Nitrox workshop dings - Divers Alert Network

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Rubicon Foundation Archive (http://rubicon-foundation.org)Lang (ed.): DAN Nitrox Workshop, Divers Alert Network, November 2000B. Turbeville: I hope I was not too glib. I don't want to suggest that if it ain't broke, don't fix itbecause I think that is a legitimate problem. I was suggesting that I don't know the answer. Ican suggest to use medical grade, welding grade or preferably aviation grade oxygen, but ifthat oxygen is not pure and that product leads to injury or death, it may be considereddefective in which case the release is no good. You don't have to prove fault. It's strictliability and it's a much tougher case to win. I don't know of any cases that have come upwhere there's been bad oxygen. I've certainly had cases where there's been bad air, usuallyfrom a compressor defect. Clearly, if there's ever an issue with oxygen that is somehow notpure, whoever supplied that, all along the chain from the person who first manufactured it tothe person who sold it, are all considered manufacturers under the law. They've got strictliability. That's a big problem.R. Moon: The issue is not so much a matter of purity, but rather accuracy in delivering theoxygen percentage that is requested.B. Turbeville: You could look at it in two different ways. On the one hand, if you are thesupplier and you have misanalyzed the mix that you have sold me and I get hurt or I die,you've sold me a product that is defective. There is also the issue of whether it was just adefective product or an error on the part of the operator. Did I not do my job as end user,following the community standard of care, in analyzing it properly? There has not been acase like that yet, but it's an interesting issue. It behooves the community to come up withsome consensus on how nitrox should be analyzed. Clearly, if it's not analyzed properly, allbets are off. If I were on the plaintiffs side, the first thing I would do is make the argumentthat if you don't analyze it properly and you sell it, you've just sold a defective product bydefinition. That does an end run right around the release, you go straight to court, forgetnegligence. You can prove defectiveness fairly easily in that case.R. Moon: If I interpreted your last couple of sentences correctly, were you urging a voluntarystandard from the training agencies?B. Turbeville: If they haven't done that already, they need to do it. In the shops I frequent, flowrestrictors are the norm now. Every time I use a Mini-Ox I get a different reading for thesame tank. It's hard to use. My understanding is if you have an operator who's experiencedin using a flow restrictor, they typically get very close readings. There has not been a personhurt to the extent where a suit was filed because they had a poorly blended gas in recreationalnitrox.E. Betts: Isn't there a reasonable transfer of liability when the end user actually analyzes gas inaccordance with the way he was taught?B. Turbeville: Yes. That's why you have that interesting dichotomy and liabilities there. Thestandard of care in the industry is that the user is required to analyze the gas and sign off on agas log.E. Betts: Not all agencies and practices follow through that way. That is not what you'd call acommunity standard. It may be a recommendation by training agencies that the end useranalyze the gas, but in actual practice, I don't think anybody here would admit that that's theway it is. Most of the time you'll see an instructor handing somebody a cylinder saying thistank is 36 percent. The big case occurred in Australia where they were using a membranesystem and had the oxygen connection feed to the compressor come off. They were using amembrane and figured everything before this was 36 percent, therefore it's 36 percent. They116
Rubicon Foundation Archive (http://rubicon-foundation.org)///. Nitrox Risk Management Discussionhad six rebreather divers ready to flop off the boat with air in the rebreather. Shouldn't therebe a community standard that says the end user has the ultimate responsibility to analyze thegas? If they choose not to, that's not the dispenser's fault.B. Turbeville: I'm not going to say what the industry should do in this case. That's a matter ofphilosophy. I can tell you that you're right that if you have a community standard that theend user must analyze a gas, at a minimum what you've done is added some comparativefault, as the term is used, for that user if there's a problem with the gas. No question about it.You can't reduce some of the strict liability at the product end, but you certainly can on thenegligence end. If you leave it up to the operator to provide the gas analysis, that makes theoperator more liable, period. Whether they do a good job or a bad job is up to the individualoperator.K. Shreeves: Ed, we have a community standard. Every training organization teaches the diverto analyze the mix or observe a professional analyzing the mix. What you described seemsto be a different problem, one of people not following that standard.E. Forsyth: We actually have seen a number of fires in systems less than 40 percent oxygen.They tend not to get publicized too much as with most fires and many of them never make itto the point where litigation is involved. Is there a reason perhaps that we don't hear moreabout these things and could it be that what's happening is that manufacturers say send usyour equipment and we'll send you a replacement? They quickly take the evidence andsweep it under the carpet. I'm not necessarily pointing blame, but by and large the things thatwe do hear about tend to be the most serious incidents where people actually get hurt.B. Turbeville: There might be incidents out there, but they're not being reported. Havingrepresented most of the major manufacturers in this community, I don't know of a single casewhere they've had a fire with a 40 percent or under mix. That's not saying it didn't happen,but they are not reported to the agencies or to the manufacturer's insurance carriers either.They're just not brought up.E. Forsyth: Ever since we were at DEMA last year we have become somewhat of a repositoryfor people's war stories regarding fires and have started a database. It's our hope that we canget this up on the internet and provide an environment where people can get goodinformation and provide experiences that occurred without legal ramifications. It's quiteinteresting to know that there are a lot more things happening than are actually reported.T. Mount: It would be nice to have some of the information fed back to the training agenciesbecause we don't have any reports of any problem under 40 percent, period.117
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