The New Zealand Millennium Cup is back on the agenda with a fleet of yachts showing off on the emerald waters of the Bay of Islands. In these circumstances it seems very fitting to discuss the rules of yacht racing and how it actually applies to the law of sea. While I would love to talk about when yachting goes smoothly, the sad truth of my profession is the law tends to only get involved when things go wrong.
Maritime accidents happen and when they do legal ramifications are likely to arise. Whether it be a fight with insurance companies, seeking compensation or even criminal action, there must be certainty as to law the skipper follows. If this accident occurred during a yacht race, the actual law to be followed is not as simple as one would imagine.
The International Regulations for Preventing Collisions at Sea
When on the water you should be familiar with The International Regulations for Preventing Collisions at Sea 1972 (“COLREGS”). These regulations are known as the “rules of the road” for vessels at sea to prevent collisions. It is the international standard, widely adopted across the globe and applies to many different types of vessels in different types of waters on different types of voyages.
In Australia, it is adopted as law on the waters of New South Wales. It is hidden away in section 5 of Marine Safety (General) Regulation 2009 (NSW) and needs to be read in conjunction with section 10 of the Marine Safety Act 1998 (NSW). In New Zealand it is found in Part 22 of the Maritime Rules.
The Rules of Racing
This all may sound simple so far. But, yachts in a yacht race can be treated differently under the law. It can cause a headache to the poor souls whose yacht race goes from a dream to a nightmare. The simple fact is that the COLREGS were never intended to govern a fleet of yachts sailing in close proximity to each other. The COLREGS intended purpose is to provide a broad set of rules covering all vessels at sea. Yet, bulk carriers and alike share as much similarity to a yacht as an Airbus A838 to a kite.
The Racing Rules of Sailing (RRS) are based on the COLREGS but with slight variances that take into account the unique circumstances that racing yachts find themselves in. Like the COLREGS, they are adopted worldwide for the sport of sailing. Importantly, the law can give effect to the RRS over the COLREGS, but only in very specific circumstances.
Why are the differences important?
You may be asking yourself “Why does it matter which one applies?” This is quite a valid question. Sure there are differences in the rules discussed above. But what does it actually mean for you?
For starters, every skipper of a racing yacht should be familiar with both sets of rules. Preventing a collision would avoid unnecessary and costly heartaches. Besides, it’s a race; avoiding a collision and being first to cross the line goes hand-in-hand with each other. Yacht racing is not a game of dodgem cars. But, like I said, lawyers tend to only get involved when things are not smooth sailing. In the event of a collision and without even touching on the criminal aspect of breaching the rules, the importance lies in determining who is at fault in the event of a collision.
A key commercial factor between the two rules is how actual liability is worked out. Under the RRS, if a yacht collides with another racing yacht then typically, one yacht will be found entirely at fault for the collision. Whereas, if you were to follow the COLREGS than you will find that both vessels are somewhat at fault and the question becomes who is more at fault. The importance of this cannot be understated. In the event of a claim for compensation the payout figure would likely be a percentage under the COLREGS. And when is comes to yachts this can run into the many millions!
Under general maritime law, however, fault will be allocated between the parties on a percentage basis. And fault in a maritime collision is almost never allocated 100 percent to one party.
Determining which one applies?
Which set of rules applies? Competing laws are no friends of lawyers. Dealing with one set of law is hard enough let alone dealing with two and figuring out which different set of laws prevail. The answer here largely depends on where you are, if the event organisers did their job properly and the circumstances of the race.
The COLREGS were never intended to govern racing vessels. The COLREGS applying to a yacht-racing event seems bizarre. The simple logistics of following the COLREGS during a race will, at least in my opinion, dampen the excitement of a race. But this has been the subject of many court decisions in both the UK and the USA. When millions of dollars are at stake there is very likely going to be some court decision on it. The issue is the law is not clear.
The default position here in New South Wales is the COLREGS apply unless the governing authority (here being Maritime Services) says otherwise. Racing events must be approved by Maritime Services as races are regarded as an “aquatic activity” and rightly so. The law is framed so as to allow the COLREGS to be overruled by the RRS if the aquatic activity licence actually states that the RRS applies.
It is important to note that even if the RRS applies to a race, the racing vessels must follow the COLREGS to avoid collisions with non-racing vessels. This is built into the RRS itself. However, the law in New South Wales seems to go further, that the COLREGS apply even if there is a risk of colliding with non-participating vessels. The Courts have not determined how broad this risk needs to be. By literal interpretation of the law, if you have a risk on Sydney Habour, there is always the risk of colliding with another non-participating vessel. It seems that in a busy area of water, the COLREGS will almost always apply, significantly narrowing the circumstances when the RRS can apply.
How do you know which one applies to your race?
Ask the event organiser!
In New South Wales the law is framed so that the COLREGS automatically apply. The only way to be certain of which one applies is to ask the organiser of the event if there is an aquatic licence (there should be!) and ask specifically if the aquatic licence states that the RRS applies. If it does then it is likely that the RRS applies when it comes to determining which rules to follow when encountering another racing vessel.
But the law in New South Wales goes further than this and states that COLREGS will apply even if there is risk of collision with another vessel not involved in the activity. How broad this risk has to be is a question for the courts and a question that causes a needless headache for yacht owners, skippers and lawyers alike.