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Guest
Guest
Does a sailing club have any legal obligations to its membership in regarding providing a saftey stand on boat for its members whilst on the water and in particular during racing events for cruisers?
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Skyva_2
Guest
Don't know about cruisers, but suspect not. There are certainly obligations when juniors sail dinghies - best to consult the RYA booklet on the subject, which is full of good advice in this litigious age.
Keith
Keith
l'escargot
New member
Whilst not knowing whether there is an actual legal responsibility, the following is an extract from our club racing rules which would seem to be pretty standard:
2.4. Nothing done by the organisers can reduce the responsibility of the boat, nor will it make the organisers responsible for any loss, damage, or personal injury, however it may have occurred, as a result of the boat taking part in the racing. The organisers encompass everyone helping to run the race and the event, and include the organising authority, the race committee, the race officer, patrol boats and beachmasters.
2.5. The provision of patrol boats does not relieve the boat of her responsibilities.
This would suggest that responsibility remains with the participants even if a safety boat is provided. I would guess that insurance would stipulate that there must be a safety boat when racing if it was a legal requirement. I can't say that I've seen them provided on the Round the Island Race - how many would you need to provide for a fleet that size?
2.4. Nothing done by the organisers can reduce the responsibility of the boat, nor will it make the organisers responsible for any loss, damage, or personal injury, however it may have occurred, as a result of the boat taking part in the racing. The organisers encompass everyone helping to run the race and the event, and include the organising authority, the race committee, the race officer, patrol boats and beachmasters.
2.5. The provision of patrol boats does not relieve the boat of her responsibilities.
This would suggest that responsibility remains with the participants even if a safety boat is provided. I would guess that insurance would stipulate that there must be a safety boat when racing if it was a legal requirement. I can't say that I've seen them provided on the Round the Island Race - how many would you need to provide for a fleet that size?
PeterGibbs
New member
None. The officers have probabaly already inserted a waiver in their terms and conditions of entering the races they organise. However, that does not exonerate them in every case from a claim based on negligence. But in the event of an incident you would have to demonstrate such negligence on the part of the officers of the club. Your chances? And the costs of taking the action forward? And then finding another club to join?
PWG
PWG
G
Guest
Guest
Waivers in club rules
A waiver like the one set out by L'Escargot (rule 2.4) is invalid. Generally such attempts to reduce or restrict liability for death or personal injury are doomed to failure.
To simplify a little: if the club has been negligent it will be liable, if it hasn't then it won't. It would be liable principally under the law of tort, but potentially also as a matter of contract (whether it's liable under the law of tort or contract may possibly affect the level of damages). The waiver in L'Escargot's club rules is ineffective in either case because of S. 2(1) of the Unfair Contract Terms Act 1977.
Whether or not the club has been negligent eg. in not providing a safety boat depends on many things, but in particular: (i) general practice amongst clubs; (ii) whether members have reasonably come to expect the presence of a safety boat because that's what the club always does; (iii) what were the conditions on the day - the club may be negligent if it didn't provide a safety boat when it might have foreseen that there may be dangerous conditions.
Then of course there's the question of what is the club - does it have a separate legal personality like a company, or is it an informal association, in which case members may be personally liable. In any case, whichever individual(s) has/have been negligent will be personally liable.
A waiver like the one set out by L'Escargot (rule 2.4) is invalid. Generally such attempts to reduce or restrict liability for death or personal injury are doomed to failure.
To simplify a little: if the club has been negligent it will be liable, if it hasn't then it won't. It would be liable principally under the law of tort, but potentially also as a matter of contract (whether it's liable under the law of tort or contract may possibly affect the level of damages). The waiver in L'Escargot's club rules is ineffective in either case because of S. 2(1) of the Unfair Contract Terms Act 1977.
Whether or not the club has been negligent eg. in not providing a safety boat depends on many things, but in particular: (i) general practice amongst clubs; (ii) whether members have reasonably come to expect the presence of a safety boat because that's what the club always does; (iii) what were the conditions on the day - the club may be negligent if it didn't provide a safety boat when it might have foreseen that there may be dangerous conditions.
Then of course there's the question of what is the club - does it have a separate legal personality like a company, or is it an informal association, in which case members may be personally liable. In any case, whichever individual(s) has/have been negligent will be personally liable.
G
Guest
Guest
Re: Waivers in club rules
What would the position be if a member brought a proposal to be voted on at a AGM and the vote went against him that they ( the club) did not have that duty of care to its membership, even though thier had been complaints regarding saftey measures not in place in the past?
What would the position be if a member brought a proposal to be voted on at a AGM and the vote went against him that they ( the club) did not have that duty of care to its membership, even though thier had been complaints regarding saftey measures not in place in the past?
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Guest
Guest
I participated in the round the island race and there was at least 3 safety boats in attendance along with a stand on offshore lifeboat as well as the whole race being monitored by helicopters.
billmacfarlane
Active member
Scuse my ignorance on this one but how can you effectively take action against a "club" , when you are a member of the club. If a club is simply the sum total of the membership , surely you would be taking action against yourself ?
tcm
...
Not applicable: UCTA applies to business contracts
I'd disagree that an exclusion would be invaild because of unfair contact terms. UCTA applies to business contracts only, as defined in section 1.7. A sail racing club isn't a business in the normally accepted sense. Nor does payment of an entry fee constitute a business/consumer contract. Exclusion of liabilty perfectly reasonable.
