. This would have brought them to calm, protected water and only about 100 yards (91m) from a sandy beach offering an easy place to exit the water. A thorough check of the island by the USCG team showed no trace of either man on land.

The plaintiffs and their experts opined that the two men came to the surface and were simply not found by the liveaboard’s crew or by the Costa Rican Coast Guard and U. S. Coast Guard.

The subsequent exhaustive searches included an unprecedented effort by the USCG that included surface ships, aircraft, helicopters, high speed search inflatable boats, searches of the island itself, sophisticated computer-modeling to predict current drift patterns, deployment of current monitors and more than four days of intensive searching in pattern grids that covered more than 1,200 square miles (3,110 square kilometers). With all these resources engaged, the divers’ bodies, undoubtedly, would have been found eventually, floating in their equipment. This never happened.

This leads to the inevitable and only logical conclusion that both men did not surface at all due to some event that occurred underwater. The scenarios can include an idiosyncratic medical or health event causing incapacitation; maybe a heart attack, syncope, air embolism, or sudden drowning due to impact with the pinnacle, equipment failure that introduced water into the breathing system, etc. It is also possible that a marine life attack could have occurred. This site is populated by several shark species known to attack man, among them Silky, Galapagos, Bull, Tiger, Oceanic Whitetip, and other shark species.

OPINIONS & CONCLUSIONS: The plaintiffs’ expert, Walter ‘Butch’ Hendrick offered a series of opinions that the various defendants were somehow at fault for the deaths of Brown and Smith. However, there was nothing in his CV or submitted life experience that suggested that he qualified as an expert in marine procedures, shipping, or professional diving in international expedition operations. He had never been to Cocos Island, never been aboard the vessel, never held a license to operate such a vessel, and had never been involved in an open ocean search for missing divers. His opinions reflected his lack of expertise in these areas and drew him to completely incorrect assumptions and conclusions.

Mr. Hendrick also claimed that Wright was not properly taught “to serve as a dive leader at Cocos Island” in spite of his three-month training curriculum at Hall’s Diving Institute, an approved Florida vocational school for professional diving training. The training that Wright received there would have qualified him to act as an instructor, divemaster or guide in any venue and Hall’s had trained hundreds of instructors that were placed in professional positions on liveaboards worldwide. Wright also worked for two years aboard the Cayman Aggressor and for eight months prior to the accident aboard the Okeanos Aggressor in Costa Rica. Hendrick also claimed that all divers should have been required to dive as one supervised group, including the use of ‘down lines’ from the drifting panga, in spite of the presence of a two knot current that was rapidly pushing the dive launch toward the pinnacle and afforded no possibility to anchor at the site.

Neither Aggressor Fleet Franchising Inc., nor Aggressor Fleet Ltd., had direct involvement in the operation of the Okeanos Aggressor but they did provide a proper Operations Manual supplemented by periodic inspections and other training. If, during those inspections, any deficiencies were noted, they were communicated to the vessel’s owners and Aggressor Fleet Franchising Inc. and Aggressor Fleet Ltd. had every reasonable expectation that they would be remedied. The handful of recommendations and requirements on the ‘do list’ had no bearing on either the way the diving operation was conducted or the subsequent search.

Aggressor Fleet Franchising Inc. had many franchises operating in most of the world’s top diving locations and enjoyed a record of successful professionalism for more than 20 years.

In my filed opinion, neither Aggressor Fleet Franchising Inc., Aggressor Fleet Ltd., Randy Wright, the vessel captain or crew did anything wrong, and met all applicable standards of care. My opinion concluded that, while regrettable, the deaths of Brown and Smith couldn’t be attributed to the actions or inactions of these defendants.

The above synopsis lays out the primary facts and opinions that I provided as part of the ‘discovery’ process that preceded the trial. This requires both sides to disclose witnesses, opinions, and all evidence for review in advance.

The survivors of the two missing men filed a multi-million dollar claim against the various defendants named above. In spite of the fact that the accident occurred in Costa Rica, the trial venue was established as New Orleans since the Aggressor Fleet was headquartered in the state of Louisiana and the plaintiffs wanted a jury trial in the U.S.

