Posted: August 28, 2013 | By: David Weil, Esq.
Like any legal question, there are a number of ways to answer our reader’s query -- but the bottom line is that the yacht club should submit a claim to its insurance carrier and let the insurer handle it. With that in mind I can provide a little more detail.
First, on the insurance question: An insurance carrier may deny a claim if the claim is not submitted to them in a timely manner. Claims should always be submitted, even if there is some question about who is at fault.
The insurance company is much better equipped than the club is to hire experts to fight about who was at fault. Claims must be submitted in a timely manner in order to provide them an opportunity to investigate and, if necessary, initiate (or defend) litigation over fault. So -- I can’t emphasize this strongly enough -- the first step is to notify the insurance company.
On the underlying question of the allocation of fault, our reader referred to the Racing Rules of Sailing (“RRS”). These rules govern the sport of sailing worldwide. They are published every four years by the International Sailing Federation, and they are administered in this country by the United States Sailing Association (US Sailing) and by the organizers of individual races and regattas.
The Racing Rules of Sailing (RRS) govern the competitors in a race because the race entry form, which is deemed to be a contract between the competitors, requires the racers to adhere to the RRS. The rules have no authority over non-competitors who are involved in a collision with a competitor, even if the non-competitor is a race committee boat operated by the sponsoring yacht club.
Therefore, when allocating liability in a collision between a race boat and a committee boat, we need to look first to the Rules of the Road -- otherwise known, in navigable ocean waters, as the International Regulations for Preventing Collisions at Sea or COLREGS. COLREGS, when interpreted under general maritime law, differ from the Racing Rules of Sailing in several significant areas.
One of the most significant differences between COLREGS and the RRS is that under the RRS, one boat or the other will usually be found to be entirely at fault for a collision. Under general maritime law, however, fault will be allocated between the parties on a percentage basis. And fault in a maritime collision is almost never allocated 100 percent to one party.
Fault in a collision is typically distributed between multiple parties because COLREGS Rule 17 provides that “When, from any cause, the vessel required to keep her course and speed finds herself so close that collision cannot be avoided by the action of the give-way vessel alone, she shall take such action as will best aid to avoid collision.”
In other words, the boat with the right of way has an obligation to avoid a collision if it is apparent that the other boat is not going to take action. In almost every collision, some amount of fault will be allocated to the boat that had the right of way because of a failure to follow this rule.
Our reader’s underlying question concerned the allocation of fault between the club itself and the member who was operating the boat. Fault must first be allocated between the two boats under the analysis described above. But regardless of where that analysis ends up, for all practical purposes, the member and the club will be held jointly liable for the member’s portion of fault.
The club, on a practical level, will also be responsible because a maritime lien arises against the offending vessel and in favor of the “victim” of a collision, for whatever amount of fault is allocated against the operator. Therefore, the club itself would not be liable, but since a lien arises against the club’s vessel, which could be seized and sold to satisfy the lien, for all practical purposes the club is also liable.
Yacht clubs are reluctant to initiate litigation against their own members, which brings us back to the point raised at the beginning of this article. The club should tender the claim to their insurance company and leave the fighting to them. Nonetheless, it may be wise to bring an experienced maritime attorney into the picture, to evaluate the rights of the club and its members.