Assumption of risk issue still unsettled


February 27, 1994|By NANCY NOYES

Members of the Chesapeake Bay Yacht Racing Association will be surprised to read in the latest issue of The Traveler, that association's newsletter, an explanation of refusal to accept legal liability by Dean Case, president of Reliance Insurance Company, based on the Doctrine of Assumption of Risk.

This is not a new issue, and it is one many had thought was settled since the Fourth Circuit Court of Appeals in Richmond, Va., handed down its decision in the Annapolis-based Cinnabar-Ciro case (DeSole v. U.S.) three years ago. A new prescription to Rule 76.1 basically stating that if you mess up, you pay for the damages you cause was adopted by the U.S. Sailing Association.

Annapolis legal eagle and Star boat sailor Steve Kling said U.S. Sailing continually and overwhelmingly has supported the concept of sail racing on a fault-based system with no such thing as assumption of risk and is back in the fray again in another court case in California with Reliance.

Kling wrote the original amicus curiae (friend of the court) briefs in the DeSole case, and as the representative of CBYRA and U.S. Sailing he was instrumental in winning the appeal and getting the case remanded back to a lower court for a hearing. IT eventually was settled out of court. He also is now the author of yet another amicus filing on behalf of U.S. Sailing in the new case.

Here's the story on which Paul & Leslie Manning v. Martin Gordon, et al., is based, in a nutshell:

Two wooden boats were racing on San Francisco Bay. Gordon, on port tack, bashed into Manning, on starboard. Some $12,000 worth of damage was done to Manning's boat, which nearly sank.

Gordon stayed on the scene, helped as much as he could, and after Manning's protest was filed, Gordon did not go to the hearing, but admitted it was all his fault and was disqualified.

Manning has insurance, but has a racing exclusion, so could not, even if he wanted, have submitted a claim to his own insurance company. Gordon is covered by Reliance, which has been insuring sailboats (including racing sailboats) for many years and, one would assume, paying claims on a fair number of them over that time.

This California case has serious implications for U.S. racing sailors everywhere, including Chesapeake Bay.

What Reliance is doing now is saying that even though Gordon was at fault, he (and thus the company) is not legally liable due to the principle of assumed risk, which sailors must bear when they sail onto a race course.

The concept of assumption of risk was shown, in the DeSole case, to have no place in yacht racing. That was largely because we're on collision courses with one another all the time (at least upwind), and so we have rules to reduce the risk and avoid having to assume it.

Reliance's letter says assumption of risk is "a valid doctrine in the jurisdiction where the collision took place." This is legally true, but conveys a falsehood, because the only reason it's "valid the jurisdiction" is that the Ninth District courts have never said no to its application to yacht racing primarily because they've never heard a case like this before, Kling said.

The CBYRA does not condone or accept Reliance's position. Once again Kling has taken up the sword for racing sailors and U.S. Sailing, which has filed and been accepted as a friend of the court on Manning's side in the case.

More seminars scheduled

West River Sailing Club's next winter seminar series will feature Duncan Spencer of Rags magazine, a veteran trans-Atlantic sailor, in a presentation titled "TransAtlantic on a Shoestring," at 2 p.m. Saturday at the club's Galesville clubhouse.

The seminar is free and open to the public. Participants also can take part in a chili lunch at 1 p.m. For information, call Donna Schlegel, (410) 867-2775.

On Tuesday, at West Marine in the Hillsmere Shopping Center on Bay Ridge Road in Annapolis, educator and author Gordon West will discuss marine electronics at 7 p.m. Admission is $5. For information, call (410) 268-0129.

At Fawcett Boat Supplies on City Dock, factory rep Tripp Estabrook will discuss Harken sailboat hardware on Tuesday. A week later manufacturers reps Todd Follansbee and Scooter Pierce will talk about Forespar spinnaker and whisker poles and fittings.

Fawcett's free seminars begin at 5:30 p.m. Refreshments are provided. Reservations are not required, but call ahead to be sure schedules remain on track: (410) 267-8681.

Frostbite makeups

Annapolis Yacht Club's Frostbite Series has scheduled vTC makeup days for Saturday and next Sunday and possibly March 12-13, with first guns on Saturdays at 10 a.m. for a three-race series, and two races on a normal schedule (first gun 1 p.m.) on Sundays.

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