Archived

This topic is now archived and is closed to further replies.

Captain Organized

Racing Sailboats and Lawsuits

Recommended Posts

From Yesterdays M-Live.... Captain in Lake Michigan regatta crash demands $1M from other skipper

HOLLAND, MI – A sailboat skipper who was seriously injured in a Macatawa Bay Yacht Club regatta has sued another captain for allegedly causing a devastating crash on Lake Michigan.

 

http://www.mlive.com/news/grand-rapids/index.ssf/2016/08/captain_in_lake_michigan_regat.html

 

Not good for sailing I would think.

 

Share this post


Link to post
Share on other sites

Hmmmm, surprised I had not heard of this 2014 incident - especially since I own and race an S2 7.9

 

But in general, if you are racing and break the port-starboard rule, you are responsible for damages.

Share this post


Link to post
Share on other sites
He said he saw the VOOM! approaching to the left. It was closing quickly, 15 to 20 boat lengths out,

 

 

Proximate cause and contributory negligence?

Share this post


Link to post
Share on other sites

Under rule 3, any boat entering a regatta agrees to be governed by the Racing Rules of Sailing. So I think any decent lawyer would argue that admiralty law and IRPCAS did not apply. The incident should have gone to protest to establish a set of facts and determine which rules were broken. Since the collision resulted in serious injury, and probably serious damage, I would think that both boats could have broken rule 14, and the lawyer and insurance companies for the defendant will certainly argue that the plaintiff is 50% at fault for not avoiding the collision. After-all, he saw the boat and hailed when the boats were some 400 to 500 feet apart. It would take at least 40 seconds or so to travel that distance. That should be more than enough time and room to avoid the collision. Also ISAF case 50 would give him the benefit of the doubt that his course change was the result of a "genuine and reasonable apprehension of collision" if he changed course and protested. The port tack boat would probably have been disqualified so there was no reason to push it.

 

On the other hand, since starboard was rounding the offset mark, it is possible that he turned down to round and then turned up at the last minute when he decided he wasn't going to clear. Now starboard is breaking both rule 16.1 and 14 which would put him at fault. Rule 18 does not apply because port is not on the same leg of the course and is not rounding that mark.

 

If there is damage or injury, one should always file a protest even if the other boat retires and acknowledges he is at fault. I have seen several cases now where insurance companies have refused to pay claims based on rule 14 even though their client accepted full responsibility at the time of the regatta. You are in much better shape to have a protest committee decision in your favor.

Share this post


Link to post
Share on other sites

Under rule 3, any boat entering a regatta agrees to be governed by the Racing Rules of Sailing. So I think any decent lawyer would argue that admiralty law and IRPCAS did not apply. The incident should have gone to protest to establish a set of facts and determine which rules were broken. Since the collision resulted in serious injury, and probably serious damage, I would think that both boats could have broken rule 14, and the lawyer and insurance companies for the defendant will certainly argue that the plaintiff is 50% at fault for not avoiding the collision. After-all, he saw the boat and hailed when the boats were some 400 to 500 feet apart. It would take at least 40 seconds or so to travel that distance. That should be more than enough time and room to avoid the collision. Also ISAF case 50 would give him the benefit of the doubt that his course change was the result of a "genuine and reasonable apprehension of collision" if he changed course and protested. The port tack boat would probably have been disqualified so there was no reason to push it.

 

On the other hand, since starboard was rounding the offset mark, it is possible that he turned down to round and then turned up at the last minute when he decided he wasn't going to clear. Now starboard is breaking both rule 16.1 and 14 which would put him at fault. Rule 18 does not apply because port is not on the same leg of the course and is not rounding that mark.

 

If there is damage or injury, one should always file a protest even if the other boat retires and acknowledges he is at fault. I have seen several cases now where insurance companies have refused to pay claims based on rule 14 even though their client accepted full responsibility at the time of the regatta. You are in much better shape to have a protest committee decision in your favor.

How do you know all that? Unless you have direct knowledge, that's a lot to infer.

Share this post


Link to post
Share on other sites

 

How do you know all that? Unless you have direct knowledge, that's a lot to infer.

 

Under rule 3, any boat entering a regatta agrees to be governed by the Racing Rules of Sailing.

 

Not inference: simple application of the RRS. Except it's 'by participating' not 'by entering'. But there they were sailing around: they were 'participating'.

 

So I think any decent lawyer would argue that admiralty law and IRPCAS did not apply.

 

RRS do not cover the field.

 

RRS cover obligations between boats on the water.

 

Admiralty law will cover procedure and determination and quantification of liability.

 

The incident should have gone to protest to establish a set of facts and determine which rules were broken.

 

Not reasonable where the skipper of the complainant was bobbing around in the water with a heart attack.

 

Since the collision resulted in serious injury, and probably serious damage, I would think that both boats could have broken rule 14,

 

Maybe that's an inference, but it's qualified, and IMHO glaringly obvious.

 

and the lawyer and insurance companies for the defendant will certainly argue that the plaintiff is 50% at fault for not avoiding the collision.

 

If 50/50 the starting point? I would have thought maybe 40/60, given the primary failure to keep clear?

 

After-all, he saw the boat and hailed when the boats were some 400 to 500 feet apart. It would take at least 40 seconds or so to travel that distance.

 

Simple arithmetic

 

That should be more than enough time and room to avoid the collision.

 

Inference? In any case, reasonable, no special knowledge required.

 

Also ISAF case 50 would give him the benefit of the doubt that his course change was the result of a "genuine and reasonable apprehension of collision" if he changed course and protested.

 

Speculation, rather than inference.

 

The port tack boat would probably have been disqualified so there was no reason to push it.

 

Now, here's an inference.

 

What port tack boat?

 

The press report said

 

[KABOOM] had just reached the first mark of the course and was rounding an "offset" mark before the crash occurred.

Inference: Mark was to be rounded to port, KABOOM was rounding on starboard. Seems pretty reasonable to me: no special knowledge.

[KABOOM} said he saw the VOOM! approaching to the left.

There's some inference required here. It's ambiguous.

If it means KABOOM saw VOOM approaching to the left of KABOOM, meaning from the left of KABOOM, then the inference is that VOOM was on starboard .

If it means KABOOM saw VOOM approaching, travelling to KABOOM's left, the inference is that VOOM was on port

[VOOM] was closing quickly, 15 to 20 boat lengths out, when [KABOOM] yelled, "Starboard,"

Supposing that KABOOM wasn't mistaken about what tack VOOM was on, this supports the inference that VOOM was on port tack.

[KABOOM's] lawyer contended [KABOOM] had the right of way.

Further supports the inference that VOOM was on port.

[KABOOM] heard nothing from [VOOM].

[presumably some considerable time, like 40 seconds, later]

[KABOOM] steered hard to the right but could not avoid the collision.

(T)he bow of ... 'VOOM,' physically struck the [skipper of KABOOM] in the chest and knocked him out of ... 'KABOOM' and into the water, leaving him lifeless and unconscious almost causing him to drown,

That's consistent with a port/starboard T Bone, VOOM's bow to KABOOM's side, at the cockpit.

On the other hand, since starboard was rounding the offset mark, it is possible that he turned down to round and then turned up at the last minute when he decided he wasn't going to clear.

 

KABOOM 'was rounding' the offset mark 400ft/40 seconds before the contact occurred. There would have been ample room, in the 40 seconds/400 ft between the mark and the incident for KABOOM to wiggle around quite a lot without breaking rule 16.

 

Now starboard is breaking both rule 16.1 and 14 which would put him at fault.

 

If S (KABOOM) 'turns up at the last minute when she decided she wasn't going to clear', then she is a right of way boat attempting to avoid contact once it is clear that the other boat is not keeping clear (rule 14( a )): the other boat has already broken the right of way rule: KABOOM does not break rule 16.1.

 

KABOOM, the right of way boat has no obligation under rule 14 to take any action until it is clear that the other boat is not keeping clear: if, at that time, she begins to take reasonable action to avoid contact, but is unsuccessful, then it is probably not reasonably possible for her to avoid contact, and she does not break rule 14.

 

This is probably the crux of the argument that KABOOM needs to make, and the subtlety of rule 14( a ), compared to the various obligations on the stand-on vessel in COLREGS, may be difficult to explain in court. Case 87 would be very helpful here..

 

Rule 18 does not apply because port is not on the same leg of the course and is not rounding that mark.

 

and more to the point, boats, at the time of the incident are 100 yards from the mark.

 

If there is damage or injury, one should always file a protest even if the other boat retires and acknowledges he is at fault.

 

Generally yes.

 

Note US Sailing Prescription ( a ) to rule 67

 

a boat that retires from a race or accepts a penalty does not, by that action alone, admit liability for damages'

In this case,where the skipper of KABOOM ended up in hospital with a heart attack, I don't think any adverse inference could be drawn from KABOOM not protesting.

 

I have seen several cases now where insurance companies have refused to pay claims based on rule 14 even though their client accepted full responsibility at the time of the regatta.

 

That's pretty aggressive on the part of the insurer, although some policies in the USA may avoid cover if the insured admits liability, in which case, it would be necessary to sue the individual owner.

 

You are in much better shape to have a protest committee decision in your favor.

 

True.

