The messy legal fight that could follow the deaths of the Titan passengers.
OceanGate, the owner and operator of the hired submersible that has been missing since Sunday, announced Thursday afternoon that the five passengers aboard had died, shortly after officials reported that they had identified a debris field near the Titanic.
“We now believe that our CEO Stockton Rush, Shahzada Dawood and his son Suleman Dawood, Hamish Harding, and Paul-Henri Nargeolet, have sadly been lost,” the company said in a statement. “Our hearts are with these five souls and every member of their families during this tragic time. We grieve the loss of life and joy they brought to everyone they knew.”
The US Coast Guard said in a press conference Thursday that the pressure chamber in the submersible had failed, causing the craft to implode, and that their deaths were immediate.
A coalition of international authorities, including the US and Canadian coast guards and navies, have contributed to the multi-day search effort. Their efforts to recover the submersible may halt now that it seems that human life is no longer at stake, though it’s possible private efforts to do so could continue.
“The recovery of any remains is going to be dictated by just the sheer risk to human life and to property,” said Matt Shaffer, a maritime injury lawyer who has represented victims of several major maritime disasters, including the 2010 Deepwater Horizon explosion. “If it’s just going to be so dangerous that it’s going to put so many more people and equipment at risk, they probably won’t do it.”
The Coast Guard indicated Thursday that the search for the debris of the submersible will be difficult given the unforgiving environment on the seafloor and made no commitment to its recovery.
For the victims’ families, the fight may not end there. Shaffer says that the families could sue OceanGate, as well as others involved in the construction of the lost craft — and the financial damages could be huge given that Harding and Dawood were billionaires. Here’s how Shaffer projects a legal fight could go.
This conversation has been edited for length and clarity.
Do you think it’s possible that the submersible company could face some legal consequences here?
I think there’s no question that the owners and operators of the vessel are liable to the survivors. This company is an American-based company. … It’s under the jurisdiction of the maritime law of the United States. And it’s under the jurisdiction of the Death on the High Seas Act, which provides for remedies when there is death of either crew or passengers on navigable waterways.
There are also potential causes of action against the component manufacturers to the extent it can be proven that they played a part in the failure of this vessel. Any designers, any outside manufacturers, or people that did work on this vessel — they could potentially be liable.
At this point, we’re talking about civil liability — monetary damages — not criminal negligence of any sort, right?
Right. I’ve represented family and crew on the Deepwater Horizon, the El Faro [a cargo ship that sank in 2015], and in almost every big maritime disaster in the last few years, it’s civil liability.
In this case, you’re going to have a big fight over the waiver of liability, which I would assume was signed by anybody getting on this boat. I’m sure it’s a pretty extensive waiver liability … that spells any potential occurrence, including death or serious injury. And it’s going to be up to a court somewhere in this country to determine if the waiver is a valid waiver.
And what would make it a potentially invalid waiver?
Waivers of liability that are signed before an incident happens are not generally favored by courts. And the courts will look at several factors in making that determination.
It depends on what [court the case is in]. For example, Florida does uphold waivers in recreational scuba diving cases. Those are very hard to get around. Colorado also does uphold waivers in skiing cases.
So what a court will look at is that this was an ultra-hazardous activity. [Some of these passengers] are sophisticated, well-traveled, well-seasoned explorers and have done other types of ultra-hazardous activities. They certainly knew what they were doing was dangerous, with the possibility of death or illness or injury. So those are all things that would bode for a court upholding a waiver.
On the other hand, if there was information that was withheld from these passengers about the defects in this boat, then that may serve as enough to make a court invalidate the waiver. Apparently, this company knew from previous litigation, from employees making complaints, that there were significant issues with the hull of this vessel and the equipment. So that’s going to be the number one issue to be litigated.
What might be the scale of the potential civil liability here — what might be the damages sought here, in broad strokes?
I can’t give you a dollar amount. But generally speaking, [families] could recover the value of the support that would be generated from the deceased over his lifetime. If your husband was in that vessel and he made a million dollars a year and he was likely going to work for another 30 to 40 years, that’s obviously a big number. The claimant can be the spouse of the decedent or a minor child.
You can also recover for the value of the conscious pain and suffering sustained by the decedent prior to his death.
How would you compare this case and the underwater oil spill caused by Deepwater Horizon?
Just like in Deepwater Horizon, there were apparently numerous warnings in this instance that the vessel was not capable of performing its mission safely. They had other runs that had to be abandoned because of problems. And there were whistleblowers talking about the lack of equipment or the insufficiency of equipment — especially in the hull and the window not being of sufficient strength.
So there were warning signs, and in Deepwater Horizon, there were also warning signs. People warned that they were rushing the production, that they didn’t have the well shored up properly, and if they had just stopped to take a breath, it would have never happened.
