Crew Indemnity forms

[alant]

A mate has a boat in NZ, which is being chartered by a film company, to do some reconstruction of the Bounty voyage.

He has been asked to do the following :-

"They are asking for an indemnity form for all crew to sign before they come on the boat. The expedition guy organising the trip want,s us to copy one from an american sailing/expedition site. Can you suggest an indemnity form for crew to signe. Bear in mind we will be an expedition yacht not a charter and crew will be making a contribution to food and fuel."

Anyone got a suggestion?

PS
If anyone wants to go sailing around Bay of Islands, they would be welcome (contribution to food/fuel)

 

[AntarcticPilot]

A mate has a boat in NZ, which is being chartered by a film company, to do some reconstruction of the Bounty voyage.

He has been asked to do the following :-

"They are asking for an indemnity form for all crew to sign before they come on the boat. The expedition guy organising the trip want,s us to copy one from an american sailing/expedition site. Can you suggest an indemnity form for crew to signe. Bear in mind we will be an expedition yacht not a charter and crew will be making a contribution to food and fuel."

Anyone got a suggestion?

PS
If anyone wants to go sailing around Bay of Islands, they would be welcome (contribution to food/fuel)

An indemnity form is a complete waste of time under the circumstances. I suspect that it would be laughed out of court if the film company tried to use it in the event of a disaster. In (UK!) law, you CANNOT sign away your rights in cases of negligence, failure of care or several other situations where your rights are guaranteed by law (for example, Sale of Goods!). Pieces of paper attempting to do so will simply be "red-lined" by the judge - in other words, phrases that might be seen to be attempting to limit liability will be struck out by the judge.

IANAL!

 

[idw]

And just to state the obvious, a US form is unlikely to be suitable in another jurisdiction. If they want legal protection, they need to hire a lawyer. If your mate just wants to satisfy this demand without worrying about whether it's legally effective, it hardly matters what he gets people to sign. If I were him though, and if I took that route, I would make it completely clear to the film company what I had done and tell them that if they want something legally watertight, they need to get a lawyer to draft it. He doesn't want a situation where they can sue him for misrepresenting their level of liability.

IANAL.

 

[bbg]

Anyone got a suggestion?

Yes. Tell your friend to consult a New Zealand lawyer (and build the fee into the charter fee).
If he has specifically been asked to get a waiver form, he should be able to say - yes, I'll get one but that wasn't part of the original deal. Charter fee has just gone up by NZD1,000.
Some jurisdictions will enforce such waivers. Some won't. Some will have specific rules.
Probably not what you (or your friend) wanted to hear, but the only valuable advice you will get on here is to hire a NZ lawyer.

 

[dt4134]

As the others have said I think an idemnity form is a waste of time.

However I sugest you give the crew a briefing note warning them of the dangers and behaviours required to look after their own safety on board and get them to sign that. At least then they can't say they entered a non-foolproof environment unawares.

But again, you need a local lawyer whatever you get them to sign.

 

[bbg]

As the others have said I think an idemnity form is a waste of time.

I disagree. They might be a waste of time. They might not. I know for a fact that very broad release, printed on the back of a ski-lift ticket, has been enforced on more than one occasion in Canada. Everything will depend on the wording and the jurisdiction.

I think it is also important to get the terminology right. The OP's friend will need to keep this in mind when consulting a lawyer. A release will prevent the signatory from making a claim. An indemnity will permit the beneficiary of the indemnity (in this case boat owner) to make a claim against that indemnifying party (in this case the guests), in case any claim is made against boat owner by a third party, because of something done by the guests. If a third party sues the boat owner, and indemnity would let him pass that claim on to the guests. A release would prevent the guests from making a claim against the boat owner. The two - release and indemnity - are very different beasts.

 

[dt4134]

If a third party sues the boat owner, and indemnity would let him pass that claim on to the guests. A release would prevent the guests from making a claim against the boat owner. The two - release and indemnity - are very different beasts.

Not sure we're talking the same language here, but that does underline your point about consulting a local lawyer.

The insurance should already cover barratry anyway, which is what you seem to be interested in above.

 

[Sailfree]

Indemnity Form for everyone to argue over!!

