Domenico De Sole v. United States of America, Chesapeake Bay Yacht Racing Association, United States Yacht Racing Union, Incorporated, Amici Curiae

Before MURNAGHAN, WIDENER and Judges, SMITH, Circuit Judge District for the Virginia, Eastern District of sitting by designation.

OPINION MURNAGHAN, Judge: Circuit Domenico De Sole filed an action in admi- ralty Act, the Suits in Admiralty under U.S.C.App. seq., et Public § Act, Vessels U.S.C.App. seq., 781 et § seeking to recover for to his rac- ing yacht, CIRO. damages, allegedly $41,600.05 worth, were caused a colli- sion with the United yacht, States Navy CINNABAR, at the finish line of the Ches- apeake Bay Yacht Racing Association’s Race, Spring Event # April 301 on After complaint, De Sole filed his Navy moved dismiss under Federal Rule 12(b)(6). front, Navy risk, of Civil Procedure an affirma entering plaintiff, Keeton, maintained tive defense. Page See W. Pros the risk of had assumed Torts, ser and Keeton on the Law consequently failed to (5th collision and had at 451 Supp.1988). Hence, ed. & could upon state a claim which relief be the district ruling 12(b)(6) on court’s a mo briefing, granted. After but without a tion for the defendant must have been one granted hearing, court the district the law, application of universal regard and Navy’s appealed motion. De Sole and variation, less of factual remand. now the present risk was and controlled. that, although We note the im- dissent The CINNABAR is owned the United plies opinion attempts negate that the to States and used sailing as a training racing yacht alleged the world’s decision to vessel at the United States Naval Acade- collisions, forgo damages for race the ami- my’s Robert Crown Sailing Center in An- curiae, Chesapeake the Bay ci Yacht Rac- napolis, Maryland. At the finish line of the Association, (“CBYRA”) ing Inc. and the CINNABAR, the crewed midship- Union, United States Yacht Inc. men, struck the protest CIRO. At a hear- (“USYRU”), represented the court later, ing days five the Race Committee of that if the decision below is their upheld the United States Naval Academy Sailing sport disrupted: will be Squadron at the Robert Sailing Crown Cen- below, any court without knowl- [t]he ter any absolved CIRO of fault in the colli- edge understanding sport upon or sion and disqualified CINNABAR on the cavalierly passed which it judgment, and grounds that it had violated Rule 37.2 of upon without evidence which to the International Yacht Racing Rules assessment, make a reasoned issued a (“IYRR”). requires That rule that a which, exaggeration, decision without keep clear astern clear of a clear potential rip real sport carries the According ahead. complaint, the the sailboat asunder. Navy sailing director relieved the master of CINNABAR, Brief of the midshipman, Amicus Curiae at 21. We have a for his every hope negligent navigation that the dearth of information of the CINNABAR. record, present which has In apparent with the accordance tradition frustration, resulted certain evidenced losing party protest pays to a throughout footnotes our opinion Navy requested that De Sole dissent, upon will be rectified hearing a surveyor appraise have a marine the dam- on remand. ages. appraisal De submitted the Sole surveyor Navy pursuant marine to the I. regulations. However, federal Navy court, 12(b)(6) deciding mo subsequently pay refused to for the dam- tion, wellpleaded must take all material ages.1 allegations complaint as admitted light view them in the most favorable II. plaintiff. McKeithen, Jenkins v. 411, 421, 1843, 1848, 12(b)(6)motion, In granting 395 89 U.S. S.Ct. District (1969). 12(b)(6) Judge Ramsey L.Ed.2d 404 P. mo Norman found control- “[A] granted ling only very analogy involving tion should be sport- limited cases Rogers See, circumstances.” events such as a e.g., horse race. Jefferson-Pilot Co., (4th Fell, Ins. 883 F.2d Cir. Turcotte v. 68 N.Y.2d 502 N.E.2d Life 1989). specifics (1986). All of the of the collision N.Y.S.2d The district complaint. are from De Sole’s We eon- court held of risk doc- Navy 1. De Sole submitted the claim to States caused vessel in naval service. The regulations procedures under 32 C.F.R. Part 752 and U.S.C. to be cover followed 27, 1989, permits Secretary settling § 7622. The statute those claims. On March Navy compromise up pay Navy rejected to settle or claims and Sole filed his 51,000,000 against complaint. for each claim the United (football); (N.M.Ct.App.1983) any recovery by P.2d 290 applied as a bar to trine Green, (Fla.1983) judge found doing so the also Kuehner v. 436 So.2d 78 De Sole. involving property (karate); dam- persuasive Huckaby a case Motor Confederate during Inc., a motorboat age occurred Speedway, which 276 S.C. 281 S.E.2d waters, navigable Dunion v. Kai- (1981) (automobile race on racing). (E.D.Pa.1954). ser, F.Supp. 41 Acknowledging admiralty employs only case that either case is the Dunion fault, system govern- amici, have found that party, or we ment nevertheless endeavors to show how sporting event has held that a of risk doctrine also can be triggers jurisdiction is invoked Again, reconciled with such a doctrine. doctrine.2 assumption of risk attempted illustrates that reconciliation assump- contends that government The referring sports comparative cases in place admiralty in tion of risk does have negligence jurisdictions. See Gauvin v. does concede that government law. Clark, 450, 404 Mass. 537 N.E.2d 94 there is no defense (hockey; negli- no cause of mere action for inju- in the context of a seaman’s available gence during sport, duty of care owed Smith, ry. v. Socony-Vacuum Oil Co. willful, by players is to refrain from wan- 424, 262, 88 L.Ed. 265 305 59 S.Ct. U.S. conduct); ton and reckless Ordway v. Su- (1939). reject- Assumption of risk has been Court, 98, perior Cal.App.3d 198 243 Cal. in of a recreational ed as well the context (1988) (horse Rptr. racing; 536 action boating involving personal injury. accident brought by jockey injuries suffered in (5th Grueninger, v. 506 F.2d 716 Skidmore during a implied collision reasonable Cir.1975). The doctrine has been barred in complete of risk is a defense admiralty involving cases commercial colli- comparative negligence within California’s sions, United States v. Reliable Transfer system); Kynast, Hanson v. 38 Ohio Inc., 397, 1708, Co., 421 95 44 U.S. S.Ct. (1987) (lacrosse; App.3d 526 N.E.2d 327 L.Ed.2d 251 as well as a recent notwithstanding comparative negligence involving faulty repairs private to a case scheme, competition in athletic there is no yacht. Leasing Corp. Uhlig Edward & liability for actions which fall short of an Inc., (11th Cir.1986). Assoc., 785 F.2d 877 tort); Fell, intentional Turcotte v. 68 Nevertheless, government distin- N.Y.2d 510 N.Y.S.2d 502 N.E.2d guishes the above-discussed cases as well (1986) (horse racing; 964 consent to risks by pointing as numerous others out that duty inherent in the mitigates contest personal injuries those authorities involve jockey to refrain from carelessness or damage property or context of a merely negligent violations of the rules and race. In addition to the lone sailboat Dun- no cause of action therefore will be al- opinion, government has relied ion lowed, under even New York’s upon involving sporting cases activi- statute). participant ties held that a which have as- that, points assuming De Sole out even sport of a that are sumes risks obvious sports arguendo ap- law doctrines are and foreseeable. Novak v. See Lamar Ins. cert, plicable, the district court should still be Co., (La.App.), denied, 488 So.2d 739 (Sec- quotes He reversed. the Restatement (La.1986)(no liability imposed So.2d ond) (1969): of Torts 50 comment b injuries player sustained softball Taking part game manifests a will- where defendant did not act with a wanton others); ingness bodily reckless lack of concern for or submit to such contacts Bouschelle, 100 N.M. liberty permitted Kabella or restrictions of as are unappealed 2. The Dunion case has been cited once in the note that Dunion is an district court years thirty-six admiralty since it was written and then not decision. The authorities that support citing holding upon, involving of the court’s ultimate Dunion court relied cases colli- vessels, cases long must be divid- sions between commercial respective proportion Supreme ed in fault of the since been overruled Court in Co., Co., Inc., parties. Complaint Towing Paducah