New Posts New Posts RSS Feed: Where theres blame theres a claim
  FAQ FAQ  Forum Search   Register Register  Login Login

Where theres blame theres a claim
 Post Reply Post Reply Page  12>
Author
  Share Topic Share Topic  Topic Search Topic Search  Topic Options Topic Options
Brass View Drop Down
Really should get out more
Really should get out more


Joined: 24 Mar 08
Location: Australia
Online Status: Offline
Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Topic: Where theres blame theres a claim
    Posted: 13 Feb 15 at 12:52pm
Chris,

I'll PM you.

The issue is definitely NOT about whether RRS or COLREGS apply.  RRS apply to boats entered in races.

The issue is whether the RRS are apt to determine liability, and whether protest committees should or should not attempt to do so.

Here are some relevant MNA prescriptions to rule 67.

Canada is definitely the odd one out, but note the language:  it refers to 'fault', not 'liability'.

Australia

67 Yachting Australia believes that the question of damages is for the appropriate court of law.

Canada

Rule 67 – Damages Sail Canada prescribes that a boat that has been found by a protest committee to have broken a rule and caused damage shall be considered at fault for the purposes of rule 67.

USA

US Sailing prescribes that:

(a) A boat that retires from a race or accepts a penalty does not, by that action alone, admit liability for damages.

(b) A protest committee shall find facts and make decisions only in compliance with the rules. No protest committee or US Sailing appeal authority shall adjudicate any claim for damages. Such a claim is subject to the jurisdiction of the courts.

(c) A basic purpose of the rules is to prevent contact between boats. By participating in an event governed by the rules, a boat agrees that responsibility for damages arising from any breach of the rules shall be based on fault as determined by application of the rules, and that she shall not be governed by the legal doctrine of ‘assumption of risk’ for monetary damages resulting from contact with other boats.

New Zealand

67 Yachting New Zealand prescribes that:

1. The findings of fact, and decisions of protest committees, shall be relevant only for the purposes of the ISAF Racing Rules of Sailing.

2. Any issue of liability or claim for damages arising from an incident while a boat is bound by The Racing Rules of Sailing shall be subject to the jurisdiction of the courts and not considered by a protest committee.

3. A boat that retires from a race, or accepts a penalty does not, by that action alone, admit liability.

Great Britain

67 Damages

1. Any issue of liability or claim for damages arising from an incident while a boat is bound by The Racing Rules of Sailing shall be subject to the jurisdiction of the courts and not considered by a protest committee.

2. A boat that takes a penalty or retires does not thereby admit liability for damages or that she has broken a rule.
Back to Top
Chris 249 View Drop Down
Really should get out more
Really should get out more
Avatar

Joined: 10 May 04
Online Status: Offline
Posts: 2041 		Post Options Post Options   Quote Chris 249 Quote  Post ReplyReply Direct Link To This Post Posted: 13 Feb 15 at 11:35am
Originally posted by Brass

Chris,  I think you are not accurately recognising the difference between 'liability' (in the sense I used it, meaning a legal obligation to pay a certain amount or share of damages and costs) and 'fault' or 'breach of rules'.

Certainly one would usually expect that a breach of rules would be a condition on which liability to pay would depend, but it's not the same thing.

I back away very quickly from matters involving contracts, but with respect (honestly, not ironically) it seems that higher courts in several jurisdictions say that it IS essentially the same thing in this case. If you are racing and you cause damage by breaking the RRS, you will pay for all of the damage to both boats, regardless of the fact that the other boat was breaking the COLREGS - which is almost inevitably the case in any race since the COLREGS impose such sweeping requirements to stay clear of other vessels, etc.

(My apoplogies for this and subsequent Wikipedia citations:  sadly I no longer have access to Lexis/Nexis.  If you distrust the Wiki's by all means let's discuss.)

Give me citations and I trust I can find them on at work, although given the nature of my current work (essentially investigations) I have yet to test the AGD's library.

The RRS has no mechanism for determining monetary liability, and wise MNA, prescribe that a protest committee should under no circumstances attempt to do so.

