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USSailing Area D North Qualifier #191114
09/16/09 11:03 AM
09/16/09 11:03 AM
Joined: Jun 2001
Posts: 3,906
Clermont, FL, USA
David Ingram Offline OP
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The Area D North Qualifier is scheduled for October 31 and November 1, the location is Nigel Pitt's house and your host club is the Spring Fever Sailing Association.

Sorry for the late notice my email is in the profile if you'd like to provide any constructive criticism. On the up side Jake has already nailed down a club and venue for 2010 so you'll have plenty of time to plan.

Please try to attend this regatta, without qualifier participation the Alter Cup will not be a viable championship (In my opinion of course).

You know the drill USSailing membership is required for the skipper and crew... no whining!

An offical NOR will be available shortly.

Regards,
David Ingram

USSailing Alter Cup Area D Rep



David Ingram
F18 USA 242
http://www.solarwind.solar

"Do or do not. There is no try." - Yoda
"Excuses are the tools of the weak and incompetent" - Two sista's I overheard in the hall
"You don't have to be a brain surgeon to be a complete idiot, but it helps"
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Re: USSailing Area D North Qualifier [Re: David Ingram] #191819
09/23/09 09:42 PM
09/23/09 09:42 PM
Joined: Jun 2001
Posts: 3,906
Clermont, FL, USA
David Ingram Offline OP
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David Ingram  Offline OP
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David Ingram
F18 USA 242
http://www.solarwind.solar

"Do or do not. There is no try." - Yoda
"Excuses are the tools of the weak and incompetent" - Two sista's I overheard in the hall
"You don't have to be a brain surgeon to be a complete idiot, but it helps"
Re: USSailing Area D North Qualifier [Re: David Ingram] #191821
09/23/09 09:56 PM
09/23/09 09:56 PM
Joined: Nov 2005
Posts: 807
Hillsborough, NC USA
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Isotope235 Offline
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From a quick glance, the NOR looks fine, except for the indemnification agreement. RRS 82 (a US Sailing prescription) forbids indemnification agreements.

Re: USSailing Area D North Qualifier [Re: Isotope235] #191838
09/24/09 09:15 AM
09/24/09 09:15 AM
Joined: Jun 2001
Posts: 3,906
Clermont, FL, USA
David Ingram Offline OP
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David Ingram  Offline OP
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Thank you for the catch.



David Ingram
F18 USA 242
http://www.solarwind.solar

"Do or do not. There is no try." - Yoda
"Excuses are the tools of the weak and incompetent" - Two sista's I overheard in the hall
"You don't have to be a brain surgeon to be a complete idiot, but it helps"
Re: USSailing Area D North Qualifier [Re: Isotope235] #191862
09/24/09 11:53 AM
09/24/09 11:53 AM
Joined: Jun 2001
Posts: 12,310
South Carolina
Jake Offline
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Originally Posted by Isotope42
From a quick glance, the NOR looks fine, except for the indemnification agreement. RRS 82 (a US Sailing prescription) forbids indemnification agreements.


Eric,

I took part in the creation of the Dnorth documents...The statement in the NOR is not an indemnification or "hold harmless" release but is a disclaimer of liability. It does not hold the competitor liable for anyone else's property that an indemnification or hold harmless release would....which is what the US Sailing prescription rule 82 excludes. As far as I can tell, rule 82 does not prohibit the inclusion of a release of liability statement or liability disclaimer.

HOWEVER, the entry form that was recently published for area Dn does contain a hold harmless release and should be changed to a liability disclaimer instead...thanks for pointing that out - we'll work on that.

Lots of good information and guidance on this topic can be found on the US Sailing site at:
http://raceadmin.ussailing.org/Rules/Indemnification.htm



Jake Kohl
Re: USSailing Area D North Qualifier [Re: Jake] #191878
09/24/09 03:24 PM
09/24/09 03:24 PM
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Hillsborough, NC USA
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Isotope235 Offline
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Originally Posted by Jake
The statement in the NOR is not an indemnification or "hold harmless" release but is a disclaimer of liability. It does not hold the competitor liable for anyone else's property that an indemnification or hold harmless release would....which is what the US Sailing prescription rule 82 excludes. As far as I can tell, rule 82 does not prohibit the inclusion of a release of liability statement or liability disclaimer.