 

 

Share this post


Link to post
Share on other sites

 

Under rule 3, any boat entering a regatta agrees to be governed by the Racing Rules of Sailing. So I think any decent lawyer would argue that admiralty law and IRPCAS did not apply. The incident should have gone to protest to establish a set of facts and determine which rules were broken. Since the collision resulted in serious injury, and probably serious damage, I would think that both boats could have broken rule 14, and the lawyer and insurance companies for the defendant will certainly argue that the plaintiff is 50% at fault for not avoiding the collision. After-all, he saw the boat and hailed when the boats were some 400 to 500 feet apart. It would take at least 40 seconds or so to travel that distance. That should be more than enough time and room to avoid the collision. Also ISAF case 50 would give him the benefit of the doubt that his course change was the result of a "genuine and reasonable apprehension of collision" if he changed course and protested. The port tack boat would probably have been disqualified so there was no reason to push it.

 

On the other hand, since starboard was rounding the offset mark, it is possible that he turned down to round and then turned up at the last minute when he decided he wasn't going to clear. Now starboard is breaking both rule 16.1 and 14 which would put him at fault. Rule 18 does not apply because port is not on the same leg of the course and is not rounding that mark.

 

If there is damage or injury, one should always file a protest even if the other boat retires and acknowledges he is at fault. I have seen several cases now where insurance companies have refused to pay claims based on rule 14 even though their client accepted full responsibility at the time of the regatta. You are in much better shape to have a protest committee decision in your favor.

How do you know all that? Unless you have direct knowledge, that's a lot to infer.

 

It purely deduction and conjecture based on what little evidence the article provides. There are also some leading arguments that a civil jury might believe that knowledgeable sailors on a PC would not.

 

Brass,

I have heard several judges argue in similar instances that because of case 107, ROW took an "avoiding action" as soon as she hailed "starboard". At that point, she would have had a "genuine and reasonable apprehension of collision" and should have continued to do everything reasonably possible after that to avoid a collision. The other argument made is that since ROW took the "avoiding action" of hailing, the other boat was not keeping clear and should take a penalty or be disqualified.

 

Obvious that case 107 opens a can of worms, but how does one deal with that?

 

While the rules don't require a protest, one of the crew could have represented the boat in a hearing and the PC would have had a good reason to extend the time limit for filing. Also, the PC itself could initiate a protest under 60.3 (a) (1).

Share this post


Link to post
Share on other sites

Is the suit being driven by the injured party in person, or was the suit initiated by the insurance company attempting to recover their out of pocket costs as a result of a claim? If it's a personal suit, then I agree with the original post that the claimant may be over stating his moral rights because he waived them when he agreed to be governed by the RRS. On the other hand, if it's the insurance carrier driving it, then that's a matter for our society as a whole to worry about and, frankly, I can't criticize a company making a business decision within the law to recover the money - that's their responsibility to their shareholders and we should expect no less.

Share this post


Link to post
Share on other sites

I was sued in a J/24 race when I tacked on my buddy. We had an override on the lazy sheet and spun into him. He had a overweight rookie first time sailor on board and his foot was caught between the boats. He left the race course and when I saw ambulance lights, I bailed out of the race. They took the guy to the hospital.

 

I met my buddy at the bar and was mystified about what happened, it seemed to me I bumped his boat and there was little contact. My buddy said essentially "relax, no harm done, my boat's got a scuff but add it to the others. The guy said he sprained his ankle, he has insurance, no big deal, buy me a beer and we're good...".

 

A few days later he called me and said the guy wants him to file a formal protest and he said no, but since I did withdraw we knew it was pointless.

 

A few days after that I got a letter from a real low rent law firm (they mis-spelled my name and had at least 2 typos in the letter) saying I was being sued, he claimed soft tissue damage and was asking for alot, $50K or $75K, I can't remember. My buddy again told me to "relax, I'll go talk to him, I just saw him mowing his lawn. If he doesn't withdraw the suit I'll kick his ass". Needless to say, he didn't withdraw. Now we have two insurance companies involved.

 

One of the most surreal events in my life was giving a deposition to 3 lawyers who had not one clue what sailboat racing was about. They asked why I would do that, tack so close, especially a friend. Pretty funny, my response was something like "Uh, because I could, I crossed him on port and would have nailed him at the top mark, we were leading the race...". At the end of the deposition, one of the attorneys said "I just don't see why anyone would do this, it just doesn't seem like it would be fun".

 

The "hurt" guy was seen walking around, mowing his lawn, etc. but my Insuracne Co settled for a fraction of the original amount. I wanted to fight it but they didn't so it was settled. So it never got to the Colregs vs. RRS or anything like that, but I was totally at fault no matter what. Then the Ins Co dropped my boat and house insurance policies. That sucked, boy was my ex-wife pissed.

Share this post


Link to post
Share on other sites

There is case law where the judges have ruled that the RRS do replace IRPCAS. Precedent has been set.

 

Have you got a link for that? I've seen nothing that updates (and reverses) the precedent set with Charles Jourdain vs. Endeavour, as discussed by the late Mary Pera in the IJ forum, as "Defining Liability Between Racing Yachts"

 

For future reference. the full text:

 

 

Mary Pera: Defining Liability Between Racing Yachts

Provided by Graeme Hayward, International Judge
The authority of the racing rules in deciding liability between boats that are racing is based on legal precedents in English law over the last hundred years.
These precedents were reviewed and supported by an important decision of the United States Court of Appeals for the First Circuit in 1995 which firmly entrenched the Racing Rules Of Sailing (in those days the International Yacht Racing Rules) as the authority on which fault is determined.
The case in question was a protest heard by an International Jury in France involving Charles Jourdain v Endeavour in the Mediterranean in October 1992. The damages claimed by Charles Jourdain were large, involving a claim of US $15.4 million for neck whiplash and other injuries plus US $600,000 for physical damage to the yacht.
The findings in this case were reviewed in an article written by the late British International Judge Mary Pera for the IYRU Judge's Forum in August 1995. Unfortunately this article is not available in an electronic form and it has therefore been re-typed and revised to include the references to ISAF and the Racing Rules of Sailing - since the 1995 document refers to the IYRU and the International Yacht Racing Rules - i.e. to the 'old' rules. The article is as follows:
CHARLES JOURDAIN vs. ENDEAVOUR
(Extract of a report by Mary Pera published in the IYRU Judges' Forum # 17 of August 1995)
An important case which will affect judgements of law courts in all countries, and certainly those whose systems are based on English law, has recently been decided in the United States. It sets the International Yacht Racing Rules (now the Racing Rules of Sailing) firmly in place, greatly strengthening the earlier decisions of a hundred years ago.
In October 1992 the 72 ft Charles Jourdain (formerly Juno) and the 120 ft ex-J class Endeavour were sailing in separate races in the same event in the Mediterranean. Charles Jourdain established an overlap from clear astern at least 60 ft to leeward of Endeavour. In spite of having ample room and opportunity to keep clear [the wording of the International Yacht Racing Rules, rule 37.3], Endeavour held her course until her boom hit Charles Jourdain's backstay. Serious damage resulted from their collision. The protest was heard by an International Jury and Endeavour was disqualified under the International Yacht Racing Rules, rule 37.1 [now the Racing Rules of Sailing rule 11].
Charles Jourdain then took the matter to the courts in an effort to get damages. The case was heard by the US District Court of Maine in September 1994.
In a worrying decision the court stated: 'There is no dispute that the COLREGS [iRPCAS] provide the rules which govern the behaviour of these particular boats. Although they were both involved in races which were governed by The International Yacht Racing Rules [now the Racing Rules of Sailing], the rules of a private racing organisation do not and cannot pre-empt the application of COLREGS which have been adopted by treaty to govern world-wide. Thus we look to COLREGS for the controlling rules in this case.
Thus this court ignored the International Jury's findings, and turned to the COLREGS: Charles Jourdain was the overtaking yacht and obliged to keep clear, though the court found both yachts at fault (60% Charles Jourdain and 40% Endeavour).
All this seemed to lead to the conclusion that we might as well scrap the racing rules, at least at sea; for no insurance company could be expected to insure yachts that obeyed different rules from those that the courts would apply. However, the decision was appealed and heard earlier this year in the United States Court of Appeals for the First Circuit before three judges, the Chief Judge being Juan R Torruella, who, at that time, was also an IJ representing Puerto Rico.
The courts decision, reversing the issue of liability, is worth quoting at some length for it is of great importance to anyone interested in the legal framework within which our sport takes place.
'The history of the COLREGS shows that they were enacted because of the need to establish a code of international rules of the road for maritime traffic through out the world. However, nothing in their historyŠindicates that they were meant to regulate voluntary private sports activity in which the participants have waived their application and in which no interference with non-participating maritime traffic is implicated.
'Surprisingly, considering the extent and history of maritime and yachting traditions there is a dearth of applicable jurisprudence, although older reported English cases reveal that these questions have not altogether avoided judicial scrutiny over the years.
'The cases we have found however, are helpful to the extent that they establish the principle that when one voluntarily enters a yacht race for which published sailing instructions set out the conditions of participation, a private contract results between the participants requiring their compliance therewith.
'The legally binding nature of the obligations created by the International Yacht Racing Rules [now the Racing Rules of Sailing] and the Sailing Instructions is not altogether a new or revolutionary concept. In 1897, in The Santanita, a case involving a collision between two racing yachts sailing under the rules of the Yacht Racing Association (of Great Britain), the House of Lords concluded that the owners were bound by the Association's rule making one yacht liable for all damages notwithstanding the liability limitation provisions of the Merchant Shipping Act. In Clarke v Thayer [a US case of the same date, 1897] the court held that a yacht club's racing rule bound a member of the club participating in a club regatta notwithstanding a conflicting navigation law of the United States.'
Later cases to the same end are cited and the decision then outlines Part VI of the International Yacht Racing Rules [now Part 2 of the Racing Rules of Sailing] and continues: 'These mechanisms were agreed to by the parties. [They] agreed to the substantive rules for determining fault, they agreed to the adjudicating forum and they were appraised of the procedures. They appeared before the forum, submitted to its jurisdiction, presented evidence and argument and thereafter were served with that body's findings and final decision. Thus [both yachts] were contractually bound to race by the rules of the road contained in the International Yacht Racing Rules [now the Racing Rules of Sailing] and to resolve issues related to fault according to these rulesŠ Furthermore, the procedures established by the International Yacht Racing Rules [now the Racing Rules of Sailing] meet the requirements of due process; there is appropriate written notification of their allegations, notice is given of the hearing; the parties are allowed to appear and present evidence and witness testimony; They may also cross-examine opposing witnesses and argue orally; and generally, engage in all those accepted activities held so dear by common law lawyers. Finally, a written decision, in which findings of fact are made and fault apportioned, is issued to all interested parties. Equally important, the evidence is heard soon after the events take place by a panel of experts who are fully versed in the niceties of the activity in question. It is hard to find fault with such a process, particularly when it is exactly what the participants agreed to.
'Insistence on blind application of COLREGS to the facts of this case is not only unsupported by any historical imperative in this legislation and contrary to the weight of the sparse relevant authority, it is logically unsound. Such application would turn on its head and render rife with uncertainty the thousands of private yacht races that take place throughout the United States and world-wide in which participants voluntarily agree to be bound by the International Yacht Racing Rules [now the Racing Rules of Sailing]. The decision could even have a serious negative impact on such international races as the America's Cup or the yachting events of the forthcoming Olympic Games in Atlanta. Under such logic, notwithstanding agreement by Olympic participants to abide by the International Yacht Racing Rules [now the Racing Rules of Sailing] and to have protests decided by International Juries, they could thereafter regurgitate any issues in the courts under the COLREGS. Such absurdity is difficult to countenance, and cannot have been contemplated by Congress or the treaty negotiating authorities when the COLREGS were adopted.'
Coming to the question of damages, the court quoted the International Yacht Racing Rules, rule 76.1 [now the Racing Rules of Sailing, rule 68] and approved of an interpretation in an earlier case '[The] courts are the rightful location of litigation over yacht racing damages unless [national] racing authorities provide in essence, for private resolution'. There being no agreement about the determination of the damages, the court decided that Charles Jourdain was entitled to claim and prove that the damages caused by Endeavour based upon the determination of fault by the International Jury. The outcome of all this should be a firm base for solving future problems.
Revised to include references to the ISAF Racing Rules of Sailing for 2000-2004. - Graeme Hayward