I'd disagree that an exclusion would be invaild because of unfair contact terms. UCTA applies to business contracts only, as defined in section 1.7. A sail racing club isn't a business in the normally accepted sense. Nor does payment of an entry fee constitute a business/consumer contract. Exclusion of liabilty perfectly reasonable.
l'escargot
New member
If, as some clearly believe, there is an obligation, it would seem logical that there must be clear definitions as to what is a "safety boat", who is qualified to crew it and ratios of safety boats to competitors etc. Who would decide that 3 safety boats, a helicopter and a lifeboat is adequate cover for the Round the Island, what is adequate support for the Sydney Hobart? They are both races organised by clubs. Where are the definitions of a safety boat?
There seem to be a lot of "Definites" being stated but on very little foundation, other than opinion. Clearly negligence is an issue but I am not convinced that the argument that failing to provide a safety boat would stand as a negligent act, neither am I convinced that Racing Rules can be held as a contract. I have been unable to find any reference of relevance through the RYA website, can anyone quote precedents or personal experience?
There seem to be a lot of "Definites" being stated but on very little foundation, other than opinion. Clearly negligence is an issue but I am not convinced that the argument that failing to provide a safety boat would stand as a negligent act, neither am I convinced that Racing Rules can be held as a contract. I have been unable to find any reference of relevance through the RYA website, can anyone quote precedents or personal experience?
G
Guest
Guest
Thats the problem i am having ! Definitives are not easy obtain from the web page at the R.Y.A everybody seems to have opinions as to if a club has a duty of care to its members!
Somewhere there must have been test cases and judgements made( precedents) on the requirements to be followed.
regards
Bluebeard
Somewhere there must have been test cases and judgements made( precedents) on the requirements to be followed.
regards
Bluebeard
PeterGibbs
New member
Re: Waivers in club rules
With this liability issue somewhat in mind a local club I know has recently stiffened up its indemnity towards officers in the event they / the club are found negligent and suffer a penalty. But as is correctly pointed out above, many clubs are limited by guarantee - ie the load falls on the membership, and the club is not protected in the normal way by the limited liability enjoyed by an incorporated entity. In a sense the member taking action is therefore proceeding, inter alia, against himself.
Many waivers issued are not worth the paper they are written on because, of course, club rules do not supecede the law of the land. It's a bit like those signs in parking lots that declare boldly that the owning organisation "accepts no responsibility for whatever may befall the visitor, however it may arise." Rubbish, of course.
Likewise those notices put in by clubs that a forthcoming cruise "is undertaken by members entirely at their own risk etc" are not by any means a complete defence against a claim against the club if there has been negligence. The essence of negligence itself if multi-faceted and is too big a topic for these columns.
Regarding safety boats, it is likely that the provision of the boat does not in itself put the club at risk of action or a damages award should something happen; indeed it could be argued the club recognised the nature of the sport and tried to provided support in the event any member or participant got into difficulties, so mitigating any claim against it. No club is likely to increase its exposure, even in this compensation culture, just for putting a safety boat on the water.
In this (real) life, if you have acted recklessly or even without due regard for others you could be found negligent and damages can be awarded. But the courts do not see themselves as required to award compensation to everyone who suffers a loss, irrespective of the expectations and approach of the plaintiff to the activity that lead to the loss. Caveat emptor is still in force.
PWG.
With this liability issue somewhat in mind a local club I know has recently stiffened up its indemnity towards officers in the event they / the club are found negligent and suffer a penalty. But as is correctly pointed out above, many clubs are limited by guarantee - ie the load falls on the membership, and the club is not protected in the normal way by the limited liability enjoyed by an incorporated entity. In a sense the member taking action is therefore proceeding, inter alia, against himself.
Many waivers issued are not worth the paper they are written on because, of course, club rules do not supecede the law of the land. It's a bit like those signs in parking lots that declare boldly that the owning organisation "accepts no responsibility for whatever may befall the visitor, however it may arise." Rubbish, of course.
Likewise those notices put in by clubs that a forthcoming cruise "is undertaken by members entirely at their own risk etc" are not by any means a complete defence against a claim against the club if there has been negligence. The essence of negligence itself if multi-faceted and is too big a topic for these columns.
Regarding safety boats, it is likely that the provision of the boat does not in itself put the club at risk of action or a damages award should something happen; indeed it could be argued the club recognised the nature of the sport and tried to provided support in the event any member or participant got into difficulties, so mitigating any claim against it. No club is likely to increase its exposure, even in this compensation culture, just for putting a safety boat on the water.
In this (real) life, if you have acted recklessly or even without due regard for others you could be found negligent and damages can be awarded. But the courts do not see themselves as required to award compensation to everyone who suffers a loss, irrespective of the expectations and approach of the plaintiff to the activity that lead to the loss. Caveat emptor is still in force.
PWG.
bedouin
Well-known member
Re: Waivers in club rules
I'm not a legal expert but I believe there is some legal foundation for waivers.
I seem to remember hearing a report of a court case a few years back resulting from an injury on an activity holiday. IIRC the organisers were found to be negligent, NOT because of the injury itself but because they had failed to make the participant aware of the risks involved. In that case a warning/waiver would have protected them.
I'm not a legal expert but I believe there is some legal foundation for waivers.
I seem to remember hearing a report of a court case a few years back resulting from an injury on an activity holiday. IIRC the organisers were found to be negligent, NOT because of the injury itself but because they had failed to make the participant aware of the risks involved. In that case a warning/waiver would have protected them.