HOWEVER, the entry form that was recently published for area Dn does contain a hold harmless release and should be changed to a liability disclaimer instead...thanks for pointing that out - we'll work on that.


A waiver (or release) of liability is fine. I can't remember a regatta that doesn't require one to enter. An indemnification (or hold harmless) agreement is not. The last page of the NOR currently posted at the link above contains:
Quote
THIS IS A RELEASE AND INDEMINITY AGREEMENT I hereby give up all of my rights to sue or make
claims for damages due in negligence or any reason whatsoever against the event organizers,
the promoters, sponsors, and all other persons, participants or organizations conducting or
connected with this event for injury to property or person I may suffer while participating in the
event and while upon event premises. I know the risks of danger to myself and property while
preparing for and participating in the event, and while on the premises, relying on my own
judgment and ability, assume all such risks of loss and hereby agree to reimburse all costs to
those persons or organizations connected with this event for damages incurred as a result of my
negligence.

The highlighted portions are an indemnification agreement. RRS 82 expressly prohibits indemnification agreements. I would not sign an entry form with such an agreement, and (if the matter came to me in a protest) I would permit entry from a competitor who refused to sign it.

I think it's important to get the waiver of liability right, for two reasons:
1) to not drive away potential entrants who won't sign a hold-harmless agreement, and
2) to not have entries who reject the agreement and fail to sign any waiver at all.
The first is harmfult to the competitors; the second to the organizing authority.

Personally, I also think this Waiver of Liability goes a bit too far. It renounces all claims against all participants for injury or damages for any reason whatsoever. This goes against RRS 68(c) which states:
Quote
...damages arising from any breach of the rules shall be based on fault as determined by application of the rules, and that she shall not be governed by the legal doctrine of "assumption of risk"...
Furthermore, I don't want to waive my right to sue an individual should he hit me with his car (whether deliberately or negligently).

Regards,
Eric

Re: USSailing Area D North Qualifier [Re: Isotope235] #191879
09/24/09 03:40 PM
09/24/09 03:40 PM
Joined: Jun 2001
Posts: 12,310
South Carolina
Jake Offline
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Eric,

We are in agreement. There are three documents in that PDF file. A regatta invitation (page 1), the NOR (pages 2 and 3), and an entry form (page 4). The NOR, on page 3, has the correct disclaimer I referenced in section 14. The Entry form, on page 4, has the incorrect / prohibited agreement on it and will change.


Jake Kohl
Re: USSailing Area D North Qualifier [Re: Jake] #191881
09/24/09 04:34 PM
09/24/09 04:34 PM
Joined: Jun 2001
Posts: 3,116
Annapolis, MD
Mark Schneider Offline
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Alternate liability release language

Quote
I agree to abide by 1) the Racing Rules of Sailing (RRS), 2) Either the General Sailing Instructions published by CRAC OR Event Sailing Instructions
published by the Host Club, and 3) other rules that govern this event. In consideration of being permitted to enter this event, being knowledgeable of
the risks of competitive sailing and knowing that it is my sole responsibility to decide whether to enter or continue any race, I voluntarily assume the
risk of participation in this event and release Host Club and the people conducting the event, from all liability
in connection with any injury or damage that may occur.


My understanding is that signing this statement means essentially that I was told that sailboat racing has risk.

My legal advisors tell me that You can't waive liability by signing such a form.

Nevertheless.... every regatta has this kind of release statement... Why? I haven't a clue.... but don't want to be the one to take it off the entry form.

