Wade Clark Mulcahy LLP

In June, our country was captivated by the tragedy involving OceanGate, the owner of the Titan submersible that imploded during a dive to the Titanic wreck killing all five passengers on board. As a result, there has been discussion about the OceanGate waiver signed by the passengers and whether liability waivers including assumption of risk provisions can effectively bar lawsuits. Although the waiver at issue contains a choice of law clause providing that any disputes related to or arising from the expedition or release shall be governed by the laws of The Bahamas, the following discussion addresses how New York law may treat the waiver’s provisions.

Liability waivers operate to protect a business or service provider from being sued by a customer or participant in the event of injury or damage. The customer or participant is informed of the risks associated with an activity that has a known risk or injury and agrees to assume responsibility for any injuries or damage.

Business Insider published the full OceanGate waiver and release signed by a would-be passenger. The release provided that the “experimental submersible vessel has not been approved or certified by any regulatory body and is constructed of materials that have not been widely used for manned submersibles.” The release also provided that the “experimental submersible vessel has conducted fewer than 90 dives, and 13 of those dives reached the depth of the Titanic,” followed by an acknowledgment.

In New York, liability waivers can be challenged as unenforceable and invalid if they are not clear about the rights and risks that are being waived, such as through a catchall provision, boilerplate language, or being too broad. In tort cases specifically, waivers or releases from liability are disfavored. Additionally, a party can waive ordinary negligence; they cannot waive acts of gross negligence, reckless conduct, willful/wanton conduct, or intentional acts. Kalisch-Jarcho v. City of New York, 58 N.Y.2d 377 (1983).

Applying New York jurisprudence to the provisions, one could argue that the language is too broad as the nature of the materials were not disclosed (only that it was constructed of materials that have not been widely used). Further, the lack of clarity surrounding whether OceanGate used the materials for the types of depths to be reached by the Titan and whether humans occupied them, raises the issue of whether the risks were properly disclosed to the deceased participants. It is also presently unclear if any evidence exists demonstrating gross negligence or recklessness on the part of OceanGate or its employees (i.e., a prior report containing warnings or safety lapses in the subject submersible).

It remains to be seen whether the families of the deceased will attempt to challenge the waiver’s enforceability. Nevertheless, this event will continue to spark conversations not only within the experimental submersible industry, but for companies seeking to protect their businesses from lawsuits through liability waivers. Specifically, companies may reconsider drafting techniques for issues involving the concealment of design defects and the proper disclosure of specific risks.