Bob,
<<<When I voluntarily SIGN an agreement, even if it's not a legal one, I
adhere to it!>>>
You might adhere to it, ,but, , would your surviving family adhere
to it?? After all, , , they didn't sign it!! They may think the
agreement was inappropriate considering the facts they believed caused
your injury or demise!!
<<<If I am NOT willing to abide by the ridiculous conditions of the
WAIVER, then I wouldn't sign it, hence I wouldn't patronize the Fleet.
Simple. But once I signed, I don't try to weasel out of it, as most
of the discussants in related threads seem to think it's proper to
weasel out of such CONTRACTS, nor do I condone the INVALID reasons
given by your or others in support of the weaseling. :-)>>>
Support of the weaseling and invalid reasons?? Now Bob!! <G>
<<<A poor and invalid excuse for NOT abiding by YOUR part of a
contract.>>>
I know what the waiver says, , , , I don't read them anymore, , ,
I sign them!! I don't think I said I wouldn't abide by them?? What I
said was that an operations possession of a signed waiver wouldn't make
them immune to litigation.
<<<(2) All the Plaintiff has to do is to
>"Qualify" an expert (with the "Court") who is there to convince the
jury
>that the release is worthless. I would guess his proof would be as
>simple as "everyone signs them" and "rarely does anyone read them"!!
<<<If THAT works, then the practice of LAW is in even a bigger sham than
I realized. That would be a precedent to invaldate ALL legal
contracts.>>>
In other messages you have suggested you know the answer I'm about
to state, , , but, , here goes!!
In a civil case the burden of proof is the responsibility of the
Plaintiff. In my (fictional) scenario the plaintiff's case (in part)
revolves around the fact that the release didn't apply to the particular
incident and therefore was invalid and worthless. In this situation the
Plaintiff would need to bring in an "Expert Witness" who would be
qualified to talk about Waivers. The Plaintiff's attorney would present
this expert to the court for "Qualification". This qualification process
is where he asks the "Expert" questions about all his wonderful
degrees, , his many years of experience, ,and , , the number of times
he's been qualified in various courts to testify about these very
things. Naturally, the Defense attorney would have his bite at that
apple too and would attempt to destroy the qualifications of the
expert. When both sides are finished, , ,the judges job is to qualify
the witness as an expert, , , not allow him to testify at all, , or
limit his testimony!! The decision is the judges, , at least it has
been in the courtrooms I've been in!! <G> Once the judge qualifies the
Expert and allows him or her to testify then his (the experts) job is to
convince the jury that the release is worthless.
Soooooo, , , I stick by my statement, , ,
<<<Defendant to Judge: Everyone signs a contract when they apply for
a credit card. Nobody reads the clauses. You mean I have to PAY
for THAT?>>>
<<<Judge: I hadn't thought of that! Al, you don't have to pay.>>>
Since we're making up stories, , , here's mine!! <G>
Defendants to Judge, , , , I did sign the contract for that credit
card and will pay a fair and just amount. My problem is that in one of
the "Fine Print" clauses it states that the interest rate will double
every 10 days and now I'm paying 320%. The HUGE headline on the
advertisement that lured me into applying for this card stated the
interest rate was 10%. That was just 50 days ago!!
Judge: You present a compelling case Alfred, , , you will only have
to pay the 10%.
<<<Exercises for homework.>>>
You are clearly a product of "Academia"!! <G>
<<<Everyone signs them is because they wouldn't be ALLOWED to be on the
boat had they NOT signed them.>>>
What's your point??
<<<Ignorance of what one signs (or law) is no excuse for breaking the
law -- even LAWYERS know that, but that doesn't keep them from using
lawyerly tricks and play on words to make a living out of it! <G>>>>
My answer to this statement is: In civil cases a warning and/or a
waiver and/or a release isn't automatically a reason to avoid
litigation. If a plaintiff files a suit the defendant has to appear
before the "Court" to argue why he shouldn't be there. It's the judges
responsibility to allow the case to go forward or to dismiss it. My
experience in this area suggests that there are a lot of lawyers out
there who are very good at those lawyerly tricks and have repeatedly
been successful in convincing judges that their case should be heard by
a jury!!
<<<My experience in this area suggests that it would be a rare event to
see a
judge throw out a "Wrongful Death" case due to a signed "Waiver and
Release" form!! It's possible, , , my educated guess is that it would
be rare!!>>>
<<<But how is a "Wrongful Death" defined relative to the contract? It
merely containing the generic "death" including that caused by
neligence on the part of the crew.>>>
The Waiver won't define how the lawyer writes the complaint!!