Now the USSA prescriptions are a real piece of work that confuse me every time I read them. The relationship between my personal integrity in agreeing to "be responsible", my insurance company, and my competitor who was damaged is really difficult to understand.


crac.sailregattas.com
Re: USSailing Area D North Qualifier [Re: Mark Schneider] #191886
09/24/09 05:19 PM
09/24/09 05:19 PM
Joined: Jun 2001
Posts: 3,906
Clermont, FL, USA
David Ingram Offline OP
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Mark, I agree about the release and as time goes by I think you'll see it fade from the entry form because it's covered in the NOR. I'll admit I'm gun shy about pulling it out completely, mostly out of ignorance.


David Ingram
F18 USA 242
http://www.solarwind.solar

"Do or do not. There is no try." - Yoda
"Excuses are the tools of the weak and incompetent" - Two sista's I overheard in the hall
"You don't have to be a brain surgeon to be a complete idiot, but it helps"
Re: USSailing Area D North Qualifier [Re: Mark Schneider] #191891
09/24/09 06:30 PM
09/24/09 06:30 PM
Joined: Nov 2005
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Hillsborough, NC USA
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Isotope235 Offline
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Originally Posted by Mark Schneider

My understanding is that signing this statement means essentially that I was told that sailboat racing has risk.

My understanding is that it means a little more than that.

Quote
My legal advisors tell me that You can't waive liability by signing such a form.

I'm not an expert in tort law, so I don't have a competent opinion. If you've paid for legal advice, go with that. If the advice was free, you know how much it's worth.

Quote
Nevertheless.... every regatta has this kind of release statement... Why? I haven't a clue.... but don't want to be the one to take it off the entry form.

Clubs are trying to limit their liability exposure. Without some legal protection, they wouldn't run races at all. Regardless of how well the waiver actually protects them, I don't believe they will disappear.

Quote
Now the USSA prescriptions are a real piece of work that confuse me every time I read them. The relationship between my personal integrity in agreeing to "be responsible", my insurance company, and my competitor who was damaged is really difficult to understand.

What prescriptions are giving you problems? The racing rules are a topic I've studied and perhaps I can help explain them.

Regards,
Eric

Re: USSailing Area D North Qualifier [Re: David Ingram] #191892
09/24/09 06:36 PM
09/24/09 06:36 PM
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Hillsborough, NC USA
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Isotope235 Offline
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Originally Posted by David Ingram
I agree about the release and as time goes by I think you'll see it fade from the entry form because it's covered in the NOR.

As the Waiver of Liability is a legal document, I suspect clubs will want a signature under it. I'd rather see it remain on the entry form and disappear from the NOR.

Regards,
Eric

Re: USSailing Area D North Qualifier [Re: Isotope235] #191897
09/24/09 07:27 PM
09/24/09 07:27 PM
Joined: Jun 2001
Posts: 3,116
Annapolis, MD
Mark Schneider Offline
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Quote

Clubs are trying to limit their liability exposure. Without some legal protection, they wouldn't run races at all. Regardless of how well the waiver actually protects them, I don't believe they will disappear.


Legal Protection versus Financial protection is the issue under the rubric of Risk Management.

The state of MD licensed lawyer told me that you can't protect yourself by asking someone to sign a form waiving someone else's negligence. So... the fact that you sign it does not take away any of your options (as a sailor. He told me the purpose was to make you state in a court of law. "yes I understood the risks and agreed to not hold X liable" but this meant nothing to the judge in MD who needs to judge the degree of negligence exhibited by the OA in your civil suit. His advice was that it was of small value protecting your organization and your self as an OA as well.

This Rec managegment web site has a good primer Advice on liability waivers

It tabulates how each state deals with liability waivers. The advice to manage risk with indemnification agreements is not an option with US Sailing.

Now financial liability is the real issue that can be addressed. The club and the volunteers don't want to be on the legal hook for volunteering to run a regatta.

An excellent post from an insurance agent, Gene McCarthy who writes regatta liability insurance for clubs spelled out the killer problem.

Link to Gene's Post Insurance FAQ

.. since liability is joint and several 10% liability for an accident could put you on the hook for 100% of the judgment (if the 90% guy can't pay the judgment)... So if you were dumb enough to not incorporate your organization.... you are screwed. minimally... you have legal headaches for years.

