Recently in Florida Scuba Diving & Snorkeling Injury Category

October 10, 2016

Key West Diver Run Over by Charter Fishing Boat

A diver was severally injured when a charter fishing boat ran him over. The incident occurred off the White Street Fishing Pier in Key West last Saturday, October 8th. Witnesses stated that the injured diver, along with another man, were displaying the legally mandated divers-down flags when the charter boat struck him at a high rate of speed. It appears that a propeller from the boat nearly severed diver's left foot. The captain of the fishing boat retrieved the injured diver from the water and reported the incident to law enforcement. The captain was directed to return to shore where Key West Fire Rescue responded. The injured diver was taken to an area hospital. There have been no reports on the victim's condition at the time of this post.

Florida's Fish & Wildlife Conservation Commission and the Monroe County Sheriff's Office investigate such incidents. Florida law requires all divers without boats display a red divers-down symbol with a horizontal white strip that is a minimum of 12 inches by 12 inches which could take the form of a flag of buoy. Florida law also requires boat operators make a reasonable effort to maintain a distance of 300 feet of a divers-down flag or buoy on open waters.

In the civil law context, a boat operator who violates a safety statute, like Florida's diver statutes, is presumed at fault and liable for the victim's damages. The boat operator can only rebut this presumption by showing that the safety statute violation could not have been a cause of the accident. It is not likely that the boat operator can overcome this presumption as if a distance of 300 feet was maintained, the diver would not have been run over.

Below is a video report by The Blue Paper.

September 2, 2016

Federal Court Hears Shark Bite Negligence Claim Under Its Admiralty Jurisdiction

Shark-Bite-Lawsuit.jpgA Federal trial court has found Admiralty jurisdiction existed over a negligence claim concerning a SCUBA diver bitten by a shark. The diver alleged in the complaint that the dive master took a group of divers aboard the dive boat Cetus Specula out into the Pacific Ocean for an out-of-cage shark diving expedition. At the site, the dive master chummed the water and then hand-fed the sharks dead fish. The diver claims that the dive master was intoxicated and directed her to an unsafe area. While feeding the shark the dive master held a dead fish which led a Mako shark directly towards the diver which prompted the shark to bite her.

The diver filed a lawsuit against the dive master, his company, the company he charted the dive boat from and the dive boat Cetus Specula in rem alleging that there was operational negligence of the dive expedition. The defendants moved to dismiss the lawsuit arguing that the Federal court lacked admiralty jurisdiction to hear the case. Federal courts are courts of limited jurisdiction meaning that if the lawsuit is a type that does not fall within the categories of claims authorized by the United States Constitution of Federal law, the Federal court must dismiss the claim. Both Article III, Section 2 of the United States Constitution and Federal law authorize Federal courts to hear admiralty claims.

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May 4, 2016

Florida Panhandle Diving Accident Leaves One Commercial Diver Dead

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A Florida panhandle diving accident leaves one commercial diver dead and one injured in an accident last month near Tyndall Air Force Base near Panama City, Florida. The accident occurred on April 7th, 2016, but very few details of the accident have emerged. Media report that four divers were operating out of an inflatable zodiac boat when the accident occurred around 2:00 in the afternoon causing the death of one diver and another diver to be hospitalized with injuries. The Coast Guard is investigating.

Commercial diving is a high risk career which involves all of the risks of recreational diving such as drowning, hypothermia, decompression sickness, air embolism, and equipment failure but commercial divers often face additional hazards of underwater construction zones which include power tools, welding, cutting and demolition. When accidents happen it can leave the diver with disabling injuries or, in the event of death, the diver's family may not only lose their source of support, but they may also be left with many unanswered questions about what caused the accident that took their loved one.

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May 3, 2016

Commercial Diving Accidents and Injuries

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Commercial divers injured during diving accidents may have legal rights to recovery under federal admiralty and maritime law. While a non-maritime legal expert may be familiar with state negligence or wrongful death law, a maritime attorney will best be able to determine whether maritime law applies. This could mean the difference between the amount of recovery for your injury, the time period in which you must file your injury or wrongful death claim, and even whether recovery is possible at all.