You will see that the draft form has a number of salient points but personally I fnd it embarassing to ask people to complete it!! No form can relieve you of the need to act responsibly and not negligent (judged by the standard of your peers)

Your call if you use it you will need to insert your "boat name" and "your name" where relevant. As I wrote this draft and have no legal qualification the draft comes with the warning that I do not warantee it to be of any use to any person in any circumstances - make up your own mind/consult a lawyer/use at your own risk - Now is that me covered??

DECLARATION AND INDEMNITY
(Voluntary Liability Release and Assumptions of Risk)

Note: for the purpose of this agreement, "sail" or "sailing" "Boat name" includes sailing, motoring, motorsailing or whenever on board including when "Boat name"is berthed in a marina or at a quay or at anchor.

In consideration of "sailing" on "Boat name", I agree to save harmless and keep indemnified "your name" and their agents against all actions, claims, costs and demands in respect of death or injury to myself however caused arising out of or in connection with being on board and to indemnify them against their costs and losses arising out of any claim made against them by anyone to the extent that such costs and losses are attributable to my participation.

"your name" are not a training organisation. Any guidance I am given is just that - informal hints and tips. I myself am responsible for the manner in which I participate.

I wish to "sail" on "Boat name" and understand that "sailing" can be hazardous and I am voluntarily exposing myself to risk by my participation.

I have no medical or physical condition that could render myself or others at risk through my participation in "sailing". I am not under the influence of drugs or alcohol. I accept that once berthed in a marina or anchored I may consume alcohol but that I am responsible for ensuring my consumption does not cause a hazard to others and that in the event of an emergency I will be able to follow instructions and assist.

I acknowledge that I have received a safety briefing from a prepared checklist and, where necessary, have sought clarification of any points not immediately understood. I am aware of who is the skipper and the nominated second in command.

I understand that the terms herein are contractual and not a mere recital, that this instrument is a legally binding document, and that I have signed this document of my own free act.


Signature…………………………… (In case of a minor this indemnity must be also signed by
the parent/guardian)
Name………………………………..

Date………………………………….

 

[rivonia]

You will see that the draft form has a number of salient points but personally I fnd it embarassing to ask people to complete it!! No form can relieve you of the need to act responsibly and not negligent (judged by the standard of your peers)

Your call if you use it you will need to insert your "boat name" and "your name" where relevant. As I wrote this draft and have no legal qualification the draft comes with the warning that I do not warantee it to be of any use to any person in any circumstances - make up your own mind/consult a lawyer/use at your own risk - Now is that me covered??

DECLARATION AND INDEMNITY
(Voluntary Liability Release and Assumptions of Risk)

Note: for the purpose of this agreement, "sail" or "sailing" "Boat name" includes sailing, motoring, motorsailing or whenever on board including when "Boat name"is berthed in a marina or at a quay or at anchor.

In consideration of "sailing" on "Boat name", I agree to save harmless and keep indemnified "your name" and their agents against all actions, claims, costs and demands in respect of death or injury to myself however caused arising out of or in connection with being on board and to indemnify them against their costs and losses arising out of any claim made against them by anyone to the extent that such costs and losses are attributable to my participation.

"your name" are not a training organisation. Any guidance I am given is just that - informal hints and tips. I myself am responsible for the manner in which I participate.

I wish to "sail" on "Boat name" and understand that "sailing" can be hazardous and I am voluntarily exposing myself to risk by my participation.

I have no medical or physical condition that could render myself or others at risk through my participation in "sailing". I am not under the influence of drugs or alcohol. I accept that once berthed in a marina or anchored I may consume alcohol but that I am responsible for ensuring my consumption does not cause a hazard to others and that in the event of an emergency I will be able to follow instructions and assist.

I acknowledge that I have received a safety briefing from a prepared checklist and, where necessary, have sought clarification of any points not immediately understood. I am aware of who is the skipper and the nominated second in command.

I understand that the terms herein are contractual and not a mere recital, that this instrument is a legally binding document, and that I have signed this document of my own free act.


Signature…………………………… (In case of a minor this indemnity must be also signed by
the parent/guardian)
Name………………………………..

Date………………………………….

