PRO Liability... what is the extent?

THANK YOU!!!

Wind speed: Puh-lease!!! Just TRY to get a straight answer about what people want at an event. Can there be negligence? Yes, but if the PRO has the assets (power boats), and the sailors are of a caliber that can handle it, it's a non-issue (until lawyers get involved).

Number of chase boats only puts the PRO at risk if he CHOOSES to run races with an insufficient number of boats. The OA will also bear a burden here. If they can't pony up enough resources, the experience of the PRO has to take precedence to shut it down. The number of boats depends entirely on the conditions: weather, water, distance from the course to the beach, racing boats, sailors, number of crew per boat, age of competitors, whether coach boats are on the course, etc. etc. etc. No easy answer that applies every time. That's why our certifications are based only partially on seminars and rules quizzes, the real world experience is far more valuable.

The old mindset was that mark boats are primarily for setting a course. Common sense is coming around, and EVERYONE'S primary responsibility is safety, including other competitors.

Realistically, you rarely get enough power boats to fill all the mark boat jobs, so 99% of the time, you won't have dedicated safety boats (personally, I hate the term chase boat or even worse, crash boat).

Mike

I always assume personal responsibility for the decision to hit the water or not.

I don't expect chase boats to assist if I get in trouble, ( they sure are nice though).

I got myself into a situation I could not help myself out of last year but I still don't expect the OA to be there to save my a$$! This is why I ALWAYS stop to check on a sailor when they are down... you just never know.

But Mark, I'm not really clear on the point of this post. You could have 99 out of 100 people say they accept personal responsibility for their decisions, but you know there is always at least one that doesn't and that's what this is all about, those one percenters. Heck those one percenters have made their positions quite clear on this forum alone.

Regardless of who is at fault in a case of alleged negligence, protection of the organizers and officials is paramount to the survival of our sport.

Several folks have stated that waivers are not worthwhile.

In the motorsport industry, we rely heavily on waivers and they are frequently “tested”.

We carry event insurance which is similar to regatta insurance. This policy protects the organizers, sponsors, spectators, workers, property owners, etc. from any action caused by the competitors.

Here is an example of our waiver:

RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY
AGREEMENT FOR ALL HSR/SVRA EVENTS – 2009 SEASON

IN CONSIDERATION of being permitted to compete, officiate, observe, work for, or participate in any way in ANY
HSR/SVRA organized, sanctioned, promoted, or related events or activities (“Events”) for and during the calendar year
of 2009 or being permitted to enter for any purpose any RESTRICTED AREA (defined as any area requiring special
authorization, credentials, or permission to enter or any area to which admission by the general public is restricted or
prohibited), on behalf of myself, my personal representatives, heirs, and next of kin:

1. I acknowledge, agree, and represent that I have or will immediately upon entering any of such RESTRICTED AREAS, and
will continuously thereafter, inspect the RESTRICTED AREAS which I enter, and further agree and warrant that, if at any
time, I am in or about RESTRICTED AREAS and I feel anything to be unsafe, I will immediately advise the officials of
such and if necessary will leave the RESTRICTED AREAS and/or refuse to participate further in the EVENT(S).

2. I HEREBY RELEASE, WAIVE, DISCHARGE AND COVENANT NOT TO SUE HSR/SVRA, its parent subsidiary, or
affiliated corporations or entities and/other racing associations or series, sanctioning organizations or any subdivisions
thereof, track operators, track owners, participants, officials, car owners, drivers, pit crews, rescue personnel, any persons
in any RESTRICTED AREA, promoters, sponsors, advertisers, owners and lessees of premises used to conduct the
EVENT(S), premises and event inspectors, surveyors, underwriters, consultants and others who give recommendations,
directions, or instructions or engage in risk evaluation or loss control activities regarding the premises or EVENT(S) their
parents, subsidiaries, wholesalers, and affiliated corporations and each of them, their directors, officers, agents and
employees, all for the purposes herein referred to as “Releasees”, FROM ALL LIABILITY TO ME, my personal
representatives, assigns, heirs, and next of kin FOR ANY AND ALL LOSS OR DAMAGE, AND ANY CLAIM OR
DEMANDS THEREFOR ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY OR RESULTING IN MY
DEATH ARISING OUT OF OR RELATED TO THE EVENT(S), WHETHER CAUSED BY THE NEGLIGENCE OF
THE RELEASEES OR OTHERWISE.

