The
Gray Area of International Law in Deep-sea Exploration: Implosion of Titan Submersible of OceanGate’s Titanic Expedition
Authors:
Raden Maulana Damarjati Sulthan Azis MuhammadA. Introduction
The rapid development of the world has given rise to many innovations to explore locations rarely known to humans. This development has given rise to extreme tourism. Extreme tourism is travel that is strongly characterized by a sense of adventure or even physical danger. The “extreme” aspect of this type of tourism may derive from a destination itself or from one or more activities that are engaged in during one’s trip.1 People who take on such endeavors may take risks, but in return, they get a wave of unforgettable feelings and emotions, colorful impressions of nature, mountains, and the sea. All types of extreme tourism require certain skills, appropriate equipment, experience, and high professionalism.2 Extreme tourism may be arranged by the traveler herself or may be coordinated by an adventure travel company. 3 One of these extreme forms of tourism is underwater exploration, which has allowed people to see the wreck of the Titanic in the North Atlantic Ocean, 400 miles from Newfoundland, Canada. Stockton Rush, CEO and founder of OceanGate has conducted five underwater explorations of the Titanic from 2021 to 2023. However, the fifth expedition resulted in a tragic event that garnered international attention.
Precisely on 18 June 2023, OceanGate conducted the wreck of the Titanic exploration using a submersible called 'Titan' (hereinafter "Titan"). Unfortunately, it lost contact with its mother ship and was declared missing the next day.4 OceanGate organized five expeditions, and during the fifth expedition, five people participated. The cost per person for this expedition was $250,000. Unfortunately, all five Titan passengers died on the fifth day due to a catastrophic
1 "The Unsettling Days after the Titanic Submersible's Demise", CNN, Accessed July 6, 2023, https://edition.cnn.com/2023/06/24/us/missing-titanic-submersible-timeline/index.html.
2 "The Missing Titanic Sub Fell Outside Safety Rules by Operating in International Waters beyond the Law, Experts Say", Insider, Accessed July 6, 2023, https://www.insider.com/titanic-sub-avoided-safety-rules-by-divingin-international-waters-experts-2023-6.
3 Bateman, Sam. "UNCLOS and its Limitations as the Foundation for a Regional Maritime Security Regime." The Korean Journal of Defense Analysis, Vol 19, no. 3 (2007): 28
4 Article 87, Freedom of The High Seas, United Nation Convention on the Law of the Sea 1982.
implosion. In addition, the search and rescue team discovered some debris from Titan in the depths of the North Atlantic Ocean.
OceanGate's Titan implosion tragedy yields controversy in the international community regarding the form of responsibility for the four passengers who have paid a hefty fee to participate in the expedition. Regarding Titan used in underwater exploration, the submersible is not bound by state regulations or related institutions such as the International Maritime Organization ("IMO") because Titan is under the auspices of the Polar Prince Ship with the Canadian flag.5 However, there are other international legal regulations for maritime operations besides IMO, such as the United Nations Convention on the Law of the Sea ("UNCLOS") enforced by the United Nations ("UN").
In 1982, the UN provided a framework to comply with the necessity for maritime protection through UNCLOS. This convention regulates the rights and obligations of each country when it comes to conducting activities in specific sea areas based on the jurisdiction specified in the convention to manage maritime security and create an organized area at sea.6 Links between UNCLOS and the Titan explosion is that the incident occurred in international waters, also known as the high seas, as defined by Article 87 of UNCLOS. These sea areas are open to all countries subject to the UNCLOS convention and other international legal regulations regarding sea laws, including freedom of navigation and scientific research.7 Furthermore, Article 20 of UNCLOS acknowledges the presence of submersible activities, specifically mentioning "submarines and other underwater vehicles."8 Despite recognizing the existence of submersibles, no provisions in the convention directly regulate deep sea exploration that brings passenger crew as tourists.
Regarding Titan, it had yet to receive classification from a maritime industry organization establishing guidelines for hull construction.9 Based on the conventions, no provisions still
5 Article 20, Submarines and other Underwater Vehicles, United Nation Convention on the Law of the Sea 1982.
6 “After the Titan implosion, the US Coast Guard wants to improve the safety of submersibles”, AP News, Accessed July 7, 2023. https://apnews.com/article/titan-submersible-investigation-91bde867ef100c769f1dbe293f2b3020.