Actually, , , in some cases it may help him write the complaint!!
Once again, , I'm not a lawyer but I would think a complaint might
read something like this:
The negligence of the Captain, the Crew, , the operator, , the
manufacture of the boat, , the owner of the dock, , , the maker of the
lines that failed to hold the boat to the dock, , , etc, etc, etc, ,
....."Caused the untimely and Wrongful Death" of the Plaintiff.
Remember, , , the complaint rarely contains actual facts!!
<<<I do concede that MURDER by a member of the crew, especially by
a dive knife, would be a "wrong death" excluded from the WAIVER. ;-)>>>
How bout a drunk crew filling tanks with contaminated air, , , or a
guided tour deep into the bowels of a wreck, , , or an (crew suggested)
deep dive resulting in DCS and death because the required (long)
decompression stops didn't have stage bottles?? There are dozens of
examples that would scream of negligence of the Crew, , etc!!
<<<Here I am completely open to being shown how a judge would do, not
about ANY "Waiver and Release", but specifically the Peter Hughes
Fleet WAIVER AND RELEASE.>>>
I know the PHDiving "Waiver and Release" form is a tough one.
Doesn't matter, , , if someone wants to file a suit because he/she feels
as though there was negligence, , , they can, , , they probably have, ,
, and, , , you might be surprised at how many judges would allow the
Plaintiff's argument to be heard by the jury!!
<<<The wording and EXECUTION of the "contract" is VERY different from
all the OTHER waivers and releases I've read and signed (which I
DO agree and know for a fact that they were not worth the paper on
which they were printed). But using THOSE strawmen to say that
the PhD WAIVER would be treated the same way just doesn't hold water,
IMO. You either discuss the SPECIFIC terms and CLAUSES, as well
as the way it was executed (signer must WRITE his answer in one
clause on the line answering a different clause to acknowlege that
s/he READ and FULLY UNDERSTOOD what s/he was signing). These were
obviously prepared/revised by the Hughes's lawyers in the light of
previous 'weaseling excuses' by clients to beat your kind of excuses.>>>
I don't think I ever said the PHDiving Waiver was a bad one!! It is
one of the toughest one's I've ever signed!! <G> I still stick by my
statement that they can be sued.
<<<I am perfectly willing and happy to know IF that signed WAIVER is not
worth the paper on which it's written -- but I am not going to
believe it until I've seen evidence of such. NOT evidence pertaining
to OTHER (non-comparable) loosely worded and executed WAIVERS
(contracts), but that specific one by the Peter Hughes Fleet.>>>
Damn, , you got me there, , , can't produce a single situation where
PHDiving was sued by someone who signed that waiver. <G>
<<<There is NOTHING remotely resembling that WAIVER in the Aggressor
Fleet, and those Fleets are comparable in most other ways.>>>
Haven't been on an Aggressor boat, , , yet, , , June, 2002!!
Right?? I'll sign it, , , I probably won't read it though!! <G>
<<<Then let a Spokesman, say Peter Hughes, answer some simple, direct
FACTUAL questions, such as: Did the Belize Government tell the
Captain that no one is allowed to leave the boat? The early reports
(rumors) blaming it all on the Belize Government contradicted the
FACT that the Captain did allow Angela Luk to leave, having fired
her from her job.>>>
I don't know if I've seen anything from PHDiving other than the
statement on their webb page about this. I can't disagree with a
"Spokesperson" making a (Prepared) statement but I would have a problem
with this person answering questions about the incident.
<<<For sure. In this litigous world, it's haven for the lawyers. They
sue everyone on everything, with or without grounds. But that's
beside the point of the present discussion whether such a suit will
be successful, or even heard by a judge, in the light of the signed
legal CONTRACT between Fleet and Client......>>>
Actually, , , I think what you've said here is exactly on-point of
the present discussion!! The point is that regardless of Waivers, , ,
the Cause of the incident, , , , actual negligence or lack of
negligence, , a person can request his day in court. My point is that
the waiver alone won't make PHDiving immune to Civil Litigation. Whether
the Plaintiff is successful or not isn't the point, , the point is
whether the Plaintiff can get his or her case to a jury!!
Alfred Kirkland
Dahlonega, GA.
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