HEAR YEE, HEAR YEE, ... AMORITA vs SUMURUN

Reading a posting in the VillageSoup of Knox County, about a pending court case between the owners of a classic New York 30 yacht Amorita and a 94 foot Ketch Sumurun, something struck me as very odd. Why was this in court? Didn’t a Protest Committee sort this out?

At the base of this case is an incident that happened during the Museum of Yachting's Robert Tiedemann Classic Regatta in Newport, R.I., on July 7, 2007. Sumurun ran into another New York 30 Alera and then into Amorita which, within minutes after being hit, sank to the bottom of Narragansett Bay!

Now in court, the owner of Amorita is asking for compensation for damages and costs in the amount of one million dollar.

Amorita in tow after salvage.
foto by Phil LeBlanc and Safe/Sea: 


I decided to investigate, to see if I could come up with an answer.

Google first ; found the site of the Museum with results of the regatta. Sumurun DSQ for Saturday and DNC for Sunday; Amorita and Alera both DNF on Saturday and also DNCs on Sunday.

Wrote an E-mail to the Museum contact person, asking for more information. Answer: “I will be out of the office from 1/24- 2/5/08.” Okay, she’s ducking, 2/5/08, that was a month ago…

Send another E-mail to Senior Reporter Holly Anderson, who wrote the post in Village Soup,* and she was most helpful. She send me the court papers including copies of the original protests and both findings of the subsequent Appeal Committees.
(*the posting will be archived on 3/25/08, available to subscribers for a small fee)

I learned a great deal.


Both the Amorita and the Alera filed protest, which were heard by the Protest Committee of the regatta. Not satisfied by the decision Sumurun filed an appeal to the Narragansett Bay Yachting Association Appeals Committee and after that to the US SAILING Appeals Committee.
It looked like all due process within the rules was adhered to.

Lets first have a look at the rules issue as stated in the protests and appeals. Perhaps in there was something to explain why this was in court? I’ve written it as a protest to get it clear in my mind, using information from both original protests and both appeals:


Facts Found:
- Wind aprox. 12 knots, slack tide, 2-3 foot Sea.- Amorita an Alera both New York 30 classic yachts, 30’waterline (BL approx 14 m.)- Sumurun also a classic Yacht; a 94’ Ketch (BL approx 29m.)- Amorita to Windward and Alera to Leeward half a length behind, entered the 2 BL zone of the windward rounding mark to be left to starboard.- Distance between boats aprox. ½ BL. (7m.)- Sumurun approaching the mark, astern about 3 BL (45m.) from the Alera.- Alera and Amorita coming from above the port lay line, had born away to round the mark. Distance between boats still ½ BL (7m.)- Sumurun approaching fast, entered the 2 BL Zone.
- Sumurun laid a course between Alera and the mark.
- Sumurun hit Alera’s transom and continued along her starboard side becoming entangled in main sheet and boom.- During this contact Alera was pushed to windward and Sumurun hit the mark.- Alera’s bow hit Amorita at her starboard stern quarter.- Amorita was spun to leeward in front of Sumurun.- Amorita was hit broadside by Sumurun’s bow causing extensive damage and was holed.- Amorita sank within 30 seconds.
- Alera and Sumurun both did not finish the race.


Conclusion:

Sumurun clear astern did not keep clear of Alera clear ahead and broke rule 12, Sumurun clear astern at the two-length-zone, took room inside Alera and Amorita which she was not entitled to and broke rule 18.2(c), Sumurun did not avoid contact when it was reasonably possible to do so and breached rule 14 twice, Sumurun touched a mark of the course and broke rule 31.1

Alera, the right-of-way boat, changed course and did not give Amorita room to keep clear, breaking rule 16.1. Alera is exonerated under rule 64.1(b) because the change of course was caused by the contact with Sumurun, compelling her to break rule 16.1.

Amorita to windward did not keep clear of Alera to leeward, breaking rule 11. Amorita outside overlapped did not keep clear of Alera, the right-of-way boat and broke rule 18.2(a). Amorita is exonerated under rule 64.1(b) because of Alera’s change in course, giving her not enough room to do so .
Amorita, the right-of-way boat, changed course and did not give Sumurun room to keep clear, breaking rule 16.1. Amorita is exonerated under rule 64.1(b) because the change of course was caused by the contact with Alera, compelling her to break rule 16.1.

Both Alera and Amorita could not reasonably possible avoid any of the contacts and therefore neither broke rule 14.

Decision:
Protest is upheld, and both appeals are denied. Sumurun, because she complied with rule 44.1 by retiring from the race, is to be scored DNF (Did Not Finish)

I can’t find anything that would suggest something was missed or wrong in the rules used. Both protests and appeals were handled with expertise and although some issues were only resolved in the final US Sailing Appeal, it was abundantly clear that Sumurun was at fault. Both Amorita and Alera were completely exonerated for any rule they had broken. Sumurun did nothing to avoid both contacts.

That’s it. Game over!
Hand it over to the insurance and hope the premium won’t be too severe next year.
This obviously didn’t happen.
What was it that brought this to court? If not in the rules, what then?


Sumurun

From the letters of the subsequent appeals some allegations by Sumurun might be grounds, perhaps.
Let’s have a look at those:

Sumurun: “The Protest Committee has no jurisdiction over liability, only the courts have”

The owner of the Sumurun:
“A protest hearing is intended solely to determine competitive standing in a racing event,” He adds: “As Sumurun had retired from the race, there were no issues of competitive standing for the protest committee to resolve. “Contrary to the exhortations of Alera and Amorita,” he writes, “it is the role of a court, not US Sailing, to adjudicate liability for damages in the event of collision.”
Answered by the US Sailing Appeal Committee:
“The protest committee decision to hear the protest was correct. Rule 63.1 requires a protest committee to hear all protests that have been delivered unless it allows a protest to be withdrawn. Whether or not the protestee has taken a penalty is irrelevant.
The purpose of a protest hearing is for the protest committee to find facts and apply the rules to the incident under protest. In doing so, it will determine whether any boat that is a party to the hearing has broken a rule and is to be penalized (see rules 63,6 and 64.1(a)). The assertion that the sole purpose of a protest hearing is to determine a boat’s score is incorrect.”