United States v. Reliable Transfer Inc., (6th Cir.1982). (1975). F.2d n. 22 We U.S. S.Ct. 44 L.Ed.2d 251 12(b)(6) usages. Participating stage, by least at the by its rules or the record. game does not manifest consent such a distinguished colleague, Judge Our H. Em- prohibited are rules to contacts which Widener, ory impatient waiting for a game if rules or usages or such record, dissented, fleshed out conclud- usages designed protect partic- facts, ing that the on more detailed exami- merely ipants and not to secure the bet- nation, could not remove the case from the game a test of skill. playing ter application of risk doc- Navy’s Because the own Race Committee trine. And even if some aspects of as- violat- Navy’s yacht to have has found the sumption yachting of the risk to a race do rule of during ed the race a well-known apply, there still remains for resolution argues that a application, universal Sole whether the clear ahead rule is waived or negligence per se is made strong case automatically otherwise abated because of part out on the of the violator. De Sole participation clarify in the race. Failure to to a con- cannot be said to have consented would, point however, pass lead us to rule, clearly prohibited by the tact over, combining novelty case essential apply in a race. does not cease to sailboat apparent widespread of doctrine and break- manifestly participant concerns past practice,5 with requirement in- protection and is not concerned with salutary approach adherence to the of not sports proficiency. creased deciding absolutely necessary more than points further out that the De Sole an individual case. sports cases cited the district court con- nature, sports “by cern own which [their] Amici assert long-stand- that there is a great peril partici- sports posing to its [are] ing racing tradition in sailboat that the Clark, Santiago v. pants.” F.Supp. party at collision bears the re- (N.D.W.Va.1978) (horse racing).3 sponsibility damages for the caused. As distinguishes racing De sailboat as a Sole by anyone there are no cases cited involv- sport generally not considered a contact dispute damages a over in a sailboat sport physical rather dam- but one which race, an inference arises that tradition exclusively age results from a almost note, appear however, does to exist. We safety rules.4 Both De Sole and breach the which IYRR rules under the race that, amici urge assumption even if the held, specifically provide was that: apply, risk doctrine is found to we must (1) practices to determine the arising remand and question (2) sport, expectations traditions of the infringement any an of the rules shall (3) participants, of the what the inherent governed by prescriptions, any, if be are, and, racing ultimately, risks of sailboat authority. of the national injury occurring of the whether risk Rule 76.1. agree. here assumed We was Sole. USYRU, authority, The national III. prescription no as to that rule. The made may contention be made that the failure of assumption We decline to hold that applies presented, provide to the facts USYRU dry argument sailing government sports 4. counters with land 3.De Sole’s contends analogous, example, always a collision is not cases in which a rules violation has not fully perfectly proper legitimate tackle in a liability. Ordway, equated been with civil case, game. football In such a what would Cal.Rptr. at 543. battery may otherwise be the tort of assault and any injury not recoverable be excused be- argument, the United States 5. At counsel for i.e., risk, voluntary assumption cause of that, posing antecedent situations a indicated any injury, waiver of claim on account of Academy’s practice problem, the Naval similar either because there was no tort or because it competing pay has been to forgiven stoutly was in advance. De Sole denies vessel. any prior abnegation such of claims for colli- 12(b)(6) injuries. stage we must sion At the accept his assertion. collision, inapplica- thereby assuming the case of a assigned to the violator makes be resource, legal drawing, possibility as a But the ble the the risk.8 that some Yet, by tradition. abdicat- hypothetical above-discussed sailor assume risk of liability, did ing the need to fix the USYRU justify court-adopted does not collision affirmatively place the risk on the con- not rule that all in all blanket sailors suffering injury. The did testant USYRU suing neg- circumstances be barred from general leave the law no more than ligence damages. for collision effect, by default admiralty in which thus granting preference The rule absolute national prescriptions of the becomes the universally vessel ahead is well estab- question remains to be authority.6 The manifestly lished observed and is de- by us.7 investigated and decided signed injury. normally to avoid It is not If, indeed, obliged are to decide flat by partici- waived and was not waived here applies to a out whether might pants race as be (and yachting high race on the seas injury resulting legitimate claim for from a adjoining Chesapeake Severn River and tackle a football match. The Naval navigable Bay examples are clear wa- Academy’s punishment master of ters), disposed would be to the CINNABAR and the Race Committee’s ordinarily hold that there is placing the blame on CINNABAR dis- applicable of risk doctrine to collisions be- qualifying it An illustrate difference. in a maritime tween contestants race injury following proper tackle of football presented. A nature here decision that generates no such sanctions. usually risk doctrine does law, admiralty The tenets of apply race collisions in expressly designed promote that, uniform open possibility in certain leaves ity, circumstances, permit assumption do not of risk in a court could find that a personal injury particular cases of whether com sailor had assumed the risk of Indeed, example, yacht mercial or recreational situations. collision. For club could require racing admiralty participants giving all in advance of law has been credited as sign they comparative negligence. the race to a statement birth to the idea of Woods, damages negligence Fault, would not sue Comparative for H. 1:10 § implies repeal party causing damage during 6.The dissent that the in 1969 of a to another race specifically providing pay- responsibility damage USYRU rule the for assumes financial for the damages Reply requires ment of the court to follow caused." repealer Brief of Amici Curiae at 7. The But, courts, merely reimpose repealed suit and not the means that the in addi- rule. associations, may provides explanation the tion to the handle dis- dissent itself sensible which, putes damages. repeal anything, emphasizes over If the USYRU wants to for the if prevent participants paying rightful litigation race from for colli- that courts are the locations of sions, only require participants agree it need yacht racing damages racing over unless union essence, damage recovery prior entering any to waive provide, private authorities for reso- clearly race. It has not done so. repealed appears lution. The to have been rule, adopted by an IYRR Where USYRU. fact, provisions appear USYRU would required payment the old IYRR rule of exclusively liability relate to contractual and "question the new rule leaves the of limiting play part to a claim in tort. See damages” governed by prescriptions, to “be footnote 11. any, authority.” if of the national IYRR 76.1. infra dissent, According authority, to the one national doctrine, assumption 8. We note that the (“RYA”), Royal Yachting Association now Torts, supra as stated Prosser and Keaton on adjudication prohibits the of claims for dam- at 486-87 is: Instead, ages by racing committees. the RYA they “subject jurisdiction quite narrowly states that are of defined and restricted two first, requirements: the Courts.” USYRU has not followed the or three elements or expressly abandoning plaintiff present RYA in the traditional must know that the risk is nature; encouraging private role of determinations of and he must further understand its second, liability. The absence of a USYRU rule on and choice to incur it must be free his voluntary. ordinary does not mean that the USYRUintend- and Since in the case Indeed, go uncompensated. against ed for there is no conclusive evidence amici, USYRU, issues, they normally plaintiff which include the believes on these for that "it is the tradition in sailboat fact to decide. finder] [the

