Painted insignia is not enough
Chief Magistrate Margaret
Ramsay-Hale found Dusty Lane Norman guilty of failure to display a “divers
down” flag during a dive off Seven Mile Beach in December 2009. She said it was
a strict liability offence against Port Authority Regulations, which are
concerned with public safety.
The magistrate gave her verdict
this month after hearing evidence in September. Norman said he had put up a
flag before taking a group of divers into the water, but the wind had blown it
One of the Marine Unit officers who
had boarded the vessel confirmed that Norman picked the flag up from the deck.
The issue was whether it was
sufficient for the boat to have a dive flag in its insignia — the “D” in the
name Dive N’ Stuff was painted on the boat as a diving flag, which is red with
a white diagonal stripe.
Defence Attorney Waide DaCosta
argued that the vessel was a recognisable dive boat, tied up to buoy at a known
dive site, far enough from shore that it wouldn’t be there if divers weren’t
Crown Counsel Alister Cumming said
a flag is a flag — fabric on a pole, not a painted insignia.
The magistrate agreed. The
regulation says, “A person diving, except in a swim area, shall by day display
a float, marker or flag”. The flag options are illustrated and the marker or
float is defined as a white object on the surface clearly visible at 200 yards.
The magistrate said being tied to a
mooring was not sufficient to say the boat had divers in the water. One of the
officers said earlier it was a public mooring, which anybody could use. The
magistrate said she construed “marker or float” as something the divers place
in the water.
She also noted regulations require
that at least one person shall remain on board and act as lookout on any vessel
having divers in the water. Norman had not been charged for not having a
lookout, but she took this opportunity to emphasise that the law does require
Mr. DaCosta said until this case
there had been no prosecutions and no such reminders. He said this would be a
good lesson to the industry. The issue has been tackled by the diving
association, he added, but some of the smaller operations had trouble getting a
lookout. Norman himself had several recommendations from divers and was a good
ambassador for Cayman, Mr. DaCosta said.
The magistrate granted a
conditional discharge for 12 months. “If he comes back with another dive
offence I will throw the entire diving book at him,” she told Norman’s attorney
before ordering costs of $250.