The Titan submersible and potential litigation
The implosion of a commercial submersible raises questions of liability, the role of assumption of risk and operational negligence.
Earlier this month I spent some time at the Titanic Museum in Belfast, Ireland. Seeing what went into building the “unsinkable” was truly amazing. It is no wonder that people are willing to spend hundreds of thousands of dollars to make a trek two-and-a-half miles below the ocean to see what remains.
On Sunday, June 18, 2023, Titan, an OceanGate submersible, was sent off with five people on board to visit the remains of the Titanic some 12,500 feet under the sea. This Thursday, June 22nd, it was reported that a debris field, likely caused by an implosion, comprised the remains of this vessel.
It was a sad day for several families who lost loved ones who had gone on this perilous journey, undoubtedly aware that they may not return. The passengers had all signed waivers, which included language that death was a possibility. However, does that absolve OceanGate, the tour operator, of liability?
According to Mike Reiss, a producer and writer on The Simpsons, who visited the Titanic wreckage on an OceanGate tour last year, before you even get on the boat, there is a long waiver that mentions death three times on the first page. He told the NY Post that while he didn’t feel unsafe on the trip, he wouldn’t take the risk again saying, “It’s definitely being invented as it goes along. I don’t want to disparage it, but it reminds me of the early days of aviation or the space program, where a lot of thought goes into it and then they find a problem.”
Liability and assumption of risk
There are multiple issues in play here. First and foremost, this is a classic example of assumption of risk. People knew they could perish, but they took the risk anyway. Given what others say about viewing the wreckage of the Titanic, it is somewhat understandable why a person would want to pursue this once-in-a-lifetime opportunity. In a report on Orlando’s Fox 35 News, Tampa resident Michelle Turman, who has visited the remains of the Titanic, said, “We go regardless of the risks. It’s something that you reconcile within your soul. It’s probably similar to an astronaut that goes to the moon.”
However, there need to be answers as to how and why this occurred. Herein lies the basis for potential litigation. While it is no secret that trips to the bottom of the sea are inherently dangerous with pressures rising to 6000 PSI, was there a problem that should have been identified and rectified prior to departure? In reviewing prior records, there is an indication that safety concerns are not new for this organization.
According to a report by CNN, London-based Henry Cookson Adventures Ltd. accused OceanGate of not having a “seaworthy vessel” and sought $850,000 in damages in a 2021 lawsuit.
In 2021, OceanGate CEO Stockton Rush is said to have told Mexican travel blogger Alan Estrada that he wanted to be known as an innovator who broke the rules. According to Estrada, Rush said of innovation, in part, “It’s picking the rules that you break that are the ones that will add value to others and add value to society.”
In 2018, a former employee, David Lochridge, claimed that he was wrongfully terminated when he refused to greenlight manned tests of the submersible over safety concerns. The company later sued Lochridge for disclosing confidential information.
Litigation & proving negligence
It is possible that there will be lawsuits arising from this incident. While there is no question that the passengers had to sign waivers, questions will arise about safety. While there was an assumption of risk in embarking on an inherently dangerous voyage, would the passengers have done so if the risks were fully understood?
Attorney Sherif Edmond El Dabe told Insider that the chance of a successful lawsuit for the family members of the passengers is close to zero. “The passengers knowingly participated in an extremely hazardous activity, and they knowingly assumed great risk.”
The passengers also signed a waiver knowing this wasn’t a casual family vacation, and the disclaimer appears to have made the risk of death very clear. When death is mentioned multiple times in a disclaimer, it is something that needs to be taken very seriously.
That said, what if OceanGate is determined to be operationally negligent? The CEO has made comments in the past that seemed to question some safety protocols, one time lamenting that the passenger vessel regulations were holding back innovation. In a Smithsonian Magazine feature, he once called safety standards “understandable but illogical”. These are the types of statements that trial lawyers will seize upon, and coupled with the former employee’s lawsuit, could provide an opportunity for successful litigation.