3. I HEREBY AGREE TO INDEMNIFY AND SAVE AND HOLD HARMLESS THE RELEASEES and each of them from
any loss, liability, damage, or cost they may incur due to claims brought against the Releasees arising out of my injury or
death or damage to my property while I am in the RESTRICTED AREAS and/or while competing, practicing, officiating,
observing or working for or for any purpose participating in the EVENT(S) whether caused by the NEGLIGENCE OF
RELEASEES or otherwise.

4. I HEREBY ASSUME FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY
DAMAGE arising out of or related to the EVENT(S) whether caused by the NEGLIGENCEOF RELEASEES or
otherwise.

5. I HEREBY acknowledge that THE ACTIVITIES OF THE EVENT(S) ARE VERY DANGEROUS and involve the risk of
serious injury and/or death and/or property damage. I also expressly acknowledge that INJURIES RECEIVED MAY BE
COMPOUNDED OR INCREASED BY NEGLIGENT RESCUE OPERATIONS OR PROCEDURES OF THE
RELEASEES.

6. I HEREBY agree that this Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement extends to all
acts of negligence by the Releasees, INCLUDING NEGLIGENT RESCUE OPERATIONS and is intended to be as broad
and inclusive as is permitted by the laws of the Province or State in which the Event(s) is/are conducted and that if any
portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.

7. I HEREBY agree this Agreement shall be binding upon and enforceable against me, my Personal representatives, spouse,
assigns, heirs, and next of kin without limitation and shall be in full force and effect for all EVENT(S) during the calendar
year.

I HAVE READ THIS RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY
AGREEMENT, FULLY UNDERSTAND ITS TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL
RIGHTS BY SIGNING IT, AND HAVE SIGNED IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT,
ASSURANCE OR GUARANTEE BEING MADE TO ME AND INTEND MY SIGNATURE TO BE A COMPLETE AND
UNCONDITIONAL RELEASE OF ALL LIABILITY TO THE GREATEST EXTENT ALLOWED BY LAW.

READ CAREFULLY BEFORE SIGNING (PLEASE PRINT CLEARLY)

APPLICANT Legal Signature: ___________________________________________________ Date: _______________________
Applicant Printed Name: _________________________________________________________ Date of Birth __________________
Subscribed and sworn to at ___________________________________ before me this _______ day of _____________A.D. 20 _____
______________________________________________________
Signature of Witnessing Notary Public
______________________________County, State of _________
My Commission Expires: _______________________________ SEAL

I think the US SAILING insurance carrier has an issue with calling sailboat racing

inherently dangerous.

There was a discussion about that in a seminar last year.

Mike

I would expect so and we know, in fact, that the risks in sailboat racing are very small compared to car racing.

My point is that a well written waiver and an event policy should be all that is needed to protect everyone involved in the organizing and running of a regatta.

Has there ever been a case of a sailor suing the PRO for not running a race? Maybe big event or something where it boiled down to the last day and the PRO pulled the plug on them?
I have to speak my mind on the PRO/regatta Chair, Race Committee part...As a non PRO trying to run races for a number of years, its very frustrating when competitors second guess or verbally assault the RC. Last year we had a monohull get the wrong set of SI's, not show up for the Skippers Meeting, and when they sailed the wrong course they protested the RC. They verbally assaulted us, sailed right up to us and shook the red flag at us while screaming obscenities. We should have thrown them out for unsportansmanlike behavior, but this was a charity event, and we wanted everyone to have fun and feel satisfied that they got a fair shake.
My point is, most PRO's and RC people are volunteering thier time, thier boat, and thier gas, and for us to act like spoiled kids is crazy. If the PRO wants to abandon a race for safety concerns(ie. wind speed too high), go to the beach and drink a beer and chill out, its not your house/family/cars/boats/bank accounts on the line.

I should have prefaced my comments to apply within a specific framework, that being:
- non professional regatta (not for points or pro- standings)
- regatta open to all levels of experience and boats
- bouy racing courses

I think these variables would encourage the PRO to err on the side of caution. If it's all pros out there, then have at it.

I don't personally think the PRO has to babysit people, but some of the legal decision in the USA seem to say that the PRO and OA will end up at least having to defend their positions against very shrewd attacks.

I still believe that even an incompetent PRO is immune to litigation if properly covered by insurance and waiver.

Are any kinds of certifications or licenses required to participate in the auto racing you describe? I think that this may be the deliniation between auto and boat racing. There is no requirement of any sailing knowledge or licensure whatsoever.

In theory, I don't even have to know how to swim. So I could walk up, buy or borrow a boat from someone, enter a regatta, duct tape the sail to the mast (cause I don't know how to hoist), float (because I don't know how to sail yet) out to where all the boats are (with no life jacket), and say I'm racing.

