It is the last race on the last day of a series that featured wind shifts, recalls, multiple sail changes, and knockdowns. The gilded age mega-yacht Rose Bud has endowed this series with a sense of international legitimacy as she danced her 120 foot deck around the buoys. Rose Bud is running dead-down wind on starboard tack toward the pin end of the finish line. At the same time, the space aged canting keel carbon fiber racing machine, Swingin' Kiwi is blasting on plane to the same end of the finish. Swingin' Kiwi is also on starboard, but because of her asymmetrical chute, she is approaching the mark on a broad reach. A sound judge of speed and distance, the skipper of Swingin' Kiwi is confident that he will overtake Rose Bud well before the mark. Still, just to be safe, he knows that he established his overlap well outside the two boat length perimeter and shouts out the word "ROOM" toward Rose Bud.
But the skipper forgot to account for the cavernous wind shadow produced by Rose Bud's acre of sails and just as she crossed her bow, Swingin' Kiwi dropped from her plane, and stopped dead in her tracks. Luckily, the helmsman aboard Rose Bud saw what was going on and put the helm down to swing her shiny blue bow away from Swingin' Kiwi. As her bow cleared the stricken vessel, a major crisis appeared to be averted. But as Rose Bud plowed on, the end of her boom caught one of Swingin' Kiwi's lifelines and plucked each stanchion out of the deck one by one, like carrots from the dirt.
Who pays for the damages? Assume nobody did anything intentional. Also assume no insurance companies are involved. Swingin' Kiwi established her overlap well before the two boat length perimeter and her skipper called for room at the mark. Under US Sailing's rule 1.3, Rose Bud would be at fault because she failed to keep clear of a leeward boat with an overlap. However, under the international rules of the road or COLREGS, Swingin' Kiwi would be at fault for failing to keep clear of an overtaken vessel. What happens when a yacht racing rule, which is established by a private entity, conflicts with a navigation rule which is established by an international treaty?
The answer to this one might surprise you. When the two colliding vessels are racing, the racing rule wins. In Juno v. S/Y Endeavor, 58 F.3d 1 (1st Cir. 1995), the owners of a maxi were involved in a collision with the famous J class yacht Endeavor. The owners of Endeavor argued that they were following the rules of the road, as is required by the law, and therefore they had the right of way. A federal district court in Maine agreed, reasoning that a vessel should never deviate from the international rules of the road for the sake of winning a race. This would appear to make sense. After all, shouldn't an international law take precedent over a law established by a private party? The opposite would be like not paying your income taxes because your condominium association forbids it. Nevertheless, the First Circuit Court of Appeals reversed the decision. They reasoned that because both boats were racing, both boats consented to special rules different from COLREGS. Therefore, a better analogy would be a contract with a binding arbitration clause. By signing the contract, you agree to waive your rights to sue in a state or federal court. By entering the race, you agree to abide by the special rules that govern the race including subjecting yourself to a protest hearing, run by the private racing entity, to establish the extent of your liability.
What does this mean to you? Simple knowledge of the rules of the road is not enough to avoid liability when you are racing your boat. This case shows that you could be responsible for a collision if you were racing even though you followed the rules of the road. Racing is exhilarating and a great way to hone your skills, but when you race your boat you are agreeing to be held by a more complex set of rules and you are charged with knowing those rules. Before you go pounding around the buoys, read a book or watch a DVD to familiarize yourself with the rules that will apply to your race.
