Sunday, 16 March 2008

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
_____________________________________________________________
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;

21 comments:

  1. Seriously, you can't figure this out?

    ReplyDelete
  2. Rule 68 After rule 68 add
    US SAILING prescribes that:
    (a) A boat that retires from a race or accepts a penalty does not, by that action alone,
    admit liability for damages.
    (b) A protest committee shall find facts and make decisions only in compliance with
    the rules. No protest committee or US SAILING appeal authority shall adjudicate
    any claim for damages. Such a claim is subject to the jurisdiction of the courts.

    ReplyDelete
  3. For Anonymous(1): Please, I want you to draw your own conclusions.

    For Anonymous(2): We think that in the USA everybody loves to go to court. I wonder why?

    Does this mean every damage has to be litigated? Surely in nine out of ten cases it is settled by the insurance companies?

    ReplyDelete
  4. Ah, but in the USA even the insurance companies hire lawyers and go to court to battle each other.

    This is only speculation:

    Perhaps there were hard feelings related to the sudden, dangerous nature of the collision and rapid sinking of Amorita by the much larger Sumurun.

    Again this is purely speculation, but perhaps there were feelings that the offending boat's owner or insurance company were not being responsive or taking responsibility as completely or quickly as the victims wanted.

    And perhaps there were lessons to be considered by the race committee about putting such different boats on the same part of the race course at the same time.

    ReplyDelete
  5. Is this really so hard to understand?? Amorita is seeking "damages" of $1m. Damages are a matter for the courts to decide. Rhetoric in the complaint adds to drama and can support damages particularly if physical injuries and post traumatic stress are being claimed. Unknown but conjectured is that Sumurum's liability insurers don't want to pay the damages claimed and are prepared to argue both liability and quantum before a jury. See it's easy. Just think beyond yacht racing rules Mr ISAF Umpire.

    ReplyDelete
  6. I am a lawyer familar with this area of the law. Insurance companies do not always settle, especially if there are hurt feelings and personal injuries. Is the vessel worth $10,000 because it is "old" and made of wood, or 1 million because it is a "classic". The insurance company may only offer low personal injury settlements, but the victims may want much more. All of this will lead you to court. Now, the Court is not required to adopt the findings of the protest committee, but will in all likelihood do so. This is important for people to know: If a matter is litigated by civilians, there is a doctrine that allows for a Court, with some minor exceptions, to usually go by that decision.

    Maurice Cusick, Esq.
    Newport, R.I.

    ReplyDelete
  7. For Pat: This month's Woodenboat magazine has an article "Racing Classic Yachts Managing the growing pains — Chris Museler" about racing classic yachts and how the OA, contestants, and RC can better run the regattas. Someone is sending me a copy. I'll get back to this.

    For Anonymous (3): Which rules do you think the courts will use to determine who is at fault?
    According to jurisprudence the RRS and those have been sorted out by PC and subsequent appeals. Liability shouldn't be an issue. If it is, we might as well throw the rulebook in the rubbish bin.
    As to quantum, agreed, the court will no doubt hear arguments why the loss of a mobile telephone by one of the crew should or shouldn't be compensated. But that's small compared to the costs of rebuilding Amorita. The fact that she was hit, sunk and was severely damaged can not be disputed.
    And please, don't forget I'm a Mr. ISAF Judge too :P

    For Maurice: Thank you for this clarification.
    In my experience all racing yachts have policy specifically allowing them to race -with the RRS in force, just to avoid this particular sandpit. Between rules of the road and the RRS when it comes to damages.
    The sum will no doubt be disputed, but not who's at fault, surely?

    ReplyDelete
  8. We suspect that the cost to restore far exceeds the pre- collision and/or insured value of the S/Y Amorita. In the end in most matters of this nature, "it is all about money".

    John Andrews
    Wickford, RI

    ReplyDelete
  9. I think that it has to go to court because this is way too severe and there are too many questions about values on an old boat. In small on the water accidents between newer boats normally not a problem. In this case I think everyone knows who is at fault. It is the amount of money to be paid out that is going to be litigated or settled. I am an insurance agent who sails. Values of boats are never agreed upon, especially old ones. And there is probably some type of bodily injury and hopefully punitive damages. Better for a court to decide that and not involve the time of our Sailing judges. They already did their job and it looks to me they did it very well so that now it will come down to how much, not who is at fault.

    Let's hope the court comes back with a $10,000,000 settlement!!! That will show the insurance company fighting the payout and the skipper with no appreciation for the rules!!!

    ReplyDelete
  10. US SAILING prescription to rule 86.3

    US SAILING prescribes that proposed rules may be tested, but only in local races.

    SI 1.4
    In accordance with the US SAILING prescription to rule 86.3, the following rules will be tested for this regatta.

    For the purposes of rules 10, 13, 14, 15 and 16, the definition of keep clear is changed to:

    Keep Clear: One boat keeps clear of another when she is more than one of her hull lengths away from the other boat, the other can sail her course with no need to take avoiding action and, when the boats are overlapped on the same tack and the leeward boat can change course in both directions without immediately making contact with the windward boat.

    ReplyDelete
  11. great post. i learned a lot.

    ReplyDelete
  12. For John: Agreed. I must admit I didn't consider the implications of value of a classic yacht in this debt.

    For Anonymous (4): Can you speculate why the suit was brought by the owners of Amorita, not by their insurers. And, not against the insurance company of Sumurun but against it's owners?

