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jeffers View Drop Down
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Posts: 3048 		Post Options Post Options   Quote jeffers Quote  Post ReplyReply Direct Link To This Post Topic: In irons
    Posted: 09 Mar 15 at 5:11pm
Small claims court should cover most dinghy related damage (limit is £10k). Yachts are a whole different ball game though.

If you have fully comp insurance usually your insurance co will do the legwork to recover their costs from the other side. Hence the proliferation of the dreaded shared blame because the insurance co thinks it would not be worth their time to pursue the other side for full recovery (even when 1 side is blatantly in the wrong).
Paul
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Brass View Drop Down
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Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 09 Mar 15 at 10:41pm
Originally posted by jeffers

Originally posted by Rupert

Seems about right, as the going astern rule involves backing sails, not drifting.

You could argue that if they were in #in irons' and being blown backwards they were not drifiting.

Either way I suspect the boat on port would have been exonerated as the RoW boat effectively changed course so the port boat could no longer keep clear (and should have taken a 2 turn penalty).
The issue Rupert was addressing was S was required to keep clear because she was moving astern by backing a sail under rule 22.3.

22.3 A boat moving astern through the water by backing a sail shall keep clear of one that is not.

A boat 'drifting' does not get any special consideration under the rules.  Only if a boat is capsized, anchored or aground (or trying to help a person or vessel in danger), does she get special consideration, and another boat is required, if possible, to avoid her under rule 23.

23 CAPSIZED, ANCHORED OR AGROUND; RESCUING
If possible, a boat shall avoid a boat that is capsized or has not regained control after capsizing, is anchored or aground, or is trying to help a person or vessel in danger. A boat is capsized when her masthead is in the water.

The rules analysis would be as follows.

IF S had passed head to wind, even momentarily, 
Rule 13 applies and S is required to keep clear
13 WHILE TACKING
After a boat passes head to wind, she shall keep clear of other boats until she is on a close-hauled course. During that time rules 10, 11 and 12 do not apply. If two boats are subject to this rule at the same time, the one on the other’s port side or the one astern shall keep clear.
ELSE S has not passed head to wind
IF S is moving astern by backing a sail,
Rule 22.3 applies and S is required to keep clear
22.3 A boat moving astern through the water by backing a sail shall keep clear of one that is not.
ELSE 
Rule 10 applies
IF S does not change course (not the case in this example)
Rule 10 applies without limitation and P is required to keep clear.
ELSE S changes course (a boat that was moving ahead, then moves astern, changes course by 180 degrees)
S is required to give P room to keep clear under rule 16, and specifically rule 16.2 applies
16 CHANGING COURSE
16.1 When a right-of-way boat changes course, she shall give the other boat room to keep clear.
16.2 In addition, when after the starting signal a port-tack boat is keeping clear by sailing to pass astern of a starboard-tack boat, the starboard-tack boat shall not change course if as a result the port-tack boat would immediately need to change course to continue keeping clear.
IF there was no contact
S would normally be taken to have given P room to keep clear and P kept clear:  no rule was broken.
ELSE there was contact
IF P did all she could in a seamanlike way to keep clear (or, in this case, needed to further change course immediately after S began changing course by moving astern)
S did not give P room to keep clear, and S broke rule 16.

Notwithstanding S breaking rule 16, P also broke rule 10, but because S did not give P room to keep clear, she compelled P to break rule 10, and P is exonerated for breaking rule 10 in accordance with rule 64.1( a )

(a) when as a consequence of breaking a rule a boat has compelled another boat to break a rule, the other boat shall be exonerated.
Rule 14 (avoiding contact) is also relevant.

If S did not give P room to keep clear (P doing all she could to avoid contact) then it was not reasonably possible for P to avoid contact and P did not break rule 14.

I would be fairly happy that it was not reasonably possible for S, in irons, to avoid contact, so S did not break rule 14 either.
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Posts: 94 		Post Options Post Options   Quote GML Quote  Post ReplyReply Direct Link To This Post Posted: 09 Mar 15 at 10:54pm
All of which I agree with Brass, but if P didn't hail "Protest" (and display a red flag if required), and then submit a written protest within the protest time limit, it is all pretty moot since there isn't a valid protest. And without a protest committee decision in his favour I don't hold out much hope of P getting any contribution to the cost of repairing his damage from S (who may well claim that he saw the incident differently), and he may have problems with his insurance company too.

Key message - if you want to protect yourself, protest!
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Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 10 Mar 15 at 2:29am
Originally posted by Rupert

He probably should have put in a protest at the time. 
Yes, as JimC said, that is a convenient way of getting a written decision, in accordance with the RRS to support an insurance claim or claim for damages.

Originally posted by Rupert

 Be hard to prove anything now. 
Not really any more difficult than proving the case in a protest hearing.

Collecting and presenting evidence, witnesses etc may now be a little more inconvenient and costly, and the liklihood of an insurer or magistrate correctly applying the RRS may be a little diminished, but without a written protest decision following a valid protest, that's a problem P has brought upon himself.

Originally posted by Rupert

 I know we have had a thread recenty which said that the outcome of a protest doesn't mean admitting liability,

We need to be very careful here.

The RYA Prescription to rule 67 says

2. A boat that takes a penalty or retires does not thereby admit liability for damages or that she has broken a rule.

This does not cover a boat that neither takes a penalty nor retires, but is penalised in a protest hearing.