Some MNAs have not only said that the RRS should determine monetary liability, but have gone to some lengths to ensure that they did in fact do that. For example, US Sailing and the CYRA were amici curiae in De Sole, which although decided on assumption of risk, essentially was about ensuring that the boat at fault under RRS paid for repairs (to escape definitons of "liability" and "fault")

Similarly, the Canadian Yachting Association issued a press release after the Endeavour decision which said;

"When damages occur during sailboat racing, the civil courts only become the location of litigation over who is at fault if the protest procedures laid out in the racing rules are not followed. This is expressed in the SAIL CANADA prescription to rule 67, which reads: Rule 67 – Damages SAIL CANADA prescribes that a boat that has been found by a protest committee to have broken a rule and caused damage shall be considered at fault for the purposes of rule 67."

US Sailing, I think, re-instituted similar rule after De Sole v US.

Originally posted by Chris 249

 
As recently as 1995, in cases like the De Sole v US and the more recent one involving the J Class Endeavour and the maxi Charles Jourdain, appeals courts have continued to follow the textbook case of Clarke v Dunraven ("The Satanita") which says that by entering a race, you enter into a contract to play by the RRS, and therefore you pay up if you cause damage by breaching them.

Not exactly.  What Satanita's Case stood for was that it was:
  1. by each agreeing with the Organising Authority to abide by the rules of the event, this was as good as agreeing with each other to do so;  and
  2. it was lawful to agree to apply a different set of rules from those provided in an Act of Parliament, as long as the Act did not expressly prohibit doing so.
Interestingly, this case was NOT about the COLREGS, the Act in question was a shipping limitation of liability Act.

Yes, I was aware the matter was about the shipping act's limitation of liabilty, but the effect was the same - the boat at fault under RRS paid for the damage to the boat that was not at fault under RRS, whereas if the case had been decided under COLREGS the boat that was not at fault under RRS (Valkyrie) would have been found to have a high degree of liability simply because she was charging into a starting line with about 5 other First Class Cutters. The courts have recognised that the sport of sailing as we know it would not survive if (for example) an Endeavour 24 owner would be liable if a supermaxi barged in at a start and suffered damage when running over the Endeavour, which IIRC is similar to what happened in The Satanita and in the Endeavour matter.

What common law country MNAs now do by prescriptions to rule 67 is to make sure that there is NO rule fixing liability.

As noted above, this was NOT the case as late as 2013. In fact some MNAs were publicising the fact that the RRS did fix liability.

Originally posted by Chris 249

  As a law journal says of the decision involving Endeavour, "The court of appeals held that the Charles Jourdan and the Endeavour were contractually bound to race by the IYR Rules, and therefore any issues of fault for collisions must be resolved according to those rules".
Note the use of the word 'fault' here.
Originally posted by Chris 249

 
It's not possible to play inshore sailboat racing as we know it under the normal rules of the sea - they would stop us doing things like getting close around marks, hoisting spinnakers in strong winds, holding our course on starboard when we are on collision course a few lengths from a port tacker, calling for our rights against larger racing boats, and even (IIRC) sailing up the "wrong" side of a waterway. So since we can't play by the normal rules of the sea, we have to use different ones to cover both who has right of way, and who pays for stuff-ups.
Absolutely agree.
Originally posted by Chris 249

 
IMHO it's perfectly reasonable that the person in  the wrong should pay for all damage - why should anyone end up out of pocket because someone else stuffed up? It's not as if collisions while racing are exactly hard to foresee very often.
Bit of a blunt instrument approach here.  It only works if only one person/boat is in the wrong and there is no contribution to the incident by the other boat.

Sure it's a blunt instrument, but as the Chief Judge for the US Court of Appeals for the First Circuit (who as also an USAF International Judge) said in the Endeavour case, yacht racing as we know it could not work otherwise.

If I could be found liable for some of the damage to WOXI if she hit me when overtaking when I had every right in the rulebook, I'd be very, very scared! 





Edited by Chris 249 - 13 Feb 15 at 11:42am
Back to Top
jeffers View Drop Down
Really should get out more
Really should get out more
Avatar

Joined: 29 Mar 04
Location: United Kingdom
Online Status: Offline
Posts: 3048 		Post Options Post Options   Quote jeffers Quote  Post ReplyReply Direct Link To This Post Posted: 13 Feb 15 at 7:27am
Whenever I have made an insurance claim for any damage sustained whilst racing the first question has always been 'Was there a protest?' if yes then 'What were the findings?' so the insurance co can use that to assign blame.

