UW Professor: Submersible waivers may hold up in court

Jun 23, 2023, 6:00 AM | Updated: 6:32 am

FILE - This undated image provided by OceanGate Expeditions in June 2021 shows the company's Titan ...

FILE - This undated image provided by OceanGate Expeditions in June 2021 shows the company's Titan submersible. Rescuers are racing against time to find the missing submersible carrying five people, who were reported overdue Sunday night. (OceanGate Expeditions via AP, File)

(OceanGate Expeditions via AP, File)

When the Titan submersible made its fateful dive into the North Atlantic on Sunday, it also plunged into the murkily regulated waters of deep-sea exploration.

It’s a space on the high seas where laws and conventions can be sidestepped by risk-taking entrepreneurs and wealthy tourists who help fund their dreams. At least for now.

OceanGate closes Everett operations; investigation turns to cause

“We’re at a point in submersible operations in deep water that’s kind of akin to where aviation was in the early 20th century,” said Salvatore Mercogliano, a history professor at Campbell University in North Carolina who focuses on maritime history and policy.

“Aviation was in its infancy — and it took accidents for decisions to be made to be put into laws,” Mercogliano said. “There’ll be a time when you won’t think twice about getting on a submersible and going down 13,000 feet. But we’re not there yet.”

Thursday’s announcement by the U.S. Coast Guard that the Titan had imploded near the Titanic shipwreck, killing all five people on board, has drawn attention to how these expeditions are regulated.

Mercogliano said such operations are scrutinized less than the companies that launch people into space. In the Titan’s case, that’s in part because it operated in international waters, far from the reach of many laws of the United States or other nations.

The Titan wasn’t registered as a U.S. vessel or with international agencies that regulate safety, Mercogliano added. Nor was it classified by a maritime industry group that sets standards on matters such as hull construction.

Stockton Rush, the OceanGate CEO who died on Titan, had said he didn’t want to be bogged down by such standards.

“Bringing an outside entity up to speed on every innovation before it is put into real-world testing is anathema to rapid innovation,” Rush wrote in a blog post on his company’s website.

The Titan was a small vessel that was launched from another ship, the Canadian icebreaker Polar Prince, a setup that Mercogliano likened to pulling a boat on a trailer, in terms of regulatory purposes.

“The highway patrol has jurisdiction over the car and over the trailer, but not over the boat,” he said. “The boat is cargo.”

Experts say wrongful death and negligence lawsuits are likely in the Titan case — and they could be successful. But legal actions will face various challenges, including waivers signed by the Titan passengers that warned of the myriad ways they could die.

Mike Reiss, a writer for “The Simpsons” television show who went on a Titanic expedition with OceanGate in 2022, recalled that his waiver said he would be “subject to extreme pressure. And any failure of the vessel could cause severe injury or death.”

“I will be exposed to risks associated with high-pressure gases, pure oxygen, high voltage systems which could lead to injury, disability, and death,” Reiss said Thursday, going by memory. “If I am injured, I may not receive immediate medical attention.”

Thomas Schoenbaum, a University of Washington law professor and author of the book “Admiralty and Maritime Law,” said such documents may be upheld in court if they are worded well.

“If those waivers are good, and I imagine they probably are because a lawyer probably drafted them, (families) may not be able to recover damages.”

At the same time, OceanGate could still face repercussions under the Passenger Vessel Safety Act of 1993, Schoenbaum said. But it may depend on which arm of OceanGate owned the Titan submersible.

Rush, the late OceanGate CEO, told AP in 2021 that it was an American company. But he said OceanGate Expeditions, which led dives to the Titanic, was based in the Bahamas.

Schoenbaum said the Bahamas subsidiary has the potential to circumvent U.S. law, but courts have at times “pierced the corporate veil” and OceanGate could be found liable.

There are also questions of whether the Titan was insured or if the Canadian icebreaker’s insurance could come into play.

The countries where lawsuits may be filed could also depend on contracts signed by passengers and crew.

“I would be very surprised, in a high-risk operation like this, if the contract did not address which law applies and where any claim can be filed,” said George Rutherglen, a professor of admiralty law at the University of Virginia.

In the meantime, Rutherglen said, he expects the U.S. will respond with tighter regulations given the loss of life and the millions of dollars spent by the Coast Guard.

“These wrecks at the bottom of the sea have become more accessible with advancing technology,” Rutherglen said. “It doesn’t mean that it’s necessarily become safer to go down and take a look.”

The International Maritime Organization, which regulates commercial shipping, could take some kind of action, he added, and Congress also could pass legislation. Nations such as the U.S. could, for example, block ships engaging in such expeditions from docking in their ports.

“I would just be surprised if any incident with all of these costs involved — wrongful death, expensive rescue — would not lead to some initiatives,” he said.

But not everyone agrees.

Forrest Booth, a San Francisco-based partner at Kennedys Law, said the International Maritime Organization “has no authority to impose its will.”

“There could be a move for states to adopt an international treaty on the deep ocean,” Booth said via email. “But that will be resisted by some nations that want to do deep-sea mining, etc. I do not think much of substance will happen after the media attention of this event dies down.”

Associated Press researcher Rhonda Shafner contributed to this story.


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UW Professor: Submersible waivers may hold up in court