USSailing Area D North Qualifier

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

US Sailing Area D North Eliminations NOR

From a quick glance, the NOR looks fine, except for the indemnification agreement. RRS 82 (a US Sailing prescription) forbids indemnification agreements.

Thank you for the catch.

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

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:

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:
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

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.

Alternate liability release language



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.

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.

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


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.


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.


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

Regards,
Eric

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

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.



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.

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

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

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".)

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

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.

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


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.

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

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.

So... would you run a regatta with out liability insurance for the OA and ALL OF THE VOLUNTEERS WHO HELP RUN THE REGATTA?

How about... would you personally pick up the keg with your credit card and serve booze at a regatta without liquor liability for the organization?

Alternatively.... If you settled on just the waiver statement that you have people sign... Will that solution go over with your wife? I don't think so!

The cost is about 900 bucks a year for this liability coverage... you can't cheat by getting three clubs to split the cost (that is not legal and explicitly prohibited by the insurance contract you sign).

Next time you complain about the cost of the event... take the number of boats you see and divide into the $900 fixed costs.

Most of the time... these details don't matter.. Until they matter and then the bite could be nasty.

Mark,

I didn't quote your post, because it would have gotten too complicated. US Sailing's prescriptions are there to separate the function of holding a protest hearing from the function of awarding damages. In other countries (as I understand it), protest committees adjudicate damages as well as apply the rules.

In the US, there are multiple legal considerations to worry about. One is the doctrine of "assumption of risk". Under this doctrine, your voluntary participation means you accept all risk and whatever happens to you is your own fault. The US Sailing prescription explicitly revokes this doctrine.

Another determination of fault is the COLREGS. The US Sailing prescription says that the COLREGS do not apply, the Racing Rules of Sailing apply instead. So, application of the rules determines who was at fault and liability should be assessed accordingly. I realize that this can get very complicated - but the complications are not due to the Racing Rules, they are due to US tort law. There's nothing US Sailing can do about that.

Another legal doctrine is that of "deep pockets", which can really mess things up. Basically it says that whoever can pay, must pay. This one will get you. Regardless of primary fault, if you bear any responsibilty, you can wind up footing the entire bill. This is a good reason to carry insurance.

If there is contact causing damage, be sure to protest. Have a hearing. Represent yourself well. Get written documentation of the results and give that to your insurer. Then get ready for unpleasantness, as no insurance payout is ever easy.

Regards,
Eric

Well... FACTS FOUND is the rub.

It's great if fact's found are agreed on by all parties.

god knows how tenuous the connection between facts found and reality is for many people... (discuss death panels or illegal alien insurance coverage in the other thread please)

I don't know what redress I have if I disagree with the "facts found" in a protest hearing.

The overlap of legal liablity, who pays for what, the RR of sailing and the corinthian sport of sailing is a mess...

Want more evidence...take the Farah Hall fiasco and changes the courts imposed on USSA and the whole system.

I don't know about you... but I remain confused about the current situation.

Hi Eric



this is my practical understanding of the prescription as well.

Does anyone know if a particular insurance policy will honor the RR of Sailing or will they use the colregs instead?

At some point you get sick of it and say Oh the hell with it... This is my insurance policy... I pray I don't get screwed when i make my next big mistake.

This is all a balance between keeping the regatta requirement for protest committee / judging low enough that regattas can actually happen (something you seem to be in favor of), while being able to contribute positively to most legal/liability situations that arise.

Mark, if you fix the judging / protest committee side of things to make it completely water tight on legal/liable issues, nobody will ever be able to put a committee together to meet those requirements and nobody will have a regatta. It's all a balance between was practical and practicable and the percentage of situations for which the system fails. Tilt one way, you lose the other. I think the system as a whole balances pretty well.

yes they do - and maritime attorneys (at least the one my insurance company worked with) will stand behind the RRS. Findings from a protest hearing quickly simplified my contested insurance claim.

From a rules perspective, (almost) none. The facts are what the protest committee finds them to be. That is why it is so important to present your case well at the hearing. An appeal can dispute a protest committee's application of the rules, but not the facts found. At best, you might be able to convice a PC to reopen a hearing, but unless significant new evidence comes to light, that is unlikely. I can tell you that finding the facts is the most difficult part of a protest hearing. It's rare that the parties agree on them. Two people can see the same event and honestly give two drastically different reports. PC has to sift through the testimony, reconstruct the incident, apply their knowledge of the physics of sailing, and determine what actually happened.

From a legal perspective, a lawsuit is a whole new can of worms. A court is not bound by a protest committee's findings, but is likely to give them weight.

**** to deal with.

Now, I could pay my deductible and have the additional burden of "be responsible" for the other guys' out of pocket expenses if he perceives that I am responsible under the RR of sailing "responsiblity" standard.

<**** to deal with.

Now, I could pay my deductible and have the additional burden of "be responsible" for the other guys' out of pocket expenses if he perceives that I am responsible under the RR of sailing "responsiblity" standard.