Introduction

The case of Debbie Warner v Scapa Flow Charters ([2021] ScotCS CSOH_92) adjudicated by the Scottish Court of Session on September 3, 2021, delves into the liabilities of a dive support boat operator following a tragic incident resulting in the death of Mr. Lex Warner. The dispute centers around Mr. Warner's fall from the vessel MV Jean Elaine, operated by Scapa Flow Charters, while preparing for a technical dive—a specialized form of recreational diving involving complex equipment and significant depths. This commentary examines the court's reasoning, the legal principles applied, and the broader implications for maritime and diving safety standards.

Summary of the Judgment

Mr. Lex Warner, engaged in a technical dive operation aboard the MV Jean Elaine, fell onto the deck while donned in heavy diving gear, including fins. Despite sustaining internal injuries from the fall, he elected to proceed with the dive. During the ascent from a depth of approximately 88 meters, Mr. Warner attempted a rapid ascent, struggled with breathing apparatus, and subsequently drowned. His widow, Debbie Warner, filed a damages claim against Scapa Flow Charters, alleging negligence leading to Mr. Warner's death.

The court held Scapa Flow Charters liable under Article 3(1) of the Convention Relating to the Carriage of Passengers and their Luggage by Sea 1974 (Athens Convention). The judgment emphasized the skipper's duty to conduct a suitable and sufficient risk assessment, highlighting the inherent risks associated with technical diving operations on deck. The lack of adequate safety measures, particularly concerning the handling of fins and the provision of handrails, constituted negligence. Consequently, the court awarded £290,000 in damages to the pursuer.

Analysis

Precedents Cited

The judgment references several key precedents to elucidate the obligations of maritime operators under both domestic law and international conventions. Notably:

• Kennedy v Cordia (Services) LLP [2016] UKSC 6: Emphasizing that risk assessments must identify and mitigate foreseeable risks.
• Threlfall v Kingston-upon-Hull City Council [2010] EWCA Civ 1147: Highlighting employers' duties to proactively consider health and safety risks.
• Allison v London Underground Ltd [2008] EWCA Civ 71: Affirming that employers are presumed to know risks through proper assessments.
• Phee v Gordon [2013] CSIH 18: Underlining the need for a reasonable balance between risk and precaution in duty of care cases.

These cases collectively establish that maritime operators must conduct thorough risk assessments, anticipate potential hazards, and implement reasonable measures to mitigate identified risks.

Legal Reasoning

The court's legal reasoning focused on the duty of care owed by the skipper, Mr. Cuthbertson, to the passengers, in this case, the divers. The key points include:

• Duty to Conduct Risk Assessments: Under Regulation 7 of the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997, the skipper is obligated to perform suitable and sufficient risk assessments covering both employees and passengers.
• Foreseeability of Risk: The inherent risks associated with walking on a moving deck in heavy diving equipment and fins were well-recognized, necessitating proactive safety measures.
• Failure to Mitigate Risks: The defendants failed to implement adequate safety protocols, such as enforcing the use of handrails or providing assistance with fin placement, which could have prevented the fall.
• Causation: The court established that the fall, resulting from negligence in risk assessment and mitigation, directly led to the fatal injuries sustained by Mr. Warner.

The court rejected the defense's argument that standard industry practices and the lack of similar past incidents absolved them of liability. It was determined that reliance on "common sense" without formal risk assessment measures was insufficient to uphold safety standards.

Impact

This judgment sets a significant precedent for maritime operators, particularly those involved in specialized recreational activities such as technical diving. Key impacts include:

• Enhanced Safety Protocols: Operators must adopt comprehensive risk assessments and implement robust safety measures tailored to the specific activities conducted onboard.
• Legal Accountability: There is increased legal accountability for operators to anticipate and mitigate risks, even in activities conducted by experienced participants.
• Industry Standards: The decision may prompt a reevaluation of industry standards and best practices, leading to stricter regulations and enforcement to prevent similar tragedies.

Moreover, the judgment underscores the necessity for continuous improvement in safety culture, moving beyond minimal compliance to proactive risk management.

Complex Concepts Simplified

Several legal and technical terms within the judgment may require clarification:

• Athens Convention: An international treaty governing the carriage of passengers by sea, outlining liability and safety obligations of carriers and operators.
• Risk Assessment: A systematic process of identifying, evaluating, and mitigating potential hazards to ensure safety.
• Technical Diving: A form of recreational diving that involves deeper and longer dives using specialized equipment, increasing the associated risks.
• Heave, Surge, Sway: Types of boat movements; heave refers to up and down motion, surge to forward and backward movement, and sway to side-to-side motion.
• Reasonably Practicable: A standard in law implying that the cost and effort of safety measures should be weighed against the level of risk involved.

Understanding these terms is essential to grasp the court's obligations and the extent of negligence attributed to the defendants.

Conclusion

The Warner v Scapa Flow Charters judgment reinforces the paramount importance of thorough risk assessments and proactive safety measures in maritime operations. By holding the dive boat operator liable for negligence, the court delineated clear obligations for maritime operators to safeguard their passengers, especially in high-risk environments such as technical diving. This case serves as a cautionary tale, emphasizing that adherence to regulatory standards and the implementation of robust safety protocols are not merely procedural formalities but essential elements in preventing loss of life. Moving forward, maritime and recreational operators must prioritize comprehensive safety strategies, ensuring that all foreseeable risks are adequately managed to uphold the duty of care owed to their patrons.