The OceanGate Liability Waiver and Exculpatory Agreement

The five people who perished when their submersible imploded on its way to providing them a view of The Titanic's undersea remains signed an exculpatory agreement and liability waiver.  On the relationship between waivers and exculpatory agreement, see Nancy Kim's earlier post.  The passengers aboard the submersible acknowledged that they were aware that the vehicle was experimental and had not been approved or certified by any regulatory body.  They also acknowledged that they were aware that the vessel was constructed out of materials that had not been used in submersible vehicles occupied by human beings.   

Image by Steve Jurvetson,
CC BY 2.0, via Wikimedia Commons

This was a rather cryptic reference to criticisms of the OceanGate submersible leveled by Titanic director James Cameron (right), among others. According William J. Broad reporting in The New York Times, the vessel was constructed out of carbon fiber which is not designed to withstand the extreme pressures to which it would be subjected in the ocean deeps.  Although the vessel was equipped with a warning system, that system would be ineffective, according to Mr. Cameron.  By the time the warning light comes on, the vessel is about to implode, and there would be no time to surface.  

Notwithstanding these risks, before they could participate in the voyage, the passengers had to waive, on behalf of themselves and their heirs, all claims against OceanGate and its employees, discharging and releasing those persons and entities from any potential liability, including liability for harms caused by the negligence of OceanGate or its employees.  The document designates the Bahamas in both choice of law and choice of forum clauses.

Now, people are speculating as to whether this agreement is enforceable.  I am not familiar with the law of the Bahamas and so will not speculate about that, beyond noting that such agreements are pretty routine.  I have had my say about that here.  Jeff Sovern previously posted his thoughts on liability waivers, especially in the context of COVID.  I will note that, as with everything pertaining to these five tragic deaths, the attention devoted to the event seems disproportionate to its magnitude, when one considers other recent stories relating to deaths at sea.  For example, as Chantal Da Silva reported for NBC news, hundreds are missing and feared dead after a fishing boat crowded with migrants sank in Greek waters last week.  Earlier this month, about 300 people died in India's worst rail disaster in decades.  According to Sameer Yasir, Mujib Mashal and Hari Kumar writing in The New York Times, almost all of the dead were in the train's first three cars.  Those cars are packed with poor people who are not even recorded on the rail service's official register of passengers.  A week after the crash, one hundred bodies still lay in the morgue, unclaimed, unidentified.

It is not clear that the OceanGate exculpatory agreement will protect that company, given that the conduct of the company and its leadership may have been reckless and not merely negligent.  It is not clear to me that it matters much in this case.  Unlike the migrants who died in Greek waters and the Indian laborers, all of the people aboard the OceanGate vessel were very, very wealthy.  They have access to life insurance.  Their heirs will be well provided for.  As to OceanGate itself, it seems hard to imagine that the company will survive this catastrophe, and so suing a soon-to-be bankrupt entity seems like a fool's errand.  Regulatory bodies can do their work and hold any surviving entities and the natural persons involved in them to account.  The survivors of the victims of this tragedy may console themselves in the knowledge that their loved-ones died doing something they loved enough to do notwithstanding the disclosed risks.  In any case, adding to their wealth through litigation, if that is the result, will change very little.

This may cause some to wonder whether the survivors and surviving family members of voyagers on The Titanic (left) had recourse against the ship's owners and operators.  Susan Taylor provides some answers on the Library of Congress Blogs.  Apparently, the passengers on The Titanic were not required to sign exculpatory agreements.  Hundreds sued.  However, their claims may have been limited by operation of law.  After litigation that began in the New York's Southern District and was appealed to the U.S. Supreme Court, the parties settled for $664,000.  The shipping line had argued that damages should have  been capped at $91,000.  Plaintiffs had sought $16 million.