The ground was now laid for an epic legal drama. We’ll now move into the actual trial events, issues of liability contested, and the outcome.

The Trial

I was retained in March 2005 by the defense, as an expert witness to offer opinions as a diving industry professional and licensed maritime master. I would also provide limited expert opinions on medical aspects, including the effects of hypothermia and the likely survival time of persons drifting at sea in water temperatures of approximately 82F (28C), and in the sea conditions as they were at time of the accident. Hiring one person qualified in multiple areas of expertise simplified the defense and could lead to a judge’s ruling that the plaintiffs’ had to proceed with only one expert as well. Since there are few people with actual professional credentials and field experience in multiple roles, it proved to be a shrewd move for the defense.

The families (plaintiffs) of the two divers who disappeared filed wrongful death claims in Louisiana against various defendants including the vessel Okeanos Aggressor, Aggressor Fleet, Aggressor Fleet Franchising, AMO (the Costa Rican company owning the vessel), and the divemaster, Randy Wright, who was aboard the dive launch that took the divers to the site that morning, May 16, 2003. The plaintiffs alleged a litany of actions or failures by the vessel staff that contributed to, or caused, the deaths of the two men, Smith and Jones, whose names have been changed for this article.

The complaint laid blame for the small dive launch not having direct VHF radio contact with the mother ship anchored in a protected bay about six miles away. It also alleged that the ocean conditions were too rough, the current too strong, that no descent lines were used at the site, and that the nine divers should have been required to dive together, at all times supervised by the divemaster. They argued that when divers surfaced at various times over the course of approximately 55 minutes – but Smith and Jones did not – that an improper search took place. They blamed all the defendants for the divers’ disappearance and alleged that the vessel’s search procedures did not find them, causing Smith and Jones to drift away to a lingering death.

Lloyds of London, the insurers, had placed a $15 million reserve on the case as a possible payout.

Expert Witnesses

There was a tremendous amount of maneuvering by the lawyers on both sides. In the first phase motions were filed in a bid to uphold waivers and releases signed by the deceased as the basis for case dismissal, motions related to venue and whether state or federal court would hear the case. During the discovery phase a seemingly endless list of questions was formally exchanged. Witnesses were deposed to provide their version of events. Reports from Costa Rican and U. S. Coast Guard search teams were submitted and oceanographic ‘hind-casting’ was performed to establish actual conditions at the time of the dive. A variety of diving industry standards, procedures, training methodology and practice were introduced into evidence.

This process went on longer than it takes a diamond to form from a hunk of coal – it was nearly six years from the accident to trial, which finally began on April 6, 2009. Hurricanes postponed the trial twice.

But eventually some real light began to emerge from the clouds of posturing. Expert witnesses are usually the most experienced professionals that the jury or judge will hear in a trial. Based on their professional credentials and licenses, expertise, and experience in similar situations, it’s their job to objectively evaluate the facts, allegations, witness statements, conditions, and conclude whether fault can be assigned to any party. A credible expert witness with the ability to face a jury and explain his opinions under cross-examination by a hostile opposing lawyer is tossed into an ‘intellectual gladiator’ pit. Plain and simple, it is combative.

Walt ‘Butch’ Hendrick was hired by the plaintiffs’ as their expert witness. He was offered as an expert in diving, liveaboard operations, ocean search and rescue, maritime procedures, and general diving safety in places like Cocos Island, located nearly 400 miles (645km) offshore of mainland Costa Rica. In his written opinion and subsequent live deposition, Hendrick agreed with all the plaintiffs’ allegations of fault and laid the blame for the men’s deaths squarely on all the defendants.

Since the primary defense attorney had little experience in diving or shipping technicalities, I was asked to ‘script’ the deposition questions that Hendrick would have to answer extemporaneously. I prepared a series of questions to determine his actual qualifications and have him explain his conclusions that the defendants were to blame for the divers’ disappearance and subsequent deaths. Problems arose almost immediately for the plaintiffs during Hendrick’s deposition.