Share this post


Link to post
Share on other sites

PE, re-read what Glenn wrote. You are both saying the same thing.

Share this post


Link to post
Share on other sites

I was sued in a J/24 race when I tacked on my buddy. We had an override on the lazy sheet and spun into him. He had a overweight rookie first time sailor on board and his foot was caught between the boats. He left the race course and when I saw ambulance lights, I bailed out of the race. They took the guy to the hospital.

 

I met my buddy at the bar and was mystified about what happened, it seemed to me I bumped his boat and there was little contact. My buddy said essentially "relax, no harm done, my boat's got a scuff but add it to the others. The guy said he sprained his ankle, he has insurance, no big deal, buy me a beer and we're good...".

 

A few days later he called me and said the guy wants him to file a formal protest and he said no, but since I did withdraw we knew it was pointless.

 

A few days after that I got a letter from a real low rent law firm (they mis-spelled my name and had at least 2 typos in the letter) saying I was being sued, he claimed soft tissue damage and was asking for alot, $50K or $75K, I can't remember. My buddy again told me to "relax, I'll go talk to him, I just saw him mowing his lawn. If he doesn't withdraw the suit I'll kick his ass". Needless to say, he didn't withdraw. Now we have two insurance companies involved.

 

One of the most surreal events in my life was giving a deposition to 3 lawyers who had not one clue what sailboat racing was about. They asked why I would do that, tack so close, especially a friend. Pretty funny, my response was something like "Uh, because I could, I crossed him on port and would have nailed him at the top mark, we were leading the race...". At the end of the deposition, one of the attorneys said "I just don't see why anyone would do this, it just doesn't seem like it would be fun".

 

The "hurt" guy was seen walking around, mowing his lawn, etc. but my Insuracne Co settled for a fraction of the original amount. I wanted to fight it but they didn't so it was settled. So it never got to the Colregs vs. RRS or anything like that, but I was totally at fault no matter what. Then the Ins Co dropped my boat and house insurance policies. That sucked, boy was my ex-wife pissed.

 

Your Ins Co, settled for the other Ins Co's costs. The guy was probably threatened with Ins fraud and backed down.

As for your Insurance Co, make sure you have a boat policy from a Co that understands boats. I have an excellent policy through the Brokers that also work with USS. When I go out I feel confident about my coverage. I had my policy for 6 month when we dismasted and got a check no questions asked.

Do not get a $50 or $100 / year piece of shit policy.

Share this post


Link to post
Share on other sites

"snip snip"

What I meant was that the relative positions & courses of the boats on the course did not seem so clear. To me it sounded like the possibility of a windward gate, but the article said offset mark so I guess not.

 

Still I can't see how a boat that has already gone around the WW mark and is rounding an offset mark (how far away?) on starboard could be on an intersecting course with a port tack boat, unless port waaaay overstood. Or was hunting?

 

I'd like to see a diagram before deciding if this suit is a good or bad thing. If the suit hits someone who is acting like someone we have all known & hated or is purely accidental makes a difference. To me, anyway. YMMV.

Share this post


Link to post
Share on other sites

There's a lot involved in this stuff, but those who are warning that the RRS replace the COLREGS may be right - but also may not. It depends on the regatta, and the SI's in question. The nature of Juno SRL v. Endevour is _not_ to hold that the RRS apply as a matter of racing law, but rather that as a function of contract law the parties who enter a regatta are contractually bound by SI's, which may in turn include a choice of law provision imposing the RRS over the COLREGS. Fundamentally a skipper entering a race agrees to an arbitration provision that puts the RRS protest process in the place of more traditional arbitration. It may well be that functionally every regatta we enter makes the choice of law provision operative, but its the SI, not the fact that boats are racing that forces the change.

 

That whole scheme may or may not affect the relationship between the skipper and boat and its crew. After one issue I owned a boat I renamed "Assumed Risk," for a while. I figured you couldn't miss the waiver when you climbed on board...

 

(This post is not a substitute for legal advice; don't taunt happy fun ball, etc.)

Share this post


Link to post
Share on other sites

 

"snip snip"

What I meant was that the relative positions & courses of the boats on the course did not seem so clear. To me it sounded like the possibility of a windward gate, but the article said offset mark so I guess not.

 

Still I can't see how a boat that has already gone around the WW mark and is rounding an offset mark (how far away?) on starboard could be on an intersecting course with a port tack boat, unless port waaaay overstood. Or was hunting?

 

I'd like to see a diagram before deciding if this suit is a good or bad thing. If the suit hits someone who is acting like someone we have all known & hated or is purely accidental makes a difference. To me, anyway. YMMV.

 

I certainly can't disagree that the incident, as described in the press report, sounds 'odd', particularly the 15 to 20 boatlengths distance.

 

As I (faintly) indicated in my dissection of Foxxy's post, I initially thought the other boat was on starboard, somewhere near the axis.

 

Factors that could affect the situation would include:

  • Misestimation, or misreporting by the media, of the initial distance to the other boat;
  • Misestimation, or misreporting by the media, of the initial distance from the mark;
  • A very long, deep offset leg;
  • The other boat being overstood, and footing fast ('closing quickly');
  • Misperception by the plaintiff/protesting boat that the other boat was on port, when in fact it was on starboard.

Any tribunal of fact, be it protest committee or court, would need to do a much better job of fact-finding than we have to date, and resolve these issues.

Share this post


Link to post
Share on other sites

There's a lot involved in this stuff, but those who are warning that the RRS replace the COLREGS may be right - but also may not. It depends on the regatta, and the SI's in question. The nature of Juno SRL v. Endevour is _not_ to hold that the RRS apply as a matter of racing law, but rather that as a function of contract law the parties who enter a regatta are contractually bound by SI's, which may in turn include a choice of law provision imposing the RRS over the COLREGS. Fundamentally a skipper entering a race agrees to an arbitration provision that puts the RRS protest process in the place of more traditional arbitration. It may well be that functionally every regatta we enter makes the choice of law provision operative, but its the SI, not the fact that boats are racing that forces the change.

 

That whole scheme may or may not affect the relationship between the skipper and boat and its crew. After one issue I owned a boat I renamed "Assumed Risk," for a while. I figured you couldn't miss the waiver when you climbed on board...

 

(This post is not a substitute for legal advice; don't taunt happy fun ball, etc.)

It might be that a race could take place in circumstances where the RRS did not displace the COLREGS.

