Where theres blame theres a claim

Originally posted by Brass

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:
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
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

Where theres blame theres a claim

Australia

Canada

USA

New Zealand

Great Britain