The Right to Refuse Service






Some divers spend thousands of dollars on dive trips and eagerly look forward to them for months or years. Too often, however, they arrive unprepared or unfit to dive. Dive professionals assume personal risks when they lead divers underwater, and they are trained to deny service to divers who might compromise their own safety or the safety of others. Denying service to a paying customer can be difficult, especially if the customer is outraged or the business owner is more concerned about revenue than safety. We assembled a group of experts to help clarify the rights and obligations of dive professionals in these difficult situations.

Who is ultimately responsible for the safety and welfare of divers aboard a vessel engaged in a recreational diving activity?
Francois Burman: In terms of delivering the service, the business owner or individual dive professional is responsible — it is a contractual issue. The skipper or boat captain, however, has the final say on the vessel.

Peter Meyer: The master of the vessel (and by default, the owner) is legally responsible for the safety of all passengers aboard the vessel, even when they're engaged in diving. The belief that a dive vessel is a "taxi" and that the diving activity is not part of vessel operation is legally inaccurate.

Todd Yarbrough: This is a complicated question because the answer changes depending on the circumstances and location of the operation and the very spirit of the question itself. If you mean legally, then the answer is to ask an attorney well versed in maritime law in the area in which you are operating. If you mean morally, the boat owner, the operation doing the booking, the captain, the divemaster and anyone else who took money is obliged to consider the safety of the divers under their care and to make every reasonable effort to mitigate risks, but ultimately the divers themselves are charged with their own safety. If you are uncomfortable with any aspect of the dive for safety concerns, it is your responsibility as a diver to call the dive. There is no shame in canceling a dive, and no one should ever pressure divers into making a dive that makes them uncomfortable.

David Concannon: Legally, the captain and crew (in that order) are responsible for the safety and welfare of divers aboard a vessel, but this responsibility is shared by the individual divers. Ultimately, we are all responsible for our own individual safety. This is especially true when divers enter the water.


Can dive professionals refuse service to any divers they feel will be a danger to themselves or others if the decision is not arbitrary or discriminatory?
Burman: Yes, for any of the following reasons: their own safety (i.e., the professional's), the staff's safety, other divers' safety and, of course, the client's safety.

Meyer: Absolutely. All dive professionals have a moral obligation to ensure the safety of all participants under their supervision. Safety of all participants must overrule individual desires.

Yarbrough: Yes.

Concannon: Yes, absolutely. The dive professional is under no obligation to allow somebody to become a statistic.




If a dive professional makes an ethical and justified decision to prevent someone from diving, are there any circumstances in which the decision could be overturned?
Burman: The diver, at his or her own peril, can overturn or ignore the decision. Where the professional is (and remains) contractually responsible, however, it cannot be overturned — it can be reversed only by the professional if he or she deems it appropriate to do so. If there is a good reason to do so and the professional works for a dive operator or a dive business, then the business owner/manager could overturn it, but the professional still has the right to refuse to take the diver diving, as the professional is responsible for the well-being of everyone once they enter the water.

Meyer: Yes, a higher authority (the captain, for example) can override the decision. It would be unwise to overturn a judgment made by a decision maker following professional standards, but there are no clearly defined professional standards for supervision of certified recreational divers. The master of the vessel remains the ultimate authority with respect to the safety of all aboard. I do not see why he or she would choose to override a refusal decision made by a dive professional, but from a legal standpoint the master of the vessel is the ultimate authority aboard and could overrule the decision.

Yarbrough: Not in my shop. If a member of my crew says a diver is a hazard, we will happily work to help that diver train to improve his or her skills; but once prevented from diving, that trip is over for that diver.

Concannon: No, not if the decision maker is following professional standards.


What is the proper way for a dive professional to refuse service based on poor preparation or conditioning?
Burman: First, dive professionals need to interrogate the client to determine the extent of the exclusion criteria that may apply. Then they need to consistently follow their predetermined policy, which should be available to all. Finally, they need to base their decision on their concern for the client, staff, other divers or themselves. The decision should be based on concern for the safety of everyone diving.

Meyer: Politely but firmly outline the issues at hand, the concerns and the proposed solution (e.g., a refund). If there is a higher authority (the captain, for example), the decision should be referred to that person.

Yarbrough: Honestly and openly explain the decision, with the understanding that not everyone dives regularly and that a bit of refreshing or retraining can get the person in question much more comfortable in the water. In my experience, poorly trained divers who want to dive recognize their shortcomings; they want to improve and are typically very open to making the effort to improve.

Concannon: Explain politely, preferably before the diver gets on the boat. Once on the boat, a diver often feels entitled to carry on with their dive. If the diver displays poor conditioning or health, a polite and private conversation at the dive shop is the best method to head off any problems later on. If the diver displays poor preparation on the boat, the dive professional should intercede before the diver enters the water.


Dive professionals usually are not physicians. Can a dive professional refuse service for a medical condition when the diver has a current documented clearance from his physician?
Burman: Dive professionals should not give any medical reasons or make medical decisions. If they are concerned about the client's health and safety, however, they should follow their right-to-deny policy and do not need to accept the decision of any medical professional. The issue is about the safety of the client and all the divers.

