Families of missing Titanic submersible passengers could struggle to SUE in fiasco

Legal experts say that the anxious families of five men who are currently missing on a Titanic tourist submersible will 'struggle' to file a lawsuit even if they aren't rescued.

Relatives of those who vanished on the OceanGate vessel may not be able to claim the company was negligent because their loved ones 'knew it was big and serious.'

The Titan is currently missing with five people on board after it lost communication during the 12,500ft dive below the Atlantic - and is estimated to have around 20 hours of oxygen left.

Los Angeles personal injury attorney Miguel Custodio, co-founder of Custodio and Dubey LLP, told DailyMail.com that the families of the missing would find it difficult to prove their case in court if the incident ends in tragedy.

He said: 'Everyone on board knew this wasn't a vacation or sightseeing, that it was really an exploration into the unknown at one of the deepest points on the planet.

Miguel Custodio says relatives of the missing passengers may not be able to claim the company was negligent because their loved ones 'knew it was big and serious'

Shahzada Dawood, 48, a UK-based board member of the Prince's Trust charity, plus his son Suleman Dawood, 19, are on board

'The price-tag itself is a clear indication that this is something big and serious. The trip itself was dangerous and there was a real possibility that things could go wrong.

'I don't see much recourse for these families in court, or how this waiver could be challenged, unless it's discovered that someone on the ship's crew controlling it was negligent in the way it was being operated and that caused the submersible to be lost.

'If this turns out to be a tragedy, the families might consider pursuing legal remedies under an "ultrahazardous activity" tort, which would require the activity they were engaged in to be uniquely dangerous and that the defendant's actions were the cause of injury.

'But the best defense to this is to demonstrate that the victims were fully warned and aware of the risks they were taking, which the waiver seems to have made clear.'

Billionaire Hamish Harding, CEO of Action Aviation in Dubai, and Shahzada Dawood, 48, a UK-based board member of the Prince's Trust charity, plus his son Suleman Dawood, 19, are all on board.

OceanGate CEO Stockton Rush is also on the vessel, which vanished on Sunday, along with French Navy veteran PH Nargeolet - who is considered the world's leading expert on the Titanic.

However, there is some hope for the family members if they choose to submit legal filings in Washington, where the company is based. 

Custodio explained: 'The venue for any lawsuit will also make a difference and OceanGate Expeditions is based in Washington state, one of the few that can award partial damages in negligence cases.

CEO of OceanGate Stockton Rush (left) and billionaire Hamish Harding (right),  CEO of Action Aviation in Dubai are also on board

Paul-Henry Nargeolet is considered the world's leading expert on the Titanic and is also missing on the sub

The Titanic wreckage is 12,500ft underwater - some 11,000ft deeper than many US and British Navy subs can dive 

Rescue equipment was seen arriving in St John's, Newfoundland, on US military planes last night

'So if a negligence claim is filed there, and a jury finds OceanGate and the victims were equally at fault, plaintiffs could still be awarded half of what they sought in a lawsuit.

'If it's true that OceanGate was uninsured, that would be just a very bad sign of how the company has been run and would indicate a lack of forethought put into this venture. 

'Liability insurance is part of doing business for most companies. And while finding coverage for a submersible may be more difficult, or expensive, it's likely there is someone out there who would insure these. 

Peter S. Selvin told DailyMail.com that the waiver each passenger signed would also cause problems if any wanted to file a lawsuit

'Without insurance, claimants would be able to look for all kinds of personal assets from owners, investors, anyone with any type of ownership in the company to satisfy a potential judgment.' 

The waiver states: 'This experimental vessel has not been approved or certified by any regulatory body, and could result in physical injury, emotional trauma, or death.'

Since the sub went missing, many former passengers have commented on how rudimentary parts of the vessel appeared – despite signing the form and completing the trip.

Peter S. Selvin, Chair of the Beverly Hills-based business firm Ervin Cohen Jessup's Insurance Coverage and Recovery Department, added that the waiver each passenger signed would also cause problems if any wanted to file a lawsuit.

Selvin told DailyMail.com: 'The principle that generally applies is that a liability waiver is enforceable with two potential caveats: the first being that you cannot exculpate from acts of intentional misconduct.

'A waiver would not be enforced in cases where defendants are involved in reckless, willful activity, but negligence is another thing.

However there is some hope for the family members if they choose to submit legal filings in Washington, where the company is based as they could receive money even if they lose the case 

This image shared by the US Coast Guard is the first from the search site, some 900 miles off the coast of the US. It shows Deep Energy, a rescue ship that has deployed remote operated subs to go looking for the Titan underwater 

Ten ships are on their way to the Titanic wreck site to try to find the missing submersible as its oxygen supply dwindles to just 20 hours 

 OceanGate Expeditions offers the once in a lifetime opportunity to be a specially trained crew member safely diving to the Titanic wreckage site

'The second exception, depending on the relevant court jurisdiction, would be laws that void liability waivers 'in connection with ultrahazardous activities.'

'I would certainly think going to the bottom of the ocean in an experimental sub qualifies as an ultrahazardous activity.

'But that is a question of law. In the context of a trial, should the survivors sue the operators of the sub and ask for a jury trial, there would have to be a determination made that this constituted ultrahazardous activity. That decision would fall to the judge.'

The sub lost communications with its operator, OceanGate Expeditions, less than two hours into its dive to the famous shipwreck on Sunday.

A glimmer of hope lit up the bleak search yesterday when the Coast Guard announced that 'banging' sounds had been detected underwater.

It remains unclear if the banging came from the submersible, but it has now become the 'focus' of the mission.

So far ten vessels are en route to the site that is 900 miles east of Cape Cod and around 400 miles southeast of Newfoundland.

There are multiple C-130 planes and Boeing Poseidon P-8s involved in the search too, as the Coast Guard searched 10,000 square miles of ocean surface to no avail.

Their primary hope is to find the Titan 'bobbing' on the ocean surface, as if it is stuck underwater, unable to surface, the rescue becomes more complex.