The recent accident involving a tourist sub that resulted in the death of all five individuals onboard has sparked concerns about the regulations surrounding deep-sea exploration. This realm on the open seas allows for entrepreneurs and wealthy tourists to bypass laws and conventions with their risk-taking ventures, funded by eager travelers.
Salvatore Mercogliano, a maritime history and policy expert and professor at Campbell University in North Carolina, draws a parallel between the current state of submersible operations in deep water and the early days of aviation in the 20th century. Just as aviation experienced accidents that led to the establishment of laws and regulations, there will come a time when boarding a submersible and diving 13,000 feet underwater will be routine. However, we have not reached that point yet.
The recent announcement by the U.S. Coast Guard regarding the implosion of the Titan near the Titanic shipwreck has drawn attention to the lack of scrutiny surrounding these expeditions. Unlike the rigorous oversight faced by space travel companies, operations like the Titan face fewer regulations due to their location in international waters, beyond the reach of national laws.
The Titan was not registered as a U.S. vessel nor with any international agencies responsible for safety regulations. Additionally, it did not adhere to the standards set by maritime industry groups in terms of hull construction.
OceanGate CEO Stockton Rush, who tragically died on the Titan, expressed his aversion to conforming to such standards. In a blog post on the company’s website, Rush stated that requiring outside entities to review every innovation before real-world testing impedes rapid progress.
The Titan was a small vessel launched from the Canadian icebreaker Polar Prince, which can be likened to pulling a boat on a trailer in terms of regulatory jurisdiction. While the highway patrol may have jurisdiction over the car and trailer, they do not have authority over the boat itself, which is considered cargo.
Experts anticipate wrongful death and negligence lawsuits arising from the Titan incident, with potential for success. However, these legal actions will face challenges, including waivers signed by passengers acknowledging the various risks and potential for fatality.
Challenges posed by waivers
Mike Reiss, a writer for “The Simpsons” television show who went on a Titanic expedition with OceanGate in 2022, recalled the content of his waiver, which outlined the exposure to extreme pressure, injury, disability, and death. If injured, immediate medical attention may not be available.
Thomas Schoenbaum, a law professor at the University of Washington, suggests that if these waivers are well-drafted, they may hold up in court, potentially preventing families from recovering damages.
However, OceanGate could still face legal consequences under the Passenger Vessel Safety Act of 1993, depending on the ownership of the Titan submersible within its various divisions. While OceanGate CEO Rush stated it was an American company, OceanGate Expeditions, which conducted the Titanic dives, was based in the Bahamas.
Schoenbaum explains that the Bahamas subsidiary has the potential to evade U.S. law, but courts have historically held corporations liable by “piercing the corporate veil.”
Guillermo Söhnlein, cofounder of OceanGate, attests to Rush’s commitment to safety, emphasizing his risk aversion and awareness of the perils of deep-sea operations.
The issue of insurance for the Titan and potential involvement of the Canadian icebreaker’s insurance also raises questions. The jurisdiction for potential lawsuits may depend on the contracts signed by passengers and crew.
George Rutherglen, a professor of admiralty law at the University of Virginia, speculates that given the loss of life and the substantial expenses incurred by the Coast Guard, the U.S. will likely implement stricter regulations in response. Rutherglen also suggests that international organizations like the International Maritime Organization could take action, and Congress may pass legislation. Nations such as the U.S. could restrict docking privileges for ships involved in such expeditions.
However, Forrest Booth, a partner at Kennedys Law in San Francisco, argues that the International Maritime Organization lacks authority to enforce its will. He believes that the incident involving the Titan may only lead to superficial media attention without substantial changes.
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