I hereby assume full responsibility for any and all risks of property damage, injury, disability, or death.” At least one — and probably all — of the passengers on the OceanGate Titan signed a document that had variations of this phrase peppered throughout.
Before the small submersible dipped into the waters above the Titanic, OceanGate had informed every adult on that ship about the risks of their expedition. That would seem to be the end of the story. They knew the risks and signed a waiver and now their families cannot sue. Or is it so? Let’s explore the case a little.
What Happened to the Sub?
Four passengers and the CEO of OceanGate took an experimental submersible on an expedition that was supposed to reach the Titanic. The passengers paid $250,000 each for the trip. They boarded the Titan, an underwater vehicle that had made dives to this depth only 13 times before. About an hour and forty-five minutes after it set off, the support vessel lost contact with the Titan. Shortly after that, the vessel imploded, killing everyone onboard immediately.
How Does Liability Normally Work?
If a company carries out a service for a person, we expect them to not be negligent in doing so. Negligence is failing to behave with the level of care someone with ordinary prudence would do under the same circumstances. This is the legal basis for most personal injury or accident-related lawsuits.
It is likely that the entire venture stretched ordinary prudence beyond its breaking point. This is where the waiver contracts come in, stating that everyone involved knows the risks and problems inherent in this type of activity.
How Do Waivers Change Liability?
The passengers on board the OceanGate Titan undoubtedly signed at least one set of waivers. A waiver is a release-of-liability agreement in which the customer forgoes their ability to sue for damages if something listed in the waiver goes wrong.
One “would-be passenger” released a waiver to the press. It included numbered points, nearly all linked to a heightened risk of death and other extreme injury:
- The waiver includes any transportation, training, and post-voyage events.
- The experimental submersible has made fewer than 90 dives and fewer than 13 to Titanic depths.
- The vessel will be under extreme pressure, and one can decline to take part.
- The vessel is an industrial vessel, and heavy seas are an uncontrollable natural setting.
- If I choose to assist, I may put myself and others at greater risk.
- The expedition is in international waters, and medical care is far away.
- While we try to take care of risks we know, there are more dangers we don’t know.
- Representatives have answered my questions, and I am a voluntary participant.
- A very large list of who cannot sue whom in court.
After this listing, the waiver goes on for a couple more pages stating that the participant is voluntarily giving up all rights to sue for wrongful death, injury, or property damage. This waiver closes out most chances that anyone would have to sue OceanGate for the deaths of the passengers on the Titan.
Different courts treat waivers differently. If a family brings a case in a jurisdiction that disfavors waivers, the court may toss the entire thing out, or it could drastically cut back its meaning. If the court favors waivers, the entire thing could stay intact and the family would get no money for its loss.
What About Misrepresentation of Safety?
One area in which there still may be a lawsuit lurking is in misrepresentation of safety. The waiver seems to have covered everything. But if passengers signed it amid a bunch of slaps on the back and statements of “You know we just have to do this for the lawyers,” and “It’s as safe as your mother’s bed,” then the full force of the signed waiver may not apply.
The CEO has a history of making flippant remarks about safety, so this is not exactly far-fetched. He had also talked about how his vessel didn’t need and didn’t get inspections, and inspections hamper innovation anyway.
There was a dispute over a viewport to see outside the craft. It was only certified to depths of 1,300 meters, not to the 4,000 meters that the Titanic’s depth required. The company chose, explicitly, not to let the customers know. It was unwilling to pay for the type of inspections that were needed.
Either of these are direct misrepresentations of safety by negating or hiding safety problems from the customers. The customers do not have full and honest data upon which to make their decision if the court finds one of these happened.
What about Recklessness?
Recklessness is a step beyond what the passengers could waive away by signing a release of liability. Recklessness is an extreme departure from the care a normal person would take in similar circumstances. If the staff and crew of OceanGate did things they should have known better about, that’s recklessness.