7 “DNV GL certification: what is it and why is it important?”, Accessed July 7, 2023. https://www.dolphincharger.com/news/dnv-gl-certification.
8 “Avatar' filmmaker James Cameron and billionaire Ray Dalio invested in a submarine company, see inside the submersibles popular with the über-rich”, Business Insider, Accessed July 6, 2023 https://www.businessinsider.com/see-inside-triton-submersibles-submarines-james-cameron-ray-dalio-backed-20231.
9 "Titan sub passengers signed waivers covering death. Could their families still sue OceanGate?”, CBS News, Accessed July 6, 2023. https://www.cbsnews.com/news/titan-sub-oceangate-famlies-lawsuit-waivers/.
require certification of submersibles. Nevertheless, in its development, the granting of submersible certification has been sheltered by international organizations, such as establishing The independent Norwegian foundation Det Norske Veritas ("DNV") in 1864. DNV's goal is therefore to establish criteria that guarantee the safety of ocean-going vessels. In 2013, Det Norske Veritas Germanischer Lloyd ("DNV GL") was formed through the merger of DNV and Germanischer Lloyd (GL), another classification organization. Today, DNV GL is recognized as a leading player in maritime risk assessment and certification.10 Having DNV GL certification or working with certified components should give companies such as Oceangate assurance regarding safety onboard their vessels, and yet Oceangate did not take the step to certify their vessels with DNV-GL. We might take a look at another company similar to Oceangate, Triton Submarines. In 2019, Victor Vescovo, an explorer, completed five solo dives in the Mariana Trench using Triton's Submersible Which is capable of reaching the full ocean depth. Triton Submersibles are certified with the DNV-GL.11
With the fact that Oceangate did not take the step to certify its vessels and the numerous warnings it had towards the chosen material on its vessels, a form of negligent behavior can be indicated within Oceangate. However, OceanGate did ask its customers to sign liability waivers that were transparent about its experimental vessel before stepping inside the 21-foot vessel — paperwork that outlined their risks in stark terms, including the possibility of death, emotional trauma, or physical injury.12 This raised a lot of concern from the masses that a lawsuit cannot be filed against Oceangate even though negligent behavior is evident. Hence the OceanGate company was not violating any laws. However, they were operating in a legally ambiguous area.13 Therefore, this article will discuss the implosion of Titan regarding their safety standards due to carrying tourist passengers and the gray area of international regulations to explore the deep sea. In this article, the authors would provide a legal perspective regarding OceanGate’s responsibility of the Titan safety and the incident that occurs
10 "The Murky Regulations Governing Submersibles", Curbed, Accessed July 6, 2023. https://www.curbed.com/2023/06/oceangate-titan-submarine-unregulated-tourism.html.
11 “What Is Extreme Tourism?”, Wisetour, Accessed July 19, 2023. https://www.wisetour.com/what-is-extremetourism.htm.
12 Rahmanov, DM. “Stages and Types of Development of Extreme Tourism.” CENTRAL ASIAN JOURNAL OF ARTS AND DESIGN, Vol 02, no.12 (2021): 7
13 “What Is Extreme Tourism?”, Wisetour, Accessed July 19, 2023. https://www.wisetour.com/what-is-extremetourism.htm.
to its passengers. This article will also highlight international law’s perspective regarding the ambiguity of the law regulating the operation of submersibles in international waters.
B. OceanGate’s Responsibility for the Potential Risks that Occur to its Passengers
The OceanGate company has made steps to create unusual explorations, one of which is to visit the wreck of the Titanic commercially using Titan, a submersible. OceanGate's underwater commercial exploration certainly has many dangerous risks to consumers so safety issues will be significant in such dangerous exploration. Based on such dangerous activities carried out by OceanGate, risks are innate. In carrying out these activities, the company must take appropriate measures to ensure safety issues. It will be closely related to the company's safety standards because their passengers paid large amounts of money to attend the exploration.14
In ensuring the safety issues of dangerous exploration, the company should comprehend the potentially dangerous risks that will be faced, ensure the safety of the facilities for passengers, and take preventive actions to provide safety activities. However, in executing the exploration of the wreck of the Titanic, OceanGate neglected some safety issues of the Titan. The negligence act is from the Case of OceanGate INC. v David Lochridge, Carole Reird Lochride, and the marital community composed thereof, no 2:18-cv-01083-RAJ United States District Court Western District of Washington (hereinafter “Case of OceanGate Inc. v David Lochridge and others”). In this case, as a former OceanGate employee, David Lochridge was sued by OceanGate for breach of contract regarding company secrets. OceanGate fired David Lochridge in a meeting about Titan safety for sharing confidential information about the ship's design with parties outside the company.15
Based on the judgment of the case OceanGate Inc. v David Lochridge and others, some information can prove that OceanGate has neglected to address Titan's safety which David Lochridge considers not following safety standards and will be dangerous with the potential to
14 Morgan, Damian Joseph, and Martin Fluker. Accidents in the adventure tourism industry: causes, consequences, and crisis management. Monash University, Faculty of Business and Economics, Department of Management, Monash University, 2000, p.3.