I know this because I witnessed it at a Steeplechase a long time ago. Two dudes with little experience and a new-to-them cat entered. They finished (which in some respects is a noteable achievement), but DFL is an overstatement. They definitely didn't know what they bargained for, and if the conditions were anything worse than what they were (I think that was the

easiest

Steeplechase weather I've ever seen) it could have been seriously problematic.

The SIs were clear. But they had none of the equipment, experience, or knowledge outlined. How they got through is a mystery, and I believe the OA did admonish the sailors once it was found out.

Now, hypothetically, if they had suffered injuries as a result of their inexperience, do you think an attorney would have been able to cause a lot of frustration for the PRO/OA? Heck yes. Even if the case was dismissed, the scarring (financially to defend yourself, and emotional) would be deep and long lasting.

Flame me all you want, but I'm merely trying to present this side of the discussion (and I'm probably not doing a good job because I don't really agree with this side).

The OA/PRO is providing a service that I choose to accept. They practically kill themselves to ensure I as a participant have a good time, and I am extremely grateful for that. I think if I screw it all up, it's my fault and obligation to

make it right

.

Good point. Using that logic, it could be argued successfully that LIVING is

inherently deadly

, too...

Dave,

I don't know if anyone has carried through with a lawsuit, but you can bet that extreme efforts are made at the high end of the sport before races are postponed or abandoned due to lack of wind. I have personally witnessed this at the Olympic Trials. No decisions get made without consulting the jury and Olympic rep real-time, ON THE WATER...

This is actually a great practice. The PRO shouldn't be held out to dry unless he chooses to NOT get the input of the OA, class and jury (if available). You can't make everyone happy, but you can certainly avoid total disaster.

And yes, more people should chill out. It's a bleeping GAME!!! <img src="<>/smile.gif" alt="smile" title="smile" height="15" width="15" />

Mike

Regarding the Steeplechase story. I recall entering the New England 100 back when it was a

real-man's

race. New London to Jamestown, out to New Bedford the next day.

The SIs clearly stated that you were on your own, no chase boats would be provided. There was a laundry list of safety gear requirements, and all boats were inspected before the start. There was also a provision that you might be required to demonstrate your ability to right the boat if the RC/OA wanted to see that.

Not sure how much more you could do...

Mike

For most of us, it's just an expensive hobby because there is no chance of 'winning' the game...

If you're squashed by a mast and killed, you may absolve anyone of wrongdoing, but don't think that your successors (or an attorney) will adopt the same mindset...

In our racing, yes, but there are many forms of motorsport that do not require a license. Go to a local dirt track and all you have to do is pay to get in and have a car. Waivers work for them.

This is key to this discussion. We all need to help make the OA and PRO folks immune from grief, whatever the situation is.

If we don't like the way an event is run, then don't go back. Or better yet, offer to help.

I admit I don't sail nearly as often as the rest of ya'll, but I've never been inspected or asked to demonstrate any seaworthy skills. I also was the only dork on the Steeplechase course with all the listed equipment my first run at it. Nav lights, anchor, air horn, vhf with SSB, etc. So much stuff I almost didn't have room for crew!

Good point. It's also clearly NOT a game to the AC boys, or the aspiring Olympians.

But for the 99.999% of the rest of us, let's not kill the sport over this stuff. With enough lawsuits, insurance could get to the point that it is too expensive for anyone to afford.

Mike

You're not the only dork that did this. Bob and did the same thing for our first Steeplechase. We had a danforth anchor with chain and everything... on a freaking TheMightyHobie18!!!

To add insult in injury it was a drifter!

Got one better.

The only thing I DIDN'T have at that first race was a FREAKIN' PADDLE

Angelfish creek was a beyotch, but despite that being our first Steeple, I think we finished at the tail end of mid-pack, so all was not lost....

And coincidentally enough, I found the lovely pink champaigne from finishing that one when I moved to Naples some 10 years later...

What makes you think we had a paddle! Imagine our surprise when our fellow competitors paddled right on by, oh wait you don't have to imagine. I believe the 'F' word was the word of choice. Good times!!!

HA HA

Can we say failure to read the SI?

"You may paddle at anytime.¨

However, paddles are not on the required equipment list.

Again, HA HA

<img src="<>/smile.gif" alt="smile" title="smile" height="15" width="15" />

Mike

WHY would the PRO want to get into the position of making a decision on the proper number of safety boats required as a condition for running the race?