What to do if you are injured in a diving accident

It is important to know your rights and to know what benefits you may be entitled to if a diving injury or tragedy happens to you. The Board Certified Admiralty and Maritime Law Attorneys at Brais Brais Rusak represent diving accident victims and their loved ones with over 70 years of combined experience. Brais Brais Rusak have recovered for victims under maritime law through the Death on the High Seas Act, the Jones Act, failure of employers to provide maintenance and cure, and unseaworthiness among other maritime or state law based causes of action.

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February 24, 2015

Boater Negligence and Florida Dive Flag Law

Dive Flag Sign.jpgFlorida SCUBA divers and snorkelers face an all too common threat when engaging in their favorite aquatic activity. That threat is negligent boat operators. In most dive accident cases it is found that the boat operator failed to abide by and/or follow regulations that provide for boating restricted areas. Sadly, this failure to follow the law many times leads to injuries, and sometimes, death.

In 2013 alone, Florida's Fish and Wildlife Conservation Commission ("FWC") issued 506 citations for "Negligent Operation of a Vessel." When including data on all law enforcement agencies (not just the FWC), 642 uniform boating citations were issued for such a violation. The FWC's Boating Accidents Statistical Report outlines 5 categories that fall within the purview of such a citation: (1) reckless operation of a vessel; (2) careless operation of a vessel; (3) navigation rule violation resulting in an accident; (4) navigation rule violation not resulting in an accident; (5) failure to report an accident. Accordingly, one's negligent operation of a watercraft may overlap with other violations of safety ordinances.

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November 13, 2014

Run Over Haulover Snorkeler Brings Maritime Tort and Lien Against 43' Midnight Express Named The Golden Rule

Golden Rule Midnight Express.jpgThe Florida Admiralty and Maritime Board Certified attorneys of Brais Brais & Rusak filed a verified complaint in rem against a 43' Midnight Express go-fast boat for allegedly running over Marc Craddock while snorkeling more than 1 mile off Haulover Inlet. The all gold colored speed boat, aptly named The Golden Rule, equipped with five outboard engines is technically owed by FLC Marine LLC., a Florida limited liability company, whose managers are Adam Gordon and his father Michael Gordon.

Court documents state The Golden Rule was returning from the Bahamas on October 17th when it ran over Mr. Craddock causing life-threatening injuries. Mr. Craddock was airlifted to Ryder Trauma Center in Miami and underwent multiple emergency surgeries before being transferred to an Orlando hospital.

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October 23, 2014

Snorkeling Accident Near Haulover Inlet

Midnight Express Runs Over Snorkler .jpgJust last week, on October 17, a snorkeler was involved in a tragic accident when a speed boat struck him at the Haulover Inlet. According to Officer Jorge Pino of the Florida Fish & Wildlife Conservation Commission, the victim, who has not been identified, suffered "critical" injuries from being run over by a go fast boat. According to reports, the individual was snorkeling with a friend in the water when they saw a golden speed boat--equipped with five motors--heading towards them. Officer Pino added the snorkelers tried to make their way back into their boat when the victim was struck by one of the boat's multiple motor propellers. The victim was immediately taken to the Ryder Trauma Center at Jackson Memorial Hospital.

Officer Pino stated the FWC is now determining exactly how this run over incident happened. The speed boat's operator was interviewed at the scene and later taken to FWC's headquarters. The operator's father later appeared at the Haulover Marina with an attorney. The attorney gave a statement that the divers did not display the proper flags. This statement conflicts with the information gathered in the FWC's investigation.
The use of a diving flag and the location of said flag in relation to the parties involved will be material issues for a trier of fact in the event that a civil suit arises from this tragic event. Section 327.331(5) of the Florida Statutes states, "Divers must make reasonable efforts to stay within 300 feet of a divers-down flag or buoy on all waters other than rivers, inlets, and navigation channels. A person operating a vessel on waters other than a river, inlet, or navigation channel must make a reasonable effort to maintain a distance of at least 300 feet from any divers-down flag or buoy." No information or evidence has been released regarding the location of the victim or speed boat driver in respects to the diving flag.