15 "Whistleblowers warned OceanGate Safety Issues could Prove 'Catastrophic'. Then its Titanic Sub Imploded", Independent, Accessed 18 July 2023. https://www.independent.co.uk/news/world/americas/oceangate-safety-issueswhistleblowers-b2364880.html.
cause accidents.16 The safety issues enumerated in the decision of the Case of OceanGate Inc. v David Lochridge and others can be understood as follows:17
1. In developing an experimental sub to dive deep in 4,000 meters, safety issues arose due to the carbon fiber material used for the hull sub. There are yet to be underwater explorations that deep using carbon fiber materials.
2. David Lochridge identified the main issue regarding substandard non-destructive testing of the Titan's hull and that none of the company's hull testing tools in order to check for delamination, porosity, and sufficient bonding cavities of the hull. Instead, OceanGate only relies on an acoustic monitoring system that will be installed on Titan to detect hull damage.
3. The system is ineffective in detecting defects in Titan's hull, and the defects in the carbon fiber material can pose a significant danger when the sub enters extreme depths, so it is crucial to carry out non-destructive testing to identify sub defects for the safety of passengers.
4. David Lochridge uncovered that the primary material used by Titan was only certified for a depth of 1,300 meters. In comparison, the exploration sub would carry passengers to a depth of 4,000 meters beyond the Safety Standard for Pressure Vessels for Human Occupancy standards by The American Society of Mechanical Engineers. In addition, OceanGate also refuses to pay for ship certification so that Titan can have certified safety to dive into the targeted depths by the governing bodies. Although David Lochridge had advised OceanGate to take several actions to address the defects possessed by Titan, actions such as non-destructive testing for the hull and certifying safety inspection by the governing bodies were still not carried out by OceanGate, and fired David Lochridge. The case ended with a verdict rejected in full with prejudice and made in favor of the Defendants.
The actions taken by OceanGate have led to negligence, and an international issue arose. This issue is because OceanGate has acknowledged the issues, yet it still executed the
16 "OceanGate Threatened to Sue its Former Chief Pilot in 2018 unless He withdrew Allegations that he'd been Fired in Retaliation for Raising Safety Concerns, says Report," Insider, > . Accessed 21 July 2023. https://www.businessinsider.com/oceangate-threatened-sue-former-employee-allegation-fired-raising-concernsreport-2023-7#:~:text=OceanGate%20threatened%20to%20sue%20a,Rush%2C%20where%20they%20discussed %20safety.
17 See para 8-29 Case of OceanGate INC. v David Lochridge, Carole Reird Lochride, and the marital community composed thereof, no 2:18-cv-01083-RAJ, United States District Court Western District of Washington, 2018.
exploration. The human ability to explore unusual things certainly requires an international law role that specifically provides standardization of each element used in the exploration, especially in international waters like Titan. Standardization through law aims to guide tourism companies to apply the standards for operating exploration to minimize the risks that can occur in extreme activities.18 Binding international law needs to be improved, especially in the extreme tourism sectors such as OceanGate. It aims to provide a safe area for the passengers of this service, especially for activities with high risks, such as injury to death.19
Based on the negligent actions taken by OceanGate, international polemics occur regarding the form of responsibility OceanGate should take towards the victims of the implosion tragedy. However, it is essential to note that every passenger who participated in the exploration of the wreck of the Titanic signed an agreement that became a waiver called the "Release of Liability Agreement."
