Early last spring, much was discussed about the Chesapeake Bay Yacht Racing Association and the U.S. Yacht Racing Union serving as friends of the court in an appeal of a lawsuit resulting from a collision of two racing sailboats off Annapolis.
In this case, DeSole v. US, one sailboat was hit by another, and the collision was freely acknowledged by all parties to have been the fault of the latter.
Instead of typically settling for damages, the case became a cause celebre after the defendant's attorney, using a precedent from a motorboat racing case, successfully convinced the judge to dismiss the case.
The dismissal was based on the legal doctrine of assumption of risk: i.e., that the plaintiff assumed the risk of being damaged when he entered the race, and the defendant was therefore not liable for damages.
The involvement of CBYRA and USYRU in what amounts to a private dispute between the two sailboat owners was unique and important, since it served in many ways to let the Appeals Court know that whatever decision it made in the case would have significant and reverberating effects across the sport.
Neither agency was at all interested in which party won the original lawsuit, or who paid damages or for how much. They both stressed that the case must be heard and decided on its merits, rather than simply dismissed on the assumption of risk principle, which they both agree has little bearing on sailboat racing thanks to sailing's long traditions and highly evolved system of sophisticated and respected rules.
Oral arguments were presented to the Fourth District Court in Richmond on April 2 in the case of DeSole v. US, and as yet no decision has been issued, although one is expected virtually at any time. Among those presenting arguments was CBYRA legal counsel Steve Kling of Annapolis, an experienced racing sailor and eloquent proponent of solidifying formal rules for assigning liability on the race courses of the country. He seeks to avoid further confusion and contemporary clouding of the traditional basic issues that served so well on their own for so many years.
Not long ago, in the wake of a similar case in Ohio, in which the defendant received a similar result by also using the assumption of risk doctrine, Kling presented and the CBYRA Executive Board unanimously adopted a resolution, supported by the CBYRA Rules and Appeals Committee. They urged USYRU to adopt a formal prescription to Rule 76.1 of the Yacht Racing Rules to formalize the assessment of liability, which until recently had been virtually universally understood and used as a means of settlement: The boat at fault pays for damages to the boat not at fault.
Kling said during the oral arguments in Richmond in the DeSole appeal, "The judges were absolutely incredulous that given the opportunity to write a prescription to Rule 76.1 we had not done so. They were particularly amazed that we had no prescription when the cornerstone of the USYRU/CBYRA argument was that one of the most important traditions in the sport was that the port tacker paid to fix the hole he caused in the starboard tacker. We were warned by the court that we better get our act together."
Rule 76.1 currently reads, "The question of damages arising from infringement of any of the rules shall be governed by the prescriptions, if any, of the national authority."
The prescription proposed by CBYRA is as follows: "USYRU prescribes that responsibility for damages arising from an infringement of any of these rules shall be based on fault, following traditional maritime law principles of comparative fault. All competitors entering any race conducted under these rules agree that any dispute as to liability for damages arising from an infringement of any of these rules shall be submitted to arbitration under the Yacht Racing Procedures of the American Arbitration Association."
At its annual meeting in Seattle, USYRU agreed to begin work on a prescription based on this kind of "fault" approach as opposed to the assumption of risk "no-fault" approach to settlement of claims for damages, and has formed a committee to work on a formal proposal.
"One of the strongest, yet unwritten, traditions in sailing is that liability for damage arising from a collision during racing has been assumed by the give way or infringing yacht as adjudged by the jury," Kling wrote in the CBYRA proposal to USYRU.
"At this time, the expectations of the overwhelming number of racing sailors and USYRU members is that if one is sailing on starboard tack and is T-boned by a port tacker, the port tacker will pay to fix the hole in the starboard tacker's boat. This is a reasonable expectation on the part of the racing community. It is a system of responsibility that has evolved naturally over the last 150 years of sailboat racing.