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Who could

have possibly foreseen something going wrong with the Titan sub? Well, the lawyers, that's who. But will all of this legal paperwork save Ocean Gate the company from ruinous lawsuits? And will the estate of the victims be able to recover anything? Well, before the Ocean Gate disaster, CEO Stockton Rush was bullish on the submersible that

he built to visit the Titanic. He scoffed at the complex navigation systems used by other commercial subs.

We only have 1 button, that's it. And this is to other submersibles what the iPhone was to the Blackbird.

Rush was proud that he patched together off-the-shelf items from Camping World and charged people $250, 000 a piece to travel 2 miles under the sea.

By taking off the shelf parts and sort of MacGyvering them together.

Yeah, pretty much.

Does that not raise anybody's eyebrows in the industry? Oh yeah, Oh yeah, yeah, no, I am definitely an outlier.

And despite some obvious red flags, 5 people were willing to accept extraordinary risks in order to see the Titanic's ruins. And they've now joined the exclusive club that they were so fascinated with.

And there's no question that they knew that this was dangerous.

They signed liability waivers that warned them that the trip could expose them to death. Now, as many people assumed, everyone who paid to take the voyage signed a waiver of liability with a choice of law clause. The Ocean Gate waiver that the passengers were required to sign says the disputes would be governed by the laws of the Bahamas. Quote, any disputes related to or arising from either the operation or this release shall be governed by the laws of the Bahamas. Any disputes related to or arising from either the operation or this release shall be governed by the laws of the Bahamas.

Now, the Bahamas judicial system is based on English common law, and whether families can sue depends on how the country handles liability waivers. The language of the waiver makes it clear that the participants are engaged in activity that could lead to death. Quote, this vessel will be subject to extreme pressure and any failure of the vessel while I am on board could cause severe injury or death. It discloses that the Titan, quote, has not been approved or certified by any regulatory body and may be constructed in materials that have not been widely used in human-occupied submersibles.

The waiver says that support vehicles

are also not designed for passengers and could become more dangerous in rough seas. And the waiver says that these risks cannot be eliminated. Quote, I understand that such risks simply cannot be eliminated from any operation. The risks include without limitation, loss of footing, slips and falls on deck, particularly in inclement weather, harm from falling objects on non-passenger vessels, drowning and malfunction or failure of the submersible leading to death or serious injury. And the participants had to acknowledge the statement as a condition of going on the trip.

Quote, in signing this document, I acknowledge that if I die, am hurt, or incur property damage during my participation in the expedition, I may be found by a court of law to have waived my right to maintain a lawsuit. Now, in the US, liability waivers only cover ordinary negligence. If a company's act constitutes gross negligence or intentional harm, the liability waiver just simply doesn't apply. And here, ordinary negligence encompasses mistakes due to inattention or general incompetence, just as simply to maintain industry standards. In contrast, gross negligence occurs when someone purposefully fails to use reasonable care to ensure someone's safety.

For there to be

gross negligence, you need to show that the defendant was more than careless, that they were reckless and engaged in behavior that might even appear to be deliberate. Now, the hallmark of gross negligence is that the defendant showed a total lack of care and disregard for the safety of others. And here, that is definitely a distinct possibility. We'll talk about this in detail later, but Here, deep sea exploration specialist, Rob McCollum, told Rush in writing before the disaster that he sounded just like the makers of the Titanic. Quote, in your race to the Titanic, you are mirroring that famous catch cry, she is unsinkable.

Rush emailed him back saying, quote, we have heard the baseless cries of, you are going to kill someone way too often. I take this as a serious personal insult." But McCollum wrote back to Rush again in March of 2018, saying, quote, I think you are potentially placing yourself and your clients in a dangerous dynamic. Who knew how right he was going to be. So clearly at least 1 person thought that Rush had a complete disregard for the safety of other people, though that was an opinion that was shared by David Lockridge, a former employee of Oceangate and the members of the Marine Technology Society. And when considering whether there was gross negligence, a court considers whether

a rational person in the

same situation would have known that there was foreseeable harm. And witnesses say that in the years after Lockridge and McCollum issued their warnings, the Titan showed signs of shoddy design. The Titan was severely damaged after it was struck by lightning in 2018. Rush said that

the lightning strike damaged 70% of

its internal systems, forcing the company to delay a planned voyage to the Titanic. And that's really just the tip of the iceberg. Lightning can do weird things. That pushed our testing back, and we ended up having to cancel that. It was back in 2018.

Sub-expert Carl Stanley took a

trip on board the Titan in 2019 and reported hearing cracking sounds in the hull. And after the trip, Stanley emailed Rush with his concerns that

the carbon fiber hull might not be able

to withstand the deep dives.

