Do you know the legal difference between a
"rescue dive" and a "recovery dive?" That is a
major matter of importance in the lawsuit over the
death of Rob Stewart.
Following up on the story we wrote in our
August issue, the investigation into the death
of Stewart, the filmmaker behind the awardwinning
2007 documentary Sharkwater, is getting
murkier. The Monroe County Medical Examiner
has threatened criminal action against the divers
who recovered Stewart's body off Islamorada
after he died on a rebreather dive with Horizon
Dive Adventures in January 2017. Thomas Beaver,
the medical examiner, says private divers should
not have undertaken the recovery effort -- especially
because they were hired by Horizon Dive
Adventures' attorney in anticipation of a lawsuit.
Did He Drift, Or Did He Sink?
Four months after Stewart's body was recovered,
the filmmaker's family filed a lawsuit
against Horizon, contending that the crew failed
to monitor and help Stewart after he surfaced and waited to board the boat. He sank shortly after
surfacing. Early reports suggested Stewart had
simply drifted away, which led to a three-day air
and sea search, but in fact Stewart had dropped
immediately below the surface.
Why did he not stay afloat with his BC-wing
inflated? If Stewart was unable to inflate his wing,
it might contradict testimony from those on the
boat who said he was able to signal he was OK.
Peter Sotis, his dive buddy and rebreather mentor,
had already boarded and become unconscious on
the boat deck, where people tried to revive him.
In his witness statement to the Monroe County
Sheriff, David Wilkerson, the boat captain, said
Stewart had "become incoherent," but nobody
attempted to get into the water to help him before
he dropped and drowned. Wilkerson says Stewart
had disappeared in the space of a few minutes. So
why did those on the boat allege he had drifted off?
David Concannon, a trial attorney representing
rEvo, the manufacturer of the rebreather unit
Stewart was using, told Undercurrent, "Sotis was
being attended to by his wife, a doctor. Brock Cahill, Stewart's filmmaking partner, jumped
into the water to do a surface search after the
boat came back [to where Stewart was last seen]
and Stewart had already disappeared." Cahill
is another subject of the ongoing investigation
because he was also on the Horizon boat when
rescue divers went out four days after the fatal
dive to recover Stewart's body.
An Illegal Rescue Dive
The rescue divers were originally identified
as members of the Key Largo Volunteer Fire
Department, which later denied it had a dive unit.
Then a Miami Herald article reported that an attorney representing Horizon Dive Adventures' insurance
company had retained Craig S. Jenni, a Boca Raton
attorney involved in many diving accident lawsuits,
to join the dive to recover Stewart's body -- and take
photos as possible evidence.
Court documents show that, besides Jenni, the
recovery divers included Horizon Dive Adventures
owner Dan Dawson and one of his employees.
The only diver affiliated with Key Largo's fire
department was Rob Bleser, another dive shop
owner who had led dozens of other underwater
rescues and recoveries. Bleser radioed the
Sherriff's office, saying he was going out to search
using the call sign for his "fire boat," even though
he was on Horizon's boat, and the fire department
doesn't have a fire boat. Since then, the
fire department has distanced itself from Bleser,
although it was he, using a remotely operated
underwater robot, who located Stewart's body at
a depth of 200 feet.
Beaver emailed Bleser, "There was no communication
with my office, and no approval was
requested or given. I consider your actions and
the actions of those involved in the recovery a
flagrant violation . . . and a complete disregard
for the authority of the Medical Examiner."
Florida law states that a person who takes actions
like Bleser without a district medical examiner's
approval can be charged with a first-degree misdemeanor.
Bleser's email reply to Beaver conveniently
omits any mention of the recovery divers' names
or identities, misrepresents the circumstances of
the search for Stewart, and misconstrues who had
the authority to supervise the recovery operation.
He never informed Beaver, the sheriff or the Coast
Guard before going out on the recovery mission.
Defense Tactics
Defense attorneys are using the turmoil over
how Stewart's rescue and recovery was handled
to boost their clients' credibility. In its court filings,
the legal team representing rEvo states that
Horizon Dive Adventures created a criminal
conspiracy by tampering with evidence in order
to misdirect authorities' suspicions away from it,
and to frame rEvo and Sotis for causing Stewart's
death.
Concannon told Undercurrent, "Bleser and
Horizon specifically did not have permission [to
recover the body], and Bleser was informed of this
two days before the recovery. Horizon and Jenni
made the recovery anyway on February 3. In the interim, they acted as though they were only performing
a search, not a recovery. While the Coast
Guard and Stewart's family were out searching an
area the size of Connecticut because they though
Stewart was alive and drifting on the surface, the
people who actually saw him sink were at the site,
ready to do a search and recovery, after being forbidden
to do so."
And now the defense says Beaver also made a
major error in his handling of the Stewart investigation.
He decided the cause of death was hypoxia,
but Concannon says that's a misinformed ruling.
"The dive computer data was downloaded by
the Coast Guard with the assistance of both rEvo
and Shearwater (the computer's manufacturer),
and in the presence of the Stewart family attorneys,
on July 31, 2017. The medical examiner was
invited to attend, but he did not. A copy of the data was made available to him, but he did not
review it before issuing his report in August 2017.
As of May 2018, he still had not reviewed the
data. Consequently, his finding that Rob Stewart
suffered hypoxia was not made after considering
this evidence. The dive computer data shows
Stewart could not have been hypoxic. We filed the
data printouts in court."
Beaver is no longer the medical examiner, and
Monroe County has begun a search to fill his post.
Meanwhile, Stewart's spirit still lives -- on film,
that is. He's the narrator of Sharkwater Extinction, an exposé on the shark-finning industry and a
sequel to Sharkwater, which had its premiere last
month at the prestigious Toronto Film Festival.
-- John Bantin