Last weeks appeal for a copy of the Sailing Instructions had results. I received a scanned copy. Together with the NOR a couple of questions and remarks I made, can now be answered, but they also introduce a few new issues.
If you're reading about this case-study for the first time, I suggest you go back to part one and part two before reading this post.
The organizing authority according to the SI is the Museum of Yachting. I'm not sure if a museum can be a member if US-Sailing, but perhaps it's possible.
If they are, they can organize a regatta according to rule 88.1(c).
If they are not affiliated to US-Sailing, they can organize a regatta under RRS 88.1(e) or (f). In both rules the conjunction of an affiliated club is needed. In RRS 88.1(e) this club then has to own or control the unaffiliated body (MoY in our case), which is highly unlikely. That leaves 88.1(f): MoY can - if approved by ISAF and by US-Sailing - organize a regatta in conjunction with an affiliated club where the MOY is not owned or controlled by the club.
There's no mention of any club in the NOR but there is in the SI. However, some ambiguous wording is used. I quote: "The Organizing Authority is the Museum of Yachting With Race Committee support by The New York Yacht Club"
Race Committee support? What does this mean?
Is the NYYC involved as a club or are individual members helping the MoY?
Does this comply with RRS 88.1(f)?
What do you think?
Like I previously stated the NOR mention that a boat may not enter without carrying a liability insurance. The SI repeat the conditions for entry regarding liability insurance and the signing of a waiver by the captain and crew. The waiver states that the sum covered must be $300.000,-. All neat and covered.
What if a boat who doesn't sign a waiver sails the regatta?
Not possible, you would think, entry would be refused, that boat shall not sail!
Picture this:
The waiver has to be handed in no later than 10:00 hours on Saturday July 6th, 2007 according to the NOR (NB: I'm assuming this should read: 10:00 hours on Saturday July 7th, 2007, as being the first day of the regatta), signed by the skipper and each crew member.
10:00 hours is one hour before a scheduled Skippers' meeting. Prudence would dictate that entries have been checked by that time and any problems with it can subsequently be addressed at that meeting.
But what if the entered boat - without a waiver - doesn't attend that Skippers' meeting?
She reported to Race Headquarters the previous evening between 17:00 and 19:00 hours, registered and picket up her Skippers package. "I haven't yet gotten all signatures, some of my crew arrive tomorrow morning, ok?" and out the door she goes... never returning the waiver as promised the next morning. But the scorer gets notified the boat has entered and is to be included in the starting list.
At the starting area that same boat lines up to start around 13:00 hours or later (according to her class). Either the PRO has been notified by the Race Office that Yacht so and so, hasn't signed the necessary waiver or he has not been so informed.
In the first possibility he can send out his support boat to that yacht, informing them they may not enter and should leave the race area. Or seek contact on VHF to do the same, perhaps when that Yacht checks in at the stern of the committee boat. Something the SI require every boat to do.
In the second possibility he doesn't know, so he does nothing and the Yacht starts and sails the regatta.
Surely this is a unlikely set of circumstances to happen?
Apparently not, because in the NOR this possibility is acknowledged by, and I quote: "Yachts without properly signed waivers on file with MoY will not be scored"
Not "....will be protested by the RC" or anything of that nature. Not be scored!
Plain and simple, that boat is breaking a rule and - in my opinion - should be disqualified by the PC. If the reason for breaking that rule is not adequate - that DSQ should be not excludable under rule 89.3(b).
Before you start telling me that a yacht without a properly signed waiver cannot be entered and is in fact not a competitor, consider this: If a non-competitor sails around acting as one, how are other yachts to know? And also, if she's considered to be 'not a competitor', the PC and any Appeal committee have no jurisdiction over her. You cannot protest a boat who isn't entered in the regatta. Then you can chuck the rules, including the carefully compounded NoR, the SI and waivers, in to the rubbish bin, because they don't apply to a boat who isn't entered.
The amount of $ 300.000,- the insurance should cover, seems very low. Surely these classic yachts have a far greater value? If I go racing with my own boat, a 6 meter open keel boat (Valk 742), the standard amount is € 500.000,- which is about $ 785.000,- already...
Are insurance-premiums that much higher in the USA?
Finally in answer to to one of the responders to a previuos post, the MOY will host a 2008 event for both of it's classic yacht regatta's.
The 1st being 3rd annual Robert Tiedemann Classic Yacht Regatta, July 5-6 2008.
The 2nd will be it's 29th Annual (classic) Regatta, Aug 30-31 2008.
