All Piss and Wind Read online

  It so happened that Mr Rhea was very fond of pineapple juice, with just a dash of rum – about 70 per cent by volume. All day. It’s a hot part of the world. Even his battered VW delivery van had a gimballed cup-holder beside the driver’s seat so that Tim was never separated from a tumbler of his beloved rum-and-pineapple. By nightfall, when we mere mortals were beginning to flag, he was bright-eyed, bushy-tailed and ready for work. With what seemed like half the annual liquid exports of Puerto Rico in his belly, Tim horrified us by happily wielding heavy power tools and attempting quite intricate welding. When the smoke cleared his work was always immaculate.

  For three days Tim was a tower of strength and good humour. His half-crazy smile only cracked once, when Jim went to the fridge late in the afternoon to dig out some beers to settle the dust that had accumulated through our long day in the machine shop.

  ‘No, Jim!’ Rhea snarled from his favourite old chair near the lathe.

  Hardy was taken aback. ‘What’s the problem, Tim? We’ve paid for these beers – put a dozen of them in myself this morning.’

  ‘No, Jim. Four o’clock.’

  ‘Er, yes. It’s about four. Why’s that an issue?’

  ‘Four o’clock!’ said Tim again sternly, tapping his watch for emphasis. ‘Rum time! You can’t drink beer after four o’clock!’

  So we didn’t. Rum-and-pineapple all round, fellas. I mean, it was his workshop, and when in Rome …

  Somehow, the whole thing finally came together. The complex task of fitting an internal sleeve to a new lower section was complete. A matching scarf was cut into the foot of the salvaged upper section. Both parts of the join had now been pre-drilled and tapped, ready for final assembly on the dock before the halyards could be run and the whole mast stepped in place. The mainsail was repaired, rigging checked, masthead electronics replaced. All that remained now was to apply a quick protective coat of paint to the new lower mast section. This mundane last chore ended up turning Police Car into the most talked-about yacht of the Clipper Cup.

  When Ed Dubois prepared his drawings and do-it-yourself instructions, he’d described 13 separate stages just to get the mast assembled and ready for stepping. The final words of his now dog-eared document simply read: ‘paint pink if time allows’. In the boatyards of England ‘pink’ means metal primer, but at midnight in a Honolulu rigger’s shop (with a fair few rum-and-pineapples on board), we all agreed that the designer should be taken exactly at his word. There was a maniacal lurch in the general direction of Tim’s paint locker, from which someone emerged brandishing a tin of very pink automotive spray enamel. Mr Rhea enjoyed the joke immensely, and insisted on doing the spray-painting honours himself.

  The rest of this little saga has passed into Australian yachting history. Next morning, Chris, the young rigger in our crew, magically re-emerged after being AWOL for the previous three days chasing every surfer girl on Oahu. Our spectacular new two-tone mast was delivered to the wharf on top of Tim’s trusty Kombi van and Chris quickly ran all the halyards and fitted the rigging. With the help of a crane the spar slipped back into the boat without a problem. Incredibly, we’d be rejoining the regatta that afternoon, having missed just one race.

  This called, of course, for a celebratory drink or two at the yacht-club bar. Within minutes the raising of our lurid, Day-Glo pink mast was dominating dockside scuttlebutt. Jack Baxter, who’d crewed for Hardy in the America’s Cup and was now sailing master on Hitchhiker, bailed up Sir James as we were all enjoying our second round of beers. ‘G’day, Gilbert. Good to see you back in the water – and jeez, mate, I really like your big pink erection.’

  The sea – this truth must be confessed – has no

  generosity. No display of manly qualities – courage,

  hardihood, endurance, faithfulness – has ever been

  known to touch its irresponsible consciousness

  of power.

  Joseph Conrad, The Mirror of the Sea, 1906

  AS EVERY GOOD YACHTIE knows, volenti non fit injuria – ‘that to which a man consents cannot be considered an injury’. Well, we mightn’t all be absolutely word-perfect on our Latin legal tags, but the general principle of going to sea at your own risk is broadly understood. Ocean racing is a sport with an undeniably inherent potential for danger. While skippers have a common-law duty of care to take all reasonable steps to avoid foreseeable dangers, owners and crew alike have traditionally been happy to accept the fact that injury, loss or damage might be the price of their pleasure.

  The 1998 Sydney–Hobart disaster changed all that. It’s easy to forget just how profoundly the sport of offshore racing in Australia was transformed by the loss of those six lives more than eight years ago. The changes have been overwhelmingly for the good, prompted largely by the recommendations made by Coroner John Abernethy at the conclusion of his exhaustive inquest into the tragedy. It was Abernethy’s excellent report – published in December 2000 – that suggested many of the new regulations and sea safety-awareness reforms we now take for granted. Compulsory personal EPIRB radio beacons, strobe lights on deck, proper Personal Flotation Devices, more explicit wind-strength and wave-height forecasting, sealed gel batteries, comprehensive sea safety and survival training, upgraded life rafts – we owe all of that, and more, to Mr Abernethy.

