Waivers and racing sailboats

Maritime attorney Maurice Cusick offers this observation from his office in Newport, RI:

Look. I know a lot about sailing and Court. And if you race sailboats, perhaps the biggest, life changing issue in your life is going to be that sneaky little “waiver” race organizers ask you to sign when entering. Twenty years ago, these did not exist. Now, they are everywhere. And they are a grave mistake to sign.

I know what you are thinking. You’re thinking: but I’m a great sailor, or I am careful, or it’s only Wednesday night beer can racing. What’s the worst that can happen. Well, this is what I do, so I will tell you.

I am not usually worried about your talents at all. After all, it’s not your bullet that kills you. It’s the “other boat” not knowing the rules and ramming you, it’s the defective 30 year old, UV rotted equipment, often it is the inexperienced sailor right next to you holding 3000 pounds of pressure on the end of a line. Something hits your head, spine, back, or hand. As I recently discovered, a spinnaker halyard can completely severe a thumb – bone and all.

Returning to our waiver: Well, what happens then? If you signed a waiver – you could be on your own. A lot depends on whether you are a “Jones Act” sailor or not. If you are a pro sailor and associated with a particular boat – you are likely a Jones Act sailor. That “waiver” probably means nothing.

Jones Act sailors get special treatment in the Courts. There are specific waivers that are required for Jones Act seamen and women, and a general “race” one will not apply. Oh, it may protect the yacht club or race committee, but you still have insurance and protections. The “waiver” is not going to stop that.

But, if you are not a Jones Act sailor, you are in trouble.

The waiver says you can’t sue the yacht club. You can’t sue their negligent employees who crippled you. You have missed work, not been paid, may not have full insurance covering your medical bills, and 9 out of 10 times the truly responsible party is going to say: “yeah, but you signed a waiver”. If you know them and are right now saying, “they wouldn’t do that to me” – yeah, but their lawyer or their insurer will. Believe me brother, I have been there. Too many times.

So, we have established that you are a great, safe sailor. But you end up injured by another boat, or another person on your boat. You are terribly injured, can’t work, and can’t even sue. What are you to do?

Well, don’t sign that waiver. Or, if you feel that you must, strike a line through the part that says you will not sue negligent parties or that you “assume the risk”. A rule of contract law is that if you strike a line out and the other side still accepts it, even if they don’t read it, well they’ve agreed to the modification.

Lastly, and least preferable is sign it and write, “I do not accept paragraph —-.” This is the least preferable, but it will give you a good argument in federal maritime court if you get seriously injured. Frankly, it is far far better than nothing or just signing.

Whose fault is this?

Well, I can’t blame the yacht clubs for wanting to offer a recreational activity and wanting to limit their liability. (Although I can blame them for not fully informing the sailors that they may be signing away their rights to recover if injured!). What they should do is simply state that they have insurance to a certain level, and any amount beyond that is waived. And no waiver should ever extend to “advertisers” or the boat you are aboard or other boats and participants. One basic rule of law is that you are always responsible for your own actions.

What should be done? Well, frankly, all you pro sailors out there should REFUSE to sign these things. Let’s face it; you’re all gambling here every race that you will not be the guy who is injured. It’s like a case of sailing “Russian roulette” with very long odds. But, sooner or later, ….

Once a group of pro sailors refuse to sign away their rights to recover (and believe me – now you are in my world – you are doing just that!) these “waivers” will go away, or be severely limited.

I will end with this: the next time you are asked to sign one of these, take it home with you, take 15 minutes to read it that night, and then ask: “What’s the worst that could happen?” We maritime lawyers sit around talking about this issue all the time these days.