In fact, he wrote that during his trip, it quote, sounded like

a flaw defect in 1 area being acted on by the tremendous pressures and being crushed slash damaged. In 2020, the hull had to be rebuilt because of the cyclic fatigue that reduced its death rating to just 3000 meters, which was well short of what was needed to get to the Titanic. And both Lockridge and McCollum thought that the window was a major mistake because it would be exposed to around 6, 000 pounds per square inch of water pressure, which is the equivalent of about 2 tons of water at that depth. However, in the summer of 2021, Rush told YouTuber Alan Estrada that the window was made of plexiglass and that he was comfortable with that because it was, quote, 7 inches thick and weighs 80 pounds. And acrylic is great because before it

cracks or fails, it starts to crackle, so

you get a huge warning if it's going to fail. And I'll let my friend over at Real Engineering explain why this is bonkers.

An acoustic monitoring system like this is akin to setting up a camera to warn you thunder is coming. You will see the lightning before the thunder, but the time between them is minimal."

So if the window couldn't withstand the pressure and

the people in the sub could hear the window cracking, it's probably too late. The entire submersible was at risk of imploding before it could surface.

And several former passengers on the Titan said that they

thought it was completely unsafe. 1 passenger said that during the Titan's descent and ascent, a fluorescent glow stick was used instead of the lights to save energy. He compared the dives to riding in a quote, car that you drunkenly drove into the ocean, steered by a video game controller.

And former passenger Arthur Loible said that on his 2021 voyage, the bracket of

the stabilization tube, which is the thing that actually balances the sub, tore and was hastily reattached with zip ties. Simpsons writer Mike Reiss said that communication failures happened on all 3 of the dives that he went on in 2022. But the problems continued. Also in 2022, the Titan lost control and started spinning in circles at the bottom of the Atlantic when it was just 300 meters from the Titanic wreckage. And something happened to the thrusters that made the Titan unable to move forward or backward.

This harrowing moment was captured on a BBC documentary. Am I spinning? Yeah. Oh my God. And Scott is like, oh no, we have a problem.

I was thinking, we're not gonna make it. We can't go anywhere but going circles. YouTuber Jake Kohler took a trip on

the Titan just days before its doomed trip and he said that the communication system went down during a routine test dive. The trip was canceled due to weather, but Kohler felt like the vessel might have imploded if the dive had went ahead. 1 of the passengers who was killed in the Titan disaster was Paul-Henri Nargiolet, who was a Titanic expert. He had worked closely with the organization that manages the Titanic wreckage site. And Jessica Sanders, who heads the Titanic organization, said that she regretted giving Nardziole the green light to go on the expedition.

She said that Rush had told potential passengers that the Titan sub was, quote, way safer than flying in a helicopter, or even scuba diving, or even crossing the street. And note here that there's a big conflict between what the waiver said about the expedition being dangerous and deadly and what Rush was confidently telling potential passengers.

Gross negligence means that the person has fallen so

far below a reasonable standard of care that their actions are considered reckless or even deliberate. So it's legally acceptable to engage in hazardous activities, but that doesn't mean someone can't ignore obvious risks. So if Bahamian law upholds the liability waivers, it's likely the families will pursue litigation in their respective countries regardless of what the choice of law provision says.

But that doesn't mean that this would be an easy case

to bring because courts in many jurisdictions tend to uphold liability waivers if they are specific. And this 1 was very specific. As a general rule, clauses limiting liability are valid and enforceable under common law unless they violate public policy or the damage was the result of willful or wanton conduct on the part of the defendant. Some jurisdictions have statutory exceptions to this general principle. Generally, a pre-injury release will only be enforced if in clear and conspicuous language, it explicitly indicates the intent to release the provider from liability for injury caused by that party's own conduct or negligence.

Each jurisdiction applies different factors when assessing a public policy exception, but most of them focus on 2 things. If the terms of the waiver are clear and unambiguous, then a court first considers whether the party being released provides a necessity or other essential service, and second, whether the agreement is inherently fair and not unconscionable. Risky recreational activities like skydiving or scuba diving are generally not public necessities or essential services, So when it comes to the first factor, courts tend to favor the released parties. When it comes to the second factor, whether the waiver is inherently fair, courts weigh the respective bargaining powers of the parties. Did 1 party have more leverage than the other?

Was the injured party coerced into inherently risky behavior? Did the owner or operator withhold information from the passengers? Did the passengers understand how hazardous the trip would be? Usually liability waivers are presented to something you have to sign or else you can't participate in that activity. Some courts find this problematic because it's a take it or leave it proposition and the participant doesn't have the ability to negotiate.