 

For this to happen it would be pretty much necessary to persuade a court that the RRS did not apply at all. The NOR/SI would have to:

  • not comply with rules J1.1(2) and J2.1(1);
  • not comply with rule J1.2(6);
  • amend rules in contravention of rule 86.1.

Share this post


Link to post
Share on other sites

I don't see anywhere that IRPCAS (the current name of ColRegs) is superceded by the racing rules.

 

There are relatively few conflicts, the Jourdain/Endeavor case falls into one of the few: the difference between 'clear astern' in RRS and 'overtaking' in ColRegs.

 

FB- Doug

Share this post


Link to post
Share on other sites

There is case law where the judges have ruled that the RRS do replace IRPCAS. Precedent has been set.

Not dispositively, and not by a very high court IIRC. Do you remember which case it was?

Share this post


Link to post
Share on other sites

 

There is case law where the judges have ruled that the RRS do replace IRPCAS. Precedent has been set.

 

Not dispositively, and not by a very high court IIRC. Do you remember which case it was?
Juno SRL v. S/V Endeavour, 58 F.3d 1 (C.A.1 (Me.), 1995) is the seminal case (Fed 1st) and to my knowledge is the only Circuit court case on point.

 

The 1st Cir held that by agreeing to race the vessels had privately contracted to binding arbitration under the Federal Arbitration Act holding...

"We also note that our decision here comports with Sec. 2 of the Federal Arbitration Act, which pointedly states that "[a] written provision in any maritime transaction ... to settle by arbitration a controversy arising out of such ... transaction ... shall be valid, irrevocable, and enforceable." These conditions exist here. Yacht racing is a maritime transaction, and the provisions of the IYRR establishing the racing rules and the protest procedures are in writing and binding on participants."

 

And

 

" In sum, the International Jury found the ENDEAVOR solely responsible for the collision, and it was inappropriate for the district court to have gone beyond this decision in the assignment of fault. We conclude that the findings of that forum were final and binding on the parties, and we therefore reverse the decision of the district court in that regard."

 

Note that the court did find that the quantum of damages is a proper question for the courts, and so once the protect committee has determined fault it is up to the courts to determine how much is owed.

 

Also see De Sole v. U.S., 947 F.2d 1169 (C.A.4 (Md.), 1991) where the court assumes and applies the RRS but does not address if it should as the question was not raised.

 

The only contrary case I know of, and cited by Juno was a District Court case out of Hawaii that apparently has no reasoning, and no appeal. Given the court simply disposed of the issue with no reasoning I doubt its applicability given the strong rational in Juno.

 

 

It should also be pointed out that the chief judge in Juno was also a USSailing judge (international I think), and active racer. So it is a particularly strong case in my eyes since the judge actually understood sailing.

Share this post


Link to post
Share on other sites

We had a beauty of an incident about 25 years ago out here in Honolulu on the classic Friday night race.

 

An old skipper of mine - The Late, great Dan Doyle took a visiting couple aboard his J/24 ACTUATION - for the usual 1-hour beer can event down to HH from the Ala Wai. It was blowing an unusual light (6 kts) SSW wind (not Trades) - so, after a short beat south out of the Ala Wai channel it was a long PORT fetch west to the Honolulu Harbor offshore buoy - which was rounded to starboard, as is traditional in this event - so a gybe there, and a long starboard reach back to the Ala Wai channel.

 

Easy, right ? I sailed on Mauna Lani Flash that night and we had a perfect gybe-set right at the mark, and a minute after us Dan's crew did the same - only they came out of the move bow-to-bow with a Thomas 35 driven by a guy I'll just call "Crash-bang Joe" (he was roundly called that because he ran into a lot of boats, now also deceased).

 

With the kite full (on Starboard now) and extra crew on the weather rail AND knowing the Port-tack boat would want to steer UP so they could still make a proper rounding, Dan bore away....and Crash-Bang Joe, well he had Tone. Full-on missile-lock, target fixation, whatever - he bore away too and T-boned (as in, ZERO deflection) the J's starboard (weather) rail - right where a passenger was sitting, causing injury.

 

A speed boat observed the whole thing and the injured party was off-loaded and RUSHED ashore a warp 9, with a call made enroute (remember Motorola Brick phones ?) - an ambulance was waiting when they arrived at a yacht club in the Ala Wai and the victim was taken directly to the hospital with a leg injury - serious, but not deadly. What impressed me was how very seriously everyone handled the event and how well the unfortunate couple had been looked after following the crash -which damaged the little J significantly for such a low-speed event.

 

The couple ended up suing BOTH boats and BOTH yacht clubs involved (the one conducting the race and the one they got the hospitality of a boat ride from) - for a considerable sum - I forget how much now but it was big.

 

Among the exhibits entered in discovery was the claim of injury to the loss of their sex life because they had only engaged in "Jump-Sex" ( I could not possibly make that up) and the lack of one partners knee-strength was costing them intimacy. Seriously. Now I don't doubt there was injury, expense, and liability involved - but ONE party was clearly to blame to anyone that understands how racing sailboats work -- and in the 'deep pockets' world that doesn't matter one bit.

 

Like all these things, it got settled...

 

 

Lessons:

1) Be VERY careful who you have aboard

2) Stay away from boats driven by people with nicknames like "Crash-Bang Joe"

3) In a tight-rounding situation you can't always count on someone doing the "rational" thing

 

Why do boats collide ? They get too close together.

Share this post


Link to post
Share on other sites

Is it not common to require insurance? Pretty standard here. E.g. Tuesday night racing NoR for the Island Sailing Club (Isle of Wight)

 

All boats are required to hold third party indemnity insurance for racing with cover for a minimum of £2,000,000.

Share this post


Link to post
Share on other sites

 

Most events in the U.S. do not require insurance.

? Since when?

 

 

I know Mr. McCarthy is in the insurance business, but I too cannot recall a race where a copy of insurance cert was not required. I raced in the 7.9's for ~15 years or so until our owner moved to a cruising boat, and all of the regional regattas, NOOD regattas, and class champ required insurance. Races we do on my cruiser/racer require insurance as well. Granted, these are all MIdwest regattas/races, so I suppose this may not be representative of the enitre country.

 

Also, while not related directly to racing, our club full of Lightnings and 25-30 foot boats requires insurance for the boat to be on/in the property/harbor, and the marina where I keep my boat requires insurance cert for summer and winter storage.

Share this post


Link to post
Share on other sites

Please use simple logic. There are differences between the RRS and IRPCAS when it comes to right of way rules which is the root of the issue. It would make no sense at all to have racing boats subject to the RRS right of way rules, only to be adjudicated in a court of law using IRPCAS right of way rules. That is the heart of what the appellate court judge said.

 

In the RRS, it says that they are to be used to determine right of way, but the yacht club judges are not to determine damages or injuries (this step is left to a court of law). These S27.9s are following this path,.

 

When two racing boats meet, they need to respect the RRS, and if one, the other, or both fail, that is the outcome of the RRS. Going forward from there, a court will determine the total dollar amount, and highly likely using "contributory negligence" to determine damages.

 

Normally with boating accidents it is rare that one boat is completely free of fault, it is normal that the total damages get determined, and then apportioned by the percentage of fault each boat contributed causing the accident.

Share this post


Link to post
Share on other sites

Insurance at all the local Marinas around here and proof of insurance to race is by far the norm. Racing w/out ins. is pretty stupid.

 

Even tho I pay thru the nose because of being sued, dropped by my ins. co. (you know that form you have to tick of each box? tick off "coverage dropped" and you're a whole 'nother animal to the underwriters) and another substantial claim since, now I pay a small fortune. It sucks but it's the price of doing business nowadays,

Share this post


Link to post
Share on other sites

Our YC requires insurance docs for x amount of liability (I think it used to be $300,00) before you can get your slip or maintain using it. (keelboats)

Share this post


Link to post
Share on other sites

I like the plaintiff's attorney's hyperbole: "lifeless in the water", "heart failure". I think either of those claims, if true, would imply the family of the deceased was suing.

Share this post


Link to post
Share on other sites

Insurance, in itself, is not a solution. And, it might be the problem. For example, if an injured party receives compensation from his/her/skipper's insurance company, that Insurance company may pursue reimbursement from the opposite party. If you are sued and seek protection by your insurance company you must convince them that they have an obligation to provide both a defense and pay any damages. Frequently, insurance companies will try to avoid one or the other obligations. And, even if they provide a defense, remember that "your" lawyer really works for the insurance company. That's his real client and he/she doesn't give a shit about you. In spite of all these problems, I would not sail without insurance coverage. Not perfect but necessary.

Share this post


Link to post
Share on other sites

Just a note, Michigan has "no-fault" auto insurance. You insure your own vehicle for what you want. Mini tort covers the first 1K by the "at fault" driver, but after that, it is on you. Boat insurance in Michigan is different. The "at fault" party pays all damages.

Share this post


Link to post
Share on other sites

The insurance issue is not cut and dry. A marina can require a specific type of insurance and usually requires that they be named as "additional insured" on the policy. Basically that covers the marina for any damages caused by a boat. The best example would be a boat catching fire and the fire spreading to surrounding boats. However, if a club started requiring to be named as "additional insured" they would 1) break rule 82 (US Sailing prescription) and 2) having to go to one's insurance company and getting a rider added for every regatta you went to might reduce attendance. At a national championship I ran several years ago, the OA and I decided that they could require being named "additional insured", for dockage at their club, but not as a condition of entry to the regatta.