  But coroners establish facts, not law. Barristers can drive a yawning chasm between cause and liability. Less palatable to many stalwarts of the sport were the lawsuits for damages that followed the disaster. Every club-bar Perry Mason was quick to dispense their instant opinion. The law of negligence is, however, far more complex than conventional dockside wisdom might suggest. While we all have our own notions of fairness – and of ‘right’ and ‘wrong’ in sport – these don’t always align with a court’s understanding of liability. What the sad backwash of the 1998 tragedy underlines is that to survive in the twenty-first century a sport such as yachting now needs its participants to have some firm practical grasp of the legal principles involved.

  One fundamental question sits at the very heart of the negligence/liability issue: what, exactly, are the limits of ‘reasonable care’? Most boat owners and club officials accept the general principles of negligence and ‘duty of care’, yet are understandably confused as to the precise way those concepts might apply to their practical roles. What obligations does a skipper have to their crew – and vice versa? To what extent is a club accountable for mishaps in a race it has organised? Could a weather bureau be sued over the accuracy or presentation of its forecasts?

  In 1932 the House of Lords provided us with a useful benchmark definition of ‘reasonable care’:

  You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour … persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation of being so affected.

  (Local yachties will be interested to know that Lord Atkin, the learned judge who penned those words 70 years ago, was himself a keen sailor, and born in Queensland.)

  More recently the High Court of Australia tackled the intertwined ideas of ‘negligence’ and ‘duty of care’. (Negligence is a failure to discharge the duty of care owed to the injured person.) The High Court, too, found the law imposes a duty ‘to take reasonable steps to avoid a foreseeable risk of loss’. That duty of care usually only applies to those with whom we have formed a legal relationship (which need not be in writing). But in this particular area of negligence the law allows a very wide interpretation. There is no doubt, for example, that yacht owners and/or skippers owe a basic duty of care to their crews. In many key respects this is similar to the obligations employers have to their employees (more of which later).

  Clubs who organise ocean races owe a parallel duty of care to everyone who participates in those events. Owners have a clear duty to take reasonable care that those on board are not injured because their boat is not truly seaworthy, has defective or inadequate equipm
ent, or that the boat and its gear are not properly maintained. It’s important here to understand that any safety regulations imposed by authorities such as Yachting Australia have no conclusive legal force in themselves – they are only indicative of what may be ‘reasonable’.

  Since the 1998 Sydney–Hobart disaster the organising clubs are taking a far more cautious approach to their duty of care. The most obvious responses have included:

  the introduction of the ‘Green Cape Rule’, which requires Sydney–Hobart yachts passing 37º15'S (the beginning of Bass Strait) to radio in confirmation that the crew are all willing to proceed further south and that the yacht and its equipment are in good order

  the CYCA’s decision, in the face of storm warnings, to thrice delay the start of the 2001 Southport race

  the mandatory Yachting Australia requirement for 50 per cent of all crews in Category One races (major passage events that take yachts well offshore) to have completed a Safety & Sea Survival course.

  These are all indications of how firmly legal concerns now influence Race Committee decisions and the general administration of yachting. The reforms also undoubtedly offer some level of comfort and protection to the directors of the organising clubs sitting safe and warm on shore. And, more particularly, to their insurers.

  A parallel issue is the extent to which the owner/skipper can be held liable for damage or loss that results from the manner in which they cause their yacht to be sailed, or from orders given to the crew. In the strict eyes of the law the actions of equipping, maintaining and sailing a yacht, and directing its crew, are all subject to the same standards. Case in point: could a crew member sue for the trauma or injuries sustained after the owner decides to punch into 10-metre seas and 70 knots of southerly in Bass Strait? Certainly they could. Conversely, to what extent do the crew carry a duty to inform themselves about the boat and its equipment, and to perform in a competent and responsible manner? The governing principles here are ‘voluntary assumption of risk’ and ‘contributory negligence’. Where a crew member had knowledge of all the facts which created a risk, understood that risk, but nevertheless voluntarily undertook to run that risk then it’s unlikely they will be fully compensated for any damage or loss that arises. In 1967 the High Court put it this way:

  By engaging in a sport or pastime, the participants may be held to have accepted risks which are inherent in that sport or pastime.

  Nevertheless, the limits of these ‘accepted risks’ are decided in the courts on a case-by-case basis. It’s heartening to know that judges these days are very reluctant to see a badly injured person leave the court empty-handed, even when voluntary assumption of risk has been established.

  The principle of ‘contributory negligence’ moderates an absolute duty of care when the injured person was partially – or even totally – at fault. This can be an awfully difficult principle to apply to the realities of yacht racing. Injuries occur in almost every race, usually by pure accident, but sometimes because of careless or even reckless individual behaviour. Most of us have sailed with a macho foredeck Rambo – and driven him to hospital afterwards. If the skipper knows they have such a tearaway in the crew then it’s their legal duty to hose them down – or off the boat. But it can often be a very fine line between foolhardiness and brave seamanship. In emergency situations good crew use their initiative but, in so doing, can put themselves in dangerous situations without prior reference to the skipper. With admirable fairness, the law provides that the damages recoverable in ‘contributory negligence’ cases will be in proportion to the claimant’s share of responsibility for that damage.

