thelog.com
Attorney From page 6
Courts have held that a crewmember on a merchant ship cannot be held to have assumed the risk of a particular activity aboard the ship, because he or she is required to obey the reasonable orders of the ship’s officers and crewmembers can’t simply quit or walk away if they don’t want to participate in that activity. That theory may make sense in the context of an injury aboard a merchant ship, but it makes no sense at all in the context of a yacht race. We are nonetheless bound by that rule and a defendant in a lawsuit arising from a yacht race on an ocean, harbor, bay or navigable river cannot absolve itself by asserting that the plaintiff assumed the risk of the activity. So with that in mind, let’s look instead at written liability waivers. This is where the organizers of a yacht race are actually able to protect themselves from liability. Unlike the Assumption of Risk doctrine, courts have upheld written liability waivers in a recreation- al maritime context if the language of the waiver is clear, unambiguous and prominently positioned on the docu- ment. Courts have distinguished this defense from the Assumption of Risk doctrine because the waiver is a form of contract which can be freely accept-
News Briefs From page 18
and more. Representatives from all these manu-
facturers will be on hand in eight West Marine stores representing four popular boating markets — New England, Florida’s East Coast, Florida’s West Coast and Southern California — introducing their new products for 2016 and presenting a full slate of informative seminars to help customers explore and understand the lat- est marine electronics technology. California West Marine stores partici- pating in the Marine Electronics Expo include Newport Beach and San Diego. Vendors will be on hand at each loca-
tion answering customers’ questions, demonstrating products and inviting “pros” to talk about their experiences using the new technology and signing autographs. Customers will enjoy dis- counts on hot, new products, many of which are making their West Marine debut at the Marine Electronics Expo. “West Marine is the leading retailer of marine electronics, and we want to create an opportunity for our customers to come into our stores and enjoy a hands-on learning experience with some of our pre- miere electronics vendors,” said Deb Radcliff, West Marine senior Vice president, marketing. “We expect this event to become a fixture on our annual calendar, allowing us to bring the newest and coolest marine electronics to customers, as well as providing expert advice on how to make the most of today’s cutting-edge marine electronics technology.” To learn more about West Marine’s
electronics products and vendors, visit
westmarine.com/marine-electronics.
ed or rejected by the participant before anyone leaves the dock. An unambiguous and properly
worded liability waiver will go a long way toward easing the concerns of our reader and his fellow committee mem- bers, but he points out that U.S. Sailing does not encourage the use of these waivers. U.S. Sailing is a Rhode Island based organization that is the national governing body for the sport of sailing in this country. Their responsibilities include the enactment of rules (“pre- scriptions”) to supplement the interna- tional Racing Rules of Sailing for events conducted in the United States. U.S. Sailing prescriptions include Rule 82, which prohibits the use of indem-
nification or hold harmless agreements unless this rule is prominently waived in the race documents published by the individual race organizers. Rule 82 is a little ambiguous about what is actually prohibited, but Race Organizers should probably include the language to waive the rule if they decide to include a liability waiver in the race documents. When a party in any endeavor seeks
to reduce or eliminate its liability for injury or damage in that endeavor, the party faces a complicated maze of rules and restrictions. This puzzle is considerably more complicated when that endeavor takes place on the water. Written liability waivers require specif-
The Log • March 11 - 24, 2016 • 19
ic language that may not be available through a “copy and paste” exercise from a random document found on the internet. Contact an experienced maritime attorney for help with your particular activity.
David Weil is licensed to practice law in the state of California and, as such, some of the information provided in this column may not be applicable in a jurisdiction outside of California. Please note also that no two legal situa- tions are alike, and it is impossible to provide accurate legal advice without knowing all the facts of a particular sit- uation. Therefore, the information pro-
See Attorney page 32
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