Court Upholds Tradition Of Responsibility For Collisions

SAILING

Sailboat Racers At Fault Pay For The Damages

November 03, 1991|By Nancy Noyes

Sailors across the country can breathe a collective sigh of relief knowing they can participate in races without fear that a collision will stick them with a bill for damages even if the accident wasn't their fault.

A federal appeals court in Richmond, Va., ruling on an Annapolis case, upheld the system that has governed and protected sailors so well for a long time.

Tuesday's decision ultimately benefits sailing in general and racers in particular, since it effectively removes a dangerous red herring -- the principle of assumption of risk of damages by a sailor whenhe enters a race. Further, by implication, it affirms that racing's long-standing and sophisticated rules and traditions are sufficient to govern the sport.

The Chesapeake Bay Yacht Racing Association and the U.S. Yacht Racing Union filed a friend of the court brief in the appeal.

The appeals court ruling did not decide the facts of the3 1/2-year-old case case, but focused instead on a District Court decision to dismiss the case before hearing it based on the assumption-of-risk issue.

"(The CBYRA and USYRU) assert that there is a long-standing tradition in sailboat racing that the party at fault bears the responsibility for the damages caused," the appeals court decisionsays. "As there are no cases cited by anyone involving a dispute over damages in a sailboat race, an inference arises that that traditiondoes appear to exist."

The case before Federal District Court in Baltimore involved liabilities for damages in a collision near the finish of the Naval Academy Sailing Squadron's Spring Race in April 1988. Washington businessman Domenico DeSole sued the Navy after a collision between his 33-foot X-Yacht 3/4-Tonner Ciro and the Naval Academy's Sparkman & Stevens 49 Cinnabar.

For astute racing sailors other than those directly involved in the collision itself, the real issue has never been how much was owed by whom or why, or even who was atfault.

In a 1989 report to the CBYRA, its legal counsel, Steve Kling, said the case had "the very real potential to disrupt sailboat racing as practiced today."

Kling, an experienced racer and a partner in the Annapolis firm of Crummey and Kling, wrote: "The details ofthe case are not relevant, but the decision of the trial court is. The Federal District Court in Baltimore ruled that as a matter of law,one who participates in a sailboat race assumes the risk of being hit by a competitor.

"Translated, this means that if your boat is damaged by a negligent competitor, that competitor has no legal responsibility for the damage caused to your boat."

With his ruling basedon the legal principle of assumption of risk, District Court Judge Norman Ramsey dismissed the case in August 1989, using a single motorboat racing case -- which was unaffirmed by appeal -- as precedent.

The CBYRA and the USYRU friend of the court brief pointed out that sailboat racing differs from motorboat racing in several important ways. In sailboat racing, the potential for collision is high during certain maneuvers, but collisions are relatively rare because of racing rules and sailors' respect for them.

The brief asserted that in dismissing the case, the District Court ignored -- and thereby seriously threatened -- the rules and traditions of sailboat racing. The appeal took on particular

importance since no supporting cases involving sailboat races and the unique written and unwritten codes of yachtracing were found by either party as precedent in the original lawsuit.

DeSole's appeal to send the case back to the District Court for a hearing was supported by both CBYRA and USYRU as friends of the court. The organizations believed that Ramsey's decision was based on a single case that was irrelevant to sailing and one that would have dangerous implications for the sport.

The threatening implicationsare now only an unpleasant memory, thanks to a lot of hard work by the officials of our regional and national sailing authorities.

"Itseems to me to be very clear that had CBYRA not gotten involved in this case, the outcome may well have been very different," Kling said Thursday. "The most useful part is that they wiped out the (motorboat) precedent. They said that the facts of sailboat racing (itself) arerelevant, and the judge (Ramsey) acted without facts."

As time dragged on with no appeal decision in sight, and as other cases using the motorboat case as precedent began to pop up across the country, Kling got the CBYRA to push the USYRU for a new prescription to International Yacht Racing Rule 76.1 covering responsibility for racing damages.

The prescription's purpose is to state in the yacht racing regulations themselves that the rules and traditions by which racers have conducted their sport -- and their insurance companies have supported them -- are, in fact, the way things are done, have been done, and will continue to be done.

"Speaking personally, I hope and expect that we won't need to expend any more resources on this, and that the case can be settled," Kling said. "I do think it's going to settle."

Regardless of the outcome of the Annapolis case, the Appeals Court decision gives sailing an important victory that will be of strong legal benefit in the future.

Nancy Noyes is a member of the Chesapeake Bay Yacht Racing Association and has been racing on the bay for about five years. Her Sailing column appears every Wednesday and Sunday in the Anne Arundel County Sun.

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