An Austrian lawyer, Markus Groh, 49, was killed near the Bahamas after being attacked by a shark. The tourist boat, Shear Water, of Riviera Beach-based Scuba Adventures, routinely chums the water with fish blood and parts to attract sharks — then invites tourists to dive among them. It raises some interesting torts questions.
The company actively seeks serious divers who want to swim with the sharks, noting that it chums the water. The company’s website explains that in order to achieve “the best results we will be ‘chumming’ the water with fish and fish parts . . . Consequently, there will be food in the water at the same time as the divers. Please be aware that these are not ‘cage’ dives, they are open water experiences.”
Such warnings (and likely waivers) can be used in a defense of assumption. Assuption can be a defense to both negligence and strict liability charges. However, the intentional attraction of sharks raises questions of whether such waivers are made intelligently and knowingly. There is also the question of whether consent is negated on public policy grounds. It is true that “consent vitiates intent” in intentional tort and “the volunteer suffers no wrong” generally in torts. However, courts often refuse to accept assumption or consent claims on public policy grounds.
Moreover, there is the question of strict liability for wild animals. Usually, animals in the wild are not sufficiently under the dominion and controls of parties to trigger the common law rule that you are liable for any wild animals in your possession. However, this company is routinely attracting sharks with the use of chumming.
It seems likely that experts would not condone such chumming operations. No matter how experienced a diver may be, it seems blatantly negligent to excite sharks with fish blood and then drop tourists into a shark chum scrum. The same would apply to throwing carrion into lion dens for cat lovers to mingle.
The owner of the company Jim Abernethy was reportedly confronted by Neal Watson, president of the Bahamas Diving Association, who reportedly objected to the practice and “implored” Abernethy to stop the cageless dives, which not only chummed but allegedly selected dangerous shark species. For that story, click here
It will be interesting to see if there is a torts action in this case that will test the viability of assumption and waiver defenses in the face of alleged gross negligence.
For the full story, click here.