My lawyer's advice (MD only)... buy insurance for your clubs financial protection and YOUR financial protection as an officer or volunteer.

I highlight Gene's statement on Liability waivers in this excerpt.

Quote
But I admit, I do recommend to OA's not to require insurance of the participants as long as they have Regatta Liability Insurance (through me, as I can not talk about other knockoffs out there, what they require or don't require). Most certainly the coverage I offer does not require anything such as waivers, boat owners to have insurance or any barriers, I like to hear of participation increasing and making things easy for ailors). I see it as a barrier to entrance in the sport. I see it as a headache for the participant to contact their agent, make sure they get the copy forwarded to the OA, the OA needing to check each and create a long-range filing system (lawsuits might take years before they are filed before the OA is even aware of it, and that recordkeeping is now critical since they required it to begin with).


So, even though I believe the waiver to be superfluous so long as I have the organization purchase liablity insurance, I don't see any down side and keep it in place for events we run. I don't need to lead on this issue.


crac.sailregattas.com
Re: USSailing Area D North Qualifier [Re: Mark Schneider] #191898
09/24/09 07:40 PM
09/24/09 07:40 PM
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South Carolina
Jake Offline
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Read this...it goes into detail about why it's not perfect but it's essentially better than nothing...

http://raceadmin.ussailing.org/Rules/Indemnification.htm


Jake Kohl
Re: USSailing Area D North Qualifier [Re: Jake] #191899
09/24/09 07:46 PM
09/24/09 07:46 PM
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Portland, Maine
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ThunderMuffin Offline
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Since when did all this **** get so complicated?

words words words... more words... words words words... lawyers words words words...

ffs. Thanks guys, I officially never want to ever think about organizing a regatta ever! :P

Re: USSailing Area D North Qualifier [Re: ThunderMuffin] #191900
09/24/09 07:51 PM
09/24/09 07:51 PM
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Posts: 3,293
Long Beach, California
John Williams Offline
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all your regatta belong to us.


John Williams

- The harder you practice, the luckier you get -
Gary Player, pro golfer

After watching Lionel Messi play, I realize I need to sail harder.
Re: USSailing Area D North Qualifier [Re: John Williams] #191906
09/24/09 08:41 PM
09/24/09 08:41 PM
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South Carolina
Jake Offline
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Originally Posted by John Williams
all your regatta belong to us.


F'in brilliant.

That's t-shirt worthy.


(but it's supposed to be "all your regatta are belong to us".)


Jake Kohl
Re: USSailing Area D North Qualifier [Re: ThunderMuffin] #191907
09/24/09 08:46 PM
09/24/09 08:46 PM
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Clermont, FL, USA
David Ingram Offline OP
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Originally Posted by Undecided
Since when did all this **** get so complicated?

words words words... more words... words words words... lawyers words words words...

ffs. Thanks guys, I officially never want to ever think about organizing a regatta ever! :P


You now the drill, boot to nuts. You don't need me to spell it out do you?


David Ingram
F18 USA 242
http://www.solarwind.solar

"Do or do not. There is no try." - Yoda
"Excuses are the tools of the weak and incompetent" - Two sista's I overheard in the hall
"You don't have to be a brain surgeon to be a complete idiot, but it helps"
Re: USSailing Area D North Qualifier [Re: Isotope235] #191908
09/24/09 08:46 PM
09/24/09 08:46 PM
Joined: Jun 2001
Posts: 3,116
Annapolis, MD
Mark Schneider Offline
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Quote
What prescriptions are giving you problems? The racing rules are a topic I've studied and perhaps I can help explain them.


Quote
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.
(c) A basic purpose of the rules is to prevent contact between boats. By participating in an event governed by the rules, a boat agrees that responsibility for damages arising from any breach of the rules shall be based on fault as determined by application of the rules, and that she shall not be governed by the legal doctrine of ‘assumption of risk’ for monetary damages resulting from contact with other boats.