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June 17, 2014

Florida Snorkeler Dies after being Run Over by Boat

Florida Snorkler Death.jpgA Florida snorkeler was run over and killed in Jupiter Inlet. Andrew Harris and Nicole Kapfer were snorkeling on June 8th when two motor boats entered the Jupiter Inlet. The lead boat was able to avoid the snorkelers. Unfortunately, the second boat did not. Both boats stopped to render assistance after the accident. Harris, a 27-year-old graduate of Florida State University, was air lifted to St. Mary's Medical Center where he later died from his injuries. Kapfer luckily only sustained minor injuries.

March 7, 2014

Passenger with Collapsed Lung Taken Off Disney Fantasy

Disney Cruise Collapsed Lung.jpgIt is being widely reported that a 21-year-old passenger was medically evacuated from the Disney Fantasy last Thursday after complaining of chest pains. It has been learned that the man had completed two scuba dives the day before. X-rays preformed aboard the cruise ship showed one of his lungs was 40% collapsed. Based upon this medical finding, the Coast Guard was notified and a helicopter crew was dispatched to take the ill passenger off the ship. The passenger was taken to Mariner's Hospital in Tavanier.

December 21, 2011

Brais & Brais Files Wrongful Death Case on Behalf of Widow Whose Husband Drowned Off Ft. Lauderdale, Florida

Ft. Lauderdale Drowning Attorneys.jpgBrais & Brais' attorneys have filed a wrongful death case in Ft. Lauderdale, Florida for the drowning of Leonardo Rosales. On October 20, 2010, Enrique Pitta of Oakland Park, Florida invited Mr. Rosales aboard his boat to go diving for lobster. The method of diving selected was not the traditional scuba tank, but, a Brownie's Third Lung Hookah System. The Hookah System supplies air to the diver from above the surface by a gas powered motor. Mr. Rosales was unfamiliar with the Hookah System and drowned leaving behind a wife and two small children.

The complaint alleges Pitta was negligent and responsible for Mr. Rosales' death due to his failure to:

  • Provide a reasonably safe dive plan;
  • Conduct the dive in a reasonably safe manner;
  • Properly maintain Brownie's Third Lung Hookah System;
  • Properly operate the Brownie's Third Lung Hookah System;
  • Properly warn the dangers associated with the "hookah" from of diving; and,
  • Make sure prior to the dive that he was qualified to participate in the dive.
The estate and family seek compensation for the wrongful death in the form of lost earnings, spousal/parental companionship, support, instruction, and guidance along with mental pain and suffering.

October 26, 2010

Sandals Resorts Cannot Force Scuba Diver it Abandoned in the Open Ocean to Litigate in Federal Court

Scuba Diving Injury Lawyer Attorney.jpgOn October 14, 2008, Sandals Resorts in Antigua abandoned multiple scuba divers in the open ocean for over 2 ½ hours when the resort's dive boat left the dive site. The amazing fact of this case is just 8 months prior, the exact situation occurred at the same resort. That time a British couple was abandoned in the water for 5 hours. Brais & Brais filed a claim on behalf of a diver in Miami, Florida state court against Sandals for negligence as well as the Miami, Florida based travel agency Unique Vacation who booked the vacation for its failure to warn of problems with the Sandals Antigua scuba diving operation.