A waiver of liability is an increasingly common way for businesses to throw up a shield against legal responsibility for patron injuries. They are especially common where activities might pose a higher-than-average risk. Regarding OceanGate's waiver, several statements clearly indicate that there are risks and they do not hold any responsibility for them. Statements within the waiver, such as the acknowledgments from the passengers regarding the submersible conducted is experimental and has not been certified, consensually agreed to the risks, including death, and have lawful consideration that by participating, they will release OceanGate company from all liabilities concerning any adverse effects through the operation.20
The waiver signed by passengers of the Titan is transparent regarding the risks involved in the operation. While the waiver can insulate OceanGate from legal responsibility for acts of negligence, it cannot protect against gross negligence. Gross negligence is the deliberate disregard for someone else's safety by an act or omission the defendant knew or should have known would put another in danger.21 Gross negligence goes beyond the mere failure to use reasonable care.
18 Morgan, Damian Joseph, and Martin Fluker. Op. Cit., p.7.
19 Bentley, Tim A., and Stephen J. Page. "Scoping the extent of adventure tourism accidents." Annals of Tourism Research 28, no. 3 (2001): 710.
20 “Liability for Gross Negligence Can’t be Waived in Release Form”, Halberg & Fogg, Accessed 21 July 2023. https://www.southfloridainjurylawyerblog.com/liability-for-gross-negligence-cant-be-waived-in-release-form/.
21 “OceanGate Was Warned of Potential for ‘Catastrophic’ Problems With Titanic Mission”, The New York Times, Accessed 21 July 2023. https://www.nytimes.com/2023/06/20/us/oceangate-titanic-missingsubmersible.html.
To prove OceanGate's gross negligence, one would look at the report issued by David Lochridge. Ultimately, Lochridge's report states that the Titan needed more testing and was concerned about the potential dangers to its passengers as it reached extreme depths.22 Additionally, the company's former consultant Rob McCallum raised other concerns by exposing the negligence and disregard for safety that pervaded OceanGate before the catastrophic implosion occurred.23 McCallum believes it should only be used for commercial deep dive operations once a submersible is classed, tested, and proven. Another unsettling revelation exposed by McCallum was the terminology used to refer to the paying passengers on the Titan. Instead of calling them "passengers," they were called "mission specialists." This strategic choice aimed to circumvent potential legal repercussions in case of fatalities.24 OceanGate appeared to dismiss McCallum's concerns and suggested experts attempted to use safety concerns to block innovation.25 The critiques from Lochridge and the experts regarding safety concerns focused on what they characterized as OceanGate's refusal to have the Titan inspected and certified by one of the leading agencies that do such certifications and also considered OceanGate's actions to be evidence of recklessness and grossly negligent behavior.
C. International law’s Perspective on Exploring the Deep Sea, Specifically for Extreme Tourism
The Titan implosion incident in exploring the Titanic wreck has raised questions regarding the law of the sea. Problems arise due to the absence of international law in exploring the deep sea, especially for extreme tourism. The incident occurred in international waters where no states have the sovereignty to hold provisions and regulations in executing deep-sea exploration. Explorations such as those held by OceanGate and other enterprises need international law to obey for human life protection and responsibility because they bring passengers as tourists in their exploration.
22 “Former OceanGate consultant exposes glaring problems with ill-fated Titan submersible”, ET online, Accessed 21 July 2023. https://economictimes.indiatimes.com/news/new-updates/former-oceangate-consultant-exposesglaring-problems-with-ill-fated-titan-submersible/articleshow/101483510.cms.
23 “Passengers on board the Titan submersible were classified as 'mission specialists' to avoid legal jeopardy if they died, says report”, Insider, Accessed 21 July 2023. https://www.insider.com/titan-sub-passengers-missionspecialists-oceangate-avoid-legal-jeopardy-2023-7.
24 “OceanGate's approach to engineering was 'ad hoc' and 'ultimately inappropriate,' says former consultant”, Insider, Accessed 21 July 2023. https://www.insider.com/oceangate-approach-engineering-inappropriate-ad-hocsays-former-consultant-2023-7.
25 Aznar, Mariano J., and Ole Varmer. "The Titanic as underwater cultural heritage: challenges to its legal international protection." Ocean Development & International Law 44, no. 1 (2013): 97.