The Organizing Authority for both regatta's and race management will be provided by Sail Newport (new this year) in conjunction with The Museum of Yachting. Info will be posted at www.moy.org or www.sailnewport.org. It is currently listed on the printable calendar available on Sail Newport's website.
(Thanks Ron, for this info!)
Next time in Amorita vs Sumurun | 4:
The impact on the regatta of the use of an experimental definition of keep clear, changes in RRS 14 and 44.1, arbitration, modifications in RRS 61.1(a) and alternative (scoring) penalties.
Looks like MoY is a member of US Sailing. Search here for 'museum'
ReplyDeletehttp://www.ussailing.org/csa/memberOrgs.asp?State=RI
I, too, find RRS 88.1(e) and (f) difficult. Clubs want to help all sorts of worthy organisations. I much preferred the 2000-2004 version of RRS 88.1(c): 'an unaffiliated body in conjunction with a club'.
But what if they were'nt. I seem to recall that the ISAF RRC considered all sorts of motions to ban anyone who participated in yacht races not organised by bodies in accordance with RRS 88, but nothing has come of it. As I understand it, the only sanction available is that ISAF can sue the organising body for copyright by using/mentioning the ISAF RRS.
Suppose some competitor was upset, what could the competitor do? Answer: do whatever competitors do when they think the RRS have been broken: Protest another boat (RRS 60.1)or request redress for an improper action of the OA, RC or PC (RRS 62.1). There's no other boat to protest, so it's redress. The boat would have to make the request in writing within the time limit (RRS 62.2), but whether or not within time, once the request in writing is delivered to the race office, it must be heard by a PC (RRS 63.1)
HOWEVER, what will he PC look for very early? Answer 'Has the boat's score been made significantly worse by the improper action?'. Now unless the actions of the incompetent OA also led to some improper action in conducting or scoring the race or series (some rule other than RRS 88 broken), then no redress is available to a boat.
PERHAPS a boat could protest every other boat under RRS 2, or a boat or any person could make a report under RRS 69, but I personally don't think competing in a sailing race is a breach or gross breach of sportsmanship or good manners, and I don't think anyone could say it's the duty of every boat and competitor to check out the MNA status of the OA of every race they might want to enter.
ON the indemnity for the RC, PC and other volunteers. Suppose Sumrun or sumrun else (little pun there) sued a member of the RC, say, for putting the mark close to a shoal and 'forcing' Sumrun to sail in the inside berth. The question under the Waiver and Indemnity would be whether the RC (including any particular individual) had been 'appointed' by the MoY (RRS 88.2), and whether appointed or not, whether the person concerned was included in the meaning of 'the MoY ... and ... their volunteers ...[etc]'. This would be a legal question, and would depend on the evidence that could be produced. Please note, there hasn't been any suggestion taht anyone is suing the OA, the NYYC, the RC, PC or anyone else concerned with race management.
Note that the only mention of liability in the IJ Manual is in Appendix 1 Chairman’s Pre-Event Checklist, which mentions jury liability insurance. So ISAF guidance does not mention indemnities for race officials.
So how should Jos's hypothetical about a boat without right insurance and/or indemnity papers play out?
Once again, just like any other incident where a boat breaks the rules.
The NOR and SI are 'rules' (Definition of 'rules' (e) and (f).
A boat that is upset because a boat sailed without the right papers can protest (RRS 60.1) Fly the flag and get your protest in on time. On valid protest, PC should DSQ the boat that broke the rules.
If the RC becomes aware that a boat broke these rules it SHOULD protest the boat.
A boat could also, conceivably seek redress because the RC did not check documents and enforce the rules (might allow the boat to sneak past the hail and red flag requirement in RRS 61.1), and a PC, after either protesting the boat or giving the boat an opportunity to be heard, DSQ the boat.
But NO PROTEST - NO DSQ.
Whether a boat is on the list of starters or not, a PRO should treat any boat that sails about in the starting area and checks in to race, as a starter, and record their finish time. What's worse for race management: recording the finish time of a boat that can later be DSQ for breaking a rule, or not recording a finish time that by an improper action of the RC was omitted from the starting list, but has broken no rule?
I suggest that it is not improper for the RC to say in the SI that "Yachts without properly signed waivers on file with MoY will not be scored", as long as the RC obeys RRS 63.1 and does not proceed to do that WITHOUT first protesting and having the PC conduct a hearing. It probably WOULD be improper for the RC to say "Yachts without properly signed waivers on file with MoY will not BE REGARDED AS FINISHING"
I have a lot of difficulty with the idea that a boat that doesn't submit some Waiver and Indemnity form (of which there is no mention in the RRS or the ISAF guidance material) 'without a good excuse' can be guilty of breaking RRS 2 Fair Sailing, so as to warrant DNE under RRS 89.3. The boat would break a rule, namely the requirement stated in the NOR/SI, but would not break RRS 2.