As you note... you rarely have enough mark boats... much less safety boats. PU authored a policy for mark and safety boats , where to place them on the course, how many for how many boats etc for a SAFE REGATTA in a Hobie hotline. I have never been to a regatta that would have met his standard. As an internationally recognized authority on catamaran race management you could argue that his article defined the standard.... Failing to meet his standard would be negligent on the part of the OA and PRO. We would never have a race!

To me, this is another well intentioned idea that is just wrong. Again, you undercut the skippers sole responsibility to decide on racing or not when you inject this safety boat factor in your decisions on race management.

What happens if you loose a powerboat on the course... now you are below

your safety level

... are you to cancel racing for the day?

Finally, the worst aspect of a safety boat standard is that you shift the burden of safety from ALL the racing sailors to the Safety boats themselves.!

Dave has the right idea... He is following the RR of sailing. He stops at a crash and checks on safety.... AND he expects other skippers to Stop and check crashes where appropriate. The game awards redress for that time spent not racing. ...

If you think that a safety boat will be along to check out the crash and you can just continue racing... not good!

Is race management training changing this firewall?

If I'm not mistaken 10 years ago the 'you can paddle the whole way if you want to' wasn't in the SI. That's my story and I'm sticking to it.

jeeze has it been that long? You're old...

I think my first one was 2002?

Mark,

A PRO doesn't WANT to get in this position, he is REQUIRED to once he volunteers for the job.

Have you raced on a course run by PU? What he wrote was indeed the standard, and he has expressed his concern numerous times at the lack of support in this area. Of course, he is a realist, and makes the most out of what is given, otherwise, you're right, many times there would be no races.

I disagree with your assessment of undercutting a skipper responsibility. It is the responsibility of the PRO and OA to provide the racing. It is the responsibility of the skipper to sail or not. If the PRO and OA cancel the racing, what has been undercut? The skipper can still go on the water (usually, sometimes the OA won't allow that).

What happens if you loose a powerboat on the course... now you are below

your safety level

... are you to cancel racing for the day?

That may very well be the case if the conditions warrant. This is a very serious issue, for all the reasons listed (lawyers, etc.). Not to mention, we're talking about people's LIVES here.

No one is talking about shifting the burden solely to the safety boats. The burden is shared with the competitors, and anyone else on the water for that matter.

Race management training reinforces the lessons that we all learn on the water. Sometimes, the best answer is to be extremely generous with redress.

Mike

Yeah, but I have a boat, and you know what else... I sail it. It's been a while since you got a kick in nuts for not having a boat. See you Friday tough guy.

Should be fun... <img src="<>/smile.gif" alt="smile" title="smile" height="15" width="15" />

I got a carbon reinforced cup for Christmas

Yes, PU does have a bottom line. He refused to follow the OA's direction to run the Miami OCR races in the ocean. He told the idiot Gary Bodie that with one cruising cat and three 18 to 22 foot solid powerboats for 32 Tornado's that he was not going out to the ocean. Quite a fight between the two. Even so... he was far below his published standards for a cat race at the bottom of Key Biscayne 8 miles from the launch for 32 boats.

I think we will just disagree on this one.

I think a bright line standard is far better for sailboat racing then the moral and legal calculus that you must manage.

I have two bright line Rules.

Rule 1
The RC and mark boats are there to to run races for the regatta. If it's not safe for them to be out there... sorry no more racing. Do not factor them into your personal decision to race or not.

Rule 2
Saftey is everyone's concern.

Rule 1.1 A boat or competitor shall give all possible help to any person or vessel in danger.

no standards to get screwed over on, no numbers of safety boats to racing boats to meet, no tough choices for the PRO to make.

As the skipper... I have no doubt who makes the call 100 percent of the time.

I must say a big

THIS

to what Mike's posted. The decision to race / not race falls upon the PRO and their experience and common sense. That's why the best PROs are racers. They have the judgement to know when enough is enough.

Chase boats: The HCA Championship Event Manual (orginally authored by PU, revised by me last spring) does not require a specific number of mark / safety boats, but recommends a minimum ratio of 1 mark boat to every 10 boats racing. We've been fortunate enough to be able to meet that standard on most major events. Of course if the conditions are mild, then these boats sit around. I can tell you for a fact that when the thunderstorms came through on the H-20 NAs in South Dakota last year, 5 mark boats weren't enough for the 35 boats we had racing. Things can go to hell very quickly and the PRO has to anticipate it.

Re: Waivers: I said it before - a waiver is just a speed bump on the way to court. The presence of one will not keep you from being sued. Jack - US Sailing forbids the types of waivers you posted. Rule 82 (a US Sailing prescription) does not allow Hold Harmless or Indemnification agreements as a condition of entry.