1175 jurisdictions.” Cal.App.3d (2d Compara- five fault 228 at Supp.1990). 1987 & at 19 ed. preferred Cal.Rptr. 270. 266 at 740. The court then has negligence tive become quoted many “the vocal all six states some of detractors “As of but standard. viability assumption switched of the continued District of Columbia had and the risk”: negligence standard.” comparative to a Ulen, An Economic Case

Cooter & risk, “The doctrine how- 61 N.Y.U.L.Rev. Comparative Negligence, analyzed defined, ever is inis most (1986). 2-4 As of 1068 nn. aspects of its a defendant’s doctrine that either states has majority of these vast restricts and so cuts down the merged assumption of or entirely abolished compensation of accident victims. It is a negligence.9 Only risk with heritage of the extreme individualism of adopted com- remain that have three states early industrial revolution. But specifical- yet have parative quite questions policy or of aside H. substance, of risk.10 See ly retained concept assuming Woods, (Oklahoma, Rhode supra at 6:7 purely duplicative of other more risk is § Virginia). widely concepts, Island and West understood such as duty negli- scope contributory or express assumption of or Contractual gence_ Except express assump- comparative negligence survive risk, therefore, tion of the term and the But state courts jurisdictions. or fault concept It should be abolished. adds “reasonable” struggled with whether nothing except to the modern law confu- risk of the sort implied ” sion .... A can be maintained. urged the dissent (quoting Harper, Gray, Id. James & Law case, under appellate now recent California 21.8, (2d 1986) 259-60) ed. Torts Supreme consideration California of (footnotes omitted). Court, surveyed the See Harrold debate. Ranch, Cal.App.3d Moreover, Rolling J our belief that 841A, Cal.App.3d

Cal.App.3d position unopposed be followed Cal.Rptr. granted history review law. Maritime law Cal.Rptr. “always, country England, in this as in opinion superseded, 269 (1990). thing apart noted from the common law.” The Harrold court been a P.2d Lines, Inc., 398 Moragne have decided to Marine “eight other states ... States 1780, 375, 386, 1772, 26 following 90 S.Ct. primary assumption of risk U.S. retain (1970). admiralty And has comparative system.” L.Ed.2d 339 adoption of 269, by “humane and liberal Cal.Rptr. at at 740. been characterized Cal.App.3d 228 266 387, at 90 S.Ct. at 1781 proceedings.” Id. Among these is New York Turcotte (No. 432, 49, Gull, 21 909 The F.Cas. Fell, (quoting N.Y.2d 510 N.Y.S.2d 502 Sea 12, 578) (C.C.Md.1865)); Apex see Miles v. upon which the dissent N.E.2d 964 — U.S. —, 317, However, Corp., 111 S.Ct. the Harrold court Marine has relied. 327, 112 (1990). Admiralty explained, opposite “the view L.Ed.2d continued and assumption of risk in a situ persuasively by recognized a num- not expressed has been present one. We recall been ation similar to the leading commentators and has ber of Harlan F. Stone large majority compara- the words of Justice adopted by the Florida, Illinois, Louisiana, Maine, Kansas, Alaska, Colorado, Hawaii, Idaho, Ken- id. at Montana, Nevada, Ohio, 6:5. § 9. Mexico, Texas, tucky, Michigan, Hampshire, Pennsylvania, New New Jersey, Wyoming by abolished, Vermont, court decisions New abolished or have and Wisconsin merged assumption of risk before type merged, of risk as a or treated Woods, adopting See H. su- fault. adopting comparative See fault. of fault after Massachusetts, Connecticut, pra North at 6:2. § id. at 6:6. § Dakota, by Oregon, and Utah have done so and Mis- statute. See id. at 6:3. California § Nebraska, Mississippi, Georgia, South Dakota 10. the doctrine. See id. at 6:4. § souri modified jurisdictions which fol- remain and Tennessee Arkansas, Indiana, Iowa, Minnesota, Arizona, contributory negligence principles. H. low York, Washington treated as- New have Woods, supra at 6:8. sumption type as a of fault to be com- of risk negligence. pared assessing comparative Anelich, such a suit.” The Arizona v. of his decision support a defense in actions under risk was not 110, 122, 707, 711, U.S. 56 S.Ct. 80 L.Ed. arising from unseaworthiness: Act or Jones denied, 1075, reh’g 298 U.S. 56 S.Ct. recog- have appears American case “No (1936).11 80 L.Ed. 1409 by as a defense nized 11. Clarke, 4d. The Act limited Reid, Q.C. centage was not the owner to limit damages sailed tion's that the collision was caused navigation A.B. had a third damages” language Merchant which made the owner of the Satanita liable to collision to the Lord Dunraven for "all bound river Dunraven, yachts her during incurred between The case was one in Earl race. 66 L.J.P. ure ed. described ties when the British law fore, monarch of the sea. That law is to be found in land was G. Gilmore crucial to American (2d on the ty United States v. Reliable Act 1862 c. 63 s. 54 the owner of where without his actual fault or loss or navigation By leading The Satanita dealt international law as a dation on Halsbury's seeks to achieve: International formulating 1983), Yachts— (1975) (a owner, Clarke, ed. owners of the might 401-4, Clyde. is instructive to take a lesson from the law rules, the Merchant this view Racing involved in a collision in the course of a high a race at the Mudhook Dunraven, 1975). damage changed, following recoverable where the United their rules of the Yacht by Shipping of the House of Lords Clarke v. the sank after the of the and E.H. Pollard who party he & C. be the owner 95 S.Ct. seas, system broke the Liability 75 L.T. Gilbert and Sullivan as that of the Association and collided with her. collisions, Laws maritime law sought tonnage. According owner, preferable gives uniformity. Valkyrie, Black, the law of the sea has been Kingdom uniformity Valkyrie, In as its master. is an Satanita, racing yachts inferred national The Shipping ship Act, particular, accent to the yachts admiralty in Case of specifically England, para. which collided to a of objective The Law Satanita, damages" reason of the eighteenth rely depending Satanita, Transfer which restricted the caused to estimated at to look on maritime decision, 13 T.L.R. 58 owned changed). liability 1710-12, which for the decisive adopted had on the British authori- Satanita, by Act Amendment for rules language Despite Regatta of in the area of law. which collided which ^[1897] Collision) (4th caused ship’s agreed desirability with not sailed Co., Admiralty vessels, to 9521. IS. represented still cited in for its vali- Association privity any British role any ship— Meggeson to Sir concerning 44 L.Ed.2d the Earl of any legislation, applicable improper improper admitted It, See, 421 U.S. Associa- admiral- 10,0001. A.C. damage the “all master (1896). on the (Pleas- to be there- Eng- R.T. per- e.g., would De Sole has sued in tort for persuasive. House of Lords. Court, ly by burden to sumption unrestrictedly not even tion involved. for the contractual ensure that the amount collected damaged er or not the owner of the navigating. words, way tion rule as well as a contractually rules action. among insert [these ties have chosen for some reason or other to rules of Lord Herschell ing repetition ven, thus, ated third course in contract [The exists based on the observation “that the being the contract "navigation had A.C. at 60. id. at 65. Or he could the courses liable for all navigation common law creates spoke sue on a Lord Herschell Lord After Lord not be answerable in amount ship's registered tonnage. ship, navigable being sailing one rules there are rules which are a mere expressed virtue of the nautical sailboat race. It was was not by navigation applied reasoning to the same effect. He named first two of a breach of the only apply ^[1972] compliance these Herschell damaged by goods alluded common law.” Id. at 64. Lord Dunra- negligence theory, the contract in a race would not of the risk would not be v. entitled to all navigation, prove negligence. could sue on the contract "because exceeding ship which is rules Burns, Thus an owner of a open addition, gives ... waters could maintain an action ordinary navigation sailing bound_" Halsbury 1 for his prerequisite or merchandise continued, ahead was an damage provisions of the Lords in The Satanita is Lloyd’s Rep. is to be rules] ordinary navigation then went being amongst to Lord Dunraven. He could of course the correlative speculated to a contract action whereas opinion negligence arrangement Mayor’s with negligent rules or not.... a any whether is not a collision liability statutory proceed open in the House of exist, language damages." per of the deemed Lord Herschell also requirement Id. at 66. ‘Amongst either and further to outline a rule of the associa- they depend that the rationale to Lord Dunraven recovery ton 223 at common yacht negligence. ordinary naviga- they yacht City opinions and suit was to in the case of to sue because rule.” Id. any thereon —shall present because "[t]he assuming have become rules] (recognizing Satanita was an negligent of the IYRR liability they of London on wheth- had been had been these Id. at 65. could sue event, aggregate rules.... The ordinary In other in a tort a among would of the which mere- faulty yacht Lords law,” right race give par- sail- See cre- as- as