 

If a club wants to specify an insurance requirement, they need to follow up and make sure that everyone has an acceptable form of liability insurance. A lot of boats travel out of state to regattas. You may have an insurance card, but how does one know what that insurance covers? One can have a personal liability rider on their home owner's policy, but may not insure the boat itself. Does the club need to review the wording of everyone's policy to determine if it meets the requirements? The answer is probably yes, because the NOR is a contract in which the OA stated that everyone was required to have adequate insurance. If they let one boat race without it, they break that contract. The lawyers here can tell us how much liability for the OA that opens up.

Share this post


Link to post
Share on other sites

Would be interesting to know the settlement between Amorita and Sumurun. Not that we ever will.

racing different size boats on same course is asking for trouble

racing 100 year old boats is asking for trouble unless we have 100 year old sailors

Share this post


Link to post
Share on other sites

I thought the first rule was avoid collision, a mate of mine was crossing tacks and yelled out starboard to the other boat numerous times with evasive action at the last minute but they collided and the insurance company deemed him at fault resulting in trips to court due to him seeing the other boat and not avoiding collision

Share this post


Link to post
Share on other sites

 

There is case law where the judges have ruled that the RRS do replace IRPCAS. Precedent has been set.

Not dispositively, and not by a very high court IIRC. Do you remember which case it was?

 

Sent you PM.

Share this post


Link to post
Share on other sites

DrewR, Where do you race on BB which requires PROOF of insurance?(actually showing the regatta organizers an insurance accord)

 

I have NEVER been required to provide proof of insurance at any regatta I have ever entered, local or otherwise. This includes, Key West, Charleston, Annapolis NOODS, Detroit NOODS, BBR, Edgartown Race week, PHRF NE's, Newport Regattas, etc.

 

Hell, our local yacht club beer can racing doesn't require proof and I know for a fact there are several boats racing without insurance. (smaller one designs)

 

I myself would NEVER put my boat on the line without insurance AND a 3M umbrella policy. Its just plain stupid not to.

Share this post


Link to post
Share on other sites

I entered a SBYC one day regatta. The online entry required my Ins Company Name and Policy #.
I think it was a good thing.

Share this post


Link to post
Share on other sites

Brass,

I have heard several judges argue in similar instances that because of case 107, ROW took an "avoiding action" as soon as she hailed "starboard". At that point, she would have had a "genuine and reasonable apprehension of collision" and should have continued to do everything reasonably possible after that to avoid a collision. The other argument made is that since ROW took the "avoiding action" of hailing, the other boat was not keeping clear and should take a penalty or be disqualified.

 

Obvious that case 107 opens a can of worms, but how does one deal with that?

 

I agree that Case 107 might have been written with a bit more 'judicial sophistication'. Not being a sophisticated jurist, I'm not quite sure how.

 

I might suggest the the action that could have and should have been taken, rather than hailing was to keep an effective lookout.

 

I think the best approach is to keep Case 107 strictly within its own bounds. It is an authoritative interpretation of the phrase 'need not act to avoid contact' in rule 14. It does not refer to the Definition of Keep Clear, or, despite the similarity, to the phrase 'no need to take avoiding action' used in that definition.

 

Furthermore, while a hail of 'starboard' may be characterised as an act to avoid contact, when made at a distance of 15 to 20 boat lengths, it can hardly be said to be an action needed to avoid another boat.

 

I think this leads on to considering Reasonable Apprehension, which is the touchstone of 'need to take avoiding action' discussed in Case 50.

 

According to Merriam-Webster, 'Apprehension' is the result of 'apprehending' and 'apprehending can have different meanings, particularly:

a : to become aware of : perceive

b : to anticipate especially with anxiety, dread, or fear.

 

I think the better meaning with respect to Reasonable Apprehension in Case 50 is the second: to anticipate with anxiety.

 

To use the present scenario to illustrate: At 15 boat lengths, S may observe P, on a converging course and become aware or perceive that, subject to conditions, such as if P does not observe S and/or change her course or speed, P and S may collide. In the ordinary course of racing, there is little or no fear or anxiety that, in the 40 seconds or so that it will take P to cover the 15 boat lengths, she will not observe S and keep clear.

 

At this point it cannot be said that S has a reasonable apprehension of collision or contact so as to support a conclusion that S needs to take avoiding action.

 

If S chooses to hail 'starboard' at this time, as a precaution, she is welcome to do so, but it cannot be inferred from the hail that, at that time, she needed to hail, much less take avoiding action such as changing course and speed. Thus, at this point, P is not failing to keep clear.

 

As to any obligation on S to 'continued to do everything reasonably possible after that to avoid a collision', that is the very thing that Case 107 stresses that rule 14( a ) excuses her from doing: she is not required to take any action to avoid contact: "Until that moment [when it was clear that the give way boat was keeping clear], rule 14(a) allows a right-of-way boat to delay acting to avoid contact."

 

Lastly, there can be no doubt that, in the event of contact, the give way boat has failed to keep clear, no matter what action, to avoid contact or otherwise, the right of way boat may have taken.

Share this post


Link to post
Share on other sites

There is case law where the judges have ruled that the RRS do replace IRPCAS. Precedent has been set.

 

 

I was thinking the same thing. While WE sailors adhere to the understanding that the RRS replace IRPCAS while racing, I do not thing a court of law is obligated to follow that since the RRS is simply a somewhat informal agreement among racers while IRPCAS is established law.

 

I 100% agree that you should have a protest hearing to establish facts to help bolster your case. But I don't think a judge in a civil court is under any obligation whatsoever to follow it. I think a good judge would take that (PC decision) into account - but I would not count on it.

Share this post


Link to post
Share on other sites

In US jurisdictions, a Judge will replace the IRPCAS with the RRS if the SI's call for it, as most or all do. This is fundamentally an agreed-to arbitration clause. There would be no discretion. Either your arbitrate (RRS) or you don't (IRPCAS).

 

As to a Judge taking PC facts into consideration in a civil trial - that would be right in a civil damages trial applying the outcome of a protest process, but wrong under a civil merits trial. There will be only one fact finder.

 

This is important: If you race and there is an incident, file the protest. You could otherwise find that you had waived your claim under the RRS, in a scenario where the RRS apply, and that you therefore cannot obtain relief in a court later if need be. This could void your own insurance, because it could preclude your insurer for subrogating your claim to an otherwise potential defendant tortfeasor. This also means that you need to protest (and appeal) correctly. For example, if your protest were flicked on a technical ground - no flag, no hail, failure to complete the form correctly, late getting filed, etc., you will have lost the appeal and may lose the ability to proceed in court.

 

YMMV. I'm not your lawyer, etc.

Share this post


Link to post
Share on other sites

DrewR, Where do you race on BB which requires PROOF of insurance?(actually showing the regatta organizers an insurance accord)

 

I have NEVER been required to provide proof of insurance at any regatta I have ever entered, local or otherwise. This includes, Key West, Charleston, Annapolis NOODS, Detroit NOODS, BBR, Edgartown Race week, PHRF NE's, Newport Regattas, etc.

 

Hell, our local yacht club beer can racing doesn't require proof and I know for a fact there are several boats racing without insurance. (smaller one designs)

 

I myself would NEVER put my boat on the line without insurance AND a 3M umbrella policy. Its just plain stupid not to.

 

I guess 'proof' might have been referring to the marina's policy. You're right insurance "proof" for regattas isn't checked from what I've experience but it is mentioned in the SI's in more than a few regatta's I've done.

Share this post


Link to post
Share on other sites

 

There is case law where the judges have ruled that the RRS do replace IRPCAS. Precedent has been set.

 

 

I was thinking the same thing. While WE sailors adhere to the understanding that the RRS replace IRPCAS while racing, I do not thing a court of law is obligated to follow that since the RRS is simply a somewhat informal agreement among racers while IRPCAS is established law.

 

I 100% agree that you should have a protest hearing to establish facts to help bolster your case. But I don't think a judge in a civil court is under any obligation whatsoever to follow it. I think a good judge would take that (PC decision) into account - but I would not count on it.

There is binding precedent in one circuit that the RRS apply for fault determination, and very strong persuasive precedent in the rest of the country with no contrary position.

 

The best way to interpret the current law is that the protest committee determines fault (only), while the court determines the amount of damages (only).

Share this post


Link to post
Share on other sites

In US jurisdictions, a Judge will replace the IRPCAS with the RRS if the SI's call for it, as most or all do. This is fundamentally an agreed-to arbitration clause. There would be no discretion. Either your arbitrate (RRS) or you don't (IRPCAS).

 

As to a Judge taking PC facts into consideration in a civil trial - that would be right in a civil damages trial applying the outcome of a protest process, but wrong under a civil merits trial. There will be only one fact finder.

 

This is important: If you race and there is an incident, file the protest. You could otherwise find that you had waived your claim under the RRS, in a scenario where the RRS apply, and that you therefore cannot obtain relief in a court later if need be. This could void your own insurance, because it could preclude your insurer for subrogating your claim to an otherwise potential defendant tortfeasor. This also means that you need to protest (and appeal) correctly. For example, if your protest were flicked on a technical ground - no flag, no hail, failure to complete the form correctly, late getting filed, etc., you will have lost the appeal and may lose the ability to proceed in court.

 

YMMV. I'm not your lawyer, etc.

