An Alameda County, California couple have filed a lawsuit against a Maui-based catamaran tour company for being ‘abandoned’ in the ‘open ocean’ on a snorkeling excursion and forced to swim to shore alone, according to the lawsuit, which was filed Feb. 23.
As experienced divers who have visited Hawaii before, Elizabeth Webster and Alexander Burckle were on their honeymoon in Maui and booked the Lanai Coast Snorkel excursion from Sail Maui for September 23, 2021.
They are suing the company for $5 million for emotional damage caused by swimming to shore in choppy waters.
“The emotional distress is in the moment, not knowing you’re going to live or die. And it’s not just you there, it’s also your newly married spouse,” said Jared Washkowitz, an attorney for the couple, at USA TODAY.
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“They’re actually really traumatized by it,” Washkowitz said. “They are undergoing psychological treatment and have physical symptoms of anxiety.”
According to Sail Maui websitethe tour begins in Lahaina and stops at “several dive sites” along the nearby Lanai coast in search of spinner dolphins.
The lawsuit alleges that at the first snorkeling site, the captain briefed passengers on safety precautions, but did not mention “snorkeling limits” or a “specific return time.”
After about an hour of snorkeling, the waters became “more turbulent” and “choppy”, and the couple started swimming towards the boat. After about 15 minutes of “aggressive swimming”, they noticed the boat moving away and came to the conclusion that it had left without them, according to the lawsuit. They “began to signal their distress and call for help,” according to their lawsuit.
According to the lawsuit, another passenger noted that the pair were further out to sea from where she was, but the crew told her the count was correct. The crew made three counts, according to the lawsuit. The initial two counts showed 42 of the 44 passengers present, but the latest count indicated that all 44 guests were accounted for. “(The boat) was unorganized, people were moving around while they were counting,” Washkowitz said.
Sail Maui did not respond to request for comment.
As the couple chased the boat towards a second stop, they were led to a deeper ocean. The lawsuit says the couple felt they were in a “6-8ft rolling surf” and there were no other boats around.
“They feared drowning was imminent,” the lawsuit states. “The claimants realized that the ship had left them and was not coming back for them, and they decided that their only option to survive at that time was to return to shore. The claimants were extremely fearful and nervous about the decision because they were told in the explicit safety briefing not to swim to Lanai and shallow reefs were in the area.”
The distance to shore was about half a mile, which the couple swam. Once there, the couple were “tired and dehydrated”. They also had reef cuts, Washkowitz said. Webster wrote “SOS” and “HELP” in the sand and the couple waved palm fronds at passing boats to try and get their attention.
Eventually they flagged down a local couple in a truck and used their cell phone to call Sail Maui, but the company was unaware someone was missing the charter. Sail Maui arranged for the couple from Lanai to Maui by ferry and met them at the Port of Maui.
A Coast Guard investigation of Sail Maui cited the company as negligent, and the company now makes “voice contact with every passenger listed before departing,” the lawsuit says.
“The bottom line is that these types of businesses that operate all over the islands, most of their customers are visitors who may or may not have a lot of experience in the water, who may not be familiar with the water “Washkowitz said. “Even for locals who are used to being in the water here, to be left this far away is scary. For people who are just visiting, it’s very traumatic. (These businesses) are responsible for these people.”
The initial court hearing of the complaint is set for April 24.