1177 (4th Cir.1989). by history nor state “Liberal construction in neither fa- Confronted compelling plaintiff reason Coakley, perceive vor of the is mandated.” majority, is, gener- assumption of F.2d to find that 706 at 457. involving al, admiralty cases defense to We have held before that the failure sailors, wish competitive racing. The specifically identify provision permit Naval at the Acade- especially midshipmen recovery Rogers, ting is not fatal. 883 public one in life is my, whose mission (plaintiff’s F.2d at complaint 325-26 errone defense, women men and of iron is shall be ously relied on 29 U.S.C. 1140 as the § allowing without sail- one we embrace claim; basis for the court found that 29 high in a race on the seas for engaged ors 1132(a)(1)(B) permit U.S.C. would recov developing and demonstrat- purpose 12(b)(6) dismissal). ery and reversed escape entirely skill to free ing their naval misconduct, plead “Reckless” as has been faulty seamanship.12 for punishment of all ed, See Pros gross negligence. constitutes Nevertheless, to reach the we do not need Torts, supra ser and Keaton on 211-14; foregoing issue at this moment for the Fjord, Churchill v. F/V 892 F.2d because, if reasons and further the defen- — denied, (9th Cir.1988), cert. U.S. —, negligence dant’s should turn out to (1990) (colli 110 S.Ct. L.Ed.2d 783 i.e., exceeding simple gross, mere or been skiffs). sion two Clark, negligence, see v. Gauvin 404 Mass. N.E.2d 94 complaint alleged De Sole’s that the sail- any apply. risk doctrine in event would not “recklessly” “danger- master acted words, ously”. conclusory Such somewhat appeal an from a dismissal under “On character, might appear at trial insuffi- 12(b)(6) accepted rule is ‘that a com Certainly cient themselves. the district failure to