As to the adequacy of the $300,000 insuranceFirst, we need to remember that this amount is the minimum requirement. It's not altogether unreasonable to leave it to the boat owners to decide how much insurance they need. Maybe Sumrun's owners are so wealthy that they can write a cheque for $1m out of their petty case account and don't want to carry any insurance at all.
I think this is an American thing, like their unwillingness to belong to their MNA. They seem to regard this sort of thing as 'welfare-state-ism', and if they are going to have it, they want the amounts as little as possible.
I think the particular amount in this case probably comes from some generic form used by the OA, apopropriate for ordinary sorts of boats. It would cover 10 Etchells, or 15 J24s, which would be a pretty spectacular pile up. They probably didn't properly consider whether they should increase it because of the higher values of the yachts in this race (although they obviously did take high value into account when they amended SI to cover near misses etc).
Brass
Consider the following US SAILING prescription:
ReplyDelete75.3 US SAILING prescribes that the organizing authority shall not require a competitor to assume any liabilities of the organizing authority, race committee, protest committee, host club, sponsors, or any other organization or official involved with the event. (This is commonly referred to as an ‘indemnification’ or ‘hold harmless’ agreement.)
Look carefully at the text of the 'indemnity' clause. It's a 'forbear to sue' clause: it does not indemnity or accepta any liability that would otherwise lie on the OA.
ReplyDeleteBrass
Look carefully at the text of the 'indemnity' clause. It's a 'forbear to sue' clause: it does not indemnity or accept any liability that would otherwise lie on the OA.
ReplyDeleteThe agreement has two parts: (1) the signing party agrees not to sue, but also (2) "hereby assumes the risk of any such injury to his or her body arising while practicing for or participating" in/for the event
If the risk of injury to entrant were found to lie on the OA, and the entrant assumes that risk by agreement, then I don't see how the agreement complies with the US SAILING prescription.
For Anonymous & Brass
ReplyDeleteOnce again guys, in plain English, so I can understand.
Are you telling us the waiver is not complying with the prescription?
Sorry Jos, this is the law. It involves some pretty fine shades of meaning in english language.
ReplyDelete'Assume the risk of injury' is NOT an 'indemnity' that it is not a 'legal protection against liability arising from [the OA's] actions'. The purpose of this part is to record 'voluntary assumption of risk' which is a defence to being sued for negligence.
In my opinion the MoY Waiver does not contravene the US Sailing prescription.
There is an exhausting discussion of this, including the fine distinction between an indemnity adn not an indemnity on the US Sailing website
http://www.ussailing.org/racemgt/documents/IndemnityWaiverClauses0205-v1.pdf
Brass
Final update:
ReplyDeleteYes, it took 4 years for the case to come to a conclusion, but we can finally answer all of these interesting and thought provoking questions.
1) Sumurun (actually the lawyers appointed by Sumurun's insurance company) appealed the protest all the way to US Sailing. They lost all appeals, this took 6 months. In addition to the various RRS (18,14, etc..) they also attempted to claim that US Sailing / RRS decisions do not constitute fault, or liability in a legal sense. They were incorrect. They do. (See Endevour vs Jouno case.) Lesson learned. You MUST follow through with a protest for any and all cases of damage.
2) A request for full remuneration to rebuild the yacht was issued to Sumurun's Insurance Company in Jan. They did not respond to any requests for 3 full months. After no offers and no replies to any requests, it was the only option.
3) This forced a lawsuit to prompt them to act.
4) As to why this wasn't settled instantly. First, no insurance company is going to fork over $1mil US, without a fight. In order to reduce their liability, it is common practice to fight everything legally, thus wearing down the other side to accept a smaller settlement. It worked, they only paid 70% of their responsibility, with no additional contributions by the owner to make up the difference.
Second, the insurance companies (on both sides)wanted to "write-off" Amorita as irrepairable, and offer a settlement equal to the market value of a similar boat (less than half the rebuild cost), and not pay to rebuild her. This was unacceptable to the owners who insisted she be rebuilt based on historical significance.
All legal and protest documents can be found now on www.ny30.org
Many Thanks for this latest update.
DeleteInteresting reading in all those documents.