As we contemplate the Titan tragedy, our thoughts and prayers go out to the families and all involved and we offer our appreciation and thanks to the U.S. and Canadian Coast Guards and all entities involved in the search and rescue.

The very sad story of the submersible Titan submarine, which was lost for five days before rescue crews determined that the sub had imploded and killed all five people aboard, offers some lessons that will hopefully lead to greater safety at sea in the long run. Passengers who had embarked on the tour to view the wreckage of the Titanic signed a waiver acknowledging that they accepted the risks of the dangerous journey.

But the risks may have been much greater than they should have been. The Titan’s owner, OceanGate Inc., may have taken some actions that were not just negligent but grossly negligent. And when that happens, maritime law allows for the victims to recover even if they signed a waiver.

Understanding the Risks

The ocean is often referred to as the “last frontier” because so much of the depths are inaccessible and unexplored.  Even with modern technology, scientists have only mapped about 20% of the ocean floor. For comparison, consider that while 12 different astronauts have spent 300 man hours exploring the surface of the moon, the deepest point of the ocean, known as Challenger Deep, has only been explored by three people for little more than three hours.

The reason that scientists have mapped the moon and even Mars better than they have our own oceans is that the conditions under the sea are so harsh. As the depth increases, cold becomes extreme and visibility disappears. But the greatest danger comes from the intense pressure.

The wreckage of the Titanic sits about 12,500 feet below the surface, and the pressure at the site is almost 6,000 pounds per square inch. The deepest a human has ever dived successfully is just a little over 1,000 feet, and most scuba divers cannot handle pressure at depths greater than 130 feet.

While metal vessels can handle more pressure than the human body, it still takes very special equipment to survive at the depth of the Titanic wreckage.

The Wrong Attitude Toward Safety

Experts warned Stockton Rush, founder and CEO of OceanGate Inc., that the vessel he planned to use to take tourists down to the Titanic was not built to withstand the pressure. A former employee of OceanGate alleged that the submersible was built to handle pressure at a depth of only about 4,300 feet.

While submersible experts say they have the technology to build vessels capable of withstanding the pressure at much greater depths than the Titanic, and that they have been using them safely for years, that technology is expensive. Those safe designs did not fit the guidelines that OceanGate wanted to allow tourists and researchers a good view of the site.

The design they used for the Titan was not tested according to industry standards. Experts say OceanGate rushed the process and ignored the knowledge acquired over years in the industry. Stockton Rush had complained that existing guidelines stifled innovation. “At some point,” he argued, “safety is just pure waste.” He gave the opinion that risk is necessary, and that we always need to balance risk with reward. “I think I can do this just as safely by breaking the rules,” he concluded.

He did not live to regret those words, because he was on the Titan when it imploded. However, his company may be held to pay for this attitude toward risk.

Passengers Signed a Waiver

The passengers who embarked to see the Titanic wreckage signed waivers acknowledging that the vessel was experimental, that the vessel had not been approved, and that the expedition could result in injury or death. The issue will be whether the first qualification for a waiver to be legally valid of spelling out the risks/harms and what one is giving up legally was properly met with the Titan waiver. The waiver must also not be inconsistent with public policy, and it must be signed voluntarily. If lawsuites are filed, it will be up to the Courts to determine whether the waiver is enforceableand written in an air-tight fashion.

However, the passengers were only signing away their right to sue for ordinary negligence. If OceanGate’s actions were considered to be gross negligence, then the passengers—or in this case, their family members—could recover damages from the company under maritime law. It is too early to tell whether that will be the case, but there are several factors that could be used to demonstrate gross negligence. There were indications that the weather was not safe for the expedition and the issue may arise of whether the TITAN should have never gone of the voyage with the weather conditions and was warned against it. If systems on the TITAN failed prior and nothing was done to repair, replace or develop alternative communication or safety systems, that could be considered grossly negligent. Evidence could show demonstrate gross negligence if  they knew the construction could not stand repeated trips without replacement and no replacement, repair or further testing of the TITAN was done.

Lawsuits may also be brought against third parties that performed work on the TITAN or provided equipment and parts for the vessel.

It comes down to a factual determination in this case as in other cases of alleged negligence at sea. In fact, the legal team at Latti & Anderson uses a type of submersible vessel to investigate wreckage when we are working on claims for the victims or families of victims of shipwrecks so we can determine and prove the cause of the wreck.

It Comes Down to Safety

Whether a vessel is carrying tourists under the sea or fisherman working on the surface, the owner has a responsibility to provide safe equipment and to operate that equipment in accordance with safety guidelines. Was Titan safe to take on this expedition? We won’t know until after the investigation, but it can be difficult to prove safety in the face of catastrophe.

When owners violate safety rules and the violation leads to injury, the team at Latti & Anderson is dedicated to assuring the best possible recovery for victims and their families. If you have case you’d like us to evaluate, just schedule a confidential consultation.