Sunday 30 March 2008

Hear Yee, Hear Yee, ... Amorita vs Sumurun | 2

I was hoping to have some more news for you by now, but I only have a few new tidbits.
A reader sent me some regatta papers (Thanks Stephan!). Among them a 'Waiver and Release of Liability' form which has to signed by the person entering the boat in the regatta. I noticed two things which may have an impact on our discussion in the original post.

I quote:
" The undersigned acknowledges that participation in the sport of sailing or in this regatta involves substantial risk of personal injury or even death, and the undersigned hereby assumes the risk of any such injury to his or her body arising while practicing for or participating in said MoY Robert H. Tiedemann Classic Yachting Weekend, and forever gives up and relinquishes any claim for liability against MoY, their respective officers, directors, agents, volunteers, or employees, that I may have by reason of participating in the above event."

I can certainly see this pertains to the Organizing Authority. But does this include the Race Committee? If you look at rule 88.1 and 88.2 there also should be a club involved. Where's the waiver and release of liability for them? Or am I reading this wrong?

Secondly, again quoting:
"By signing this waiver I also attest that my boat carries a minimum of $300,000 Insurance Protection and Indemnity (Liability) Insurance Coverage."

The notice of race only states the need to carry a liability insurance, but not the amount. This waiver does. In light of the claim and all boats involved in the regatta. $300,000 doesn't look like nearly enough.

In the mean time the owner of Sumurun has been served on 27/03/08 with a summons from the court. He has 20 days to respond.

I am still looking for a copy of the Sailing Instructions. Can anybody help me with that?

UPDATE: continued in part 3


  1. To sum up so far:

    * Sumrun was badly in the wrong. Why did she appeal? Because the PC was wrong to award her a DSQ when she had retired and was entitled to a DNF. The MNA appeal corrected this. She may have thought that this would be important in court later.

    * Why was Amorita suing in court? Possible reasons:

    - she wants $1m and Sumrun or Sumrun's insurers refused to pay that much
    - She thought Sumrun had done a really bad thing and wanted to get punitive damages against Sumrun (which is a possibility in a US court)

    Why is liability an issue when the Protest and Appeals process has decided fault?

    There is a little bit of language subtlty and a little bit of common law involved here. To arrive at an award of damages a court condiders the following: breach, causation, and quantum. The protest and appeals process is only designed to decide breach. The MNA prescriptions to RRS 68 tell us to go no further. Issues of what particular damage or injury was caused by what particular part of a breach, and whether there was any contribution or apportionment to the damage by the damaged boat (and admiralty law has some strange quirks about apportionment, See Satanita's case) are matters for the courts.

    Why is Amorita suing Sumrun instead of the insurers suing each other. When insurers sue they do son in the name of the insured.

    Which rules will the courts use to determine who is at fault? Juno v Endeavour says the must use the RRS. Juno v Endeavour also says that the decisions of the protest committee are binding, but don't think that that would stand up to determined challenge. Would you be happy with a PC decision where the PC had obviously made a hash of things? Nevertheless, a court might be happy with the PC findings or decisions, or at least very strongly influenced to maek the same findings.

    Did the Waiver and Release cover the RC, particularly if the MoY was an unaffiliated body as mentioned in RRS 88.1(e) nnd (f)?

    Well, the NOR indicates that the MoY is the OA. If the MoY acted as an OA under RRS 88.2(b) then it appointed a RC. If this was the case, when the Waiver and Release releases the "MoY [and] their officers, ... agents, volunteers and employees" then I think its going to hold water.


  2. I've been send the SI of the event and will try to fit it in.
    In your summation you draw a couple of conclusions I'm not (yet) willing to make, but perhaps you are right.
    Let's see what develops.

  3. Jos, BTW, could you possibly post a translation the Netherlands MNA Prescription to RRS 68?


  4. There are no prescriptions in the Netherlands for rule 68, none!

  5. It's interesting that the Netherlands MNA does not have a prescription to RRS 68.

    Britain, USA, Canada and Australia (at least) (all 'common law' countries) all have prescriptions similar to the USA one that a Protest Committee should not get involved in damages, and should just adjudicate the rules.

    Are you aware whether or not other European MHA countries have prescriptions to RRS 68?

    Maybe the need for a prescription is affected by whether the country has a 'common law' system or a 'civil code' system of law.


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  8. After effing it up twice, I hope this one stays put:

    Good question, Brass.
    Can you explain to us the major differences between those two?
    'common law' and 'civil code'.

    And other readers: please let us know if your country has a prescription to rule 68 or not?

  9. You asked what the difference between Civil Code and Common Law was. The answer is contained in hundreds of doctoral theses. I don't think that my imperfect explanation will take us much further. Very very briefly, in countries with a Civil Law Code, all the law there is is written down in the laws passed by parliament (statutes), and can be found in a [large but] limited number of books. Under Common Law, in addition to statute laws passed by parliament, there is much law made by judges, and contained is little fragments of the published judgements of the courts, accumulating over many many years.

    One example that I am aware of is that in the Dutch Civil Law, there is an express requirement that the parties to a contract must act in good faith towards one another (bona fide). LIkewise, in european contract law a natural disaster (force majeure) that makes a contract impossible to perform made the contract not enforceable. In British Commonwealth law (at least up until about the last 10 years) good faith was NOT implied into an oridinary commercial contract, and, as far as I am aware force majeure still isn't automatically a get out in a British contract.

    I realise that force majeure isn't relevant to whether Protest Committees should determine damages, (although Amorita might argue that contact with Sumrun was caused by force majeure, namely Alera hitting Amorita), but Good Faith might well come into it.

    Any real analysis of whether the laws of european countries make it less necessary for european MNA to issue prescriptions to RRS 68 will need to be done by a european lawyer.



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