plaint should not be dismissed for judge appeared to allow them no conse- appears beyond a claim unless it state amici curiae and De Sole quence plaintiff prove can no set of doubt that the appear did not to do But so either. here support facts in of his claim which would ” 12(b)(6) we confront a motion. There was Coakley & him to relief.’ entitle that, significant allegation Williams, as a conse- Shatterproof Inc. v. Glass collision, (4th Cir.1983) quence master Corp., 706 F.2d Gibson, in command of the had Conley CINNABAR been (quoting U.S. 45-46, 99, 101-02, being charge from the role of 2 L.Ed.2d 80 removed 78 S.Ct. Powers, Further, complaint accord Finlator v. (1957)); alleg- of the vessel. Cir.1990); Rogers (4th damage extensive es Sole’s vessel F.2d Co., Ins. enough gross negli- with 883 F.2d to be consistent Jefferson-Pilot article). Simply put, negligence, he in fact chose to aban- 1895 Harvard Law Review don, perpetrator well as a claim in contract advance at sea renders the liable. Hence, IYRR). whether the rules under the time, Indeed, long every midshipman spell quantum out the or not is encouraged memory the has been to commit to wholly to an action in tort. irrelevant Moreover, incidentally, giv- words the Twentieth Law of the no means immortal concluding inapplicability Navy en the of the British Merchant and its moral: such one Act of 1894 to a course of action as the fairway shipping, If the be crowded with asserted, there is no limit to which De Sole has win, Beating harbor to homeward the recovery suffered in race on that, suffer, It is meet lest through maritime waters a tort claim based on pass cautiously The steamers in. competitor. negligent act of a The doctrine risk, as, England assumption in of of the known hawsepipe, rises clear of the As the wave injuria, simply plays part in volenti non fit aft, wake, and is lost in the Washes ordinary occurring in admiral- sailboat unheeded, ye drop So shall astern all majesty ty, law is insofar as the of the British ye Such time as these laws forsake. That, England, assumption concerned. in of the (Ret.). poem Hopwood, Adm. R.A. R.N. apply to landbased torts at the time is risk could (volume appeared in Points 1920-1921 first by clear and Keeton on Torts § made Prosser Reef Points, 16). of the (the the Annual Handbook assumption risk "defense at 480 received Reef pub- Brigade Midshipmen, to be continues greatest impetus" mas- its from an 1837 British every year. analyzed case and had been lished ter and servant assumption did that of the risk does or does recklessness. Sole gence or even he, vigor per- that as the argue apply admiralty sporting some not to an with race.14 CIRO, contemplated racing the never reaching son We are loathe to countenance a race contes- anticipated that and never necessary such a decision if it is not to do disregard ever high seas would tant on hand, going so. the other if it is On established blatantly violate so well prove necessary, we should undertake recognized a maritime rule universally anything to do so on less than a substan- an overtaking that requiring one as the tially complete record. vessel in way to the the lead. give vessel U.S.C. and, so, Whether if under what cir assumption applies cumstances of the risk separate allega of a The inclusion admiralty again emphasize in that we “recklessly Cinnabar was tion that not, case, present posture do of the maneuvered is sufficient dangerously” necessary reach. We find that a remand is 12(b)(6) stage to raise a claim for at non, vel presence, to determine The mere failure to in gross negligence. gross negligence or recklessness.15 In ad “gross negligence” clude the words dition, on remand the court should investi a claim at the complaint does not bar such gate through 12(b)(6) whether risk of a collision stage when combined with the present ignoring universally in the record. facts established was contemplated ever and assumed Consequently, there well be facts Only in negative CIRO. the event of a take the proven which can be that will case question positive answer to the first and a posture assumption out of the risk second, question answer will the imposed by the even under the standard whether the doctrine of of the may, in a most district court. The ease applies navigable ato sailboat race on manner, departure mark a new substantial waters arise. Because there is to abe huge maritime athletic con- number of event, any remand in op it will afford an occurring tests a multitude of different portunity to places. prudent very flesh out the facts on which to It is to be slow decide, demurrer,13 decision, on what in effect is a base a if the issue of foreseen, 12(b)(6) day pating is the modern 13. Fed.R.Civ.P. contestants is ever or more equivalent especially of the old commonlaw demurrer. was foreseen in the instant case De Moore, Grotheer, Sole, bearing protection J. & in mind 2A J. Lucas G. Moore’s that of the 12.07(2.-5], (1989). participants Federal Practice at 12-63 was the thrust of the rules rather ¶ merely securing playing than of the better (Second) game as a test of skill. Restatement we, parties, 14. Neither nor the amici curiae Furthermore, persists Torts § 50. the unease case, any have been able to find other than “dangerousness”, though that "recklessness” and Dunion, injects the doctrine of pleaded, may presented have been in an inten- body law. That of law is risk into scanty (a) tionally fashion De Sole either by a need uniform rules. The marked law try required by to force a broad decision not whether, regarding of the several states and if so (the sailing facts of the case master in command extent, assumption of the to what apply risk is to of the CINNABAR had been set down Supreme As the is far from uniform. Academy part bringing Naval for his about recently stated: "The need for uniform Court $41,600.05) causing damages the accident (b) or of maritime conduct and is not rules occasioning possibly to refrain from dire navigation, limited to but extends least to consequences midshipman. ato naval traditionally other activities undertaken ves sels, commercial or noncommercial." Sisson v. Such reasons would also counter dissent’s — U.S. —, Ruby, 110 S.Ct. 111 L.Ed.2d argument protest failure of the commit- added). (emphasis Sailboat races penalize tee to the Cinnabar under the discre- weeks, days, waterways can occur over even tionary Infringement IYRR Rule “Gross vessels, by many non-participant used Misconduct," “strong Rules evidence” or risk, making assumption underly and the gross negligence present. cannot be As the dis- therefore, inappropriate. reasons implies sent in footnote we should hesitate concluding finding before that fact and deci- examination, adequate by yacht racing altogether 15. There has been no committees are sions prior grant preclusive any questions disputes, the district court’s of a FRCP related whether, 12(b)(6) hearing, especially motion without a of in a maritime matter in the federal yacht racing physical partici- in contact between courts. her, charge among and those of ad- bar admiralty generally must be following particulars: the both as- others in extends to remand The dressed. of the resolution unless of the case pects charge of a. In that those her were the unnecessary to reach renders first incompetent and inattentive to their second. duties; REMANDED. REVERSED AND proceed they In failed to with b. that regard and due for vessels in their care WIDENER, Judge, dissenting: Circuit vicinity; assumption of that majority holds The maneuvering recklessly c. In Cinnabar present- as apply to the “facts risk does and dangerously; risk of I should ed.” believe go off permitting In to d. Cinnabar recovery by racing one apply preclude to Ciro, course and into collision with ordinary negli- another when yacht from the of the U.S. Inland Rules of violation only ordinary claimed. Because gence is Road, 33 U.S.C. 2013. Rule the “facts as pleaded, was negligence added). The would con- assump- (emphasis majority say require us presented” complaint complaint into a vert De apply in this case. Sole’s tion of by isolating charging gross negligence the Therefore, dissent.1 respectfully I dangerously.” “recklessly and words remands, the part, majority The words, however, alone without These stand the determine court whether district support charge allegations to a factual negli- guilty gross Navy may of have been majority even the gross negligence, of and negligence gross of gence. But the issue recognizes that these “somewhat concluso- majority the the first time is raised for insufficient ry” “might appear words in his De Sole parties.2 and not Op. at 1177. The themselves.” negli- gross complaint pleaded could have Sole, De the amici further concedes Instead, sought to. he gence chose not but curiae, district court did not con- and by the negli- caused “recovery of gross negli- pleading to be sider the words (em- of the U.S. vessel” navigation gent gence.3 added). pleaded further phasis He of the was relieved therefore, master Cinnabar majority, has turned The Navy “for his master the U.S. duty as in the pleadings shown facts added). (emphasis navigation” negligent It relies gross negligence. attempt to find alleged that dam- complaint De Sole’s master facts that: on the age was from that removed had been Cinnabar $41,600.05 in role; alleged was that there through negli-