After responding to the complaint, Sandals and Unique Vacations removed the case from state court to federal court. Federal court is typically more costly to plaintiffs than state court and, for this reason, favored by corporate defendants. Brais & Brais argued the statute which Sandals and Unique Vacations relied upon to remove the case does not apply when a corporation is headquartered in the state where the lawsuit was filed. Since Unique Vacations is a Florida company, Brais & Brais argued removal was improper and the case must be remanded back to the diver's chosen state court forum. The federal court agreed. The judge also found Sandals and Unique Vacations' removal lacked any objective reasonable basis as the case is clearly not removable given the statute's language and the fact Unique Vacation is a Florida corporation. Based upon this finding, and even though we took this case on a contingency basis, the Court found Sandals & Unique Vacations liable for reasonable attorney's fees for Brais & Brais' time associated with preparing the legal memoranda required for remanding the case. Click here to read the federal court's order.

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August 31, 2010

Boat Operator Guilty of Running Over Scuba Diver

images.jpgThe Associated Press reported that a Stuart, Florida Judge found a boat operator guilty of running over a scuba diver which severed the diver's legs. The Palm Beach Gardens scuba diver was struck by boat propellers while diving about 4 miles north of the St. Lucie Inlet in January 2009. The diver testified he tried to get the boat operator's attention by waving a spear gun above the surface, but no one acknowledged his signal. He then tried to swim out of the boat's way, but the propeller struck his tank and legs. Judge Kathleen Roberts found the boat operator violated navigational rules, and sentenced him to six months probation on a misdemeanor charge.

Divers are routinely run over in the crowded waters of South Florida. The cause for such accidents is often times boat operators' and/or the divers' ignorance of navigational and diving rules. Below we explain some of the more common navigable rules applicable to dive situations.

Common Navigational Rules Applicable to Diving Situations

Displaying a "Diver Down" Flag

First and foremost, divers are required to display a "diver down" flag when in the water. When diving in state waters, the diver need only display the well known red flag with a diagonal white strip. Florida law states the minimum size for any diver down flag displayed on a buoy or float towed by the diver is 12 inches by 12 inches. The minimum size for any diver down flag displayed from a vessel or structure is 20 inches by 24 inches. If the diver down flag is displayed from a vessel, it must be displayed from the highest point or such other location which provides that the visibility of the flag is not obstructed in any direction. The diver down flag must be lowered once all divers are aboard or ashore. Furthermore, no person may operate a vessel displaying a diver down flag unless the vessel has one or more divers in the water.

When the vessel is not under command, Federal law requires an Alpha flag not less than 1 meter in height be displayed. Federal law also requires measures be taken to ensure the Alpha flag can be visible without obstruction.

Staying Near the "Diver Down" Flag

Florida Law also requires divers to make reasonable efforts to stay within 100 feet of the diver down flag while diving in rivers, inlets and navigation channels and 300 feet of the diver down flag in all waters other than rivers, inlets and navigation channels.

Maintaining a Safe Speed Near a Dive Flag

Florida law imposes upon boat operators on waters other than rivers, inlets or navigation channels to make reasonable efforts to maintain a distance of at least 300 feet from a diver down flag. Any vessel other than law enforcement or rescue vessels that approaches within 100 feet of a diver down flag on a river, inlet, or navigation channel, or within 300 feet of a diver down flag on waters other than a river, inlet, or navigation channel, must proceed no faster than is necessary to maintain headway and steerageway.

Keeping a Lookout

Federal law requires every vessel at all times to maintain a proper lookout by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.

Liability for Failing to Follow Navigable Rules

As we saw with the above case, there are criminal implications for failing to follow navigational rules. There are also civil ramifications. As these navigational rules are designed for safety, violation of them provide the injury party with the rebuttable presumption that the violation caused the injured. To overcome this presumption, the boat operator must not only prove that the violation did not cause the accident, but could not have caused the accident--something very hard to do.

Potential Damages

Divers injured due to boat operators' violation of navigational rules are entitled to fair and adequate compensation for damages experienced in the past and to be likely experienced in the future. Such damages include:

  • Any bodily injury resulting in pain and suffering, disability or physical impairment, disfigurement, mental anguish, inconvenience, the loss of capacity for the enjoyment of life;
  • The expense of hospitalization, medical and nursing care and treatment; and,
  • Any earnings for work time lost.