Divemasters in American Waters

In mid December, I received a very flattering letter from subscriber Stefan Fuegi of Gila, NM, who wrote “ Mr. Davison, let me say thank you very much for helping me and my family to dive more and to dive better, finding better ops to dive with. We got to dive more this year than we ever have, and nearly all our dives were made with ops we found on the advice of the Chapbook. Just this morning we flew back from GCM where we had the good fortune to get our 10 year old son certified with Divetech and for all of us to dive together with Divetech and Indigo, both outfits we found through Undercurrent. . . .UC is my favorite publication of any kind and means a great deal to me. Your advice is core to every great vacation we have taken the last few years. And I am probably one of the thousands of people you have never heard from but whose lives have been deeply enriched by your various activities. I absolutely admire what you do and the way you do it, and I try to show my appreciation by always linking through UC when I shop Amazon and by trying to get family and friends to do that also so you get the commission.”

How nice to hear from an ardent reader, but more important he raised a significant question about the qualification of American divemasters, which occurred to him after he read my article regarding the Carlock jury award in our November issue.

“ I just read the article on the “Open Water” case in California and one of the questions that it raised is the comment that divemasters were listed as passengers as they were not qualified by the Coast Guard as crew. That seems like a very important point and I wonder if you could follow up by informing readers like me as to what are the CG requirements that DMs need to posses to be qualified as crew and which we as divers should look for in those we go diving with?”

There’s no better person to turn to for an answer that Bret Gilliam, who has an unmatched bio in the diving industry and was, himself, involved in the early stages of the trial as a witness for the defense. Here is his response.

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Few divers are familiar with the governing rules for U.S. flagged passenger vessels. These are found both in the Code of Federal Regulations and within the U. S. Coast Guard’s own regulatory protocols as the agency with direct oversight for licensing, enforcement, and inspection of vessels and crew. While the rules are very simple, very few divemasters are employed under Coast Guard standards.

The two divemasters who were employed by Ocean Adventures could not be qualified as crew members aboard a U.S. flagged inspected passenger vessel unless they met the following prerequisites prior to hiring:

They had to pass a scientifically recognized chemical/drug test for evidence of “dangerous drug or alcohol abuse.”

They had to successfully complete specific safety training as defined under the Standards of Training, Certification, and Watchkeeping (SCTW) for Seafarers as dictated by the International Maritime Organization (IMO).

If they had successfully completed these two prerequisites (and they did not), then they would also have to be formally employed and paid by the vessel in a designated crew position. This did not happen either. In fact, they worked for the dive store arranging the trip and were listed on the vessel’s manifest as “passengers” and, as such, the Master (captain) cannot delegate crew responsibility to passengers.

Further, the Master has an absolute duty to maintain a manifest of passengers and crew including any departure from the vessel, whether for a guided shore tour, beach picnic, or diving activity. He can delegate this accounting to a qualified crew member, but he maintains the ultimate responsibility for its accuracy and for seeing that they are safely back aboard before getting underway.

In this case, Daniel Carlock disembarked from the vessel to dive, and should have been logged out when he stepped off and subsequently missed when the log showed that he did not re-board after the first dive. Incredibly, however, he was not only logged back aboard while he was drifting in the ocean, but he was also logged as being aboard and disembarking for the second dive at a completely different site miles away. Only when he failed to reboard from the second dive was he noted as missing.

In the interest of full disclosure, I was hired on this case originally as a maritime defense expert and fully explained all this to the defense attorneys that contracted for my professional expertise and counsel.

I pointed out that the captain of the vessel did delegate the logging of divers on and off the boat to the divemasters and that they failed to keep an accurate record. Their breach of responsibility caused Carlock to be left behind. But … they could not be technically or legally held responsible since they did not meet the requirements of being crew members and, therefore, could not be delegated such a crucial task. Under the governing rules and statutes, only the master and crew could perform such responsibility. And further, they were clearly listed on the manifest as “passengers,” thus eliminating any argument that they could be crew or serve any crew function. So the defense for the divemasters had to be based, not on some concept of diving protocol, but on USCG, IMO regulations and maritime law.

For reasons that I cannot go into based on confidentiality, my professional advice was not heeded… even after I gave a formal expert witness deposition on these regulatory issues in January 2010. And I was not called to testify at trial so the jury never heard an expert’s explanation of the rules that governed all the various defendants’ responsibilities or lack thereof.

I will note, however, that the USCG was sufficiently shocked by the events that they sanctioned the master, suspended his license, and mandated a special series of remedial sessions on how diving vessels should conduct themselves. Hopefully, this will help prevent a similar abandonment of a diver in the future.

The pattern of leaving divers behind by careless logging is a phenomenon that began to occur in the last 15 years or so, and I regard it as a serious sign of the deterioration of both diving vessel operation and the training and conduct of divemasters and instructors. How difficult is it to count the number of divers you start with and that you have back on board before getting underway? Some shocking incidents have occurred, and I think the Carlock case verdict was a “wake up call” long overdue.

Caveat emptor!

Bret Gilliam is a 40-year veteran of the professional diving industry, and has been licensed as a USCG Merchant Marine Officer as Master for 38 years and remains current. He has commanded passenger and diving vessels up to 550-ft. including the world’s largest sport diving operation aboard Ocean Quest International from 1987-1990. He is frequently hired as both a diving and maritime expert witness and litigation consultant.