The one that really irked was when I had capsized and been over for some time (at least 1min) and got hit by another boat who was not paying attention. The insurance found it was my fault (still not worked that out).
Paul
----------------------
D-Zero GBR 74
Back to Top
Brass View Drop Down
Really should get out more
Really should get out more


Joined: 24 Mar 08
Location: Australia
Online Status: Offline
Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 13 Feb 15 at 7:16am
Originally posted by Chris 249

Originally posted by Brass

Originally posted by Rupert

Reading the comment on another thread about "just a racing accident" and how our rules have no such thing, it made me wonder - are our rules too much like the "somebody must be at fault" culture that seems to be taking over in real life?
The Racing Rules are there to determine places in races.  In accordance with rule 67 and the RYA (and other MNA prescriptions), the rules are not designed to fix liability.
The ISAF RRS do fix liability for costs in racing collisions, although MNAs may prescribe otherwise as you say.
Chris,  I think you are not accurately recognising the difference between 'liability' (in the sense I used it, meaning a legal obligation to pay a certain amount or share of damages and costs) and 'fault' or 'breach of rules'.

Certainly one would usually expect that a breach of rules would be a condition on which liability to pay would depend, but it's not the same thing.

Perhaps the following 'general rules of legal liability' from the  Brussels Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels 1910, which show the words 'liability', 'cause' and 'fault' in context will assist

Three general rules of legal liability are established by the Convention:

    1. If a collision occurs that is accidental or of uncertain cause, the damages are borne by the party that suffers them;
    2. If a collision occurs that is the fault of a party, the party at fault is liable for the damages that were caused; and
    3. If a collision occurs that is the fault of more than one party, the parties at fault are liable in proportion to the faults respectively committed. (If it is not possible to determine the proportional fault, the liability is apportioned equally between the parties at fault.)

(My apoplogies for this and subsequent Wikipedia citations:  sadly I no longer have access to Lexis/Nexis.  If you distrust the Wiki's by all means let's discuss.)

The RRS, particularly Part 2 When Boats Meet provide a code of rules and obligations about how boats will manoeuvre, which, following the law cases you cite, they are indubitably required to abide by, by virtue of the agreement they enter into by submitting an entry in a race.  Part 5 of the RRS then provides a protest process for determining whether a boat broke a rule, and applying the penalties (applicable to scoring races, and rule 69 sanctions with respect to competing in races), provided in the RRS.

The RRS has no mechanism for determining monetary liability, and wise MNA, prescribe that a protest committee should under no circumstances attempt to do so.
Originally posted by Chris 249

 
As recently as 1995, in cases like the De Sole v US and the more recent one involving the J Class Endeavour and the maxi Charles Jourdain, appeals courts have continued to follow the textbook case of Clarke v Dunraven ("The Satanita") which says that by entering a race, you enter into a contract to play by the RRS, and therefore you pay up if you cause damage by breaching them.

Not exactly.  What Satanita's Case stood for was that it was:
  1. by each agreeing with the Organising Authority to abide by the rules of the event, this was as good as agreeing with each other to do so;  and
  2. it was lawful to agree to apply a different set of rules from those provided in an Act of Parliament, as long as the Act did not expressly prohibit doing so.
Interestingly, this case was NOT about the COLREGS, the Act in question was a shipping limitation of liability Act.

The nub of the case was that the rules of the event which displaced a statutory limit on liability was that 'rule breakers are liable for all consequential damage'.  That is, in this particular case, there was a racing rule about liability, which was applicable. (http://en.wikipedia.org/wiki/The_Satanita#cite_note-1)

Satanita had to pay up because she expressly agreed to, not as a consequence of some other bit of the agreement.

What common law country MNAs now do by prescriptions to rule 67 is to make sure that there is NO rule fixing liability.