Hendrick revealed that he had never held a captain’s license for a vessel larger than 15 tons and that this license, which had expired 40 years before, restriced him to carry no more than six passengers in the protected waters of Vieques Sound off Puerto Rico. He also could not answer questions about navigation, ship operation, safety regulations, rules of the road, etc. Finally, he admitted that he did not even know where Vieques Sound was located from Puerto Rico and that he did not know in what ocean Cocos Island was situated. (It’s the Pacific, by the way). He had never been a professional crew member on any liveaboard diving vessel, had never seen the 120-foot (36.5m), 130 ton, 22 passenger vessel Okeanos Aggressor, had never been to Costa Rica, and had never dived at Cocos Island. He had never conducted an actual ocean search for a lost diver at sea. His primary career was in public safety team training for bodies lost in cars that went off roads and piers near protected waterways, people that drowned at the beach, or other ‘close to shore’ searches for dead bodies. He had no experience searching for live persons who might be adrift and signaling with safety devices to make their location known.

Initially, he claimed also to have trained “thousands” of divers in the last decade but the records from his primary sport diving agency where he held an instructor rating revealed only two diving certifications issued by him in the preceding decade.

The site of the accident, Dos Amigos Pequenos, was a small pinnacle of rock that extended about 70 feet (21m) above the ocean surface and was swept by a two to four knot current. All dives were conducted from a small launch that dropped divers in buddy teams over the steep front slope. Hendrick insisted that the launch should have anchored, deployed both descent lines and ‘tag lines’ for the whole group to hang on to before descending together with the divemaster. As any professional boat operator would have known, this was impossible due the current, the steep-sided pinnacle that offered no place to anchor, and that a drifting boat cannot be towing divers on a ‘tag line’ in a two-knot current.

THE DISAPPEARANCE: The divemaster had provided a thorough briefing on site conditions, including expected waves and current and the shark ‘cleaning station’ area to descend to at 75 to 100 feet (23-30m) where schooling hammerheads congregated. The divers had to observe the ‘buddy system’ since they would be dropped in pairs and no supervision was possible since the divemaster would be assisting divers into their gear throughout the entry process and probably be one of the last to enter the water. The divers were also advised to abort the dive if separated from their buddy and return to the surface. They were also told to abort the dive if any circumstance made them uncomfortable with conditions and that the launch would remain on station the entire time and would immediately pick them up on completion of their dive.

One diver did abort and was retrieved within minutes. Smith and Jones were not diving together. Each entered the water with his assigned buddy and each immediately became separated from his buddy. Neither surfaced as instructed and they were never seen again by any person on the dive, including their buddies. All other divers completed the dive without incident, drifted to the lee side of the pinnacle, and were picked up.

When Smith and Jones did not surface, an immediate search was initiated in the area of the pinnacle and down current. Both divers were equipped with BCDs, whistles or low-pressure sonic alerts, high visibility safety sausages and flashlights. The search was conducted according to established search protocols for over an hour and then the launch returned to the mother ship to refuel and enlist their assistance.

A nearly 2,100-foot mountain was between the dive site and the ship’s anchorage. Radio transmissions were blocked since VHF signals are ‘line of sight’. Once in radio range again, the launch called ahead to activate the Okeanos Aggressor’s emergency plan and the Aggressor got underway immediately. The second launch also joined the search and the three vessels looked for the missing divers until nearly 2 a.m., approximately 14 hours. At that point, they were ordered back to the primary anchorage by the Costa Rican Coast Guard and the primary search was taken over by the U. S. Coast Guard with aircraft, surface ships, small craft, helicopters, with computer generated current drift predictions being provided by experts. The search continued for more than three days and covered more than 1,200 square miles (3,110 square kilometers). The only trace of the men found was a safety sausage and a single scuba tank not attached to a BC. Smith reportedly had more than 500 logged dives while Jones had more than 200 dives, including in areas with strong currents such as Palau, Cozumel, and the Red Sea. By any measure, they were well-experienced divers who were specifically briefed on the Aggressor’s buddy system policy that they would be diving independently. Both were well-equipped with all necessary safety tools.

