Racing Sailboats and Lawsuits

[Captain Organized]

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

 

[AJ Oliver]

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.

 

[IPLore]

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?

 

[Foxy]

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.

 

[Varan]

Good advice ^

 

[Parma]

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.

 

[Brass]

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.

 

[Foxy]

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).

 

[Glenn McCarthy]

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

 

[Wet Spreaders]

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.

 

[DrewR]

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.

 

[Presuming Ed]

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

 

[dogwatch]

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

 

[Presuming Ed]

Doh. Insufficient coffee today.

 

[Dawg]

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.

 

[Parma]

"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.

 

[sshow bob]

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.)

 

[Brass]

"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.

 

[Brass]

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.