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Posted by SDM on January 18, 2013 at 08:50:23:

Long, long, long--but if it saves a life -well worth the effort...


What follows are my notes which will be fleshed out, spelling corrected, grammar corrected, some parts deleted and incorporated into my forth coming book...

FYI I was involved in the flags development and acceptance both locally, nationally and internationally in the 1950s via Skin Diver Magazine and the considerable correspondence I had with concerned divers of that era and to the present day through out the US regarding the divers red and white flag.

DIVE FLAG-- One man's involvement

1) For a very concise history of the divers flag it is suggested that you read "Legends of diving; "The dive flag" @ www.portagequarry.com" by Dr, Samuel Miller,111

There is bogus version of the dive flag's history that was floating around presented by "Fat Boy scuba" ( Fat Boy? he is certainly was not and LA County U/W Instructor !)

The recognized and acclaimed father of the dive flag was Ted Nixon from the inland water of Michigan who passed away several years ago. At that time a pretender from Florida claimed recognition as the "father of the dive flag"...I suspect that he knew Ted, but his name was never ever associated with the development and promotion and certainly was not involved any litigation of the dive flag.
Ted' s passed away and he came out of his hole..

I have searched my dive flag file which occupies several feet of my file drawers, with references from about 5 different magazines, a number of past litigaions and spans six decades of dive flag activity. There is no mention of the pretender's name in any dive flag documentation in my dive flag

The original "recommended" official size was four units high, five units wide and a one unit wide diagonal stripe. The original and long forgotten color was international ( Neon or blaze) orange but after a very short time the manufacture's settled on red with a white diagonal stripe. Now it is rather common to see all sorts of variations of the dive flag , background colors, physical size ,size proportions and especially the size of the stripe.

The founder of the San Diego Free Divers, Bob Johnson, invented and manufactured a retractable dive flag several years ago that was worn on the weight belt. It caught on for a short time then was discarded by many as being an unnessasary imcumberance. It's small size, horizontal visability could be possibly challenged in dive flag litagation.


2) In early 1960 a diver, Darrel Toso,was struck by a boat at Long point, Catalina Island while resting on his float which displayed the then very new dive flag. (You can read my very detailed 2 part 6 page article in a early edition of the old LA County Underwater News. This was the very first accident of a diver flying a diver's flag.

In 1962 I was "picked out of the crowd" and summoned as an "expert witness" for the prosecution. (An expert witness is one who has considerable undenialble and verifiable experience and knowledge of a particular subject) It was an awesome responsibility since the dive flag was only a few years old and never been tested in a court of law and I alone was the only "Expert Witness" and had to defend it for Darrel Toso and all the future divers through out the world .

We, the prosecution prevailed -- Under then existing maritime law, which responsibility is established by percentages, the victim Mr. Toso was declared 5% negligent for being in the water and the boat operator, Mr Burns was 95% neglect for not recognizing a diver displaying the "flag" and running over and seriously injuring him. The judge awarded Mr. Toso $132,000.00 in damages - a huge sum in the early 1960s when a good salary was $300-$400 a month. Dive Accident Leads to legal action" appeared as 4 page 2 part article in the now defunct LA UW News in the 1960s--(hard to find a copy-)

This one litigation in a court of law was the defining case establishing the rights and privileges of a diver flying the then almost unknown red and white flag; as recognized the symbol of recreational diving.

Huge fines? To establish a violation of law requires a competent witness or resultant damages. Buzzing a diver would be difficult to establish.. Injury would be positive proof, but then it would require arrest of the violator and long term litigation in a court of law. Mr Burns did not stop to give aid to Mr Toso.. He and his boat were discovered several hours later tucked way back into a cove near the west end of Catalina Island, where he was apprehended.


3) Since that initial appearance I have been in evolved in a number of other litigation and consultations regarding the divers flag, one of the more significant and interesting evolvements was as follows.

In the 1960s "Sea Craft" of 3 A Church Street, Wilmington, Massachusetts was marketing after market items and almost as an after thought on the back cover a selection of "Divers Jewelry." Among the items they offered was the very first "Back Plate." Bob Rutherford the founder of the Aquatic Center in Newport beach, California attached the back plate to the US Divers 44 CuFt SCUBA cylinders to create the distinctive Orange County twin 44s." ( see; Legends of diving "The Sea Sabres signaling system" @www.portagequarry.com.

