Navigating the legal landscape of maritime accidents can be a complex and challenging task. One of the most common obstacles that plaintiffs encounter are liability waivers, which are often used as a legal shield by companies and operators to limit their responsibility in the event of accidents or injuries at sea. Plaintiffs who are seeking legal remedies for these events often face the barrier of overcoming waivers by proving their invalidity, in order to move the case forward. Overcoming these waivers in litigation requires careful legal strategy, and a deep understanding of the nuances of tort and maritime law.

Media coverage of the OceanGate tragedy and the events leading up to it have brought the specifics of the involved liability waivers into sharp focus. These waivers will likely become a central topic of discussion and analysis among lawyers, scholars, and commentators for years to come.

Understanding Liability Waivers in Maritime Law

A liability waiver, also known as a release of liability or hold harmless agreement, is a legal document that a participant signs to acknowledge the risks involved in a certain activity. In the maritime context, these waivers are often used by outdoor adventure companies, cruise lines, charter boat operators, and other maritime businesses to limit their liability for personal injury or loss of property.

Liability waivers often make a plaintiff’s case more challenging, but they are not insurmountable. While these waivers are generally enforceable, their validity is contingent on many factors, including the clarity of language, the circumstances under which it was signed, the nature of the activity involved, and the jurisdiction’s specific laws.

Overcoming Liability Waivers

Several legal strategies and considerations can aid in overcoming the hurdle of liability waivers in maritime accident lawsuits:

  1. Ambiguity or Misrepresentation: If the language used in the waiver is vague, unclear, or deceptive, the document may not be legally enforceable. Courts often interpret ambiguities in waivers against the party that drafted them.
  2. Duress or Coercion: If a party was forced or pressured into signing the waiver under duress, or if the waiver was signed without sufficient opportunity to understand its contents, a court may find it invalid.
  3. Gross Negligence or Reckless Conduct: Most jurisdictions do not permit entities to limit their liability for gross negligence, reckless conduct, or intentional harm, even with a signed waiver. If such conduct can be demonstrated, the waiver may not prevent a lawsuit.
  4. Unconscionability: If the waiver is deemed excessively unfair or one-sided, a court may rule it as unconscionable, and therefore unenforceable. This usually involves a showing that one party had a substantial advantage in bargaining power, or that the waiver terms were hidden or not clearly communicated.
  5. Jurisdictional Issues: Laws and the enforceability of waivers vary widely between jurisdictions. In some cases, legal nuances specific to a jurisdiction might limit or nullify the effectiveness of a waiver.
  6. Public Policy Considerations: Courts sometimes refuse to enforce waivers based on public policy considerations, especially in situations where the company holds a considerable amount of power over the consumer, or where enforcement of the waiver would incentivize unsafe practices.

Relevant case law examples concerning liability waivers:

While the exact case law citations depend on the jurisdiction, here are several U.S. court decisions that have examined and dealt with the issue of liability waivers in maritime law:

  1. Tassinari v. Key West Water Tours, L.C. (Fla. 2007): This case ruled that liability waivers cannot absolve a maritime tour operator of gross negligence. The plaintiff was injured during a jet ski tour, and despite having signed a liability waiver, the court allowed the case to proceed due to allegations of gross negligence.
  2. Johnson v. Royal Caribbean Cruises, Ltd. (S.D. Fla. 2011): In this case, the court found a maritime excursion liability waiver unenforceable due to its lack of prominence and clarity in the contract, demonstrating the importance of clear communication in these waivers.
  3. Hiett v. Lake Barcroft Community Association, Inc. (Va. 1992): While not a maritime case, it does involve recreational water activities. This case established that, in Virginia, pre-injury liability waivers for negligence are generally unenforceable due to public policy considerations.
  4. In re Aramark Sports and Entertainment Services, LLC (10th Cir. 2014): This case demonstrates the potential for waivers to be unenforceable if the party seeking to enforce the waiver had superior bargaining power or if the services provided are a matter of practical necessity.
  5. Le Mans Express, Inc. v. E.R. Schiffahartsgesellschaft mbH (S.D. Fla. 1990): This case from Florida, a jurisdiction with substantial maritime law, shows that liability waivers may not protect a party from gross negligence, willful misconduct, or intentional harm.


While liability waivers often present a significant hurdle in maritime accident lawsuits, they are not always the final word. Overcoming these waivers requires an understanding of the legal nuances, coupled with a sound strategy based on the specifics of the accident, the conduct of the parties involved, and the jurisdiction’s law.

It is crucial for individuals seeking to challenge such waivers to engage with legal professionals experienced in both tort and maritime law. This professional knowledge and experience is invaluable in navigating the complex waters of liability and ensuring that the injured party’s rights are upheld.

= = = = =

DISCLAIMER: This blog post, as well as any data and information provided are for informational purposes only. It is not legal advice nor should it be relied on as legal advice. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction, or situation. The law is a rapidly changing subject, no representation is made that everything posted on this site will be accurate, up to date, or a complete analysis of legal issues. Please consult with an attorney with the appropriate level of experience if you have any questions. Review or use of the document and any discussions does not create an attorney-client relationship with the author or Possinger Law Group, PLLC. No attorney-client or confidential relationship is or should be believed to be formed by the use of this site. The opinions expressed here represent those of Jeffrey Possinger and not those of Possinger Law Group, PLLC or its clients.

= = = = =