Page 37 - 2024 March April Magazine

Although OceanGate Expeditions, Ltd., will take steps to provide me with adequate training, equipment, and skilled personnel, I understand that such risks simply cannot be eliminated from any operation. The risks include, without limitation: loss of footing, slips and falls on deck, particularly in inclement weather; harm from falling objects on non-passenger vessels; drowning; and malfunction or failure of the submersible leading to death or serious injury.
This is arguably untrue as to provision of adequate equipment.
I understand that the foregoing description of these risks is not complete, and that other unanticipated, inherent risks may occur. I am voluntarily participating in the operation with full knowledge of the facts set forth above, including the described risks and unknown risks. I understand the inherent risks in the activities that will be undertaken during the operation, and I hereby assume full responsibility for all risks of injury, disability, and death.
The main risk or peril was always known--a sudden and catastrophic failure of the carbon fiber hull due to one-hundred million+ pounds of force.
I hereby assume full responsibility for the risk of bodily injury, disability, death, and property damage due to the negligence of any Released Party while involved in the operation.
By its terms, the agreement does not cover “gross negligence” which may affect its enforceability depending on the law of the forum state.
Mission Specialist?
experience diving in the deep ocean." - OceanGate
OceanGate and its CEO, Stockton Rush, liked to refer to Titan’s paying passengers as “Mission Specialists.” It may have been a ploy designed to help customers feel better about paying $250,000 to ride on Titan. But it may also have been a legal gimmick designed to protect against potential liability in the event something went wrong. The Release of Liability Agreement emphasized that anyone who chose to assist in the servicing or operation of the submersible vessel, “will be exposed to risks associated with high- pressure gases, pure oxygen servicing, high voltage electrical systems and other dangers that could lead to property damage, injury, disability, and death.”
Forum and Choice of Law
Titan was designed and built in Everett, Washington, officially registered as
a vessel in
The Bahamas, and lost in
international waters, 250 miles off the coast of Newfoundland. This begs the question of where legal claims might be litigated and whose law might apply?
As it turns out, OceanGate’s Release of Liability Agreement contained a choice of law and forum clause excerpted below:
“Any disputes related to or arising from either the operation or this Release shall be governed by the laws of The Bahamas. Any dispute arising from either the operation or this Release shall be resolved in the courts of The Bahamas.”
Some have argued this is a dirty trick designed to make any litigation against OceanGate as difficult and expensive
as possible. However, the reality is that such clauses are inserted in contracts and enforced by state and federal courts all the time and there may be no material difference in US or Bahamian law as far as express and primary assumption of risk.
In Carnival Cruise Lines, Inc. v. Shute,
499 U.S. 585 (1991), the plaintiff resided in Washington, boarded the defendant’s ship in California, and was later injured while cruising international waters off the coast of Mexico. She filed a tort claim in federal court in Washington but her case was dismissed because
she had signed a contract requiring all legal actions to be filed in Florida. The Ninth Circuit reversed and reinstated the case but on writ of certiorari, the U.S. Supreme Court upheld and enforced
the Florida forum clause reasoning that Shute voluntarily agreed to it, Carnival was headquartered in Florida, and there was no proof of fraud or bad faith.
Since then, Washington State courts
have held forum selection clauses to be presumptively valid even when inserted into standard, non-negotiable, consumer contracts because they serve “the salutary purposes” of enhancing contractual predictability, reducing the cost of doing3 business, and reducing consumer prices. In order to rebut the presumption of validity, the plaintiff must prove: (1)
the agreement was induced by fraud
or overreaching (2) the selected forum
is so unfair and inconvenient that it deprives the plaintiff of a remedy or their day in court or (3) enforcement would contravene a strong public policy of the State where the action is filed.4
Ancient Assumption of Risk
“I will endure to be burned, to be bound, to be beaten, and to be killed by the sword" - Sacramentum Gladiatorum
In Rome 2000 years ago, this was the oath you were required to take to gain admission to gladiator school whether you were starting as a slave, prisoner, or free agent. Back then, when you took such an oath, you were contracting directly with the gods and if you violated it then your life was forfeit.5 But there was also an ancient Roman
Continued on next page.
"Titan’s unique ability to carry five people allows for multiple Mission Specialists, scientists, and content experts to share a once- in-a-lifetime
3
4
App. 2d 396 (2023).
5 The "sacramentum" differed from a "iusiurandum," which had more common legal application, for example, swearing an oath in court. A "sacramentum" established contractual privity with the gods while the "iusiurandum" was an oath of good faith within the human commu-
Dix v. ICT Group, Inc., 160 Wash.2d 826, 834 (2007). Culinary Ventures LTD v Microsoft Corp., 26 Wn.
March/April 2024 | PIERCE COUNTY LAWYER 37