After a few short years Sea Craft was acquired by the then giant and very aggressive New England Divers, of Beverly Massachusetts. They expand the line including giving the jewelry portion more prominence in the catalog. Soon the jewelry section comprised a major part of the catalog.

As with all things there is a begin middle and end. New England divers had expanded to much too fast almost faced bankruptcy. They sold or closed most their shops located throughout the US (in California one was in LA ,one in OC, one in San Francisco area) In the process they sold the accessory line to one company and the divers jewelry line to a New York City firm

Approximately 25 years ago I received a frantic call from Dick Bonin the founder and at that time president of SCUBA Pro. Apparently the jewelry portion which had remained dormant for so many years came to life. The present owner deduced that since the jewelry featured the divers flag they were the sole proprietor of the rights to the diver's flag and had hired a hot shot NYC lawyer to represent them, in a definitive litigation against a SCUBA Pro dive shop "Universal divers" for using the flag on their letterhead and on a street sign and New England Bell Telephone for advertising the flag in their books. A quick review of my file and some reproduced pages from my file and Skin Diver Magazine determined that the dive flag had been in existence a full five years prior to the establishment of Sea Craft and their production of divers jewelry containing the divers flag.

Case dismissed!


4) To my knowledge but not verified, the red and white divers flag has never been accepted as an official flag in the US or any where in the world but rather as a "recognized flag of recreational diving activity." Like Coca cola and Mac Donalds the red and white divers flag is a pure American contribution and since it introduction in 1957 it has had world wide recognition and acceptance as an unofficial recognized flag of recreational diving through out the world.

However, some states do have laws that recognize the Red and White flag as a symbol of diving activity and laws governing its use and method of display. It is strongly suggested that each diver reading this be familiar with their state law. Dive Training Magazine printed a state by state synopsis of dive flag laws several years ago. Do to the article's age the various state laws may or may be currently be applicable..

5) A good source for California dive flag laws/rules can be found in my friend Chris Witten on going study/ investigation.........

" California Dive Flags

Rules for CA divers and boaters
There is controversy about California's weak laws regarding the use of dive flags. The following was updated in August 2010 through the research of David Carlson of Los Angeles. If you have any new information, please let me know.

For Divers in California
California Code of Regulations, Title 14. Natural Resources, Division 4. Department of Boating and Waterways, Chapter 1. Department of Boating and Waterways, Article 6. Waterway Marking System, § 7008. The Divers Flag:

(a) A red flag with a white diagonal running from the upper left hand corner to the lower right hand corner (from masthead to lower outside corner) and known as the "Divers Flag" shall when displayed on the water, indicate the presence of a person engaged in diving in the water in the immediate area.

(b) Recognition of this flag by regulation will not be construed as conferring any rights or privileges on its users, and its presence in a water area will not be construed in itself as restricting the use of the water area so marked.

(c) Operators of vessels will, however, exercise precaution commensurate with conditions indicated.

(d) This flag may be displayed only when diving is in progress, and its display in a water area when no diving is in progress is that area will constitute a violation of the regulation and of section 659 of the Harbors and Navigation Code.

(e) Nothing in this section will require the carriage of a divers flag for any purpose.

However, as California diving instructor Don Lambrecht brought to our attention, this section of the California Boating Regulations would seem to cover divers:

No person shall use any vessel or manipulate water skis, an aquaplane, or a similar device in a reckless or negligent manner so as to endanger the life, limb, or property of any person.

Every owner, operator, or person in command of any vessel propelled by machinery is guilty of a misdemeanor who uses it, or permits it to be used, at a speed in excess of five miles per hour in any portion of the following areas not otherwise regulated by local rules and regulations:
Within 100 feet of any person who is engaged in the act of bathing. A person engaged in the sport of water skiing shall not be considered as engaged in the act of bathing for the purposes of this section.

Within 200 feet of any of the following:
A beach frequented by bathers.
A swimming float, diving platform, or lifeline.
A way or landing float to which boats are made fast or which is being used for the embarkation or discharge of passengers.

In addition, certain county and municipal regulations are more specific about the maximum distance you can be from a dive flag.

