Saturday, April 11, 2009

A couple of dives in Japan and the potential legal implications of diving with computers

Yesterday was a fine day in Wakayama prefecture in Japan, and a day that I enjoyed visiting the other 70% of the planet, the sea. I went to Kushimoto from Nagoya to have a couple of dives with the very nice and friendly people of Coral Queen. The day started with a dive in Soushima 2 where, following the plan, we first went down to the first plateau at 12 metres, then to the second step at 21 to finally reach the bottom at 30 metres of depth. The visibility was fine and the temperature was at a bearable 18 degrees (Celsius). Once in the bottom a Moray Eel greeted us with some menacing behaviour and we keep swimming among some Narrow banded batfish, balloon porcupine fish, surgeon fish, different types of tangs and a very long list of species that would take several paragraphs to write down here, for the rest of the around 35 minutes, when we went up to 5 metres for a 5 minutes safety stop. The first dive was nice, relaxed and pleasant. We went back to the harbour and to the coast for lunch and after a short nap under the sun we went back to the sea for a second dive. That time it was at Sumisaki and it was going to be a shallower dive.

We start going down following the anchor’s rope and when we reached 20 metres, almost at the bottom, we were welcomed by a magnificent red lion fish: probably the view of one of those justifies taking up scuba diving. The rest of the dive was as eventful and abundant of beautiful marine life as the beginning of it: to the left of the anchor there was this big pool of stripeys, which we swam past only to be greeted by a group of Moorish idols. We kept going around the reef to meet a big group of Stripped eel catfish, some Cherry bass, many types of butterflyfish, Emperor angelfish, the occasional Redlipped Morwong, loads of Heavenly damselfish, few Scarbreast Tuskfish and many many more, without forgetting the Anemone fishes trying to hide within a gigantic anemone.

One would think that being several metres under the sea people are supposed and allowed to forget everything, especially lawyers and the law, but unfortunately the phrase “only two things are certain in life, death and taxes” is not quite correct; it should be that one is only certain about death and law (technically one has to pay taxes because the law says so) and being underwater is not the exception. Following standard procedure, as described, the first dive was deeper than the second, but how deep really was could present some issues. In the first dive the bottom was supposed to be at 30 metres but my diving computer said that I was at 30.9 metres, which may imply some legal issues that many could overlook. One you are taking your first scuba diving course (in the PADI system that course allows you to go down to 18 metres), you are told that you are qualified for the specified depth but that it depends on you because there is no police under water, but, is that true? Or putting it in its correct terms, is that still true? Hasn’t the use of computers introduced new elements were the depth for which you are qualified is liable of being monitored and, thus, enforceable? Since I am writing this on my way back from Kushimoto and not from a recompression chamber, it has not occurred, but lets imagine that I had a diving accident during my first dive, will my situation be different due to using a diving computer?

Dive accidents are very uncommon but when occur they are very dangerous, many times requiring expensive treatment in a recompression chamber. Furthermore, if you are diving far from a chamber you may need to be transported in a low-flying helicopter (for the full explanation you will have to wait until I finish the full paper, but trust me that after diving you cannot take planes or go to heights), which would substantially add to the expense. Accordingly, it is wise (in some places compulsory) to dive with proper insurance, which would cover the expenses in case of an accident if you are diving within what you are authorized to do…and there is where computers enter into the game.

Until the introduction of diving computers there was no real way to tell how deep you had dived, since the gauges showed (they still show) the depth you were at given time and changed automatically whenever you went up or down (there is a gauge that shows the deepest point, but is very easy to reset making it non-permanent). However, diving computers, even the most basics, tell you the deepest point you have reached and the more advanced ones tell a very precise story of the depth you were in each point of the dive. So, if we imagine a diving insurance that covers you only up to the depth you are certified to dive, today my insurance could try to argue that I haven’t been covered in my first dive because my certification allows me to dive up to 30 metres (which is very deep anyway).

One of the problems with that is that, regardless how modern a diving computer is (mine is very modern) they are not precise to the extreme (the computer of Shingo, who was diving with me, said that we went down to 30 metres only), which would create a problem of reliability and, if the expense is really onerous, potential litigation over which computer is the one to follow. Furthermore, although we are talking about civil liability and the standard of proof would be as a matter of probability, it could be argued that in the case of an accident the computer could not be used as reliable evidence unless it is secured in the moment that the victim-diver is brought to the surface or rescued from the surface, which is very unlikely to happen.

In the case of not using one of the new more sophisticated computers other problem arise. Sometimes exceeding the depth for which one is certified could be the consequence of the accident or the accident itself, like when one is caught in a strong downward current from which cannot escape. Although in theory one would be able to compensate the problems that such situation may cause, the lack of remaining air may result in having to surface without taking those corrective measures, which would imply an urgent need of the expensive treatment described before. With one of the more modern computer, using the feature that shows the dive moment by moment, a diver would be able to show that it was a current or something else what pushed him or her to the unauthorized depths, but one of the more basic computers would only show the maxim depth, which could be used by the insurance to deny the claim.

Another hypothetical situation may arise if the diver surfaces too quickly and without making a safety stop. In a no-computer dive the only thing that we would know is that we have a diver victim of some form of, for example, decompression illness, and all the procedures will be follow to ensure his/her recovery, which normally would be covered by the relevant insurance, but if the same diver is using a computer the computer log would show the rate of ascent, which could imply negligence by the diver, making a potential claim more difficult to make.

The situations are not as straightforward as presented and the legal answer would depend on the law of different jurisdiction and the terms of particular insurances and the fact is that using computers for scuba diving makes the dives safer, more enjoyable and predictable, but the above simple (and oversimplified) examples represent yet another instance where the lack of adaptation of the law to a novel situation generated by computers could create uncertainty and hamper the adoption of a useful technology.


Venetian Ball Masks said...

Seems like there are always things standing in the way of allowing technology to move forward, the only times that are an exception to this are unfortunately, times of war.


Tony Mann said...

I'm not much of a diver (or swimmer for that matter) but I thought it was interesting that as time goes on, there seem to be more and more ways for lawyer to spoil people's fun.