 

See 61.1 (a) (4) If the protest involves damage or injury, the flag and hail are not necessary; 60.3 (a) (1) The protest committee itself can protest a boat if there is damage or injury; 61.2 ... most of the protest form can be filled out during the hearing. 61.3..........The protest committee shall extend the time limit if there is a good reason to do so.

 

There is really no reason for a protest involving damage or injury not to be heard.

Share this post


Link to post
Share on other sites

In US jurisdictions, a Judge will replace the IRPCAS with the RRS if the SI's call for it, as most or all do. This is fundamentally an agreed-to arbitration clause. There would be no discretion. Either your arbitrate (RRS) or you don't (IRPCAS).

 

As I indicated in my post 19, it would take extraordinary NOR/SI, which very clearly set out to NOT apply the RRS for the RRS not to apply.

 

Juno v Endeavour stands for two things:

  1. "... by entering a regatta with sailing instructions which unambiguously set forth special, binding “rules of the road,” the participants waive conflicting COLREGS and must sail in accordance with the agreed-upon rules": this is a 'common law' precedent, and will be taken notice of in any common law jurisdiction, and possibly in other jurisdictions.
  2. as discussed by StumbleNola in post 23, the conclusions and decision of a protest committee under the RRS are binding as an arbitration under US law: this depends on specific US legislation.

These issues are independent. RRS will always apply (note: but only where they conflict with IRPCAS): whether a boat protests, invoking the RRS 'arbitration' process or not.

 

There is no basis in the case law to suggest that by not protesting, a boat falls back into IRPCAS rules of the road.

...

 

This is important: If you race and there is an incident, file the protest.

 

You could otherwise find that you had waived your claim under the RRS, in a scenario where the RRS apply, and that you therefore cannot obtain relief in a court later if need be.

 

I can't follow the logic here.

  1. There is no such thing as a 'claim' under the RRS;
  2. It seems very odd to me that a court would deny an action to a party merely because they had exercised a discretion (a boat ... may ... protest (rule 60.1)), particularly in view of the common prescriptions to rule 67 saying that damages are matters for the courts.

Share this post


Link to post
Share on other sites

I agree with the first part of your reply. I am not suggesting that a boat can fall back into the IRCPCAS by not protesting. I am suggesting that somewhere out there there may be regatta in which there is no election of the protest process under the RRS as the dispute resolution mechanism, at least with respect to liability. For the boat and skipper (I'm less sure about the crew in all instances) either they've entered a regatta where doing so constitutes an agreement to arbitrate disputes through the protest process, or they haven't. The key is in your excerpt, "by entering a regatta with sailing instructions which unambiguously set forth special, binding “rules of the road,” the participants waive conflicting COLREGS and must sail in accordance with the agreed-upon rules." All I'm saying is that the reason that the 1st circuit made the decision it did was because of the contents of the SI's. Read the SI's. See what they say. They will tell you how liability disputes are going to be resolved for that regatta.

 

As to the second part of your reply, you may be right, but I wouldn't be sure. In other contexts in which an arbitration clause applies, failure to follow the rules of the arbitration process identified can lead to claim preclusion. If can read that rule to say that you have the option of protesting or not, but that if you do not elect to enter the protest process you are foregoing an alternative form of liability determination. For what its worth, I'm in the First Circuit, but I would have no hesitation about arguing that a boat that elected not to protest had elected not to proceed under the RRS, and because the RRS apply, a claim is barred. My comment was in the conditional - you might find that you could proceed, but it would be a bad thing to find that you coudl not.

Share this post


Link to post
Share on other sites

I agree with the first part of your reply. I am not suggesting that a boat can fall back into the IRCPCAS by not protesting.

 

OK. Thank you.

 

I am suggesting that somewhere out there there may be regatta in which there is no election of the protest process under the RRS as the dispute resolution mechanism, at least with respect to liability.

 

My starting point is that courts are jealous of their jurisdictions, and unwilling to see parties denied access to court processes by external agreements that may be equitably objectionable.

 

While it would be possible for a race committee to amend the RRS to remove the discretion of a boat whether or not to protest (and there is no limit in what unwise race committees will try to do), this would probably be quite difficult to do effectively.

 

As the RRS stand:

  1. a boat may choose whether or not to protest (rule 60.1);
  2. each competitor and boat owner agrees (rule 3):
    • (a) to be governed by the rules;
    • ( b ) to accept the penalties imposed and other action taken under

      the rules, subject to the appeal and review procedures provided

      in them, as the final determination of any matter arising under

      the rules; and

    • ( c ) with respect to any such determination, not to resort to any

      court of law or tribunal.

  3. If there is no protest, there will be no 'penalty' or 'other action taken under the rules', no determination and thus no undertaking not to resort to any court of law or tribunal.
  4. If there is a protest hearing and, in accordance with the usual prescriptions to rule 67, the protest committee makes no decision as to damages, there will still be no 'determination' with respect to that matter and no restriction on a boat litigating for damages.

For the boat and skipper (I'm less sure about the crew in all instances) either they've entered a regatta where doing so constitutes an agreement to arbitrate disputes through the protest process, or they haven't.

 

While it is arguable that the rules constitute an agreement to resolve disputes about racing outcomes (places in races) through the protest process, if the usual prescription about damages is in place, I don't think it can be said that there is an agreement about claims for damages.

 

The key is in your excerpt, "by entering a regatta with sailing instructions which unambiguously set forth special, binding “rules of the road,” the participants waive conflicting COLREGS and must sail in accordance with the agreed-upon rules."

 

I'm not sure what you're driving at here. IRPCAS do not address claims for damages in any way: that is covered in other conventions, statutes and law. The quoted passage refers ONLY to:

  • 'rules of the road' and
  • conflicts between RRS and COLREGS.

All I'm saying is that the reason that the 1st circuit made the decision it did was because of the contents of the SI's. Read the SI's. See what they say.

 

I think 'SI' as used in the judgement can better be rendered as 'rules' (as defined in the RRS)

 

They will tell you how liability disputes are going to be resolved for that regatta.

 

SI will rarely address disputes, that is addressed through Part 5 of the RRS.

 

Liability for damages is addressed through MNA prescriiptions to rule 67, which usually say that such liability is to be determined by the courts, and NOT by the protest committee.

 

As to the second part of your reply, you may be right, but I wouldn't be sure.

 

Indeed. It would very much depend on the facts and the quality of argument.

 

In other contexts in which an arbitration clause applies,

 

I have great difficulty in recognising anything in the RRS or usual SI as an 'arbitration clause'. It might be different in the USA.

 

failure to follow the rules of the arbitration process identified can lead to claim preclusion.

 

AIUI, only as a result of the wording of the arbitration clause.

 

If you just have a vague agreement about dispute resolution, that does not specifically bar or restrict litigation, then you can litigate to your heart's content.

 

If can read that rule to say that you have the option of protesting or not,

 

but that if you do not elect to enter the protest process you are foregoing an alternative form of liability determination.

 

​See above. I con't think that this is a necessary inference.

 

For what its worth, I'm in the First Circuit, but I would have no hesitation about arguing that a boat that elected not to protest had elected not to proceed under the RRS, and because the RRS apply, a claim is barred.

 

You would know the 'vibe' in your own jurisdiction

 

My comment was in the conditional - you might find that you could proceed, but it would be a bad thing to find that you coudl not.

 

Indeed, but I just find it hard to believe that a court would deny a plaintiff what may be substantial damages as a result of 'sporting rules'.

 

You wondered whether 'the boat and skipper (I'm less sure about the crew in all instances)' would be affected.

 

Rule 3 refers to 'competitors and boat owners'. That would cover crew.

 

But it is very doubtful that a crew member, absent a protest by the owner or person in charge of a boat, has standing to protest, and thus any preclusion would not apply. Again, I find it very odd that a court will deny an action for personal injury.

Share this post


Link to post
Share on other sites

Ok, I respect your opinion. Mine is different. I would advice anyone doing anything to have a handle on the rules that apply to them, and to act in a way that maximizes their physical and legal safety.

Share this post


Link to post
Share on other sites

I agree with the first part of your reply. I am not suggesting that a boat can fall back into the IRCPCAS by not protesting. I am suggesting that somewhere out there there may be regatta in which there is no election of the protest process under the RRS as the dispute resolution mechanism, at least with respect to liability. For the boat and skipper (I'm less sure about the crew in all instances) either they've entered a regatta where doing so constitutes an agreement to arbitrate disputes through the protest process, or they haven't. The key is in your excerpt, "by entering a regatta with sailing instructions which unambiguously set forth special, binding “rules of the road,” the participants waive conflicting COLREGS and must sail in accordance with the agreed-upon rules." All I'm saying is that the reason that the 1st circuit made the decision it did was because of the contents of the SI's. Read the SI's. See what they say. They will tell you how liability disputes are going to be resolved for that regatta.

 

As to the second part of your reply, you may be right, but I wouldn't be sure. In other contexts in which an arbitration clause applies, failure to follow the rules of the arbitration process identified can lead to claim preclusion. If can read that rule to say that you have the option of protesting or not, but that if you do not elect to enter the protest process you are foregoing an alternative form of liability determination. For what its worth, I'm in the First Circuit, but I would have no hesitation about arguing that a boat that elected not to protest had elected not to proceed under the RRS, and because the RRS apply, a claim is barred. My comment was in the conditional - you might find that you could proceed, but it would be a bad thing to find that you coudl not.