Originally posted by Chris 249

  As a law journal says of the decision involving Endeavour, "The court of appeals held that the Charles Jourdan and the Endeavour were contractually bound to race by the IYR Rules, and therefore any issues of fault for collisions must be resolved according to those rules".
Note the use of the word 'fault' here.
Originally posted by Chris 249

 
It's not possible to play inshore sailboat racing as we know it under the normal rules of the sea - they would stop us doing things like getting close around marks, hoisting spinnakers in strong winds, holding our course on starboard when we are on collision course a few lengths from a port tacker, calling for our rights against larger racing boats, and even (IIRC) sailing up the "wrong" side of a waterway. So since we can't play by the normal rules of the sea, we have to use different ones to cover both who has right of way, and who pays for stuff-ups.
Absolutely agree.
Originally posted by Chris 249

 
IMHO it's perfectly reasonable that the person in  the wrong should pay for all damage - why should anyone end up out of pocket because someone else stuffed up? It's not as if collisions while racing are exactly hard to foresee very often.
Bit of a blunt instrument approach here.  It only works if only one person/boat is in the wrong and there is no contribution to the incident by the other boat.

In maritime law, see the liability rules quoted above, it is very common that there is some degree of fault on both parties and that damages/liability is apportioned between them.  That's the very thing the the black/white RRS don't do:  if you break a rule you are penalised:  if both boats break a rule they are both penalised (equally, by disqualification, in the absence of a SI to the contrary).
Originally posted by Chris 249

 
 
Finally, with much respect, asking people to pay for damages that cause by breaching a racing rule is certainly not an example of a modern culture that "seems to be taking over". The precedent dates back to 1897, when the 130 foot Admiral's Cup challenger Valkyrie was sunk by the even longer (IIRC) cutter Satanita, so it's not a modern thing. 
Back to Top
Brass View Drop Down
Really should get out more
Really should get out more


Joined: 24 Mar 08
Location: Australia
Online Status: Offline
Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 13 Feb 15 at 6:13am
Originally posted by Washy71

Years ago the rules stated a close hauled boat had right of way over a boat that wasn't close hauled. I can't see any clear provision for that in the current rule set.

That was an awful lot of years ago.

My copy of the IYRU Racing Rules 1947 provided:

(d)  A Yacht which has the wind free shall keep out of the way of one which is close-hauled.

That reflected Article 17(a) of the Regulations for Preventing Collisions at Sea 1910

(a) A vessel which is running free shall keep out of the way of a vessel which is close-hauled.

Interestingly, the NAYRU (American Vanderbilt) Rules for 1953 Rule 2 provided:

Same Tack Fundamental Rule - A Windward Yacht shall keep clear of a Leeward Yacht (regardless of free or close hauled).

Regulations for Preventing Collisions at Sea were amended in 1960 to include the familiar Rule 12 Sailing Vessels port/starboard and windward/leeward regardless of whether free or close hauled.

And the merged NAYRU and IYRU Racing Rules of 1961 followed the Vanderbilt and the new 1960 COLREGS.

The present rules are quite clear:

Rule 10:  port/starboard
Rule 11:  windward/Leeward overlapped
Rule 12:  clear ahead/clear astern;  and
rule 13:   while tacking

All regardless of close hauled/free.
Back to Top
Chris 249 View Drop Down
Really should get out more
Really should get out more
Avatar

Joined: 10 May 04
Online Status: Offline
Posts: 2041 		Post Options Post Options   Quote Chris 249 Quote  Post ReplyReply Direct Link To This Post Posted: 13 Feb 15 at 3:56am
Originally posted by Brass

Originally posted by Rupert

Reading the comment on another thread about "just a racing accident" and how our rules have no such thing, it made me wonder - are our rules too much like the "somebody must be at fault" culture that seems to be taking over in real life?
The Racing Rules are there to determine places in races.  In accordance with rule 67 and the RYA (and other MNA prescriptions), the rules are not designed to fix liability.
The ISAF RRS do fix liability for costs in racing collisions, although MNAs may prescribe otherwise as you say.
 
As recently as 1995, in cases like the De Sole v US and the more recent one involving the J Class Endeavour and the maxi Charles Jourdain, appeals courts have continued to follow the textbook case of Clarke v Dunraven ("The Satanita") which says that by entering a race, you enter into a contract to play by the RRS, and therefore you pay up if you cause damage by breaching them. As a law journal says of the decision involving Endeavour, "The court of appeals held that the Charles Jourdan and the Endeavour were contractually bound to race by the IYR Rules, and therefore any issues of fault for collisions must be resolved according to those rules".
 