For Los Angeles County beaches, David Carlson reports that someone in the LAFD–Lifeguard Division told him the following:

"I am also attaching a copy of the consumer booklet issued by the State of California Department of Boating and Waterways, look at Page 19, there is no state law requiring the display of flags by divers in the waters as a condition of use (if they are not diving from a boat). The display of the Alpha flag is a boating regulation for boats conducting dive operations. It is interesting to note the restriction on the 200 yard rule though."

“The County does not have an ordinance that states a float with flag must be displayed while diving. The California Code of Regulations does state that when diving from a boat, a Dive or Alpha flag shall be displayed while diving is in progress. It is a violation of the code to display while no diving is in progress. In short, when diving off the beach, a float and flag is not required. The County Lifeguards however do consider it a safety issue and encourage all divers and groups to use floats and flags.
“There is a County ordinance that states all vessels must operate 300 or more yards from all beaches in the County where swimmers are present. Also part of the same ordinance states that all swimmers must remain inside of 200 yards from shore so that there is no overlap between boaters and swimmers.”

This is the actual Los Angeles County Code, as reported by Dave Carlson, updated through 7/27/2010:

17.12.450 Swimming and other water activities--Restrictions.

A person shall not swim, bathe or immerse himself in the Pacific Ocean opposite any beach regulated by this Part 3 more than 200 yards seaward from the shore except:

C. A person who dives from a vessel and who displays while diving either a rectangular flag 12 by 15 inches, orange-red in color with a white diagonal stripe three inches wide running from one corner to the diagonally opposite corner, or the lights and/or flag prescribed in Rule 27 of the International Regulations for Preventing Collisions at Sea as set forth in 72 COLREGS as published with the Proclamation of January 19, 1977 at 42 FR 17112, March 31, 1977 and amended by the document annexed to the Proclamation of June 16, 1983, and published at 48 FR 28634, June 23, 1983, or as Rule 27 may be subsequently amended and accepted by the President of the United States of America, above the surface of the water in the vicinity of the dive;

Similarly, here is part of Section 12.08.040 in Manhattan Beach:

No person shall swim, bathe, or immerse himself in the water of the Pacific Ocean opposite any beach regulated by this chapter more than two hundred (200) yards from the shore except ... C. A skin diver equipped with swim fins and a face plate if at all times he maintains within fifty (50) yards of himself a boat or a surf mat, paddle board or surf board upon which there is a rectangular flag twelve by fifteen inches, orange-red in color with a white diagonal stripe three inches wide running from one corner to the diagonally opposite corner. The flag shall be flown high enough so as not to touch the water.

The state has specific fines of over $100 for "Unlawful Placement of Diver Precaution Markers."

For Boaters in California
As far as we know, California state law still is not specific about how far away boaters need to be from a dive flag. As stated above, Title 14, Section 7008, only states that operators of vessels will "exercise precaution."

However, California Boating Regulations are very specific that you must remain under five miles per hour within 100 feet of "any person who is engaged in the act of bathing" and 200 feet from a "swimming float, diving platform, or lifeline."


6) There are some who have an abundance of testosterone and a lack of grey matter who proclaim that they would point or even fire their spear guns at a boat that came, in their estimation, to close for comfort. At that time when they point or fire the gun they would be guilty of a crime of "assault with a deadly weapon."

There was a case in the then bucolic community of Goat Hill, now the up scale city of Costa Mesa in which two less that desirable citizens began drinking and as the night wore on began arguing. One picked up a spear gun and shot the victim who was taken to the local Hoag hospital in Newport Beach and patched up. They returned to their trailer on Goat Hill and continued drinking - and arguing. A few hours later the victim lay dead with an Arbalete spear shaft in bedded in his body.

In the trial the defense was that a spear gun was a toy and certainly not a dangerous weapon. The prosecution claimed it was a very dangerous weapon and should be used with caution and only in the water. Bob Ruetherford, (see Legends of Diving-Sea Sabres Signaling System) who was Mr. Orange County diver and my neighbor (he lived on the corner of Cerritos & Brookhurst & I a few doors down Cerritos in Anaheim-now a getto!) Bob was retained as an expert witness. He and I and others discussed and experimented as to how to best demonstrate the power of a spear gun and that a spear gun was indeed a dangers in us weapon and not a toy. We settled on setting up a chair on which was placed a series of pine boards, the Arbalete was loaded fired which split several of the boards in bedding the point deep into the last board.

This was duplicated in a court of law at which time the spear gun was identified as a dangerous weapon. The perpetrator was found guilty and sent off to spend the rest of his life behind bars.