But still, more courts conclude that if

a person voluntarily participates in an extreme activity, unequal bargaining power won't actually invalidate the waiver. So For example, courts have concluded that whitewater rafting and skydiving are both personal choices and not essential services, so there's no real bargaining advantage. A person can't really be compelled to participate in those particular activities, though there are courts that view it differently. The Oregon Supreme Court, for example, found that an unequivocal release signed by a plaintiff injured in a snowboarding accident violated public policy.

The snowboarder could have avoided all

the risks by not using the defendant's facility, but the court still concluded that

the owner of the resort was in

a superior bargaining position because the plaintiff had, quote, no meaningful alternative to defendants take it or leave it terms if he wanted to participate in downhill snowboarding. Though that is a minority position. Now, the thing about devastating injuries and catastrophic events is that they can happen at any time, often without warning. So if you or a loved 1 is seriously injured in a submarine accident or more likely a car accident or a medical malpractice accident or anything else, you

can call my law firm,

the Eagle Team. We can help.

A free consultation is just a phone call away and

the Link is in the description. Now back to the submarine shenanigans. Though in an interesting twist of fate, lawyer David Kincannon was scheduled to be on the Ocean Gate expedition, but he actually canceled because of a client matter. Kincannon is an experienced diver who had been to the Titanic before, and he is listed as an advisor to Oceangate. He also has an experience suing companies who are engaged in hazardous underwater operations, even when the plaintiff signed liability waivers.

And Concanon actually settled the case against a dive shop and the Professional Association of Diving Instructors, or PADI, despite the fact that the diver signed the liability waiver. And that shows us how Ocean Gate might be liable if the applicable law was similar to Montana's negligence law. When Linnea Mills died in a diving accident in Glacier Park in 2020, her family sued the dive shop, Gull Drive, and PADI for negligence, wrongful death, and infliction of emotional distress. Mills was 18 years old when she signed up for an advanced diving class. The class was supposed to cover situations like high altitude diving and cold water diving with a dry suit.

However, the instructors didn't have a permit for the dive, which took place at a national park after the park had closed. The dive shop instructors were certified by Patty, but did not have much experience in the diving situations that they were supposed to be teaching. And instructors pressed forward with the dive without doing a gear check. They gave Mills a dry suit without an inflator nose, and she also had a regulator unsuitable for cold water use.

A GoPro video of 1

of the other students showed Mills struggling with the pressure in her suit when she was 60 feet down, and the video revealed that Mills couldn't breathe and had too much weight on her to actually ascend. Mills was crushed by the pressure of the water. And this wasn't Gull Dive's first fatality. In 2019, Gull Dive rented scuba equipment to a person not certified to scuba dive, and the man immediately drowned upon entering the water. Gull Dive and Patty argued that the disclaimer form that Mills signed absolved them from liability.

However, a judge disagreed. Montana's law allowed waivers and releases to be enforceable except when there is gross negligence or defective equipment. Those things can't be waived because Montana's law, quote, does not preclude an action based on the negligence of the provider if the injury, death, or damage is not the result of an inherent risk of the sport or recreational opportunity. When the judge ruled that the case should go to trial, the defendant settled. But of course,

the Ocean Gate disaster didn't take place

in a lake in Montana, it took place in the middle of the Atlantic. And when a passenger or seat worker dies aboard a ship, family members can file a lawsuit under the provisions of the Death on the High Seas Act, known as DOSA. That act applies to cases involving vessels and aircraft that go beyond the 3 nautical mile limit off the coast of the United States and its territories. A plaintiff has a cause of action if the sea worker died due to an unseaworthy vessel or through other provable negligence on the part of the ship owner. The vessel in question must have been engaged in what could be recognized as a maritime activity.

And in addition to maritime employees, a DOSA also covers civilian passengers of a maritime vessel. To succeed in a DOSA claim, a plaintiff has to prove that the vessel wasn't seaworthy. And a plaintiff can prove a lack of seaworthiness if the vessel had significant mechanical defects or was otherwise incapable of handling the situation such vessels could reasonably be expected to encounter while at sea. A plaintiff can also prove unseaworthiness if the owner of the vessel behaved negligently in connection with their responsibilities as a ship owner. And here the facts suggest that Oceangate may have breached his duty to provide a seaworthy vessel for the crew and passengers.