A protest committee in a protest hearing may make a finding of fault, namely that a boat broke one or more of the RRS, and, within the bounds of the results of a race or series award a penalty as provided by the RRS, but the RRS do not facilitate any determination of liability to pay money damages, and our MNA prescriptions tell us that a protest committee should not attempt to do so.

So a protest decision is a step along the way to deciding liability to pay damages,  but it does not, itself, decide liability.
Originally posted by Rupert

 but I'm pretty sure insurance companies look at it. 
Yes, you would normally expect that.
Originally posted by Rupert

 
What it looks like you have now is "it was your fault" "no it wasn't" situation. 
Well, those would be opinions about the facts and the application of the RRS to those facts.

What is now needed, in advancing a claim either to an insurer or directly against the other boat is to:
  1. assert and prove relevant facts (including what tack each boat was on, whether S ever passed head to wind, whether S ever moved astern by backing a sail, distances between boats at relevant times, action taken by P to keep clear and avoid contact, whether S changed course and so on);  and
  2. explain that the RRS apply and how they apply to the facts.
Some of those things will be disputed between the parties ('did not/did so'), and some will, either expressly or by default, be agreed.

Originally posted by Rupert

  Not sure that the word of other people who were out there would be of much use now, 
Evidence of eyewitnesses will usually help to decide facts in contention.  That evidence could be presented to an insurer in the form of a written statement, or in a court by a witness attending and giving testimony.
Originally posted by Rupert

  either, unless it somehow went to court, which sounds like a very bad idea. 
Probably, but AIUI, the Small Claims jurisdiction is designed to enable parties to present their case without legal assistance and costs.



Edited by Brass - 10 Mar 15 at 3:53am
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Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 10 Mar 15 at 3:52am
Originally posted by JimC

The other thing might be to talk to the club officers. I don't know about this stuff, but ultimately might refusing to negotiate/communicate about damage/insurance end up with RRS 69 as an ultimate sanction? I don't know, just offering up the possibility.
Indeed you might be able to enlist the good offices of club officers or other respected intermediaries.

BUT, the whole point of rule 67 and the RYA prescriptions to it are that clubs should absolutely avoid getting involved in legal disputes between racers.

Bear in mind that from an RRS point of view, the incident, in the absence of a valid protest doesn't even exist.

A party has an absolute right to sit pat until such time as he is properly served with a legal process (there may be consequences of doing so if the party eventually loses, but that's another matter).

It would be madness to run a rule 69 on the issue as you have described it.
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Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 10 Mar 15 at 4:12am
Originally posted by GML

All of which I agree with Brass, but if P didn't hail "Protest" (and display a red flag if required), and then submit a written protest within the protest time limit, it is all pretty moot since there isn't a valid protest. And without a protest committee decision in his favour I don't hold out much hope of P getting any contribution to the cost of repairing his damage from S (who may well claim that he saw the incident differently), and he may have problems with his insurance company too.

Key message - if you want to protect yourself, protest!
There is no reason whatever to think that a claim by P against S for damages is 'moot'.

P has every right to initiate such a claim and have it decided according to law.

True, P, by not validly protesting, has forfeited the convenience of having a written protest decision to support such a claim, but P can still pursue an action 'from first principles'.

Indeed, there are always two sides to any story, and S might successfully defeat P's claim by disputing facts, or the application of the rules, but 'failure to protest' would be a wholly irrelevant consideration.

I am not aware of any insurance policy that makes a valid protest a condition for indemnity.
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jeffers View Drop Down
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Posts: 3048 		Post Options Post Options   Quote jeffers Quote  Post ReplyReply Direct Link To This Post Posted: 10 Mar 15 at 6:44am
Originally posted by Brass

 
I am not aware of any insurance policy that makes a valid protest a condition for indemnity.

Neither am I but it is a question that I have been asked when a claim is made after a racing incident.

Whilst the protest result itself is not (and cannot be) an admission of liability the insurance company will use the facts found and decision as a basis for their assigning of liability.
Paul
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Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 10 Mar 15 at 6:58am
Originally posted by jeffers

Originally posted by Brass

 
I am not aware of any insurance policy that makes a valid protest a condition for indemnity.

Neither am I but it is a question that I have been asked when a claim is made after a racing incident.

Whilst the protest result itself is not (and cannot be) an admission of liability the insurance company will use the facts found and decision as a basis for their assigning of liability.

It's perfectly reasonable for an insurer to ask for a written protest decision if there is one:  it's an independent finding of facts and application of the RRS by a protest committee that should be expected to have a better knowledge of the RRS than an insurance assessor.

The degree to which insurers are prepared to rely on written protest decisions varies.
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Posts: 241 		Post Options Post Options   Quote fudheid Quote  Post ReplyReply Direct Link To This Post Posted: 10 Mar 15 at 10:59am
in the few incidents i have had that have led to insurance claims, there is no need for a protest decision. The insurance companies we dealt with (noble/towergate/bishop skinner?) 
took action on colregs and who was to blame for the damage not who is to blame under the RRS.
in a port starboard collision the costs were split as the RoW boat chose to make contact i.e took no avoiding action.....
Cheers you

only me from over the sea......
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GML View Drop Down
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Posts: 94 		Post Options Post Options   Quote GML Quote  Post ReplyReply Direct Link To This Post Posted: 10 Mar 15 at 5:54pm
Originally posted by Brass

There is no reason whatever to think that a claim by P against S for damages is 'moot'.

P has every right to initiate such a claim and have it decided according to law.

You are right of course Brass - I was looking at the issue too narrowly.
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