solely brought about Ciro; the rule damage to and that property vessel of the United States Cinna- gence deciding crew’s long Lulworth Louisa’s interesting histo- after and 1.Yacht has cutting away rigging of was litigation "use of axes in ry. My hope invitation to is that the unjustifiable.” at damage sport. Rousmaniere 56. will not this decision 5,000 ago. years J. appeared Yachts some Navy Rousmaniere, negligence. re- alleged The Pastime: A New His- 2. De Sole Golden negligence, (hereinafter charge and the dis- sponded Yachting, pg. cit- tory 10. involving Rousmaniere). the case as case King trict court treated II of In 1661 Charles ed as gross negligence not men- negligence; was over England recorded race won the first think, trying place, I brother, We are out tioned. at Rousmaniere 17. his James. complaint. negligence gross into the club, read Water Club of Ireland’s first demonstrate, believe, addition, I will I Cork, in 1730. Rous- was formed Harbour of been gross probably has absence Unfortunately, yacht racing maniere at 47. parties definitively the acts decided without an occasional breakdown not been finding Committee. Race and the fact During King’s Cup civility. yachts Royal Lulworth Yacht Club “Certainly the dis- Exactly, opinion states: intentionally finish collided near the Louisa no conse- judge appeared to allow them trict at it with an crews "went assortment line. The did not Sole quence the amici curiae weapons.” race 56. The Rousmaniere Op. at 1177. appear either.” eventually cup to do so awarded committee degree higher Racing Rule violated, International [the defendant] gross negligence.” 37.24, known that vio- (IYRR) was so well negligence. How- gross of it be lation argument majority is The final suspecting ever, reasons of those each Navy allegedly rule which the that the negligence fail. gross is so well known that violation violated pleaded, and we First, himself De Sole gross negligence. it must be As noted doubt, sailing that the to have no basis Baxter, by court in Ferrell v. 484 P.2d the being from relieved master was 250, (Alaska 1971), violation of a 261-263 It negligent navigation.” his master “for jur- differently law6 is treated from traffic straining go beyond the much requires jurisdiction, isdiction with why the of De Sole as to statement clear holding negligence per that a violation is Certainly, there was relieved. midshipman se, minority holding the but a substantial penalties severe other more negligence. merely is evidence of violation young imposed had the Navy could have However, jurisdiction I know of no that gross negligence or guilty of master been law, with- equates the violation of a traffic not tort. But we should an intentional more, gross negligence. Just out be- debate, since even engage have to such not make cause the rule is well known does Sole, plaintiff, De attributed the sanc- gross negligence. a violation of the rule “negligent navigation.” only tion posted The mere fact that a car exceeds the upon by majority limit, speed example, The next fact relied does not without $41,600.05in gross negli- suffered dama guilty is that the Ciro more make the driver the de ges.5 though But a connection between known. gence even rule is well degree gree damages and the of fault of held, in importantly, More we have Mil- supported by logic neither parties Div., 406 F.2d Semet-Solvay ler v. damages That severe can precedent. nor cert, Cir.1969), denied, (4th 395 U.S. by negligence and nom simple caused be (1969), 23 L.Ed.2d 239 89 S.Ct. damages by gross negligence or even inal that the violation of an almost identical apparent, is at once an intentional tort the nautical road involved here majority opinion to cor attempt “spells negligence.”7 Navy If the violated the amount of with relate rule, However, negligent. it was degree negligence previously been violation, itself, cannot be considered to rejected by this court. Collins v. Ris gross negligence. be (4th Cir.1959), ner, 269 F.2d 658-659 denied, subject, my I think view Finally, on this cert. 361 U.S. S.Ct. collision, only not admitted an automobile was L.Ed.2d proba- parties pleadings, in their such was rejected plaintiff’s contention that obligatory penal- damage resulting bly made as shown the “extent of the ty Protest Committee leveled might, part, be evidence that the collision” The Protest ordinary negligence against of ... the Cinnabar. Com- “to raise the yacht- requires rewards of clear astern what was meant was that the IYRR 37.2 "[a] 4. (em- Morgan's keep ing always outpace clear ahead." the cost and that shall clear of boast, original). virtually phasis identical to was not a rather a reflection of It is advice spiritual humility. Rousmaniere, p. 98. I have the Rule 13 of the Road as found in 33 U.S.C. make, overtaking any Morgan’s "any advice vessel no comment to either on § 2013 way being justification, point keep but out out of the of the vessel or Rousmaniere’s shall yachting’s regard for that the discussion reflects overtaken.” money. $41,600.05 persuaded 5. I am not worth signifi- racing yacht to a is of unusual Although laws and maritime rules of traffic extremely notoriously expen- Yachts are obviously subjects, cance. the road are two distinct Morgan’s response J.P. when enough compare. sive as shown two are similar Henry Clay Pierce asked millionaire oil man Morgan’s Rule yacht. 7. The rule violated was Western River what it cost to run a advice costs, essentially you you different from the rule involved have to ask how much it was "If suggests that here. can’t afford it." Rousmaniere is, asserts, amici there as and the disqualified the Cinnabar from mittee8 infers, long-standing “a tradition in sail provided for race, penalty which is racing party that at fault in a boat “PENALTIES IYRR 74.4 under responsibility collision bears for section. Under AND EXONERATION” damages Op. at 1173. caused.” Under INFRINGEMENT OF IYRR “GROSS accident, in effect the time of the rules at MISCONDUCT,” pro- the rules OR RULES rules, and the current version of the IYRR protest a committee “finds that when vide question damages 76.1 states aris “[t]he gross infringement has been that there an infringement any of the good man- gross breach of the rules or rules shall be governed by prescrip sportsmanship, exclude a ners or tions, if any, authority” of the national yacht appropriate, competitor, and a when (emphasis original). At the time of the participation a ser- either from further the rules of the United Yacht States series, ies, or take other or from the whole (USYRU) Racing provision Union made no Pro- action.” The fact that the disciplinary However, damages.9 whatsoever for this Cinna- penalize the did not test Committee always has not been the case.10 IYRR Academy the Naval bar or her master or 72(4)11, 1968, provided as late as that “[t]he that strong is evidence under IYRR 75 yacht infringes owner of a which rule gross negligence involved there was pay damages thereby.” shall all caused assume, here, indeed, if we as we The rule was deleted the USYRU in should, its the Protest Committee did that Feller, Pro See J.H. 1969.12 in- duty, gross was Appeals, tests & pg. repeal 48.13 The necessary conclusion. should be a volved very impose of the rule we are asked to undertaking course, ordered is is, significant. on remand as judicially One pur- record. And one have intended to make a supplement USYRU must change repealed when it the rule.14 If we is to discover whether pose apparently 1.4, admiralty jurisdiction which a federal court's is 8. Under IYRR 1.3 and the Race Committee may perform of a Commit- invoked. the function Protest tee, obviously happened as here. inexplicable and the 10. It is that the existence repeal required yachts rule which later of the authority According supplemental sub- 9. which were found to have violated rules DeSole, mitted at the USYRU’s 1991 annual damages, brought pay for was not following pre- meeting, adopted the Union parties attention of the court or liability scription: prescribes "USYRU amici. damages shall be determined in accord- such solely apportioned ance with rules adopted by the North 11. I refer to the rule as general comparative principles fed- fault under Racing Union which is the ear- American Yacht law.” The new rule has no effect eral maritime name of the USYRU. lier present litigation as it was enacted subse- on the addition, quent question. to the race in In it is anything published 12. I am unable to find effect the rule will have in the unclear what explains decision to delete the USYRU’s If, prescription, new the race future. under the note, however, yacht racing the rule. I committee is to assess then USYRU in character from the tradi- rules are different advocated; what I have will have achieved racing rules are tional rules of the road. Yacht If, into races. courts will not intrude however, designed for maximum maneuverabili- to allow merely prescription a state- the new yacht. ty proximity A com- to another in close courts, applied by is to be ment of the law which yacht racing parison rules and the normal changed nothing. USYRU has then the navigation me with the firm rules of leaves "damages in ac- statement shall be determined inherent risk of conclusion that there is more consequence with the rules” is of no cordance racing rules. involved with the collision question since the rules do not deal with damages. The further statement goes that ”[t]he treatise on to state 13. Feller's solely by "apportioned shall be companies press tendency some insurance principles general comparative under