I understand a).... If I have a collision and retire from the race I have not admitted liability. Makes sense to me.

I understand b) It lets the protest committee off the hook... They declare some facts and make decisions on the rules and they make NO judgments or opinions on damages and liability.

article c) This is the problem.

There are several parties involved in a collision. IE. the two boats who collided, a protest committee and two insurance companies plus any eye witnesses.

Say you loose a protest and damages have occurred.
Your insurance company can say... No.. we don't care what the protest committee decided... We evaluate the accident using the col regs or some other standard and the evidence you provide and they collect and say... "Eh... we will only pay the other guy 40% of his damages.... that was all you are liable for. He says.... NO... you were at fault see RR of sailing... Pay me the balance. I don't want to file with my insurance company for your mistake.

So... does responsible mean... you pay... or you tell him NO and to go file a claim with his company.

What happens when His insurance company says... Ah!... he agreed to "BE RESPONSIBLE for the damages under the RR... Or perhaps they agree... that he was 60% at fault and tap him as the mostly responsible party and raise his rates.

And it gets even more confusing.
Most of the regattas that I go to don't have a standing protest committee... they get some old experienced guys who are not involved in the incident and hear the protest. The A cat's use arbitration panels. No matter... Who is to say that the protest committee is qualified to evaluate the protest and accurately decide facts. Eye witness accounts are notoriously inaccurate. What do I know about how to cross examine a witness... Nor do I have a clue to make the case that even if the other boat is 1 % in violation of a rule.. he is DSQ.. Or do i know what the standard is for deciding on the rules or how well this committee does it's job. At best... it's like a police report at an accident scene.... at worst it's a self inflicted shot in the head. Hell... I could make the case that if there is a collision with damage... I should retire and say nothing at a Protest hearing. (That is the advice of your car insurance agent).

This is one of those areas that I really don't understand. My solution was to get racing insurance from USSA for my T cat. However... They won't include A cats in their program. grhh.

I would prefer US Sailing One design insurance because I ASSUME that it will honor the RR of sailing and that I will not find myself squeezed between my insurance company who won't pay and my agreement that I am "responsible" for damages.

I posted this cycles prescriptions which are vastly better then the last one's. Dave Perry spent three or four pages trying to interpret those and I still thought it was a mess.

Any insight would be greatly appreciated. Hoping I never have to figure it out with personal experience.





crac.sailregattas.com
Re: USSailing Area D North Qualifier [Re: ThunderMuffin] #191909
09/24/09 08:57 PM
09/24/09 08:57 PM
Joined: Nov 2005
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Hillsborough, NC USA
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Isotope235 Offline
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Originally Posted by Undecided
Since when did all this **** get so complicated?

When people decided that lawsuits were a viable alternative to personal responsibility.

Quote
words words words... more words... words words words... lawyers words words words...

I carry personal liability insurance. My agent told me I'm covered for slander (and libel) too, so I don't have to worry about which words I use, lol.

Quote
Thanks guys, I officially never want to ever think about organizing a regatta ever! :P
Well, I want to sail, and that demands that I support the sport as well. Organizing a regatta is a lot of work, even without the liability issues - I know because I've seen it from the inside. That's one reason I try to always thank the organizers and the race committee, etc. etc. They are putting a tremendous effort into our enjoyment and typically get little appreciation. Without protection from liability, clubs will stop running races, so we have to put some effort into finding the right balance of rights and responsibilites.

The comments so far about regatta insurance are spot on. Regardless of what waivers the competitors sign, event organizers need to protect themselves from risk.

Regards,
Eric

Re: USSailing Area D North Qualifier [Re: Mark Schneider] #191910
09/24/09 08:58 PM
09/24/09 08:58 PM
Joined: Jun 2001
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South Carolina
Jake Offline
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You really shouldn't drink so much coffee this late at night.

I've had an accident on the water before that turned out to be contested. The insurance company did consult with a maritime attorney and while they did not use the findings of the protest committee to determine fault, they did use the "facts found". The system works most of the time.


Jake Kohl
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