Although the international law of the sea, such as UNCLOS, already governs most of the activities in the area, deep-sea exploration for tourism needs regulations regarding safety and liability to its passengers. It is due to the limited protection and regulation in the UNCLOS towards all the activities that humanity could carry in the ocean.26 Article 146 of UNCLOS states that parties must take appropriate measures to protect human life regarding activities in the ‘Area’ by adopting regulations to support and complement the existing international law.27 One of the activities in the 'Area' means exploration, and 'Area' in that article means the seabed and ocean floor that is beyond the limits of the state's jurisdiction. 28 The Article 146 of UNCLOS about protecting human life is interpretable for the exploration executed by the OceanGate. However, the international law of the sea should have an applicable law specifically for extreme tourism in the deep sea to protect humanity in the activities. In addition, the regulation could standardize all technology development specifically for vessels used for exploration in international waters to prevent the risks and the incident that happened to the Titan by OceanGate.
The rapid growth of technology has enabled humanity to reach areas that previously had not been explored. In providing preventive actions towards the development, state parties formed international organizations and treaties to explore areas no states rule, such as the moon and Antarctica. The Agreement Governing the Activities of States on The Moon and Other Celestial Bodies states that there is a need to define and develop provisions through international law concerning the progress of future exploration and use of outer space. In addition, all activities on the moon, such as exploration and use, shall be executed under international law 29 Regarding exploring Antarctica, the International Association of Antarctica Tour Operators ("IAATO") has international regulations to provide safety and responsibility for the private enterprises that travel to the Antarctic. IAATO has anticipated the rapid development of submersible technology through the IAATO Guidelines for Submersibles and Remote Operated Vehicle activities. The regulations give all parties a standardization in operating the submersible that explores beyond diving limits so that activities can be done safely.30 Thus all locations where no states have
26 See Article 146 of the United Nations Convention on the Law of the Sea, 1982.
27 See Article 1 number 1 of the United Nations Convention on the Law of the Sea, 1982.
28 See RES 34/68 United Nations Office for Outer Space Affairs, Article 2 of Agreement Governing the Activities of States on The Moon and Other Celestial Bodies.
29 See New IAATO Guidelines for Manned Submersibles and Remote Operated Vehicle Activities, 2017.
30 Spennemann, Dirk HR. "Extreme cultural tourism from Antarctica to the Moon." Annals of Tourism Research 34, no. 4 (2007): 912.
sovereignty should be ruled by international law to provide safety and responsibility towards the activities carried out in the area. It is supposed to protect human life and areas such as the moon and Antarctica. Treaties and regulations on those areas should be applicable in the deep international waters to protect underwater exploration, especially for tourism. Multilateral treaties may succeed purposely to protect passengers as tourists and the company's responsibility for deep sea exploration.31
D. Conclusion
The implosion tragedy of OceanGate's submersible, Titan, during the exploration of the wreck of the Titanic, raises crucial questions about the company's responsibility for the safety of its passengers and the need for clear international regulations on deep-sea exploration, particularly in the context of extreme tourism. OceanGate's negligence, as revealed by former employees and consultants, in addressing safety concerns and failure to have the submersible properly certified by reputable organizations, indicates gross negligence. Despite passengers signing liability waivers, OceanGate's deliberate disregard for safety standards and concerns might surpass the legal protection of such waivers.
The incident also highlights the legal ambiguity surrounding deep-sea exploration in international waters. While UNCLOS governs activities in the "Area," including exploration, there are no specific provisions for extreme tourism using submersibles. International law should be enhanced to address the unique safety and liability considerations of deep sea exploration for tourists. The Moon Agreement and regulations governing Antarctica offer valuable models for handling exploration in areas without state sovereignty. Applying similar principles, international organizations could develop standardized safety guidelines and certification requirements for deep-sea submersibles used in extreme tourism.
By implementing multilateral treaties and regulations, international law can protect human life and hold companies like OceanGate accountable for adhering to rigorous safety standards. This will create a safe environment for passengers while promoting responsible and regulated deep-sea exploration. OceanGate's tragic incident with Titan underscores the urgency for clear and comprehensive international regulations on extreme tourism in the deep sea. By harmonizing safety standards and imposing liability mechanisms, the international community
31 See Titanic Sub Waiver Release of Liability Agreement, OceanGate Expeditions.can ensure the protection of passengers and the sustainable development of underwater exploration.