fed- ad- into the role of claims a race committee law,” enigmatic except for the firmly eral maritime juster resisted.” Feller should be fault, merely reference to states any pre- court the to disclose to the what would be true in the absence 14. Amici's failure effect, seriously general repealed undermines scription; the law in federal mar- USYRU’s addition, argument law, yacht racing credibility. amici’s govern will case in their itime reaching courts. from a race infringes any ages rule to yacht which require a simply repeal re- and later then we the existence Given pay for rule, amounting ato repealed rule, to further imposing the I see no need for a remand law, that, the re- a matter of sport decision in that the traditions of the consider The existence of no effect.15 pealer traditions regard. Far from the Corinthian explains early 1969 also up until the rule by the amici or upon the inference relied 16 involving yacht relatively few cases the the upon by majority, therefrom relied by the during races. As noted collisions inspection of the litigation, an absence Young, 1966 S.L.T. v. Salvesen court reveals, has been due to a authorities cited (1965), Royal Yachting Asso- (Sh.Ct.) inquiry is rule. I think further repealed So which, rules, the old (RYA) like ciation’s appropriate nor desirable. neither required yacht which rules American need to re- The further sees a damages17, pay for the rules to violated if De in order to determine Sole mand uncomplicat- “expeditious and provided an of a contemplated and assumed “the risk likened to could “be procedure ed” which universally through ignoring a es- collision contract, which in a an arbitration clause Op. Again, I rule.” at 1178. tablished excluding juris- has the effect of also Assuming assumption ap- therefore, disagree. rule, The the court.” diction of Sole, participants in oth- plies, then De like involving cases dam- in few has resulted "highly significant" by keeping argues disrupted Amici that it is sport will be racing’s] long history sport yachtracing par- [yacht this disputes that "in between courts out of reported position produced decision involv- has not one ticipants The advocated is incredible. majority opens ing boats." The follow- adopted by a collision between two by amici and alleged every were overlooked. litigation time a rule is cases doors for This, yacht in a race. to to have been violated me, Walker, (D.Conn. F.Supp. Kayfetz v. dangerous precedent for the future seems 1975), between the which involved a collision racing. during yachts Pegasus and Wildcat a race con- party by Club of New believes that the ducted the Larchmont Yacht If the amici pay damages a rule should for race who violates York. Then, (Sh.Ct.) repealed Young, its rule. then it should reinstate 1966 S.L.T. Salvesen sport paid (1965), yachts damages and the could would be involved a collision of the which govern during organized without the interfer- continue to itself Namhara and Tinto a race Long Sailing ence of the courts. Club. the Loch language ambiguous Burns, Lloyds Rep Because of the Meggeson prescription the USYRU at its new enacted yachts a collision of the Saman- which involved meeting, what effect it it is unclear during organized by 1991 annual a race tha and Suzalah intended If the USYRU will have. See note 9. Royal Southern Yacht Club. damages pay party a rule Dunraven, to that violates make A.C. which Clark v. Earl of Instead, expressly it said so. it should have yachts Satanita and involved a collision appears prescription which to have no enacted a effect, organized by Valkyrie during Mu- a race enigmatic except reference to for the dhook Yacht Club. fault, than to restate the law. RYA rules and the USYRU rules at 17. Both the If we are to allow not do. 15.This we should required the time of Salvesen govern be- sport continue to conduct this to damages. pay for violated the rules participants, we must not be tween its own “prescribe RYA rules that: 1. No claim current tempted to reinstate a rule to look to custom arising infringement from an purposefully expressly taken out and which was or the instructions of these rules appro- believes it If the USYRU the USYRU. adjudicated upon by any race commit- be shall priate rule on to reinstate the earlier authority, subject appeal tee or but shall be help turn to the courts for do so and not jurisdiction of the Courts.” IYRR 76.1 for provide itself. it should 1989-1992, adopted Just as the RYA. interesting prescription 3 under Rule is RYA that, according supplemental author- I note pro- finding of fact and decision of DeSoIe, 76.1: "The ity at the USYRU’s 1991 submitted only to the shall be relevant test committees adopted meeting, the Union the follow- annual purposes Rules and shall of IYRU Yacht prescribes ing prescription: that liabili- "USYRU any proceedings for dam- not be referred to ty be determined in shall for such parties ages the written consent of all apportioned without with the rules and sole- accordance Royal protest.” Association general So the principles ly by comparative under opposite than the ambiguity conclusion of this has come federal maritime law." The majority seeks here. language effect uncertain. See note 9. makes its sports, apply assumed the risks that were “ob courts to the doctrine in sports er cases. vious and foreseeable.” Novak v. Lamar “Fear of stemming civil negli Co., (La.App.1986) Ins. gent 488 So.2d occurring acts in an athletic event (La.1986).18 cert. denied 491 So.2d 23 Cer could curtail proper fervor with which foreseeable that tainly, it is obvious and game played should be discourage racing rules will be violated. USYRU participation.” Ross, individual 637 S.W.2d developed organized procedure in an 14. The applied doctrine has been rules, appeals cluding protests to han many types different of athletic events and when there is a claim the dle situations sporting situations. See Novak v. Lamar Co., racing rules are violated. Neither can it be Ins. 488 So.2d 739 (La.App.1986), cert. it is not denied, said that obvious foreseeable (La.1986) (softball); 491 So.2d 23 will, Green, yachts a race from time to Kuehner v. (Fla.1983) 436 So.2d 78 time, rules, very collide. The existence of (karate); Nesbitt v. Bethesda Country for Club, past present, regarding payment Inc., 226, Md.App. 20 314 A.2d 738 proof participants is certain that Bouschelle, (1974) (golf); Kabella v. 100 sport in the are aware of such risks. 461, (foot N.M. (App.1983) 672 P.2d 290 dang very without real is not Inc., ball); Uniroyal, Heldman v. 53 Ohio Injury Sutterfield, Personal 21, App.2d (1977) (tennis); 371 N.E.2d 557 ers.19 Yachts, Racing and Death Aboard Journal Dist., Township High Oswald v. School 84 Commerce, of Maritime Law and 12 Yol. 723, Ill.App.3d 456, 40 Ill.Dec. 406 N.E.2d 2,No. Jan. 1981. De Sole is bound to have (1980) (basketball); Kynast, Hanson v. 157 danger understood of collision as well 58, App.3d (1987) 38 Ohio 526 N.E.2d 327 as such other risks when he entered the York, (lacrosse); City Maddox v. New by participat race. Even if it is true that 270, (1985) 66 N.Y.2d 496 N.Y.S.2d 726 ing sport, expect one does not a fellow (baseball); Clark, v. Gauvin 404 Mass. participant intentionally safety violate a 450, (1989) 537 Ford v. (hockey); N.E.2d 94 grossly negligent, rule or to be such an Gouin, 1175, Cal.App.3d 227 Cal.Rptr. 266 gross negligence intentional violation or is granted, 870 review Cal.Rptr. 269 part not a case. this This case deals 720, (1990) (waterskiing); Ra 791 P.2d 290 with, complaint, in the words of the “the City mos v. Countryside, Ill.App.3d 137 negligent navigation of the U.S. vessel.” 1028, 607, (1985) 92 Ill.Dec. 485 N.E.2d 418 simply There is no need to remand. (bombardment, played softball). with a brings primary question This me very appropriate The doctrine is appeal: assumption ap- on Whether of risk See Gehl competitive racing. context of plies preclude recovery in this I case?20 ing v. George’s St. Univ. School Medi believe it does and would affirm the district cine, Ltd., 761, F.Supp. 705 766-767 court. (E.D.N.Y.1989) affirmed 891 F.2d 277 (2d Cir.1989) (table) (foot Knowles Assumption racing); long applied of risk has been Co., v. Roberts-At-The-Beach involving competitive sports. in cases 115 Cal. Clouser, 196, Ross v. App.2d (1953) court (hobby 637 S.W.2d 11 251 P.2d 389 State, (Mo.1982), Clark v. racing); summarized one motivation for horse 195 Misc. Supreme yachts. 18. The Louisiana Court has since held Rousmaniere at 14-15. Nor it be legislature adopted compa- dangerous King that because the had as as Charles II’s habit of nam- fault, "courts, lawyers, litigants yachts paramours. rative his for his be fair to To Charles, longer utilizing King wife, yachts would best be served he also named two for his risk_” However, term Catherine. Rousmaniere at 16-17. court went on to state that its decision did not majority opinion, expressly 20.The while mean "that the result reached in ... common reaching the issue .of whether 'implied primary’ assumption law's of risk cases 1176, apply, op. risk should in admitted dic- Inns, Inc., Murray was incorrect." v. Ramada 1123, tum indicates that "the would be dis- (La.1988). So.2d 521 1134 posed ordinarily to hold that there is no as- today probably dangerous sumption applicable not as of risk doctrine to colli- sport engaged by yachtsmen of the late sions between contestants in a maritime race of 1600’s, engaged presented.” Op. who in mock battles with their the nature here at 1174. 1184 by the fact that much dissuaded (Ct.C1.1949) I am not af 139

