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Scuttlebutt News Center:

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:

(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

Additional information available at the website for the Canadian Yachting Association.

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