OceanGate
Is OG insured?
Unclassified vessel so likely not. If you were a public liability insurer would you insure a home made deep water submersible?
Does OG have any assets worth suing?
Estimated operating revenue of USD10m per annum and 45 staff, having just had to mount a desperate deep sea rescue probably not
Would the disclaimer work?
Governed by Bahamas law, for which the ultimate court of appeal is the Privy Counsel[1] which must apply Bahamian law, but as a common law jurisdiction assume it will be broadly along the same lines as English law for things like general contractual liability.
What does disclaimer do?
Inherent risks
Catalogues all kinds of “inherent” risks which may arise as a result of expedition. Includes those of experimental, in approved vehicle.
Negligence of Released Parties
The Release purports explicitly to exclude the negligence of Released Persons:
“I hereby assume full responsibility for the risk of bodily injury, disability, death, and property damage due to the negligence of any Released Party while involved in the operation.”
Under English Law you cannot exclude liability for death or personal injury caused by negligence. This is set out plainly in Section 2(1) of the Unfair Contract Terms Act 1977: “A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.”[2]
But was there negligence? Good luck figuring that out. Most likely an omission rather than a commission — failing to check the hull integrity, not noticing stress fractures and so on.
Puts into perspective our banking disclaimer, though, doesn’t it.