581, 89 N.Y.S.2d comparative neg admiralty law is based 28 93 N.Y.S.2d A.D. 276 firmed negligence jur Clark, Many comparative Santiago v. ligence. (bobsled racing); apply assump (horse (N.D.W.Va.1978) continued isdictions F.Supp. 1077 444 Florida, Doolin, for exam v. Ill.App.3d principles. 91 tion of racing); Provence system in comparative fault adopted 414 795 ple, N.E.2d Ill.Dec. 46 Howard, (Fla. Jones, (1980) (auto racing); Mayer v. v. 280 So.2d Hoffman Green, in Kuehner v. (1985) (motorcycle 1973). 436 So.2d N.W.2d 93 Yet Neb. Kaiser, F.Supp. (Fla.1983), racing); Dunion applied racing)21; Pres (motorboat oc (E.D.Pa.1954) recovery injuries which prevent U, 161974,1990 Ohio Peter WL in karate. Sim sler v. participating curred while (yacht (Ohio Ct.App.1990) App. Supreme LEXIS 4617 of Rhode Island ilarly, Court racing). adoption concluded validity negligence “neither diminishes general “the noted Although we have a defense to assumption of risk as the risk assumption of inapplicability of the it a mere actions makes nor McCoy law”, see in maritime doctrine liability.” assessing mitigating factor (4th States, 689 F.2d United Club, Inc., Hockey Kennedy v. Providence is Cir.1982), opinion that this a I am of (1977). 70, 329, 332 Mas R.I. 376 A.2d and that “general inapplicability”22 case of sachusetts, likewise a of apply in the context the doctrine should risk applied assumption of jurisdiction, re- yacht in most yacht race.23 A a recovery injury an prevent to for principles competitive any other race. spects, is like hockey game. in The court a that occurred assumption of of that the doctrine Given noted compet- in the especially appropriate risk is explain the limitation jurisdictions context, it should I believe that sports itive [s]ome sports competitions to on apply here.24 racing Had by violating the rules. upon caused while was relied case 21. This contractually present parties lawsuit rejected by majority. district court but is Sole, agreed pay like the to then Dunraven, sued for of could have Earl a McCoy a of the claim of seaman was case assumption of risk of contract and for breach ship. slip injured accidents on board and fall place have no in the lawsuit. would claims, to suggest, have no relation a These I Halsbury’s "the case of that Lord statements yacht race. collision ves- yachts that of merchant is different from sels,” under which mer- and "the conditions great weight majority gives to fact 23. The different,” ships yachts are sail and sail chant assumption risk was not alluded to in of (1897) good that he at evidence A.C. Dunraven, (1897) Op. A.C. 59. v. Earl Clarke of general law a maritime believed that rule of place Assumption of risk had no at n. 11. yacht appropriate of a in the context not be it was an action for in that lawsuit because race. Clarke, party who vio- of contract. breach bound, rules, contractually was lated the assumption majority's of 24.The statement Association, Yacht Club to rules of the inappropriate sailboat races can risk is because damages” the violation.” "pay all caused waterways by many nonpar- other occur in used (1897) Assumption would of risk A.C. at 59-60. vessels, 14, implies op. ticipant n. brought on the contract. Clarke not bar a suit present invoking assumption risk in the case of Shipping argued Act Amend- that the Merchant by non-participants dam- would bar future suits liability was not over- ment Act’s limitation implication aged participants. indicates This "pay obligation to all the contractual ridden damages” misunderstanding my position. would I a required he be and therefore apply assumption to of risk should hold that damages. only statutory pay amount of racing yacht recovery by an- preclude one appropriately held that Clarke court was The ordinary negli- yacht when race pay damages. contractually bound to all certainly would gence The situation is claimed. injured party yacht was not incorrectly be different when the majority asserts that The Thayer, participant Clark v. in the race. Cf. racing owner then in effect allowed “an (collision be- unrestrictedly negligence." N.Y.S. yacht A.D. for sue [to] non-partici- 1176-77, added). Rather, participant in race (emphasis tween Op. at n. 11 pant participant crossed the finish unrestrictedly after the had breach could sue an owner line). party pay he contract if a failed assumption of reckless conduct in terms of the applies. cases I see no reason assumption of the risk ... depart doctrine from that rule merely because (citations deleted). Legislature has place this race took Chesapeake Bay the defense of abolished instead of at the Charlotte Speedway Motor Massachusetts, the risk in however. or Churchill Downs. (1986 ed.) G.L. c. Because the I also must note that majority abolished, doctrine has been “the focus written over pages ten of admitted dicta on analysis [sports has shift- cases] the issue of assumption of risk.26 It is of entirely duty....” ed to the defendant’s interest that while majority is “loathe Gauvin, Although 537 N.E.2d at 97 n. 5. reaching countenance ... a decision” on calling Massachusetts refrained from its whether assumption of applies risk, doctrine the result and racing it nevertheless length discusses at analysis most of the is the same. New very issue that it holds should not be York, involving jockey in a case injured decided this court at this time. rule, jockey when a fellow violated a Finally, I believe there has hardly ever applied analysis. much the same Turcotte been a race of involving kind either Fell, N.Y.2d 510 N.Y.S.2d vessels or vehicles which one of them (1986). N.E.2d 964 The court stated: has not injury suffered due to the claimed [traditionally, participant’s conduct action of another in such a context that it is conveniently analyzed was terms arguable operator of one or the the defensive doctrine of other of the vessels or vehicles was negli- risk. compa- With the enactment of the gent. opinion in this statute, however, rative as- permitting prosecution case of a claim sumption longer of risk is no an absolute ordinary for negligence only is not contrary (citation deleted). Thus, defense ... principle to the application of universal necessary, quite has become proper, participant one in a race cannot recover measuring when duty defendant’s to a from participant another negli- mere plaintiff to consider the risks assumed gence, it does a sport by disservice to the plaintiff. permitting the intervention of the courts of Turcotte, 502 N.E.2d at 967. The court admiralty every stay or other bit of jockey’s treated the participation as a com- rigging during broken a race which can be plete recovery, bar to reasoning that his participant, blamed on another and it is an coparticipants owed him duty to refrain every invitation to racer this circuit to negligence. Turcotte, at 968.25 The avail himself of the courts of the United mere admiralty applies fact that law com- damages occurring during States for a race parative principles, assump- and not only par- due to the of another risk, tion of in the injuries context of to a ticipant. mentioned, seaman in a seaman’s case as prevent assump- the doctrine of Being opinion the doctrine of applying tion of risk from in the context of apply of risk should in this case, race. I would affirm judgment district court. majority’s application of Jones Act present cases to the action is of little or no Accordingly, respectfully I dissent. litigation value. This involves a not a statutory cause of action on behalf of an

injured employee. shown, IAs kind,

general rule in is that County 25. But see applies Rutter v. Northeastern Beaver of the risk Dist., (Pa. not, School 496 Pa. 437 A.2d 1198 again emphasize present that we do 1981), especially 437 A.2d at n. 6. case, reach.”) posture of the dicta, see, germane e.g., op. The discussion of the issue 26. For at 1172-77. For ad- dicta, see, e.g., op. holding mission of court's actual can be found on the last at 1178-79. and, so, ("Whether pages opinion. op. if under what circumstances six at 1178-79.

Case Details

Case Name: Domenico De Sole v. United States of America, Chesapeake Bay Yacht Racing Association, United States Yacht Racing Union, Incorporated, Amici Curiae

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Nov 21, 1991

Citation: 947 F.2d 1169

Docket Number: 89-2471

Court Abbreviation: 4th Cir.