Dinghy development: Where theres blame theres a claim

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Where theres blame theres a claim

Printed From: Yachts and Yachting Online
Category: Dinghy classes
Forum Name: Dinghy development
Forum Discription: The latest moves in the dinghy market
URL: http://www.yachtsandyachting.com/forum/forum_posts.asp?TID=11879
Printed Date: 09 Jul 25 at 5:01am
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Topic: Where theres blame theres a claim

Posted By: Rupert
Subject: Where theres blame theres a claim
Date Posted: 03 Feb 15 at 1:42pm

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?

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?

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?

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Firefly 2324, Puffin 229, Minisail 3446 Mirror 70686

Replies:

Posted By: Washy71
Date Posted: 03 Feb 15 at 2:12pm

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?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?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?

In the case mentioned I couldn't see him and he couldn't see me. My immediate concern was making sure none of us was in danger. He wasn't hanging around when we crashed so got thrown forward quite badly. I was genuinely worried for him. His boat sustained some damage to the wings, port side wing gone completely. My boat had a minor dent. We took care of our own repairs without seeking to blame or claim from each other.

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D-Zero GBR71

Posted By: Null
Date Posted: 03 Feb 15 at 2:23pm

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

Posted By: Washy71
Date 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.

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D-Zero GBR71

Posted By: hum3
Date Posted: 03 Feb 15 at 2:38pm

'Windward boats keeps clear' doesn't cover it???

EDIT - DOH! Beaten to it...

Posted By: Brass
Date Posted: 13 Feb 15 at 2:37am

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.

Posted By: Chris 249
Date Posted: 13 Feb 15 at 3:56am

Originally posted by Brass

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.

Posted By: Brass
Date 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.

Posted By: Brass
Date Posted: 13 Feb 15 at 7:16am

Originally posted by Chris 249

Originally posted by Brass

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 http://en.wikipedia.org/wiki/Brussels_Collision_Convention" rel="nofollow - - Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels http://en.wikipedia.org/wiki/Brussels_Collision_Convention" rel="nofollow - 1910 , which show the words 'liability', 'cause' and 'fault' in context will assist

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

If a collision occurs that is http://en.wikipedia.org/wiki/Force_majeure" rel="nofollow - accidental or of uncertain cause, the damages are borne by the party that suffers them;
If a collision occurs that is the fault of a party, the party at fault is liable for the damages that were caused; and
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:

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.

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" rel="nofollow - 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.

Posted By: jeffers
Date 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).

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Paul
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D-Zero GBR 74

Posted By: Chris 249
Date Posted: 13 Feb 15 at 11:35am

Originally posted by Brass

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

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.

Note the use of the word 'fault' here.

Originally posted by Chris 249

Absolutely agree.

Originally posted by Chris 249

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!

Posted By: Brass
Date 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.