It is certainly possible that a regatta could be sailed under a set of rules not published by the ISAF, in distance races it is common for the SI's to include language suspending the RRS and using COLREG's at night, or at least those portions dealing with ROW. But if the regatta is sailed under the RRS then there is forced arbitration as to fault (see Rule 3b and 3c).

 

I can't speak to all countries, but in the US this would absolutely require anything that can be sorted under the rules has to be handled under the rules as to fault (not damages).

 

In the event a protest was not filed and could not be later filed, the court would likely appoint a special master (an ISAF Judge) to determin fault in accordance with the RRS that accept that determination as dispositive as to fault. The judge would then figure out quantum on his own.

Share this post


Link to post
Share on other sites

Here's a link to the Juno v. Endeavour decision:

http://caselaw.findlaw.com/us-1st-circuit/1316530.html

 

As you will see, the decision provides specifically that where the parties agree to application of a different set of rules, the IRPCAS do not apply. SIs typically provide that regattas will be sailed under the rules, which are defined in the definitions section of the RRS. The Juno decision also reinforces the importance of filing a protest. As to the issue of "the owner was at the hospital," I think that fact would usually be good cause to go forward with a late-filed protest.

 

It seems like the primary factual issues here are likely to be whether S altered course to round the offset mark when P was too close to avoid hitting her, and whether either boat could and should have taken additional action when it became apparent that the other was not taking avoiding action. It is unfortunate that there was no protest, since that would have given each boat an opportunity to call witnesses who could provide information about what happened when everyone's memory was fresh, and before litigation battle lines were drawn. Nonetheless, it is likely that this suit will be settled, and that each boat will bear some portion of responsibility for failing to avoid contact.

Share this post


Link to post
Share on other sites

 

I agree with the first part of your reply. I am not suggesting that a boat can fall back into the IRCPCAS by not protesting. I am suggesting that somewhere out there there may be regatta in which there is no election of the protest process under the RRS as the dispute resolution mechanism, at least with respect to liability. For the boat and skipper (I'm less sure about the crew in all instances) either they've entered a regatta where doing so constitutes an agreement to arbitrate disputes through the protest process, or they haven't. The key is in your excerpt, "by entering a regatta with sailing instructions which unambiguously set forth special, binding “rules of the road,” the participants waive conflicting COLREGS and must sail in accordance with the agreed-upon rules." All I'm saying is that the reason that the 1st circuit made the decision it did was because of the contents of the SI's. Read the SI's. See what they say. They will tell you how liability disputes are going to be resolved for that regatta.

 

As to the second part of your reply, you may be right, but I wouldn't be sure. In other contexts in which an arbitration clause applies, failure to follow the rules of the arbitration process identified can lead to claim preclusion. If can read that rule to say that you have the option of protesting or not, but that if you do not elect to enter the protest process you are foregoing an alternative form of liability determination. For what its worth, I'm in the First Circuit, but I would have no hesitation about arguing that a boat that elected not to protest had elected not to proceed under the RRS, and because the RRS apply, a claim is barred. My comment was in the conditional - you might find that you could proceed, but it would be a bad thing to find that you coudl not.

It is certainly possible that a regatta could be sailed under a set of rules not published by the ISAF, in distance races it is common for the SI's to include language suspending the RRS and using COLREG's at night, or at least those portions dealing with ROW. But if the regatta is sailed under the RRS then there is forced arbitration as to fault (see Rule 3b and 3c).

 

I can't speak to all countries, but in the US this would absolutely require anything that can be sorted under the rules has to be handled under the rules as to fault (not damages).

 

In the event a protest was not filed and could not be later filed, the court would likely appoint a special master (an ISAF Judge) to determin fault in accordance with the RRS that accept that determination as dispositive as to fault. The judge would then figure out quantum on his own.

There may be US jurisprudence on arbitration to the contrary, but on the face of the RRS:

  • rule 3( b ) refers to 'penalties imposed and other action taken under the rules' and defines these to be 'determinations'.
  • rule 3( c ) then refers to 'such determinations' and obliges competitors and boat owners, with respect to such determinations, not to resort to any court of law or tribunal.
  • rule 3( a ) obliges competitors and boat owners to be governed by the rules.
  • rule 60.1 creates a right in a boat, to protest a boat, which may lead to a hearing, but it does not oblige a boat to do so.

If there is no protest, there will be no 'determination' and rule 3( c ) will have no force.

Share this post


Link to post
Share on other sites

Here's a link to the Juno v. Endeavour decision:

http://caselaw.findlaw.com/us-1st-circuit/1316530.html

 

As you will see, the decision provides specifically that where the parties agree to application of a different set of rules, the IRPCAS do not apply.

 

I've said this quite often in the past, and relied on, and quoted Juno v Endeavour.

 

Having again looked at Juno v Endeavour a little more carefully I now see that the exclusion is nowhere near as extensive as that. What Tourella j said in Juno v Endeavour was

 

by entering a regatta with sailing instructions which unambiguously set forth special, binding “rules of the road,” the participants waive conflicting COLREGS and must sail in accordance with the agreed-upon rules.

 

I now understand this to mean that only those rules of IRPCAS which are in conflict with the RRS (and arguably only the Part 2 When Boats Meet part, the 'rules of the road' part of the RRS) are waived. All the other rules of IRPCAS, such as Rule 5 Lookout, remain in force.

 

SIs typically provide that regattas will be sailed under the rules, which are defined in the definitions section of the RRS. The Juno decision also reinforces the importance of filing a protest.

 

Having once made a mistake about what Juno v Endeavour really says, I'm a little tentative about this, but I think what it says is that if there is a protest decision that decision is binding. As far as I can see, that case says nothing about what happens if there is no protest decision.

 

As to the issue of "the owner was at the hospital," I think that fact would usually be good cause to go forward with a late-filed protest.

Share this post


Link to post
Share on other sites

 

Here's a link to the Juno v. Endeavour decision:

http://caselaw.findlaw.com/us-1st-circuit/1316530.html

 

As you will see, the decision provides specifically that where the parties agree to application of a different set of rules, the IRPCAS do not apply.

 

I've said this quite often in the past, and relied on, and quoted Juno v Endeavour.

 

Having again looked at Juno v Endeavour a little more carefully I now see that the exclusion is nowhere near as extensive as that. What Tourella j said in Juno v Endeavour was

 

by entering a regatta with sailing instructions which unambiguously set forth special, binding “rules of the road,” the participants waive conflicting COLREGS and must sail in accordance with the agreed-upon rules.

 

I now understand this to mean that only those rules of IRPCAS which are in conflict with the RRS (and arguably only the Part 2 When Boats Meet part, the 'rules of the road' part of the RRS) are waived. All the other rules of IRPCAS, such as Rule 5 Lookout, remain in force.

 

SIs typically provide that regattas will be sailed under the rules, which are defined in the definitions section of the RRS. The Juno decision also reinforces the importance of filing a protest.

 

Having once made a mistake about what Juno v Endeavour really says, I'm a little tentative about this, but I think what it says is that if there is a protest decision that decision is binding. As far as I can see, that case says nothing about what happens if there is no protest decision.

 

As to the issue of "the owner was at the hospital," I think that fact would usually be good cause to go forward with a late-filed protest.

 

Brass. I think you are selling the Endeavour decision a bit short.

 

As we know, virtually every regatta has an NOR and SIs, and they virtually always provide that the competition will be governed by the rules. See rules 89.2(a) and 90.2(a) , Appendices J1 and J2, and definition of rules. The only exception is totally informal races such as local "beercan" events, in which case the rules that apply are probably up in the air, and God only knows how such matters would be resolved, but in the absence of any other provision, the IRPCAS and/or COLREGS would likely apply.

 

However, in a race with an NOR and SIs, the rules would always apply. I think you are correct that this would be primarily the rules of Part 2, but that is what governs the situation when boats that are racing meet on the race course. The preamble to Part 2 makes it clear that when boats that are racing meet a boat or vessel that is not racing, the IRPCAS or government right-of-way rules are governing. And yes, non-conflicting provisions of those rules (IRPCAS or COLREGS) would continue to remain in effect.

 

We know from Juno v. Endeavour that a court would likely adopt the decision of a protest committee, but if there is no such decision, I think a court would decide who is at fault by applying the RRS to the facts of the case. Of course, a judge and jury is likely to have no understanding of the RRS and situations encountered in racing, so it is likely that their interpretation and application of the RRS would not be as educated as that of a protest committee.

Share this post


Link to post
Share on other sites

 

 

Here's a link to the Juno v. Endeavour decision:

http://caselaw.findlaw.com/us-1st-circuit/1316530.html

 

As you will see, the decision provides specifically that where the parties agree to application of a different set of rules, the IRPCAS do not apply.

 

I've said this quite often in the past, and relied on, and quoted Juno v Endeavour.

 

Having again looked at Juno v Endeavour a little more carefully I now see that the exclusion is nowhere near as extensive as that. What Tourella j said in Juno v Endeavour was

 

by entering a regatta with sailing instructions which unambiguously set forth special, binding “rules of the road,” the participants waive conflicting COLREGS and must sail in accordance with the agreed-upon rules.

 

I now understand this to mean that only those rules of IRPCAS which are in conflict with the RRS (and arguably only the Part 2 When Boats Meet part, the 'rules of the road' part of the RRS) are waived. All the other rules of IRPCAS, such as Rule 5 Lookout, remain in force.

