Who Pays When There Are Damages?
Who Pays When There Are Damages?
Last month's Rules column was the first of two columns offering advice on how to recover your financial losses if your boat is involved in an incident in the racing area that results in damage or injury. I began by strongly recommending that you protest the other boat involved, and I gave you the steps to follow to obtain a written statement from the protest or appeals committee, stating how the racing rules applied to the incident and which boat or boats broke a rule.
No rule requires a protest committee or an appeals committee to decide on "damages"-the compensation you are entitled to receive as a result of injury to a crewmember or damage to your boat. Indeed, the U.S. prescription to Rule 68 explicitly states, "No protest committee or US SAILING appeal authority shall adjudicate any claim for damages."
The prescription goes on to say that a claim for damages "is subject to the jurisdiction of the courts." Thankfully, very few claims for damages are decided in court. The vast majority are handled by insurance companies and, only when the amount involved is particularly large does a claim end up in the hands of an attorney or in court.
Whether you turn your claim over to your insurance company or to an attorney, the first question that will come up is this: Which set of rules, the racing rules or the government right-of-way rules, will be used to decide who is at fault? In the United States one of two virtually identical sets of government right-of-way rules apply on a given body of water. The International Regulations for Preventing Collisions at Sea apply on deep waters near the coastline, and the Inland Navigational Rules apply on inland waters. The Coast Guard publishes a book entitled "Navigation Rules" which contains both sets of rules, and in it you will find no mention of the racing rules. Therefore it would appear that the government rules always apply, even to sailboats while they are racing.
However, a 1994 landmark decision by a federal appeals court makes it clear the racing rules should apply between boats that are in or near the racing area and intend to race, are racing, or have been racing. When the racing rules apply between two competing sailboats, they replace the applicable government right-of-way rules. The court's decision was written by Juan Torruella, Chief Judge of the United States Court of Appeals for the First Circuit, and also a former Finn sailor and currently an ISAF-certified International Judge.