When Rush was developing the Titan, he started with an existing vessel called the Cyclops 1 that was constructed with engineers at the University of Washington. The engineers used an off-brand PlayStation 3 controller to drive the sub. However, Cyclops 1 was only built to withstand depths of 500 meters. Nevertheless, Rush decided to keep most of the design elements of the Cyclops for the Titan, but engineer it to go 8 times deeper. When Rob McCollum visited the company's shop in Washington, he thought the PlayStation controller was ridiculous.

Quote, and now you have the hand controller talking to a wifi unit, which is talking to a black box, which is talking to the sub's thrusters. There were multiple points of failure. Rush said that

the whole comm system ran on Bluetooth, and Rush ignored all

the feedback. And in particular, he decided that the Titan's cylindrical midsection would be made of carbon fiber instead of titanium.

Carbon fiber is a great material. It's better than titanium, it's better than a lot of other materials. The Titan was completed in

2018,

but experts had concerns about whether the sub could withstand the rigors of deep sea exploration. My friend over at Real Engineering explained why carbon fibre was a problematic choice.

Carbon fibre composites aren't really known for their compressive strength. They work best in tension. Great for aeroplanes that are pressurized from the inside, where the pressure Inside the fuselage works to expand the circular cross section, putting the fibres in tension. For a submarine the pressure will work to compress the hull, placing the fibres primarily in compression. This immediately set off alarm bells in my mind when I heard of the missing submarine.

You should absolutely check out

the rest of Real Engineering's video on it. It's really incredible. But he explains that the carbon fiber is great for buoyancy and that Rush thought that this would help the sub float right to the surface, whereas steel and titanium hulls require foam layers. But Rush wanted to avoid the foam layers to cut costs.

This is where things get iffy. Oceangate had no idea whether it was up to the task or not. And we know this because they admit it in their own blog post, justifying their decision to not test

the vehicle with a regulatory body. Oceangate's former director of marine operations, David Lockridge, wrote a report in which he concluded that the craft needed more testing and stressed the potential dangers to passengers of the Titan as the Submersible reached extreme depths. Lockridge thought

that the carbon fiber hull would come apart after repeated dives. Lockridge met with Rush and other company executives and laid out his concerns. And he also claimed that the Titan had other significant design flaws.

For example, the viewport was only certified to

work in depths up to 1, 300 meters. And to reach the Titanic, the Titan would need to go 4, 000 meters under the ocean's surface. And there are private agencies that expect and certify submersibles, but Lockridge said that Oceangate didn't want to pay for independent certifications. The company fired Lockridge and then sued him for disclosing confidential information. Oceangate said that Lockridge was not an engineer and that the company's own testing of the hull's strength was better than the independent testing that Lockridge had recommended.

But Lockridge was not the only voice sounding an alarm about the Titan's design. Director James Cameron has designed submersibles himself and visited the Titanic many times. He said that the carbon fiber construction of the Titan was quote, fundamentally flawed, and that everyone in deep sea exploration knew about it.

You know, this is a mature art, and many people in the community were very concerned about this sub. And a number of the top players in the deep submergence engineering community even wrote letters to the company saying that what they were doing was too experimental to carry passengers and that needed to be certified and so on.

And a few months after Lockridge was fired, 38 members of

the Manned Underwater Vehicles Committee of the Marine Technology Society wrote Rush a letter stating that in their unanimous opinion, he was misleading the public and risking a catastrophic outcome. Quote, Your marketing material advertises that the Titan design will meet or exceed DNV GL safety standards, yet it does not appear that Oceangate has the intention of following DNV GL class rules. Your representations at

a minimum are misleading to the

public and breaches an industry wide professional code of conduct we all endeavor to uphold." Now, obviously this is an incredibly damning letter. Lawyers who file negligence lawsuits have to prove that the defendant didn't follow the ordinary standard of care, or worse, knowingly didn't follow a standard of care. And Usually that means hiring an expert witness in the field who can articulate the norms of an industry and evaluate whether the defendant's conduct met those norms. And in

this case, we have experts in

the field saying that the Titan didn't measure up to industry standards before the accident even occurred. And the Experts concluded that Rush needed to start with a prototype that would be validated by third parties in order to protect all of these submersible occupants. And in a 2019 blog post, Oceangate said, quote, "'Bringing an outside entity up to speed "'on every innovation before it's put into real-world "'testing is anathema to rapid innovation.'" And Rush told Smithsonian Magazine that the industry was quote, obscenely safe because they have all these regulations, but it also hasn't innovated or grown because they have all these regulations. So while on the face of it, this looks

like the kind of thing that would

be covered by the Death on the High Seas Act, it's actually more complicated than that. Because it's not perfectly clear that the Titan was a vessel for the purposes of the act. And ironically, Ocean Gate might be covered by the same exception to DOSA that White Star Line used to limit its exposure to the Titanic disaster itself. So, let's go back to 1912 when the Titanic sank off the coast of Newfoundland in its maiden voyage. The luxury steamship was owned by White Star Line, which bragged that it was virtually unsinkable.

