Limiting exposure to liability

The observations by maritime attorney Maurice Cusick regarding race entry documents has prompted Dave Weil, another specialist in the field, to offer his counsel:

I enjoyed Mr. Cusick’s piece about liability waivers that racers are asked to sign to participate in a yacht race. I, too, am a practicing maritime attorney and “Proctor in Admiralty” member of the Maritime Law Association of the United States. I am also a volunteer Judge Advocate for my yacht club and an active racer, and I have a few comments.

First, the suggestion that a racer should cross out the offending language in a liability waiver is fine, except that we won’t let you race if you do that. Sorry. But let’s take a closer look at these waivers. I have actually done a pretty extensive survey of the waivers used by many race organizers across the country, and many of them are simply not enforceable.

A liability waiver is a contract, and like any contract it must include certain elements. A simple disclaimer of liability fails to include many of those elements, and as such it won’t be enforceable (my own disclaimer here – you should discuss the enforceability of your particular waiver with your own attorney!).

Assuming the waiver is properly drafted, it will probably not include language proposed by Mr. Cusick that discloses the race organizer’s insurance limits. We consider that information to be strictly confidential, in part because we believe that such information actually encourages lawsuits.

Mr. Cusick accurately noted that many of these waivers include language that releases a race organizer from claims that are alleged to arise from its own negligence and the negligence of its volunteers. This seems pretty onerous on the surface, but in fact ALL personal injury lawsuits – maritime or otherwise – are based in negligence, so the failure to include this language basically renders the waiver meaningless.

More importantly, the language helps to achieve the most important goal of the waiver, which is to discourage frivolous lawsuits against the race organizer. Most personal injury lawsuits – maritime or otherwise – include as defendants absolutely everybody who was remotely in the neighborhood.

The bottom line here is that race organizers and race committees are staffed by volunteers, and the race organizer itself is usually a non-profit yacht club. If these people and their club are exposed to real liability, often through no fault of their own, the list of volunteers would be pretty short.