7) I am aware that there has been three local divers, possibly more, who were struct and injured by a boat and one death

A) Daryl Toso (see Paragraph #2) sustained injuries to his arm and upper torso, his back was lacerated, his arm was almost severed from his body, but was saved, however his arm was about 90% destroyed. He was in constant pain for the remainder of his life

B) Bob Ruetherford, (See ; Legends of diving "The Sea Sabres signaling system" @www.portagequarry.com." for a picture of Bob holding a California made Samson spear gun) Bob was living in Hawwai and was either a judge or participation in a spearfishing meet when he was struck on his leg by a boat's propeller taking several large slices .the remainder of his life he was in pain and had a pronounced limp

C) Bob Maniki During the Free Dive List Party in 2000 honoring 65 or so remaining "International Fathers of Free Diving and Spearfishing in the world" ( FYI 3 were from OC; Allan Wood, Ron Merker and my self ) I was reunited with an old friend from our early days in LB Neptunes the famed competitive spear fisherman Bob Manicki, 1960 Helms IUSA Athlete Of The Year. We chatted nonstop over a pot of Millie Craigs baked beans trying to catch up on the past 40 years. During the course of the evening and between bites he indicated, un -beknown to me, that he also had been struck by a boat's propeller and the resultant injuries prohibited him from participating as member of the LB Neptunes team representing the US in the world spear fishing competition which I recall was in Monte Luzan. It has been perhaps five or more years since Bob and I were in contact. he, like about fifty percent or more of the International Fathers of Free Diving and Spearfishing are diving on in the big reef in the sky. It will be I think, I suppose, I heard, I was told - and a jillione of opinons devoid of facts.

It is interesting to note all three were participating in Spear fishing at the time of their accidents.

I only know and was witness to a SCUBA diver being struck by a boat was in November 1959. We had gone to Santa Barbara Island on a private boat for lobster diving. After a day of diving we anchored in a cove, along with a number of other boats including Goat Hill (Costa Mesa) resident Jack Kirk's large dive boat the "Veleron."

Several of the divers on the Veleron deceided to go for a night dive even through the were at anchor in a recognized anchoring location and other boats would probably arriving later to anchor.

All was well until the cry was heard loud and clear "Look out!" followed by "Oh My God!" and a loud scream "Help!" We were close enough to see Bobbie Frazier strip down and jump off the Veleron as Jack and the passengers begin scrambling to give assistance. From our vantage point as the closest boat we saw a very bloody and lifeless body being lifted on the deck.

I had known the deck hand Bobbie for a number of years so I shouted to Bobbie "How bad is he?" Bobbie replied "Bad, very bad, we need to air lift him to the hospital " and requested that we move as close as possible and shine our boat lights on the deck of the Veleron as a guide in the USCG Helicopter in locating the boat. Almost immediately we were joined by the other boats who had pulled anchor to assist in lighting the area.

About 45 minutes later the helicopter arrived dropped a basket to the deck of the Veleron. The victim was secured in the basket the helicopter began winding in the cable lifting the severally injured diver into the night air. Much to the horror of the passengers and crew , and the boats surrounding the Veleron, some where between 60 & 100 feet in the air the cable broke and the basket and victim crashed on the deck of the Veleron and into the water.

A few moments later Bobbie shouted a "Thank you" to the surrounding boats and asked that move away.... The diver was dead and they were heading for San Pedro. Thus ended a very traumatic hour and a half at San Clemente Island.

Early the next morning we and most of the pleasure boats who had been at anchor also headed for home.

The Los Angeles Times reported the accident as follows:

"DIFFICULT RESCUE – 23 November 1959 Los Angeles Times (California)

“Skin Diver, Hit by Boat, Falls From Copter, Dies”

Harold B. Gavenman of Canoga Park California was skin diving on Saturday 21 November 1959 off Santa Barbara Island. He was one of several diving from a barge (the Villaron) in an island cove. He surfaced in front of an oncoming lobster boat and “was sucked into the propeller.” The lobster boat operator jumped in and pulled him onboard, radioed for help, and took him by boat to the barge. An Air Force helicopter made 30 attempts to secure a line to him. Once they were successful, when he was raised about 100 feet in the liter basket, the cable broke and he was dropped onto the barge and rolled off the side. Those on the barge were able to recover him, then took him by a fast power boat cruiser to Santa Catalina Island, he was then life flighted from to Newport Beach and pronounced dead on arrival at Hoag Memorial Hospital".

