The decision by five people to undertake a dangerous and ill-fated undersea voyage to visit the wreck of the Titanic is raising questions on many fronts.
What prompted the travelers? A shared sense of adventure and a curiosity about the sunken Titanic wreckage — itself a 111-year-old deep-sea monument.
Led by OceanGate Expeditions CEO Stockton Rush, the passengers — British businessman Hamish Harding; Shahzada Dawood who is a member of a wealthy Pakistani family along with his son, Suleman; and Paul Henry “P.H.” Nargeolet, a French seafarer and Titanic expert — boarded the Titan, a carbon-fiber submersible vessel, on Sunday, June 18.
That vessel measures 22 feet by 9.2 feet by 8.3 feet according to company documents. It disappeared less than two hours after its mission began.
But as the saga unfolds, the questions that are top-of-mind for some legal experts focus on the liabilities assumed by people and businesses taking part in objectively risky activities — the OceanGate-led journey to the Titanic wreckage being one notable example.
The other question is, simply, what are the legal ramifications if something goes wrong, or worse, if the participants die while taking part in the activity? Who would be responsible?
That’s where experts say things can get murky, even when the participants have signed waivers designed to protect the company from liability.
Experts say that no set rubric determines whether a business will have to pay damages in the event of a mishap and that most operators buy liability insurance anyway because the waiver forms they ask clients to sign may not ultimately be enforceable.
In the U.S., whether a business operator becomes liable for a catastrophe can depend on the laws of the state where the business operates or even a judge’s interpretation of the waiver form, said Kenneth S. Abraham, a distinguished professor of law at the University of Virginia.
Follow along for live coverage on the missing sub
“There’s some variation from activity to activity and jurisdiction to jurisdiction,” Abraham said.
In the case of OceanGate, clients of the Washington-based company were asked to sign a liability waiver. A former passenger, the longtime television writer Mike Reiss, said that when he signed the waiver, it repeatedly emphasized the possibility of death.
Reiss described the experience in great detail — from the harrowing task of boarding the vessel, to his own experience inside, where he said problems emerged as soon as the vessel was underwater, forcing the submersible to come back up to the surface for repairs.
Nora Freeman Engstrom, a law professor at Stanford University, said a signed waiver may still not absolve the company in a wrongful death case.
“If an operator behaves recklessly, most courts will not let the operator off the hook,” Engstrom said.
Many waiver forms that are signed before high-risk recreational activities take place, like skydiving, snorkeling or skiing, are frequently enforceable, as long as they are clearly written, said Engstrom, who added that the scope of an accident, should one occur, also must be encompassed within the contracts.
A representative for OceanGate did not respond to a request for comment.
Nonetheless, the mere existence of the waiver form may not deter a trial lawyer, Abraham said. The overwhelming majority of lawsuits headed to trial ultimately result in settlements, he said.
Numerous lawsuits are filed against skydiving, scuba, parasailing and other extreme-activity companies every year, records show, some of which result in large settlements. The cases, however, can take years to litigate.
In February, a Montana-based scuba company settled a suit out of court after a guest died during a dive at Glacier National Park in 2000, before the business shut down.