What role will liability waivers play in the aftermath of the Titan sub tragedy?

The five passengers on the fatal submersible trip to the Titanic wreckage site were likely asked to sign liability waivers

Titanic Tourist Sub (Copyright 2023 The Associated Press. All rights reserved.)

Before they boarded the submersible that imploded near the Titanic wreck, the passengers who died this week were most likely asked signed liability waivers.

One of the waivers, signed by a person who planned to go on an OceanGate expedition, required passengers to acknowledge risks involved with the trip on the Titan vessel and any support vessels. The waiver, which was reviewed by The Associated Press, said that passengers could experience “severe injury, disability, disability, emotional trauma, other harm, and/or death" while on board the Titan, according to the waiver.

Passengers also waive the right to take action for “personal injury, property damage or any other loss” that they experience on the trip.

The form also makes it clear that the vessel is experimental and “constructed of materials that have not been widely used for manned submersibles.”

The waiver could play an outsized role as families of those who died consider their legal options. Legal experts said that what the investigation into the disaster uncovers will determine much about the case, including what caused the vessel to implode.

What is a liability waiver?

Sometimes referred to as a release form, liability waivers are typical before doing recreational activities that carry some measure of risk, like sky diving or scuba diving. By signing the document, passengers generally accept the risk and dangers related to the activity and if they are injured, absolve the company's owner of liability.

Matthew Shaffer, a trial lawyer with the maritime personal injury law firm Schechter, Shaffer& Harris, said the forms are commonplace before doing any kind of “ultra-hazardous recreational activity.”

“A good release will cover any and all potential harm and you are going to spell it out in simple language as possible,” he said. “You can get killed. You can get hurt. You can get maimed and you are not going to have any recourse. You're releasing us of any liability for anything bad that is going to happen to you as a result of you engaging in this activity.”

How important are these forms in court?

The legality of these documents depend on the state where they are signed, legal experts have said. Some states recognize them while others don't. Signed waivers have been upheld in cases involving scuba divers in Florida and skiers in Colorado.

Either way, a court weighs the document against other factors, including whether the person signing it understood the form and the risks they were taking, as well as how unusual and dangerous the activity.

A court, Shaffer said, will also consider whether an owner or operator withheld information from the passenger, or knowingly exposed the passenger to “probable harm.” Another question is whether there was “gross negligence involved.”

Regardless of whether or not there was a waiver, Shaffer and others have said they expect families of those who died on the submersible to sue not only OceanGate, which operated the Titan, but also the maker of the vessel and companies that provided parts.

“The waiver is certainly going to be a significant factor stemming from this disaster and it depends a lot on the court and the facts that come out,” he said.

Will Titan waivers hold up in court?

In the case of the Titan, a complicating factor is that the disaster happened in international waters. According to the waiver the AP reviewed, any disputes would be governed by the laws of the Bahamas, where the company, OceanGate Expeditions, Ltd, is registered.

“If the law of the Bahamas is not favorable to the families, then I predict they will bring a lawsuit in the United States or their home countries,” said Kenneth Abraham, the Harrison Distinguished Professor of Law at the University of Virginia School of Law, who is aware of the waiver's terms. Declaring the waiver to be invalid in the U.S. could then become part of the legal argument, he said.

But Steve Flynn, a retired Coast Guard officer and director of Northeastern University’s Global Resilience Institute, said possible lawsuits might not succeed given the challenges of establishing jurisdiction.

The implosion happened “basically in a regulatory no man’s land,” Flynn said.

“There was essentially no oversight,” Flynn said. “To some extent, they leveraged the murkiness of jurisdiction to not have oversight.”

Another problem is whether OceanGate survives and, if so, who to sue, Flynn said. Among the five passengers dead was CEO of the company who led the expedition, Stockton Rush.

Even if it does survive, OceanGate is unlikely to be held liable in court unless the company misrepresented the safety of the vessel, said Richard Daynard, distinguished professor at Northeastern University School of Law.

Otherwise, the case is a prime example of assumption of risk on the part of the explorers, Daynard said.

The company, which closed its Washington office in the aftermath of the revelations about the implosion, might also not have the ability to pay damages, Daynard said. “If they were held liable, my guess would be they would be unlikely to have the many, many millions of dollars that if I were on a jury I would award,” he said.