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
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.”
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, outside specific legislation, assume it will be broadly along the same lines as for English common law.
However in this case English law is and Bahamian law probably is governed by statute. The statutes are different.
Under Section 2(1)[2] of the Unfair Contract Terms Act 1977, under English Law you cannot exclude liability for death or personal injury caused by negligence:
“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.”
But Bahamas law has its own framework, which includes the Unfair Terms in Consumer Contracts Act of 2007,[3] which presumptively regards an exclusion of liability for death or personal injury in a standard form contract as unfair and therefore not binding on the consumer (being a natural person acting “for purposes which are outside his business”):
“Indicative and Illustrative List of Terms which may be Regarded as Unfair
1. Terms which have the object or effect of —
- (a) excluding or limiting the legal liability of a seller or supplier in the event of the death of a consumer or personal injury to the latter resulting from an act or omission of that seller or supplier; [...]
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.