This is excellent. It reminds me of when we were in Sth Africa and the instructor insisted that all crew had to sign a similar form.

Peter

 

[Ubergeekian]

In consideration of "sailing" on "Boat name", I agree to save harmless and keep indemnified "your name" and their agents against all actions, claims, costs and demands in respect of death or injury to myself however caused arising out of or in connection with being on board ...

Is there any jurisdiction where that would have a hope in hell of sticking? "Yes, Mrs Widow, the skipper was drunk and ran the boat into a reef, your late husband's life jacket failed to inflate because it was ten years out of date and the boat carried no flares, radio or EPIRB ... but look! He signed a release""

 

[Cerddinen]

Is this being understood the correct way round? Could it not be an indemnity absolving the crew from any responsibility for damage they may cause to the yacht?

 

[Sailfree]

Is there any jurisdiction where that would have a hope in hell of sticking? "Yes, Mrs Widow, the skipper was drunk and ran the boat into a reef, your late husband's life jacket failed to inflate because it was ten years out of date and the boat carried no flares, radio or EPIRB ... but look! He signed a release""

Try reading it again

At the start I clearly state you cannot absolve yourself of negligence but be aware negligence is usually difficult to prove although I accept your 2 cases being in the extreme would hold up.

However lets be positive the proceedure sets out naming a skipper & second in command. Obliges a prepared safety brief to be given and understood. Gives due notice that sailing is not without hazards and make the person accept that. Points out to the crew that they need to control their own drinking and declare that they are fit to go sailing.

Nothing is without risk but I suggest that a signed form could be used to evidence a well run ship with due regard to reasonable health and safety. With regard to your mention of EPIRB a court would take due regard what a average skipper of that size of boat and trip would have and any legal requirement and as such I suggest that while an EPIRB is desirable any claim for damages as a result of the lack of an EPIRB would fail if you were say going on a Sunday Sail on a 32' privately owned pleasure craft.

I think the form covers a number of points but hell what do I know I only took as a starting point similar documents that a number of large organisations that have expensive legal advice choose to issue!

No form will obsolve you from consequence of getting drunk but then I think you are purposly being either obtuse or stupid.

 

[Sailfree]

Is this being understood the correct way round? Could it not be an indemnity absolving the crew from any responsibility for damage they may cause to the yacht?

Not when the signature is that of the crew.

 

[Ubergeekian]

Try reading it again

I have, and the bit I quoted is a joke. It attempts to evade all responsibility for causing death or injury. We used to have such things in the gliding world, for "trial lesson" customers (actually pleasure flights, but we pretend they are trial lessons to avoid the need for commercial qualifications). Then someone showed it to a lawyer and when he had stopped laughing, a few days later, the "blood chits" were dropped.

Nothing is without risk but I suggest that a signed form could be used to evidence a well run ship with due regard to reasonable health and safety.

Well, maybe. Is the visitor qualified to evaluate the information given before signing? Look at this bit

I acknowledge that I have received a safety briefing from a prepared checklist and, where necessary, have sought clarification of any points not immediately understood.

Checklist schmecklist. How can the punter know whether the safety briefing was adequate or correct? The "we don't do training" bit is laughable - and directly contradicts the "someone is skipper bit". The former says "nobody tells you what to do" and the latter says "a named person tells you what to do."

All in all, this looks to me like something put together by an amateur who has something to hide.

 

[Deleted member 36384]

... All in all, this looks to me like something put together by an amateur who has something to hide.....

My sentiments are the same when presented with these forms - cop out shoddy operation. Of course this isn't always the case by far. A properly run organisation with liability insurance shouldn't try and pass the buck.

 

[theforeman]

i have a thought at the back of my mind that some years ago new zealand was moving / had moved to a " no fault " compensation system. if such a system is indeed in force that might also have some bearing on the enforcebility of an exclusion of liability document.

 

[bbg]

Sailfree - I know you're trying to be helpful, but this isn't. I am a lawyer, in two jurisdictions (one is England). I write releases and indemnities all the time. Working on one now, as it happens.
The ONLY good advice anyone can give in this situation is to consult a local lawyer. It isn't clear from the OP whether his friend is expected to provide a release or an indemnity, who it is supposed to be in favour of etc.