MY TESTIMONY: I had very different opinions from Hendrick about the allegations of fault. I explained that it was beyond credible belief that two men could have surfaced from the site and not been found with the safety equipment they had at their disposal. I also explained that experienced divers are routinely allowed to dive independently and, in fact, expect to be allowed to do so. Further, I cited the USCG’s own analysis of the ocean and current conditions that day, which reflected a 1.8-knot current and Sea State 3, only three to four foot (1-1.2m) waves. This was about as good as it gets at Cocos and certainly within the skill capabilities of the two divers. The prevailing current would have tended to carry the men to the southwest corner of Cocos Island. Even if they did nothing but drift, they would have ended up within a 100 yards (91m) of the protected beach and could have simply gone ashore where they would have been found.

The more likely scenario, as previously explained, is that some unknown event took place underwater and that neither ever surfaced, making it impossible to affix any blame to the Aggressor’s crew or search and rescue efforts. This was further supported by the extraordinary and unprecedented search efforts by the USCG.

The fact that a safety sausage and unattached tank were found only reinforced my theory that these items became detached underwater since no diver would abandon his primary life support and rescue equipment deliberately.

Following Hendrick’s deposition, the judge disqualified him as a maritime expert and restricted his opinions to a minimum of search procedures with which he had experience and let the jury decide if they were applicable to this site.

Before the trial began the Smith plaintiffs made a confidential settlement and withdrew from the case. That left only the Jones plaintiffs and the two-week trial began on April 6 in New Orleans Federal Court. All divers on the launch on the day the two divers disappeared testified that the crew did provide full briefings and found no fault with the conduct of the divemaster or subsequent search effort.

I testified for nearly seven hours on the last day of the trial. At times, there were some heated exchanges between opposing counsel and me, but the jury of non-divers seemed to understand my explanations of how diving actually was conducted at Cocos. The next day closing arguments were made. I was the last witness they heard, sort of like batting last in the bottom of the final inning of the baseball game with the game on the line.

The next day, after deliberations that went until almost midnight, the jury came back with a complete ‘no fault, no monetary award’ defense verdict. It was a complete victory after more than four years of grueling work and acrimonious exchanges between both sides.

THE BOTTOM LINE: This case had tremendous potential to affect how resorts and liveaboards allow divers to conduct themselves. Had the plaintiffs won their case, the verdict possibly would have been pointed to as a precedent compelling divers, regardless of experience, to follow dive practice policies aimed at safeguarding the least experienced on a dive vessel. Call it the lowest common denominator theory, with the bar set very low for the few at the expense of the many.

It would have probably eliminated the practice of independent buddy teams – and forget about solo diving completely – diving in currents, in rough water, or from launches without deployed descent lines. In short, it would have essentially eliminated the diving practices that exist in Cocos Island, the Galapagos, Palau, Fiji, the Solomon Islands, Indonesia, PNG… just about anywhere that currents exist and boats can’t anchor to deploy divers.

A Mystery

No one will ever know what happened to the two divers who disappeared in May of 2003. But the facts point to events that happened while both men were underwater conducting their dives independently. Diving is not a ‘safe’ sport. It can be hazardous. Divers are warned about the litany of things that can quickly turn against them, such as running out of air, decompression sickness, up and down current flows, dangerous marine life, personal health issues as divers age, panicking due to stress, suffering an embolism…

Though tragic and distressing to both the families of the deceased and the other divers and crew present on the Aggressor, their disappearance was not the fault of the dive operation. A jury came to that conclusion based on common sense and an independent deliberative process based on the evidence presented and their perception of the credibility of the experts’ testimony. The verdict supports the continued practice of experienced divers to pursue exciting dives independently, using their skills and best judgment to determine their participation and conduct.

For every diver, that’s a personal call. It’s your decision. Make an informed choice: be properly equipped, never overstate your experience, and abort a dive that you are not comfortable with. It’s your butt on the line and nobody can make that decision except you. Choose wisely.