Epilogue-- about a year later the widow who was not on the boat brought suit against Jack Kirk and his crew of the Veleron, the lobster boat that struck the victim, the US CG , the cable manufacture and just about every one who was in any way associated with the accident-but not one diver stepped forward to state diving in a known anchorage at night is an acceptable diving practice ( especially with the one candle power generally home made diving lights of that pioneer era)

I suspect there are a number of other Californians who have been struct and injured by a boat.

** Post Script:
The Veleron had been built and had been owned for a number of years by the movie star James Cagney. Jack Kirk acquired it and converted it to the first SoCal supper dive charter boat. A few years after the accident and after the litagation Jack sold the Veleron to a wealthy Chinese gentleman who took it to Hong Kong. This unknown gentleman restored it back to it's 1920's-1930's condition and converted it to his floating home.

During my last trip to Hong Kong I spent considerable time with Lieu brothers, the Hong Kong diving pioneers .
They were unaware of a Veleron in Hong Kong and nothing appeared in the Hong Kong boat registry.

8) Most recently on January 10 ,2009, 26 year old Rob Murphy was spear fishing off shore in open water of Stuart Florida when he was struck by a boat amputating both his feet. The 38 foot boat driven by an ER doctor did not stop to offer aid, rather the doctor chose to call his attorney who was waiting at the dock for him along with the authorities. This case is still pending and it is predicted that the the come can have a very pronounced effect on the future acceptance and displaying of the divers flag both in Florida and through out the worlds diving community

9) In the late 1950s, locally in SoCal, we aquired a poster of a diving fatality A person who had been struck and killed by a boat. Horrible horrible picture of a body that had been struck by a boat..It was eye catching poster. I still have the only remaining original; many years ago I shared a copy with Dale Schecker of CDN and the SoCal wreck historian Patrick Smith for their historical files and not to be shared in any way with the current diving population. It was just too graphic ! If your mama ever saw the poster she would never allow you to dive again

It was posted in most all marinas and dock in the Southland-- it got the word across.

How about those of you who frequent the docks? Have you or would you produce a poster about the dive flag?

I know the answer-- NO! will you produce a poster? The answer is also NO!

Will you complain YES!

Has anyone contacted the diving equipment manufactures or local shops for a donation for a nation wide dive flag awareness program?

Once again the answer is NO! Will they after reading this? Maybe?

Has any one began collect funds to establish a War Chest to promote the Dive Flag? NO again

Don't ask me --my time has passed-- maybe one of the current movers and shakers such as - Ken Kurtis or Stephen Benavides will step up


10) In the early 1960s I wrote the description of the divers flag for the US Coast Guard Auxiliary which was also incorporated into the famous boating text book "Chapmans." I must have been too verbose since my submission was reduced appreciably to any resemblance to what I wrote and what was published in these documents is purely coincidental. BUT the recognition of a dive flag is mentioned almost as a passing subject --It should be taught in the safe boating courses ...

11) In the mid 1960s I was honored by "Skin Diver Magazine; a magazine for Skin Divers and Spearfishermen," as their very first "Guest Editor." (This was a big honor-the very first guest editor! I had previously appeared on the SDM cover and had published several articles- Only person in the history of SDM to receive all three honors)

The title of my work was "Signpost to safety-- the divers flag." In the article I urged all divers to proudly display the new symbol of our sport, the divers flag; on the bumpers of their automobiles, at their work place; on club jackets and if dressed formally in their lapels... and they did! There was an almost immediate response to my call, for Dive flags seemed to sprout up like weeds, now it seems they are as rare as weeds in Martha Stewart's garden

12) I would also suggest-- urge -- that you publicize the divers by proudly display the flag on your vehicles, on you boats and on your floats.. Displaying a red and white divers flag is no assurance that you will not have an accident and sufferer the pain and its debilitating effects of being injured but if you do have and accident and are flying the dive flag you certainly have recourse as established in a Long Beach California court of law almost 60 years ago by the Toso vs Burns litigation. ---

That is all I have to write.. At this time, maybe details in later posts...But probably not.....I don't have the time!

copyright 2012, 2013, Dr Samuel Miller
< May not be produced in any way for private or personal use >>

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