In 2018, David Lochridge, former director of marine operations at OceanGate, sued the company for having poor quality control and safety standards that the customers didn’t know about. If the staff at OceanGate knew about problems but didn’t care to fix them, that is reckless. Following that, a group of ocean experts and industry leaders sent Stockton Rush, OceanGate’s CEO, a letter warning against the company’s experimental approach. They also warned of the chance of catastrophic failure on a Titanic mission.
A court might consider operations that followed warnings such as these to be reckless. If so, the waiver doesn’t matter at all, and the families can sue for their losses.
Can the Company Pay?
It looks like the Titan’s implosion, and the publicity that accompanied it, may be the financial end of OceanGate. No matter how guilty or how liable the company is, if there is no money to pay the judgment, the families of the participants will get nothing.
If OceanGate owns some real estate properties, then families of the dead might get a lien on those to get some money when they are sold. This tactic won’t work if OceanGate was just a renter.
OceanGate probably will end up in bankruptcy. The division of any cash or assets it pays will rest on the type of bankruptcy it chooses and the rulings of the bankruptcy court.
What About Jurisdiction?
It is likely that if this case goes to court, it will do so in the Bahamas, the country of registration for OceanGate Expeditions. The waiver also put jurisdiction in the Bahamas. The families may also bring a case in Canada, where the ship that took the Titan to the dive site is registered. If the laws there are not favorable to the families, they may try to bring a case elsewhere, such as in the U.S., the UK, or Pakistan, where the deceased were from. OceanGate has a physical base in Everett, Washington. However, the Titan was not a flag-bearing ship and no jurisdiction ties to it specifically. Choosing the place to host the lawsuit could be a lawsuit.
With all this taking place in international waters, the Law of the Sea is likely to cover the situation. Under the Death on the High Seas Act, those dependent on each person who died could recover the fraction of the amount that they make in a year that they would have brought home to their family. This is just like sailors and fishermen.
Another possibility under maritime law is to limit the recovery for liability to the present value of the vessel. That would be nothing, as the Titan was destroyed. Or the amount could be set as the cost of the ship that took passengers to the dive site.
When we first look at the possibility of legal charges surrounding the events of the OceanGate Titan, it looks like a simple case. There’s a waiver, so no one can sue. But when we dig deeper into both the law and the facts surrounding the case, it comes apart, opening doors to many possibilities. Not even the jurisdiction is clear. If any lawyer thinks recovery for clients is likely, they will take the case. We just have to wait and see.
Bogel-Burroughs, Jenny Gross, and Anna Betts. June 20, 2023. “OceanGate Was Warned of Potential for ‘Catastrophic’ Problems With Titanic Mission.” https://www.nytimes.com/2023/06/20/us/oceangate-titanic-missing-submersible.html
Casey, Michael and Bloomberg. June 23, 2023. “Families who lost loved ones in the Titan sub tragedy will have one key document to consider before filing any lawsuits.” https://fortune.com/2023/06/23/titan-submersible-oceangate-liability-waivers-passengers/
Mann, Jyoti. Jul 8, 2023. “Read OceanGate’s 4-page waiver signed by a would-be Titan passenger listing all the ways they could die in the ‘experimental’ sub.” Insider. https://www.insider.com/read-oceangate-waiver-titan-sub-passengers-lists-numerous-death-risks-2023-7
Northeastern University. July 9, 2023. “OceanGate Innovation or Negligence? Why a Successful Lawsuit Against the Submersible Company Is Unlikely.” SciTechDaily. https://scitechdaily.com/oceangate-innovation-or-negligence-why-a-successful-lawsuit-against-the-submersible-company-is-unlikely/?expand_article=1
Queen, Jack. June 23, 2023. “Titanic sub: victims’ families could still sue despite liability waivers.” https://www.reuters.com/world/titanic-sub-victims-families-could-still-sue-despite-liability-waivers-2023-06-22/
Snodgrass, Erin. Jun 21, 2023. “The company that operates the missing Titanic sub is likely protected from future lawsuits thanks to the ‘tons of risk’ that passengers incurred, legal experts say.” Insider. https://www.insider.com/oceangate-likely-protected-from-titanic-sub-lawsuits-legal-expert-2023-6