Sumurun: “Rule 44.4(b) limits further penalty”

The Sumurun shouldn’t have been disqualified by the PC nor by the NBY appeals committee. Well, that is correct. That was something the US Sailing Appeals committee changed . Because Sumurun did not finish, she took her penalty. And regardless of the reason why she retired, she can’t be scored with a DSQ. But that didn’t made her less liable.

Sumurun: “Alera bore of breaking rule 16.1”

Because Alera had overstood the mark she was coming from a angle that made her bear away to round the mark. She had every right to do that, because of rule 18.2(d). Rule 18 was in effect during the rounding and therefore rule 16 was not.

So no, also a dead end.


Amorita in full gear

Perhaps there were procedural flaws?

The protest hearings were held separately. That shouldn’t have happened. They should have been put together in one hearing. Did it alter the outcome? I believe not. Sumurun was in both hearings and could ask any question, bring any witness, state any rule. She had ample opportunity to bring that up in the appeals and apparently didn’t.

There was no diagram indorsed by the Protest Committee, only one from Alera. The NBYA appeals committee did make diagrams, which were perfectly clear and consistent with the facts found by the PC. They also added a couple of rules to the decision, finding even more fault. But still Sumurun was the only one DSQ’d. The facts found were clear and consistent with the diagram made by Alera. No need for more drawings in the protests.

The US Sailing appeals committee used only information from the original protests to come to a conclusion, they didn’t consider the NBYA appeal or subsequent information supplied by any of the parties. Also consistent with the rule-book ( see rules 70.1 and F5). They added another couple of rules to the decision, also something they have a right to do. (see rule 71.3). The failure of a protest committee to name a rule doesn’t make them less applicable.
Facts Found cannot be appealed. And the facts were clear. Sumurun appealed the interpretation of those facts. Nothing procedurally wrong in that.

It must be something else…
There’s still the complaint handed in to the courts:

In it, acquisitions fly with a abundance. Words like: “arrogant, malicious, outrageous and extreme manner. Inattentive to their duties. Careless and grossly negligent manner. With wanton disregard for safety at sea. Aggressive, malicious and outrageous sailing tactics”

I’m not a layer, and unfamiliar with the American system, but to me this is … posturing? It goes on:
Sumurun didn’t regard her speed,
Sumurun didn’t hail the other boats,
Sumurun didn’t heed warnings from her own crew,
Sumurun caused extensive damage,
Sumurun failed to navigate so as to avoid striking a vessel,
Sumurun didn’t help people in danger,
Sumurun cut the Amorita loose when the rigging came entangled, sinking her without a line to mark her position,

Sumurun left and right…

Rule 69? Perhaps rule 1? Rule 2 surely…..?
Nothing of this nature is in any of the protests or in either appeal.
Admiralty Laws must be very different.

Perhaps there is something missing?
Missing in the filed court papers is any reference to the Notice of Race. And the Sailing Instructions are named, but not filed.

The Sailing Instructions are to be considered the “contract” between all participants in the race.
In it the Racing Rules of Sailing are named as binding for all participants.

From the complaint:

35 In a case directly on point, JUNO SRL v. S/V ENDEAVOUR, 58 F3d 1 (Maine 1995), the US Court of Appeals, First Circuit held that “[b]y entering a regatta with sailing instructions that unambiguously set forth special, binding “rules of the road,” participants waive conflicting rules…and must sail in accordance with the agreed-upon rules.”

Surely that contract should be considered in determining fault by the courts?

I haven’t been able to get hold of the SI, so I can’t say if there’s anything in them that might be a reason why this has gone to the courts. There’s a reference to SI 1.4 in the US Sailing Appeal documents. Apparently an experimental distance of one Boat Length to the definition “Keep Clear” was in force, only not applying to rule 11. I thought that definitions couldn’t be changed by the SI. Were Alera and Amorita somehow infringing the distance stated in this experimental definition? They were closer than one boat length, that’s for sure, but governed by rule 11 and 18.2(a), so I have to answer no, again.


Sumurun on the inside

I can’t imagine what else it could be, since none of the other papers mentions anything about the SI. Looking at the long standing reputation of the regatta and the organizers, I can’t think of anything that might be so severely wrong, that it should merit a court case.

I did find the Notice of Race, published on the Museum site.

In the NOR is a prevision stating that all participating vessels must carry liability insurance…..
This is a standard sentence, well known and of course adhered to by all owners. It is also almost always repeated in the SI with a minimum coverage sum added. All sailors, who have ever participated in an official regatta, have read this and have made sure they had a copy of the polis in their race-paper kit.

Or have they?

Did the Race Committee check if Sumurun had coverage?

Did they check any boat’s policy?

Would you have?


.


UPDATE: continued in part 2
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More:
Sumurun, Fischer, Towbin sued for regatta crash in Rhode Island by Holly Anderson; (Post will be archived after 03/25/2008, available to subscribers for a small fee)
Classic Yacht sinks after clashing with Sumurun by Yachtbud;
Classics collide at Newport regatta by Douglas A. Campbell;
Sinking strains the Corinthian spirit by Douglas A. Campbell;
The New York 30s, a century of one-design sailing;
A discussion on the Wooden Boat Forum;
The NOTICE OF RACE of the regatta;