According to NPR, experts from within and outside of OceanGate raised safety concerns as far back as 2018. These concerns have resurfaced in the wake of this tragedy. According to Will Kohnen, the chair of the Marine Technology Society’s Submarine Committee, “We’ve been aware of this project for some time and have had some concerns.”
He drafted a letter to OceanGate CEO Stockton Rush, who perished on this journey, expressing unanimous concerns on behalf of its members about the development of Titan and the planned Titanic expeditions. In a copy obtained by the New York Times, he wrote, “Our apprehension is that the current experimental approach adopted by OceanGate could result in negative outcomes (from minor to catastrophic) that would have serious consequences for everyone in the industry.”
One of the challenges facing OceanGate in potential litigation is that most companies in the industry are following a fairly well-established framework of certification and verification. According to Kohnen, OceanGate was going to go solo, without the same type of oversight.
NPR reported this past weekend that director and deep-sea explorer James Cameron was not surprised at the outcome. The Titanic director is criticizing the safety of the vessel and said in a series of interviews this past week that he suspected Titan had imploded. Cameron stressed that deep sea submergence is a “mature art,” with very few accidents when it began in the 1960s and an even better safety record now, thanks in large part to the certification protocols that almost all such vehicles follow…except this one.
According to the NPR report, Cameron described OceanGate’s use of a carbon-fiber hull as “fundamentally flawed” and said that he had warned the company several years ago against using that same design principle. He said that he regrets not speaking up more this time around, saying, “Now there’s one wreck lying next to the other wreck for the same damn reason.”
Investigations and inquiries
Beyond the civil litigation probability, there is the potential for a federal inquiry. Criminal defense attorney Joshua Ritter told the Daily Mail that “if an investigation reveals the participants were misled about the risks or pressured to agree to activities they would normally avoid, then it can lead to criminal charges. For the company to use a video game controller to steer this submarine, that’s the kind of thing that makes this ripe for an investigation.” He compared this situation to a 2009 case in which three people died at an Arizona sweat lodge. In that case, the participants entered willingly but the entrepreneur who ran the lodge was convicted of negligent homicide.
When it comes to venue, this could provide an interesting situation, as the loss, while originating in the United States, did happen in international waters. With OceanGate being based in Washington state, and safety concerns perhaps being the crux of potential litigation, that would perhaps be the most appropriate venue. But would, and could, that venue be effectively challenged?
However, things could get more complicated. While submersibles like Titan have to comply with the Passenger Vessel Safety Act in the United States, they did not have to as they were operating in international waters.
What happens next will be largely dependent on the outcome of various investigations. Beyond OceanGate insurance policies and assets, those seeking damages may have causes of action against outside parties that designed, built or manufactured components of Titan.
According to a recent article by Reuters, OceanGate could seek to shield itself from damages by filing a so-called limitation of liability action under maritime law, which lets owners of vessels involved in an accident ask a federal court to limit any damages to the present value of the vessel. Since the Titan was destroyed, that would be zero. However, OceanGate would need to prove it had no knowledge of potential defects and would carry the burden of proof.
Reuters further explains that another maritime law, the Death on the High Seas Act, allows people who were financially dependent on someone who died in a naval accident to seek only the portion of that person’s future earnings that they would have otherwise received. Plaintiffs cannot recover losses for pain and suffering in those cases.
While there are still many questions still to be answered, and just as the Titanic keeps drawing us in, so too will Titan. As James Cameron once suggested, “The Titanic wasn’t just a story, wasn’t just a drama, but rather like a great novel that really happened.” The parallels with Titanic and Titan are many, and the outcome of the investigations will be very telling.
Chris Tidball is an executive claims consultant with SecondLook, an industry-leading subrogation firm. He has spent more than 30 years in the property and casualty industry as an adjuster, claims executive and consultant. He is the author of multiple books including Re-Adjusted: Taking Your Claims Organization From Ordinary to Extraordinary. Contact him at ctidball@2ndlook.net. Opinions shared are the author’s.
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