  It’s hardly surprising that in response to the heightened awareness of ‘duty of care’ obligations many skippers are now asking their crew to sign agreements that would seek to indemnify the owner against any claim. In effect, they are only trying to flick-pass the attempts the organising authorities are also making to disclaim liability. Section 16 of the 2004 Sydney–Hobart ‘Notice of Race’ document made it mandatory for every crewmember to release the Cruising Yacht Club of Australia and its ‘officers, employees, volunteers and members’ from all liability. To achieve this, their General Disclaimer and Acknowledgment of Rights Form is a classic piece of belt-and-braces legal draftsmanship. It requires that the signatory:

  … acknowledges and accepts the risks (including the risk of harm to persons and property and the risks associated with the perils of the sea and the seaworthiness of any boat) associated with participation in any Race and waives all rights against and releases CYCA and each Other Party in respect of any loss of life or injury to persons, or loss of or damage to property, suffered in connection therewith.

  And just in case we didn’t get that message, Section 7.1 of the race ‘Sailing Instructions’ then stated that the organising authority and sponsors ‘accept no liability for any injury, loss or damage that may be suffered by any competitor’.

  They may sound impressive, but such documents are next to worthless. The great weakness of ‘contracts not to sue’ is that they are difficult to enforce. The courts tend to disdain any agreement containing exclusion clauses whose clear intention is to sidestep a legal duty by invoking broad ‘catch-all’ disclaimers. If the specific type of duty, the type of breach, or type of injury is not listed in the contract, then the defence is likely to fail. Similarly, if the court considers a clause to be so unreasonable that it is ‘against the good of commercial or human relations’ then it will strike it out. Owners hoping to rely on a signed piece of paper full of indemnity and exclusion clauses to protect them from damages claims would do well to first consult an experienced negligence lawyer.

  The notion of ‘good commercial relations’ has acquired increased significance with the rapid rise of paid crew in offshore racing. Sailors who are charging for their services are employees, and therefore fall within the scope of Occupational Health and Safety law. The principal relationship governing their rights is not with the race authorities, but between themselves and their employer. Most of those arrangements are made on an informal, handshake basis. Conditions, rights and responsibilities are rarely defined. What are their entitlements – and what liabilities do their skippers carry?

  As is so often the case in these areas, the crucial factor is a difference in law. The common law – which applies to amateur sailors – only requires a duty to avoid ‘reasonable and foreseeable’ danger. But Occupational Health and Safety legislation, at least in New South Wales, imposes what the lawyers call a ‘counsel of perfection’ on employers. They have a strict responsibility to ensure – in fact, to guarantee – a safe workplace. Which is where the legal status of paid crewmembers is vital. For them, the boat is their workplace and the owner therefore has an obligation to make it ‘safe and without risks to health’. This may be a tad tricky in the middle of the Tasman, but that’s the owner’s problem.

  The issues become even more confused when we remember that many crews are now a mixture of amateur and professional sailors. When it comes to unpaid crew making a claim for compensation, a different law (in NSW it’s the Civil Liability Act) applies. This statute offers volunteers virtually no liability cover while engaged in dangerous recreational activities such as offshore racing. Meanwhile, their professional shipmates sitting beside them on the rail – doing the same work, at the same time, on the same boat, in the same conditions, and subject to the direction of the same skipper/employer – enjoy substantial protection under Occupational Health and Safety law. The implications of all this in any potentially dangerous racing situation are intriguing. Amateur crew, mindful that they’ve already had to sign away whatever limited rights they might have as a condition of participation, will most probably vote to press on. They have little to lose. But the skipper – weighing up his obligations as the employer of any paid crew – is more likely to favour pulling the pin and heading for the closest safe harbour.

  Yet more layers of complication are added if a competing yacht is also carrying fee-payi
ng crew. These are often people who have simply purchased their place on a boat for the experience and prestige of competing in a major race. Others may have been added to the crew as part of sail training courses that include participation in an offshore event as the culmination of that package. If the worst were to happen – major injury or death – then determining the precise legal status of each type of crewmember (and their various claims and counter-claims) would swiftly become a nightmare.

  To consider just one aspect of this puzzle. Most if not all yacht clubs that organise major ocean races are incorporated. They also charge entry fees for those races, i.e. they provide a service to consumers and therefore fall within the authority of the Trade Practices Act. This means that the clubs cannot contract out of their obligations – the implied warranties under common law – a position that seriously undermines the force of any disclaimer they may have required all crewmembers to sign. (In any case, the spouses of competing sailors don’t sign that indemnity and would be quite free to pursue separate compensation.)