Is This Dive Operator Right or Wrong?

Dive operators will be on the defensive when a bad accident happens aboard their boats. If you are there when something goes wrong, brace yourself because you may be contacted by lawyers on both sides if there's a lawsuit. And woe to you if you dare talk about what happened, especially to the press -- you'll really get their attention. In today's litigious society, dive operators are not only more likely to stay mum about the details, but also they may try to zip the lips of their customers.

Consider the aftermath of the death of Massachusetts diver Karen Murphy, 43, who died while diving the General Sherman wreck near North Myrtle Beach, S.C, with Coastal Scuba on July 24. A few divers onboard spoke to the press.

Registered nurse Darlene Sterbenz told WPDE NewsChannel 15 in Conway, SC, that she, her friend and fellow nurse Debbie Warren, and the Coastal Scuba crew found Murphy floating in the ocean, unresponsive. A young male employee of Coastal Scuba pulled Murphy onto the boat, and Sterbenz and Warren tried to revive her. But Sterbenz said that's when Coastal Scuba's crew failed to act. "Did you call the Coast Guard'?" she barked to the boat's captain. "He said no." The Coast Guard said its team was called at least 10 minutes after Sterbenz said Murphy was found. Sterbenz said that while they were trying to save Murphy's life on the boat, the divers Murphy had been diving with were still underwater.

Sterbenz also told the press the medical equipment on board was faulty, with dry rotted emergency oxygen masks on board. She said one emergency oxygen tank was empty, and an employee threw the other overboard. "Poor young man kind of freaked out," said Sterbenz. "He said it's going to blow, and he threw the oxygen overboard."

Kevin Kirk, a master diver from Kentucky, talked to the Charlotte Observer about the experience, saying he realized something had gone wrong as he was surfacing from the dive, when the rescue diver flew by him on the way up. Murphy was already on the deck when Kirk and his wife surfaced. A crew member and Warren were performing CPR, then Kirk and his wife, a surgical technician, helped perform CPR while the boat was driven the hour back to shore. Kirk also verified that the oxygen tank was empty. They tried to resuscitate Murphy with a different tank, but couldn't find a mask that would work, so they continued taking turns applying chest compressions and mouth-to-mouth resuscitation until the Coast Guard met the boat.

Kirk said the Sherman wreck, at a depth of 50 feet, is considered an amateur dive site, but the dive was more advanced that day due to low visibility and a swift current. "With the right conditions it would be a very easy dive," he told the Observer. "But visibility was only 10 to 15 feet with a decent current."

A week or so later, David Marvel, a lawyer representing Coastal Scuba, sent letters to three people, asking them to use caution when speaking to the media, stating that "should any investigation determine that the vessel's equipment was in proper working condition and/or that any deficiency was the result of operator error, any public comments to the contrary would be defamatory and Coastal Scuba will pursue all available remedies."

Kirk says he didn't receive that letter but that, as a professional diver, he was obligated to file a report with PADI. Even before Murphy's death, he was planning to file a quality assurance complaint with PADI because of safety concerns. "[There was] the lack of a safety during the dive briefing, as far as where the O2 was located, an all-recall if there was an emergency on the boat . . . Of all the operators we've ever dove with, we really did not like how things were going on this one."

Kirk doesn't have any qualms about speaking out. As he told WPDE in a second interview, "We don't know the cause of death or what actually happened to Mrs. Murphy, but there were enough concerns that I felt like they needed to be spoken of."

So were Kirk and Warren in the right for talking to the press? According to Bret Gilliam, a frequent Undercurrent contributor who has advised and testified as a diving expert in more than 250 lawsuits, they did nothing wrong. It is Marvel who is "acting inappropriately. You can't threaten witnesses like that. If there are dive professionals involved, like Kirk, they're obligated by the rules of their membership to file a report. The boat captain also legally has to file a report with the Coast Guard, which will conduct its own investigation, and witnesses are obligated to cooperate. To send a letter in advance will piss off witnesses, alienate them, and lead them to think there was something the dive operator has to hide or cover up."

Perhaps Coastal Scuba was quick to have its lawyer send out shut-up letters is because of its history of violations with the Coast Guard (which WPDE also highlighted on its website, after reporting about the legal letters). USCG records show Coastal Scuba has had five violations since 2004, including failing to have proper documentation aboard its vessel, not having small children wearing life jackets on board, and leaking diesel fuel in to the Intracoastal Waterway. In 2005, another woman died while diving with Coastal Scuba, but the company was not found at fault for her death (she collapsed on board the boat after a dive).

Gilliam says that Coastal Scuba's history of violations is inconsequential, because they're so common on passenger boats. "I've seen far more offensive violations on vessels." True, the boat erred in lacking an operating oxygen kit, he says. "But the outcome of the diver fatality might not have changed even with a fully functional kit. If the diver died either from arterial gas embolism or a cardiac event, neither would have been prevented by immediate care, even from professional EMS teams or a doctor. So we have a tragedy and clearly poor conduct by an inexperienced vessel captain, but it's likely that none of the operator's actions caused the death. The USCG was radioed within 10 minutes. They would not have responded within any critical time parameters to change the outcome either, even if they were called in the first 30 seconds of the diver surfacing. Remember: With other divers still underwater, the vessel is somewhat limited in what it can do with regard to evacuation.

It's another story to be on a boat with a history of leaving divers behind, backing over them, pumping bad air and serving bad food. "But what this boat is guilty of is minor ," says Gilliam. "Far more egregious stuff is happening on other boats."

How can you avoid getting on a boat with a bad history? You can't, because it's virtually impossible to find out. "If you want to take the time to Google an operation and see what comes back, that's the only way to find out," says Gilliam. "Coast Guard files are, for the most part, confidential and heavily redacted, so it's hard to find out the details, especially for the public. And it gets worse once you get outside this country." The authorities in Third World countries like Indonesia and the Maldives aren't known for their quick disclosure and easy access to records of their dive operators' histories. However, we'll toot our own horns here and say that our Reader Reports and annual Chapbooks are an extensive, accurate source of divers' experiences, both good and bad, with dive resorts, liveaboards and dive operators worldwide.

"In the case of Coastal Scuba, it would appear that Karen Murphy, a certified diver capable of independent unsupervised activity, had a problem underwater, therefore, the company had no culpability. Why would they want to muddy the waters by sending these letters? You can't make people not talk to the media. No judge will find this a sympathetic argument, based on their conduct."

Of course, talking to the press can get people in trouble. Just ask the dive industry executive who, in a foreign press interview a couple of years ago, cast aspersions on a diver who had died while diving from one of the company's dive boats. The family filed suit on a number of issues, including the intentional infliction of emotional distress. This complaint was not covered by the company's insurance. The executive had to defend himself and subsequently settled out of his own pocket.

Despite sending out letters to divers to shut it, Coastal Scuba manager Cameron Sebastian told WPPE he had no comment on Murphy's death except that Coastal Scuba was cooperating with the investigation, when asked if the operation had had any other dive-related deaths, he replied, ""It happens occasionally in this business. If you've been in it long enough, it can happen from time to time."

The Coast Guard investigator took witness statements and is investigating Murphy's equipment. The Horry County deputy coroner said it could be up to two more months before the cause of death is discovered.

-- Vanessa Richardson