Sailors are often required to sign release of claims agreements when they register for regattas. The following analysis is designed to clarify what language is acceptable and what is not. Indemnification and hold harmless agreements are prohibited in The Racing Rules of Sailing. For a more detailed discussion, please refer to the Indemnification section of the US Sailing website.
A signed release of claims (also called a “waiver of claims” or “waiver of liability”) by a person entering a regatta confirms that the competitor will not sue the organizing authority or its officers, directors, committees, employees or volunteers for damage, personal injury or death arising in connection with the competitor’s participation in the regatta. It often includes an “assumption of risk” clause by which the competitor acknowledges that sailing involves risks and agrees that the decision to start or continue to race in spite of the risk is the competitor’s responsibility and not that of the organizing authority. This is a paraphrase of rule 4 in The Racing Rules of Sailing. A release of claims is an acceptable condition for an organizing authority or race committee to apply to participation in a regatta. Race officials who have thought about the issue generally would be concerned about serving if there were not a release of claims in the regatta documents.
By contrast, an indemnification agreement says that the competitor will hold the organizing authority harmless from any claims against them in connection with the regatta. The competitor assumes an obligation to pay for damages and perhaps even for the organizer’s defense costs. For example, in a broadly worded agreement, a competitor might be held responsible for the sinking of a boat in an incident in which he or she was not involved. Most personal liability policies would not cover an assumption of another person’s or organization’s liabilities unless the policy holder notified the insurer prior to assuming them and paid an additional premium. The US Sailing prescription to rule 82 prohibits organizing authorities from requiring competitors to assume the liabilities of any organization or person involved with the event.
It is at times suggested that release of claims agreements are not enforceable. This is not correct. Well drafted releases of claims have been tested in litigation and upheld.
Appendix K (Notice of Race Guide) and Appendix L (Sailing Instructions Guide) in The Racing Rules of Sailing have sample “disclaimer of liability” language. Some organizing authorities are using a form that addresses some U.S. legal standards with this language:
“Competitors participate in this regatta entirely at their own risk. See rule 4, Decision to Race. Competitors acknowledge that sailing involves potential risks. As a condition of their participation in this regatta, competitors release all claims they may have against [Name of Organizing Authority] and its officers, directors, members, committees and employees for damage to property, personal injury or death sustained in conjunction with or prior to, during or after the regatta. Competitors shall be responsible for damage or injury caused by their breach of The Racing Rules of Sailing or applicable governmental rules for the avoidance of collision.”
- A release of claims by a competitor is an acceptable condition for an organizing authority to impose.
- A hold harmless or indemnification agreement is not an acceptable condition for an organizing authority to impose and is prohibited by the US prescription to rule 82.
– Interpretation provided by Kevin Keogh and Matt Hill.