Yet, as we all know, when the ship set sail, it swiftly ran into an iceberg, killing 1, 517 passengers. And it turned out that the ship had a design flaw. The wall separating the bulkheads extended only a few feet above the waterline, so water could pour in from 1 of the compartments into another. Surviving family members sought compensation from White Star Line, but the company had

a legal trick up its sleeve, the

Limitation Act of 1851, which was enacted to help prevent shipowners from going bankrupt. The law gives shipowners the right to preemptively file a claim in federal court before plaintiffs have a chance to sue them. The claim limits plaintiffs to the post-loss value of the vessel and its cargo. If the vessel and cargo were completely lost, the value of the vessel cannot be calculated in the owner's assets. In 1915, a judge found that White Star Line was not guilty and had no knowledge of the errors that led to the catastrophic loss.

And that meant that they didn't have

to compensate the families for the fatalities.

And since the accident was considered the fault of

the Titanic's captain and crew,

the company's liability was limited

to the total of passenger fares, the amount paid for cargo, and any salvaged materials that were recovered from the wreck. And the company settled for $664, 000 to be divided among the survivors. And the same Limitation Act exception might provide Oceangate with a way to avoid liability since the post-casualty value of the Titan is basically 0. But there's also another wrinkle to this law. In 2019, a dive boat carrying 33 passengers and 6 crew members caught fire and sank off the coast of California, resulting in the deaths of 34 people.

Days after the boat sank, its owners filed a limitation action seeking to limit their liability to the value of the vessel, which was effectively 0. In response, Congress enacted the Small Passenger Vessel Act, which carves out certain small passenger vessels from being able to limit their liability to the value of their vessel. This is an exception to the exception. And these smaller vessels can now be held liable for any and all losses arising from maritime casualty. And the act defines a small passenger vessel as 1 carrying not more than 49 passengers on an overnight domestic voyage and not more than 150 passengers on any voyage that is not an overnight domestic voyage.

The SPVA could apply to the Titan, but the law is new and has yet

to be tested in court. And there are other open questions, like whether a submersible is considered a vessel for the purposes of the SPVA, and whether American law would

even apply in the first place. Because there are lots of jurisdictional questions too.

The United States and Canada have launched investigations into what happened to

the Titan. However, it isn't clear which country would have jurisdiction over

the legal claims. Ocean Gate Expeditions, the company that owned and operated the Titan, is based in Everett, Washington. The company shut down its Everett operations after the accident, and the Titan was launched from a ship called the Polar Prince, which is flagged from Canada. The people on board the submersible were from England, Pakistan, France, and the United States. And of course, the wreck is in the middle of the Atlantic.

Now, the United States Coast Guard regulates passenger carrying submersibles, and submersibles with fewer than 6 passengers have not been subject to inspection, which is probably why Stockton Rush's sub carried only 5 people. US regulations state, "'Because of

the unique design and operating characteristics, as well as the inherent hazards of underwater operation, an uninspected submersible may be permitted in US passenger operations only if it is designed and constructed to a recognized industry standard. That means it's illegal to transport passengers in a sub that is experimental. Rush classified the passengers as mission specialists and classified their $250, 000 fee as a donation in order to evade the implication that they were just ticket buying passengers. But industry experts knew that Stockton was trying to evade these regulations. William Conan is 1 of the experts who signed a letter urging Stockton Rush to follow the rules.

What they were doing for tourism would not be allowed in US waters. The Coast Guard would not allow it. It would not be allowed to work in British coastal waters because it would have required it to be certified. Same thing in Canada. And then turns out that they operated in international waters where no Coast Guard has jurisdiction, well, you found 2 loopholes.

And let's just say it wasn't very wise.

And although the Titan was developed and built in Washington State, the New Yorker reported that the company's legal filing said that the sub would be, quote, owned by

a Bahamian entity, will be registered in the Bahamas, and will operate exclusively outside of the territorial waters of the United States.

And at this point, while we know that there will be lots of lawsuits, we don't know who's going to

have jurisdiction, the status of the insurance of the Titan or of the passengers. And we don't know whether the waiver that they signed will be enforceable or not. But 1 thing is for certain, Stockton Rush really should have brushed up on his math and science skills, which you can do with today's sponsor, Brilliant. Because Brilliant is the best way to learn math and computer science interactively. Brilliant is an online learning platform for STEM that replaces lecture videos with hands-on interactive lessons.

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