It's not possible to play inshore sailboat racing as we know it under the normal rules of the sea - they would stop us doing things like getting close around marks, hoisting spinnakers in strong winds, holding our course on starboard when we are on collision course a few lengths from a port tacker, calling for our rights against larger racing boats, and even (IIRC) sailing up the "wrong" side of a waterway. So since we can't play by the normal rules of the sea, we have to use different ones to cover both who has right of way, and who pays for stuff-ups.
 
IMHO it's perfectly reasonable that the person in  the wrong should pay for all damage - why should anyone end up out of pocket because someone else stuffed up? It's not as if collisions while racing are exactly hard to foresee very often.
 
Finally, with much respect, asking people to pay for damages that cause by breaching a racing rule is certainly not an example of a modern culture that "seems to be taking over". The precedent dates back to 1897, when the 130 foot Admiral's Cup challenger Valkyrie was sunk by the even longer (IIRC) cutter Satanita, so it's not a modern thing.
 
 


Edited by Chris 249 - 13 Feb 15 at 4:16am
Back to Top
Brass View Drop Down
Really should get out more
Really should get out more


Joined: 24 Mar 08
Location: Australia
Online Status: Offline
Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 13 Feb 15 at 2:37am
Originally posted by Rupert

Reading the comment on another thread about "just a racing accident" and how our rules have no such thing, it made me wonder - are our rules too much like the "somebody must be at fault" culture that seems to be taking over in real life?
The Racing Rules are there to determine places in races.  In accordance with rule 67 and the RYA (and other MNA prescriptions), the rules are not designed to fix liability.

The 'game' is a 'no contact sport'.  If there is contact, at least one boat must have broken a rule.

Originally posted by Rupert

Would sailing work better if when 2 people bump into each other, neither boat really doing anything too silly, no damage done, we just say, oops, sorry, and carry on?
I doubt it.

The first question that would arise would be 'Did a boat gain an advantage out of the incident?'

If so, the other boat can hardly be expected to be content to sail on at a disadvantage without protesting.
Originally posted by Rupert

It is the situation we often see at club level, but it can leave people feeling out of sorts because they "know" that someone "ought" to have done something. If that guilty feeling was taken away, wouldn't our racing be more simple?

Damn right "someone 'ought' to have done something".  Boats should have avoided contact if reasonably possible, at the very least.

If boats hit one another, in the vast majority of cases, that's bad seamanship on at least one boat's part, and they 'ought' to feel guilty about it.

Why would you, or anyone else except the ISAF Marketing Department want to make racing more simple?

In any case, as I hinted above, removing black and white break rules/not break rules and replacing it with questions about 'really too silly', 'damage', 'little bit of damage', etc (remember the thread in Racing Rules with Gordon?), and 'advantage', 'little bit of advantage' and so on would be far from simple.
Back to Top
hum3 View Drop Down
Far too distracted from work
Far too distracted from work


Joined: 23 Jun 06
Online Status: Offline
Posts: 247 		Post Options Post Options   Quote hum3 Quote  Post ReplyReply Direct Link To This Post Posted: 03 Feb 15 at 2:38pm
'Windward boats keeps clear' doesn't cover it???

EDIT - DOH! Beaten to it...

Edited by hum3 - 03 Feb 15 at 2:39pm
Back to Top
Washy71 View Drop Down
Groupie
Groupie


Joined: 01 Jul 14
Online Status: Offline
Posts: 56 		Post Options Post Options   Quote Washy71 Quote  Post ReplyReply Direct Link To This Post Posted: 03 Feb 15 at 2:34pm
Originally posted by Null

I've seen you sailing Washy.  it was probably your fault....  Wink


Haha! What's foxed me is we were both on starboard. I was going upwind, him downwind. Years ago the rules stated a close hauled boat had right of way over a boat that wasn't close hauled. I can't see any clear provision for that in the current rule set.
D-Zero GBR71
Back to Top
Null View Drop Down
Really should get out more
Really should get out more


Joined: 11 May 14
Online Status: Offline
Posts: 745 		Post Options Post Options   Quote Null Quote  Post ReplyReply Direct Link To This Post Posted: 03 Feb 15 at 2:23pm
I've seen you sailing Washy.  it was probably your fault....  Wink
Back to Top
 Post Reply Post Reply Page  12>

Forum Jump Forum Permissions View Drop Down

Bulletin Board Software by Web Wiz Forums® version 9.665y
Copyright ©2001-2010 Web Wiz
Change your personal settings, or read our privacy policy