 

SIs typically provide that regattas will be sailed under the rules, which are defined in the definitions section of the RRS. The Juno decision also reinforces the importance of filing a protest.

 

Having once made a mistake about what Juno v Endeavour really says, I'm a little tentative about this, but I think what it says is that if there is a protest decision that decision is binding. As far as I can see, that case says nothing about what happens if there is no protest decision.

 

As to the issue of "the owner was at the hospital," I think that fact would usually be good cause to go forward with a late-filed protest.

 

Brass. I think you are selling the Endeavour decision a bit short.

 

As we know, virtually every regatta has an NOR and SIs, and they virtually always provide that the competition will be governed by the rules. See rules 89.2(a) and 90.2(a) , Appendices J1 and J2, and definition of rules. The only exception is totally informal races such as local "beercan" events, in which case the rules that apply are probably up in the air, and God only knows how such matters would be resolved, but in the absence of any other provision, the IRPCAS and/or COLREGS would likely apply.

 

However, in a race with an NOR and SIs, the rules would always apply. I think you are correct that this would be primarily the rules of Part 2, but that is what governs the situation when boats that are racing meet on the race course. The preamble to Part 2 makes it clear that when boats that are racing meet a boat or vessel that is not racing, the IRPCAS or government right-of-way rules are governing. And yes, non-conflicting provisions of those rules (IRPCAS or COLREGS) would continue to remain in effect.

 

We know from Juno v. Endeavour that a court would likely adopt the decision of a protest committee, but if there is no such decision, I think a court would decide who is at fault by applying the RRS to the facts of the case. Of course, a judge and jury is likely to have no understanding of the RRS and situations encountered in racing, so it is likely that their interpretation and application of the RRS would not be as educated as that of a protest committee.

 

+1

Share this post


Link to post
Share on other sites

Isn't the decision not to protest as much of an action as the decision to protest? If so, why shouldn't a court accept the decision not to protest as the parties' decision and leave it at that. The court should not substitute itself as a protest committee. In that case, an injured party would chose between the local protest committee and the court as the protest decider.

Share this post


Link to post
Share on other sites

There is a distinction between the NOR/SI/RRS binding the owners' of the boats and binding the crew. Liability for injury to a crew member is a different issue. Unless there is an agreement by crew members to be bound by the NOR/SI/RRS in the event of injury, what happens between the boat owners would not necessarily determine who was liable for their injury. Maritime/admiralty law of the jurisdiction should then kick in.

 

And another thing, I am aware of clubs that conduct their informal / beer can races without NORs or SIs. The RRS specifically requires an NOR and SIs in order for the RRS to apply. An easy example: rounding a mark. The IRPCAS/Inland Rules do not have provisions like RRS 18. Failure to have an NOR and SIs for any supposed "race" is asking for trouble.

Share this post


Link to post
Share on other sites

Isn't the decision not to protest as much of an action as the decision to protest? If so, why shouldn't a court accept the decision not to protest as the parties' decision and leave it at that. The court should not substitute itself as a protest committee. In that case, an injured party would chose between the local protest committee and the court as the protest decider.

This.

There is a distinction between the NOR/SI/RRS binding the owners' of the boats and binding the crew. Liability for injury to a crew member is a different issue. Unless there is an agreement by crew members to be bound by the NOR/SI/RRS in the event of injury, what happens between the boat owners would not necessarily determine who was liable for their injury. Maritime/admiralty law of the jurisdiction should then kick in.

 

And another thing, I am aware of clubs that conduct their informal / beer can races without NORs or SIs. The RRS specifically requires an NOR and SIs in order for the RRS to apply. An easy example: rounding a mark. The IRPCAS/Inland Rules do not have provisions like RRS 18. Failure to have an NOR and SIs for any supposed "race" is asking for trouble.

And this.

Share this post


Link to post
Share on other sites

 

 

Here's a link to the Juno v. Endeavour decision:

http://caselaw.findlaw.com/us-1st-circuit/1316530.html

 

As you will see, the decision provides specifically that where the parties agree to application of a different set of rules, the IRPCAS do not apply.

 

I've said this quite often in the past, and relied on, and quoted Juno v Endeavour.

 

Having again looked at Juno v Endeavour a little more carefully I now see that the exclusion is nowhere near as extensive as that. What Tourella j said in Juno v Endeavour was

 

by entering a regatta with sailing instructions which unambiguously set forth special, binding “rules of the road,” the participants waive conflicting COLREGS and must sail in accordance with the agreed-upon rules.

 

I now understand this to mean that only those rules of IRPCAS which are in conflict with the RRS (and arguably only the Part 2 When Boats Meet part, the 'rules of the road' part of the RRS) are waived. All the other rules of IRPCAS, such as Rule 5 Lookout, remain in force.

 

SIs typically provide that regattas will be sailed under the rules, which are defined in the definitions section of the RRS. The Juno decision also reinforces the importance of filing a protest.

 

Having once made a mistake about what Juno v Endeavour really says, I'm a little tentative about this, but I think what it says is that if there is a protest decision that decision is binding. As far as I can see, that case says nothing about what happens if there is no protest decision.

 

As to the issue of "the owner was at the hospital," I think that fact would usually be good cause to go forward with a late-filed protest.

 

Brass. I think you are selling the Endeavour decision a bit short.

 

As we know, virtually every regatta has an NOR and SIs, and they virtually always provide that the competition will be governed by the rules. See rules 89.2(a) and 90.2(a) , Appendices J1 and J2, and definition of rules. The only exception is totally informal races such as local "beercan" events, in which case the rules that apply are probably up in the air, and God only knows how such matters would be resolved, but in the absence of any other provision, the IRPCAS and/or COLREGS would likely apply.

 

However, in a race with an NOR and SIs, the rules would always apply. I think you are correct that this would be primarily the rules of Part 2, but that is what governs the situation when boats that are racing meet on the race course. The preamble to Part 2 makes it clear that when boats that are racing meet a boat or vessel that is not racing, the IRPCAS or government right-of-way rules are governing. And yes, non-conflicting provisions of those rules (IRPCAS or COLREGS) would continue to remain in effect.

 

We know from Juno v. Endeavour that a court would likely adopt the decision of a protest committee, but if there is no such decision, I think a court would decide who is at fault by applying the RRS to the facts of the case. Of course, a judge and jury is likely to have no understanding of the RRS and situations encountered in racing, so it is likely that their interpretation and application of the RRS would not be as educated as that of a protest committee.

We seem to be in furious agreement.

Share this post


Link to post
Share on other sites

 

Isn't the decision not to protest as much of an action as the decision to protest?

 

I don't think you can characterise a decision or non-decision by a boat as a 'determination' for the purposes of rule 3( c ).

 

If so, why shouldn't a court accept the decision not to protest as the parties' decision and leave it at that.

 

Well, the court is not going to intervene of its own motion. There's going to be, typically, a claim for damages.

 

The court should not substitute itself as a protest committee.

 

A civil court won't do that. The function of a protest committee is to resolve disputes between boats about the rules and it's decision will be whether or not to penalise a boat in her score.

 

What a court will be doing is determining liability for damages, a matter that the US Sailing prescription (and many other MNA prescriptions) specifically say must not be addressed by the protest committee.

 

In that case, an injured party would chose between the local protest committee and the court as the protest decider.

 

See above: if an injured party is seeking damages for physical injury or damage, then he or she needs to go to court: the protest commttee can't help.

This.

There is a distinction between the NOR/SI/RRS binding the owners' of the boats and binding the crew.

 

Quite possibly.

 

Rule J1.2(7) requires an entry form to be signed by the boat's owner or owner's representative containing words such as "‘I agree to be bound by The Racing Rules of Sailing and by all other rules that govern this event."

 

Such an agreement entered into by the owner or the owner's representative wouldn't be expected to be binding on the crew.

 

Rule 3 says "By participating in a race conducted under these racing rules each competitor and boat owner agrees ... to be governed by the rules".

 

Arguably this is getting closer to the mark.

 

But it's my contention that nothing in the RRS bars a court action for damages, all the moreso as the US Sailing prescription to rule 67 specifically contemplates such a suit.

 

Liability for injury to a crew member is a different issue. Unless there is an agreement by crew members to be bound by the NOR/SI/RRS in the event of injury, what happens between the boat owners would not necessarily determine who was liable for their injury. Maritime/admiralty law of the jurisdiction should then kick in.

 

I'm idly curious whether a suit, commenced by an individual, probably against an individual (at least one of the owners or persons in charge of one of the boats), would necessarily commence or end up in an admiralty jurisdiction.

 

And another thing, I am aware of clubs that conduct their informal / beer can races without NORs or SIs. The RRS specifically requires an NOR and SIs in order for the RRS to apply. An easy example: rounding a mark. The IRPCAS/Inland Rules do not have provisions like RRS 18. Failure to have an NOR and SIs for any supposed "race" is asking for trouble.

And this.

 

Share this post


Link to post
Share on other sites

Marks and racing under IRPCAS:

 

No mark room.

 

No luffing up. (If you are leeward, you are stay-on vessel, something that limits you to something similar to your proper course / if you are coming from behind, you are overtaking, and must keep clear until there's no risk of collision).

 

IRPCAS are silent about taking in front of somebody (with enough room to avoid collision, but perhaps forcing the other boat up, say, in the zone).

 

More generally, the IRCPAS differ because of the requirement to initiate early and substantial course changes to avoid the risk of collision.

Share this post


Link to post
Share on other sites