Titanic submersible: Families of passengers may be able to sue even if victims signed waivers, experts say

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(NEW YORK) — Families of the passengers aboard the ill-fated submersible lost near the shipwrecked Titanic may be able to successfully sue deep-sea travel company OceanGate even if the victims signed liability waivers, legal experts told ABC News.

A remote-operated vehicle found several pieces of debris from the submersible, indicating the “catastrophic implosion” of the underwater craft and confirming the deaths of its five passengers, U.S. Coast Guard Rear Adm. John Mauger said at a press conference on Thursday.

The deceased passengers are believed to have signed liability waivers, since some riders aboard previous OceanGate trips have said that they signed such documents before their expeditions.

Mike Reiss, who took four previous trips led by OceanGate, told ABC News that he signed “a waiver that mentions death three times on the first page.”

“It is always in the back of your head that this is dangerous, and any small problem will turn into a major catastrophe,” he said.

In general, waivers protect companies because they lay out the possible risks posed by a given activity or service. A customer must attest to knowledge of such dangers before doing business with the company.

Still, the families of the victims might ultimately win a liability lawsuit against the company, since waivers face limitations, legal experts told ABC News.

“Generally speaking, when you have these liability waivers, you can waive liability for general things,” said Patrick Luff, founding partner of Luff Law Firm. “You generally can’t waive claims for gross negligence, extreme risk of harm, reckless disregard for safety.”

OceanGate did not immediately respond to ABC News’ request for comment.

“These men were true explorers who shared a distinct spirit of adventure, and a deep passion for exploring and protecting the world’s oceans,” the company said in a statement Thursday. “Our hearts are with these five souls and every member of their families during this tragic time.”

The key question is whether OceanGate acted with reckless disregard for safety when it launched Titan on the fatal mission, legal experts said.

“If the company took unnecessary risks and said, ‘We’re going to do it anyhow,"” Richard Daynard, a professor at Northeastern University School of Law who focuses in part on corporate liability, told ABC News. “That would be gross negligence.”

Understanding why the submersible imploded would be useful in any lawsuit alleging gross negligence but such a case could still be successful even if the wreckage is unrecoverable, Luff said.

“It’s not necessarily fatal to the case if you don’t have the wreckage because I think just the general attitude that the company appears to have had toward safety,” Luff added.

In litigation started by OceanGate, an ex-employee filed a counterclaim alleging he was wrongfully terminated for raising safety concerns, including that a viewing porthole was rated to a depth far less than necessary to reach the Titanic wreckage. The lawsuit, which was eventually settled out of court, also claimed that OceanGate did not adequately test the hull. The lawsuit was settled on confidential terms and OceanGate also asserted that the employee was not an engineer.

In 2018, meanwhile, more than 35 industry experts signed a letter addressed to OceanGate CEO Stockton Rush warning that the company’s decision to forego third-party assessment could result in a “catastrophic” outcome.

The letter, which was never approved to be sent to OceanGate, was leaked to Rush, William Kohnen, the chair of the committee of experts behind the letter, told ABC News. OceanGate heeded some of the comments made in the letter, Kohnen said.

In a blog post the following year, OceanGate offered an explanation for its resistance to third-party testing, saying such assessments were “anathema to rapid innovation.”

“When OceanGate was founded the goal was to pursue the highest reasonable level of innovation in the design and operation of manned submersibles,” the blog said. “By definition, innovation is outside of an already accepted system.”

Despite these apparent safety concerns raised with the company, plaintiffs could face difficulty mounting a liability lawsuit, since deep-sea travel carries significant inherent risks and OceanGate has a record of previously completed trips, said Daynard, of Northeastern University.

OceanGate has conducted over 14 expeditions and more than 200 dives across the Pacific, Atlantic and the Gulf of Mexico, according to the company’s website.

“This is something that’s rather equivalent to extreme sports,” Daynard said. “We’re talking about people who understand that they’re doing something that has an element of danger.”

Even if plaintiffs prove a liability claim, there may be little compensation the families can collect from OceanGate, Luff said.

“There’s unlikely to be any sort of liquid assets in the company itself,” Luff said. “I expect there’s very little insurance coverage, if any.”

David Weil, a managing attorney at Seal Beach, California-based Weil & Associates who specializes in maritime law, said the case will “absolutely” reach litigation, regardless of OceanGate’s capacity to provide compensation if found liable.

“It’s worldwide news,” Weil told ABC News. “The families are going to want something done in a hurry.”

Any legal challenge over liability waivers hinges on whether they protect a defendant after a specific event, he said.

“They are enforceable,” he added. “But they’re not automatically enforceable.”

ABC News’ Gio Benitez, Sam Sweeney, Emily Shapiro and Peter Charalambous contributed reporting.

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