    I understand your sentiment, but a 10m settlement would also have an effect on your premium, would it not?

    For Anonymous (5):
    If we put aside this particular incident, did it have the desired effect on the race-course? Did yachts keep clear at a greater distance?

    For Jarret: Thanks! And it certainly generated visitors!

    ReplyDelete
  13. Good discussion. Informative, civil, and objective. Thank you. Been following this since the day it happened, and without a comprehensive understanding of the RRS, some aspects were unclear.

    ReplyDelete
  14. Good discussion. Clear, civil and objective. Although I've been following this case since the day it happened, my knowledge of the RRS is less than comprehensive, so it's good to see the whole thing adressed rule by rule. Thanks.

    ReplyDelete
  15. This has been a fascinating discussion. Well done, and thank you. The graphic was great too.

    I wanted to just point one thing out that really doesn't have much to do with the race and accident, but it is interesting it was mentioned. If you don't want to hear me rant for a moment, feel free to just go to the next post... sorry.

    Your second try for information was an email to the Museum of Yachting.

    "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…"

    She's not ducking. Sally Ann Santos did an INCREDIBLE job managing The Museum of Yachting for as long as I've been in Newport. She did all museum design and displays, managed their dedicated volunteer staff, pretty much single-handedly ran the regattas and events surrounding the regattas, and all in all was a very dedicated and talented person to the museum.

    The International Yacht Restoration School bought the Museum of Yachting in the Fall of 2007. Even after IYRS's executive director, Terry Nathan, assured everyone that it would be foolish not to keep Sally Ann to run the Museum, he fired her about an hour before she was supposed to go on vacation. That's why the reply message to your email was “I will be out of the office from 1/24- 2/5/08.” She hasn't been back since, and Terry doesn't know how to make her email NOT reply with that message. I'm sure he received your email, but I am also sure he wouldn't respond. He doesn't have any knowledge of what happened, nor does he really know much about boats or yachting to begin with.

    Look for the opening day of the Museum of Yachting, supposedly in Early May. From what I understand, IYRS has since emptied out the Museum's collection and building (much of the collection that was on loan has been taken back by the owners) and IRYS really doesn't have many plans to continue MOY as it was in the past, so it will be interesting to see what happens.

    It's sad that Terry Nathan has taken the heart out of IYRS and now the Museum of Yachting and, instead of sticking to the missions of both incredible institutions, has alienate everyone who at one time cared so deeply for both.

    ReplyDelete
  16. Thanks for this clarification.
    This also explains why the results on the museum web page haven't been amended according to the appeal decision.
    And the 2008 events button doesn't work.
    Will there be a regatta this year?

    ReplyDelete
  17. I do hope that the regatta continues. It was always a wonderful event.

    I also should say, after reading my previous rant, that I shouldn't have said what I did to the extent I said it. I do not know any of the details of the transition other than through conversations 3 or 4 times removed from the actual players. I have no facts to support my claims and should know better than to start rumors in such a small town.

    Perhaps IYRS had a very good reason for the restructuring and perhaps the Museum of Yachting will open up in May bigger and better than anything we've seen before. It would be great to see that.

    IYRS is still a very well meaning organization that I think needs to remember that it was built by a small community of people for the love and appreciation of classic wooden boats. It's a logical step for IYRS and MOY to join together. I wish them only the best, and apologize for ranting the way I did. I was just caught up in the moment and the memories of last year's regatta.

    I've been familiar with IYRS for almost 10 years now, and I care deeply for it. The feeling I get from the school has changed over the years, though, and I do hope that they find their way back into my heart. I, of course, can’t speak for anyone else.

    ReplyDelete
  18. Re the Sumurun case ...

    I expect this ended up in court because the insurance companies offered an insufficient amount (presumably appraised value) for the boats damaged and thats nowhere near enough to cover the damages done to a historic boat at current American labor costs. Presumably the two NY 30s had insurance for appraised value or maybe a little more but not $1M.

    They had the choice of taking that (perhaps $ 300k-500k) and letting the insurance companies fight it out or suing for the full damage done - eg $1M. This gap between provable investment in a boat and appraised value is a real problem, because the insurance companies are trying to avoid the *moral hazard* situation of insuring a boat for more than its worth giving people an incentive to destroy a boat rather than sell it.

    Thats likely why the two owners are up against each other in court rather than the two insurance companies working it out between themselves.

    Bill

    ReplyDelete
  19. To all those that wondered what really happened and how this ended up in court, you can now read it for yourself. All of the photographs, protests, decisions, and legal documents can be found on www.NY30.org -- just follow the trail to the "fleet" -- then to "Amorita / NY-9", then to Amorita's site.

    Almost 4 years to the day -- Amorita will be sailing again, hitting the water just in time for the WoodenBoat Show, June 24-26, 2011

    ReplyDelete
  20. Hey...

    I was trying to post this, but I can't seem to get it to work.

    I thought now that it is all said and done, you and other readers may want to learn what REALLY took place.


    All of the details of the protest, appeals, lawsuit, etc.. are all posted:

    http://www.ny30.org/amorita_documentation.htm

    Photos can also be found:

    http://www.ny30.org/amorita_accident.htm

    I thought you might find it interesting, especially the quantity of rules discussions and rulings.

    Bill

    ReplyDelete
  21. I know for a fact that insurance companies do not always settle, especially if there are personal injuries

    ReplyDelete

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