Is OceanGate’s Waiver of Liability Enforceable?

We are over a year out from when the OceanGate submersible touring the wreckage of the Titanic went missing.  Since then, we have gotten confirmation that the submersible imploded and killed all hands and passengers, and recent footage from the Titanic wreck has even discovered the remains of the vessel.  Since that time, families of the deceased have filed wrongful death suits against OceanGate, calling into question whether the liability waiver that passengers were required to sign would be enforceable in court.

After reviewing the text of the liability waiver, which includes the word “death” nine times in total, we found some strong hallmarks of an enforceable liability waiver.  The document is clearly marked as a waiver and contains language that would release the defendant from liability if the waiver is otherwise effective.  However, there are questions as to whether the waiver is enforceable as a matter of public policy given that it acknowledges how untested and experimental the vessel was.  There may also be missing information that would have changed the passengers’ minds about signing.

If you or a loved one suffered injuries after signing a waiver, call The Carrion Law Firm’s personal injury lawyers at (718) 841-0083 for a free case review.  If you are a journalist or publisher seeking an attorney’s input to inform your coverage of the OceanGate case, feel free to reach out to us as well.

Is the OceanGate Titan Submarine’s Waiver Enforceable?

Enforceability of a waiver requires a few things, and the laws surrounding this change from jurisdiction to jurisdiction.

Usually, the waiver needs to clearly state that it is in fact a waiver – something that this waiver does well.  It also needs to state what you are waiving, and this waiver specifically discusses waiving the right to sue for “injury, disability, death, and property damage.”  It also clearly states that this right is waived for the individual and their heirs/assignees.

One other factor that appears met here is that waivers are generally more likely to be enforced if the person signing had the benefit of talking to their attorney beforehand.  No one seems to have pushed this waiver on the passengers quickly, and all of them were reportedly quite wealthy, giving them time and resources to speak with a lawyer before signing if they wanted to.

These factors strongly weigh in favor of the technical parts of the document being enforceable, but our personal injury lawyers have some additional issues left to analyze.

Did the OceanGate Passengers Legally Sign the Waiver?

The first thing to analyze about this waiver is whether it was actually valid when signed.

One passenger was the son of another passenger, but the son was an adult when he signed.  Some jurisdictions bar waivers for minors or for the death of a minor child, but since he was over 18, this is not an issue.

One victim whose estate has filed a wrongful death lawsuit was actually an employee of OceanGate.  This could bring up other legal issues, given that his estate is now trying to sue his employer – something that is generally permitted under the Jones Act.  A waiver to release an employer from liability for an employee’s death is not particularly common and might not be valid in the first place.

Jurisdiction Issues with the OceanGate Titan Waiver

The waiver itself states that the laws of The Bahamas apply to issues with this contract.  This kind of language is often unenforceable, as courts need cases to be heard where there is proper “jurisdiction” and “venue.”

The vessel was in international waters, having departed from a Canadian ship, which might give Canadian courts jurisdiction.  Alternatively, OceanGate is from Washinton state, where the lawsuit cited above has been filed, potentially making jurisdiction and venue proper there.  However, U.S. federal courts – not state courts – usually have jurisdiction over “maritime” cases dealing with injuries and death at sea.

Lastly, only one passenger was American, and the non-American passengers might have different rights and laws in their home countries.

Is the Submarine Waiver Unconscionable or Against Public Policy?

One major question as to whether the waiver will be enforceable is whether it is legal to make a waiver for this kind of thing.  This was a waiver that was signed to give away the right to sue for injury or death from an experimental vessel that had no certifications or safety inspections from outside sources, went down 3,800 plus meters under water, was made of carbon fiber and plexiglass instead of titanium, and was driven with a videogame controller.  There is a strong legal question as to whether consenting adults can in fact sign away their rights for what could be seen as quite an outrageously dangerous situation.

Waivers are often legal for thrill-seeking and action/adventure attractions like skydiving, bungee jumping, and even skiing.  However, there are usually expectations that there are safety inspections, outside certifications, and so forth.

Judges often allow these waivers to be enforced because of the “public policy” that adults should be free to make contracts and sign waivers if they want to.  However, sometimes this same “public policy” is grounds for courts to draw a line and say that courts will not allow waivers for certain things, and it is possible a court could rule that is the case with the Titan.

Courts might also call a contract like this “unconscionable” on the argument that no reasonable person could legally sign a waiver for such a dangerous thing.

Did OceanGate Withhold Important Information from their Liability Waiver?

The wrongful death lawsuit mentioned above alleges that OceanGate did not reveal all of the info they needed to to give the passengers proper informed consent.  The waiver does state that the sub was experimental and that it made 90 previous dives (13 to the target depth).  It also says it was not “approved or certified” and that its materials were not “widely used,” and that there is a risk of death (which it mentions nine times).  However, OceanGate might have left out other important facts.

There are serious questions about whether this info was sufficient or whether the waiver needed to go deeper.  It might not be obvious to the passengers from the text of the waiver that experts had previously spoken out against the use of plexiglass and carbon fiber materials or that the vehicle was being operated by an early-2010s videogame controller.  There are also serious issues alleged in the lawsuit discussed above about previous safety concerns that were reported and not properly vetted or disclosed to the passengers.

If the passengers did not have the full information they need to sign the waiver, this might be the strongest argument against enforcing the waiver.

Call Our Personal Injury Attorneys

If you were injured and need help fighting against an unfair waiver, call The Carrion Law Firm’s NY personal injury lawyers for a free case review at (718) 841-0083.