must have?

We have meant to produce this topic on the FP for a while, and finally here it is.

Liability Waivers Before Sailing Departure – The Breakdown

Liability waivers are common in many sports and sailing is no exception. Many sailors are required to sign liability waivers.

What is a liability waiver?
Liability waivers, also known as release of claim agreements contain exculpatory (free from blame) clauses that state that a competitor will not take the organizing party to court should they be injured, or die, prior, during, or after they participate in a competition.

Waivers are not only used in sailing but in any other activity that carries some risk including athletics, white water rafting, skiing and a host of other extreme sports that have an increased risk of personal injury.

Types of sailing liability waivers
In sailing, there are usually two types of liability waivers. A Regatta Waiver and Release of Liability form is used when sailors want to participate in events run under the Racing Rules of Sailing. A Non -Regatta Waiver and Release of Liability form that sailors use to participate in non – regatta competitions. These forms are not used for events run under the Racing Rules of Sailing.

Why sign liability waivers?
Sailing can be risky and when sailors choose to participate in sailing competitions, they are aware of the higher than average chance of personal injury or damage their boats and equipment. As a result, sailors are required to waive their rights to take event organizers to court by signing waivers.

This falls under Rule 4 in the Racing Rules of Sailing, known as the Decision to Race, that indicates that competitors involve themselves in sailing competitions at their own risk. Organizers are also aware of the risks. They cannot be held liable for all the problems that may arise during sailing events.

Liability waivers allow organizers to reduce the costs associated with organizing and running sailing events.
However, waivers cannot release event organizers from liability if injuries suffered by sailors are caused by their negligence or intentional misconduct.

Assumption of risk clause
When a sailor signs a sailing liability waiver, he or she is acknowledging that sailing involves risks. An assumption of risk clause in the waiver to prove this. By doing so, they also show that choosing to sail is their decision, and therefore they are responsible for themselves no matter what happens.

Organizers include waiver and release language in entry forms to cover themselves from legal liability. They may consist of words such as….”I hereby waive any rights, to the fullest extent permitted by the law, to sue race organizers in the event for injuries or damages..” The following rules govern the use of waivers by event organizers;

– They must clearly word waivers making sure the language they use is not ambiguous
– They should not hide the waiver in small print but must conspicuously outline it in the form
– Waivers must be signed by the individuals they are to be used against, in this case, the sailors.

Organizing authorities of sailing competitions are allowed to make it a condition for competitors to sign liability waivers before allowing them to sign up for an event. Sailors have a responsibility to read and understand them before signing.

Are waivers upheld in court?
It is common for people to sign waivers without reading them, thereby unknowingly putting themselves in a difficult situation. Although waivers are not always upheld by the courts, adhering to the guidelines of writing one increases the chances of the courts agreeing to enforce them. A waiver is upheld in a court of law if ;

– It does not violate any public interests or state laws
– It is correctly worded according to contract law in the state it is written in
– If the damages a person is choosing to sue for are a result of risks indicated in the waiver or the organizing parties negligence.

Hold harmless agreements vs. liability waivers
An Indemnification Agreement, also known as a Hold Harmless Agreement is a document signed by a person showing that he or she chooses to pay for another person’s financial obligations.  Indemnification agreements show that an individual will not claim compensation from the competition’s organizing authorities for any issues experienced during the competition but will pay for them.

They are, in effect, assuming responsibility for paying damages incurred during an incident in the competition.
They may even have to pay for the event organizers’ defense costs in case any come up or pay for a loss incurred during the competition even if they were not involved in it.

According to rule 82 of the Racing Rules of Sailing, organizing authorities should not ask competitors to sign indemnification or hold harmless agreements before signing up for an event. They are considered unnecessary burdens to place on competitors, and organizers are not allowed to impose them on sailors. Therefore, they are not included in entry forms. On the other hand, the release of claim or liability waivers are allowed and are also enforceable in a court of law.

You will find that some states do not support waivers. In such states, they may not be enforceable in court.
In other cases, organizers may use the wrong wording in the contract, thereby voiding it. If the courts feel an organization has been negligent in their duty to competitors, they may also hold waivers unenforceable.

Do employees have rights?
Sailors can’t do it all alone. They hire people referred to as support persons to assist on the boat. These people have rights and rules they have to follow. They are governed by a disciplinary code in the World sailing regulation 35.

When it comes to safety, sailors must ensure every support personnel has the necessary life-saving equipment. They also have the right to work in a safe environment as enforced by the Occupational Safety and Health Standards. Terms of employment for support personnel must also be outlined in a clearly written contract that is legally enforceable. Any discrimination against employees because of their color, race, nationality, sex, or age is prohibited.

Do you have problems with a liability waiver?
Liability waivers can be challenged in court. If you or someone you know was injured in a sailing event and wants to void a liability waiver, contact a lawyer for help.

Author: Eleanor Howard