My Google alert kicked out this article by David Weil esq.
Can Crew-members Ignore Race Protest Hearing Decisions and Sue a Boat Owner?
I have some notes on his article, but think it's basicly sound. Please do remember that what you can do after a hearing depends on which part of the world you are.
As to my remarks: It's not the Race Committee who conducts a hearing and gathers evidence, it is the Protest Committee. The Protest Committee can be completely independent from the Race Committee - and in case of an International Jury, that's even required.
Secondly - in most cases there's an appeals process which can be followed, if the PC makes a mistake or you are not agreeing with their conclusion.
I do believe the crew is bound by the rules, but these are not designed for liability purposes. In the UK we have a prescription that the courts decide.
ReplyDeleteI do not even agree with the face that the protest committee decides the facts on liability, and the courts decide the amount.
I believe a court would look afresh at the whole situstion in the context of the law ant it's requirements.
Appeals are of little use as the facts are established at an earlier hearng.
There are restriced rules on establishing facts in that witnesses can be excluded and not allowed at a rehering if they could have been sought earlier.
The Couts has different rules of evidence that are not so restrictive, and it would look again from the beginning.
Indeed it was these restrictive rules of evidence that got the US federation in trouble with the courts on a redress hearing leading to a prescription on who can attend hearings that is a problem for the US. The ISAF documents page lists the US prescriptions at the moment on the right and any glance at the appropriate one will concern any judge.
Mike B (A none practicing Lawyer)
It is true that anyone can sue anyone else over an incident that occurs on the race course, at least here in the US. (The article was written by someone in California.) However, the article contains a number of errors.
ReplyDeleteRRS 68 leaves it up to each MNA to define how much authority the PC has in determining damages and is intentionally vague. I can't claim to be an expert on what is done in countries other than the US and my comments are solely based on the US prescriptions to RRS 68. How my comments would apply in other countries depends on their prescriptions and court systems.
First, and most importantly, PCs never, ever find 'fault'. This is the most important issue to understand. Protest committees determine whether a boat broke any of the RRS and what penalties, under the RRS, are to be imposed. They never determine who is at fault. The issue of fault and any resulting liability is left solely to the courts in the location/country where the incident occurred. Any of the people involved can, and often do, sue everyone remotely involved in the incident, including the OA (typically a yacht club), the owners of the boats involved, and the manufacturers and suppliers of any gear that may have broken and caused injury. Parties to the suit are dropped as evidence is gathered (sometimes only based on the depth of their pockets). The result of the protest hearing is often used as evidence by the party that 'won' the protest as a way to try and convince the court of their lack of fault (which is different than innocence). How much weight the protest hearing results are given is left to the court/jury. In many cases, the fault and liability is divided among the various parties so even if a boat 'won' the protest, they may wind up being partly liable.
RRS 3 actually tells the participants that they cannot use the courts for determining the results of a protest or request for redress. I.e. you cannot sue someone in court to determine if a boat broke RRS 10. It does not prevent or forbid a lawsuit.
Interestingly, this has not always been the case in the US. I have an old copy of the rules from the 1930's where the rules state that a boat is liable for any damages if they are found to have broken a racing rule.
Thanks Mike B and John C for two eminently moderate and sensible posts.
ReplyDeleteI don't agree with Mike B that a court court would look always afresh at the whole situstion. If there was no reason advanced by the parties to doubt the correctness of the protest committee's decision, then the court may be quite content to take it from there.
In the USA, Juno v Endeavour says that the parties and the court must abide by the protest committee's decision. I think that's a bit ambitious, and it certainly wouldn't apply outside the USA.