Meyer:


Absolutely. Politely but firmly outline the issues at hand, the concerns involved and the proposed solution (e.g., refunds). Again, this decision should be referred to the highest authority.

Yarbrough: In this situation I have always expressed my unease and worked to find the best option available for the diver. People and programs are available for all types of divers. The current instructor might not be the right fit.

Concannon: According to some training agencies, no. But if a diver gets on a boat with a current medical condition that appears to be unsafe — such as wheezing, coughing or obvious impairment from drugs or alcohol — it is incumbent on the dive professional to courteously explain to the diver, "Maybe today isn't a good day to dive." I spent three years defending a trip organizer from a lawsuit in which the diver died from myocarditis and meningitis immediately after he entered the water. He had a current medical clearance, but he was still too sick to dive. Similarly, I spent three years defending a scuba instructor in a case where a student had bronchitis, asthma and a recent respiratory infection, but he still had a current medical clearance. The doctor wasn't sued, but he was deposed. It turned out the doctor knew nothing about diving and signed the medical clearance without ever having seen the diver. The point is: The diving professional may be the last line of defense to prevent serious injury or death.


Does the Americans with Disabilities Act (ADA)obligate a dive operation to make special accommodations for a willing diver to participate?
Burman:


No. When someone contracts a business to provide a service, the agreement is based on what is available, not what is needed for anyone to be able to participate. In general, the extent to which a business is set up to accommodate disabled persons is stipulated by whoever owns the public space. Lifting devices and other special equipment is generally not fitted to smaller craft, and even if a disabled person does not need special equipment, the professional may still not be trained, competent or comfortable enough to safely manage a disabled person. Services, as advertised, are not bound to conform to the demands of others and are thus made available in accordance with safety-based decisions.

Meyer: No. The ADA prohibits discrimination against employees or applicants who have disabilities, it does not guarantee accommodation for recreational activities.


When a diver has a medical condition that threatens his or her safety or the safety of other divers, who needs to be made aware of the diver's condition? If the affected diver does not want his or her condition revealed to the necessary parties, should the dive professional refuse service?
Burman: In my view, no one has a right to endanger anyone else through an act or an omission. The person is thus responsible to inform all who may be affected if things go wrong. In terms of denial, if the operator or dive professional believes that not communicating the condition to others could affect the others' health and safety, they have the right to deny service based on the client's unwillingness to inform.

Meyer: The diver with the condition should advise the most senior dive supervisor or the captain about his or her condition. If the dive supervisor feels that the condition creates an unacceptable risk, he or she should politely but firmly outline the issues at hand, the concerns involved and the proposed solution (e.g., a refund).

Yarbrough: This is a difficult question, so I will answer for myself personally. As a diver, I love this sport, and I would happily dive right up until I'm ready to die. I would even be OK with eventually dying while diving. But my thoughts turn to the people I would be diving with and the dive operators who would feel an obligation to me as a diver in their care. I think about my friends who have had divers die while they were guiding them and instructors who can no longer go in the water because of anxiety after dealing with these traumatic events. I could never put myself in the position of traumatizing someone like that.

Concannon: The dive professional, captain and dive buddies need to be made aware of the condition. Nobody has the legal right to put others unknowingly at risk. Yes, the dive professional should refuse service. Most professional standards say that dive professionals have an obligation to use their best judgment in deciding whether divers under their care should dive. Some training agencies that issue professional credentials counsel their members not to refuse service, but the professionals should keep in mind that they could be blamed for not using their judgment if something goes wrong and somebody gets hurt.
Meet the Experts
Francois Burman, Pr. Eng., Int PE (SA), M.Sc., is a nuclear, welding and hyperbaric engineer and the director of underwater and hyperbaric safety at Divers Alert Network. He manages DAN's Risk Mitigation department and developed the DAN Hazard Identification and Risk Assessment (HIRA) program. He is the former CEO of DAN Southern Africa.

Peter Meyer, a dive insurance specialist, has been a dive professional since 1975. He has owned and operated two full-service retail dive facilities and a liveaboard vessel. After selling his dive businesses, he got involved with the insurance business, specializing in insurance for the dive industry. Meyer developed the first standalone insurance program for the National Association of Underwater Instructors (NAUI) in 1988 and has since developed products for Scuba Diving International (SDI), Technical Diving International (TDI), Emergency Response Diving International (ERDI), National Academy of Scuba Educators (NASE), Rebreather Association of International Divers (RAID) and others.

Todd Yarbrough is a course director and owner/operator of Red Alert Diving in Panama City, Florida. He has trained and certified thousands of divers and dive professionals since 2002. He believes that all divers can safely achieve their diving goals with proper education and comprehensive training.

David Concannon, J.D., is a trial lawyer with more than 25 years of experience advising clients in all aspects of business and commercial litigation. His law firm, Concannon and Charles, represents a variety of national and international clients, including manufacturers, individuals, corporations, insurance carriers and nonprofit organizations in corporate and litigation matters.

© Alert Diver — Q1 Winter 2019