All Piss and Wind (7 page)

Ian was quite unfazed by these complications. ‘Don't worry too much about the money side of things, boys.' Gravy pulled out a little black book of contacts that is provided to all PriceWaterhouse directors and began scribbling down phone numbers. Next morning he was seen heading downtown towards his company's Honolulu office in a suit and tie. Money problem solved.

The second fairy godfather had materialised at the dock as
Police Car
limped alongside. Ed Dubois, the brilliant young English naval architect who'd designed the yacht, happened to be in Hawaii and wondered whether we might appreciate a little assistance. Would we
what
? Mr Dubois didn't have a magic wand – just a lot of engineering knowledge and unique understanding of how the yacht and rig were put together. He agreed to meet us at the boat the next morning when the mast was out. With a borrowed tape-measure and dog-eared notepad swiped from a nearby hotel, Ed then set
about making rough scale drawings of his proposed method of repair. The chart table on
Police Car
became his temporary design office. To accompany the drawings he wrote out a concise, step-by-step set of instructions for the now-enthusiastic crew who were about to undertake the job.

Back on the dock he traced out the necessary cuts and drill-hole positions on the mast in blue marking pen. Finally, Ed sat down in the cockpit with Sir James and patiently talked him through the entire operation. Satisfied everyone now understood the modus operandi he surrendered his instructions and rough scale drawings and wished us all luck. Total cost of professional services: one can of lemonade. Dubois is now fabulously successful, designing 140-foot super-maxis for the world's squillionaires. But 25 years after our Hawaiian adventures he's still ‘one of the boys' and sent me a wonderfully warm and funny message for the 20-year
Police Car
crew reunion.

Back in Sydney the Zapspar factory was able to source the exact sections of mast aluminum we needed, and in the right lengths. The bad news was that a certain flag-carrying Australian national airline whose name begins with ‘Q' refused to airfreight us anything over 20 feet on their scheduled passenger flights. Pan Am's boss in Sydney, John McGee, came to the rescue by offering free space in the very next blue and white jumbo off the rank at Mascot. McGee was something of an eccentric who relaxed by playing drums with the Hilton Hotel jazz band. (We were later told that our precious new mast sections had flown up to Hawaii lying in an aisle at the back of economy class.)

In Hawaii it was now time for a considered division of labour. Major repair work on any substantial yacht presents logistical challenges. Crewmembers were matched up to the specific tasks that best suited them. My experience as a television producer saw me appointed unofficial project manager, coordinating the various jobs while dashing about in a hire car to track down the hundreds of
specialised bits and pieces we needed. The collapsing mast had also mangled the mainsail at the luff, tearing through the boltrope in two places. Hardy and I took the damaged sail to the Hood loft in Honolulu and laid it out on their floor.

‘Yeah, we can fix that for you guys, no problems,' said the loft manager, who rather disconcertingly sported an immense flowing beard but only one arm.

‘Well, that's terrific,' quoth Jim, ‘and while you're at it, I wonder if you might also have time to just take a little bit out of the draft here near the foot? I've always thought it was a bit full there.'

There was no point wasting an opportunity for a quick re-cut, especially when the insurance company back in Sydney was paying.

There seemed no end to the tasks. Next morning Sir James and I fronted the US Customs depot at the ‘incoming freight' hangar of Honolulu International Airport. We could see our mast sections on the floor, but soon learned they couldn't be released to us until a long list of associated paperwork had been completed. While a duo of bored officials launched into their
Concerto for Two Fingers & Typewriter
, Jim sidled alongside to try some vintage Hardy smooth-talk. You just can't beat James Gilbert when it comes to a spot of blarney. Before long the forms in triplicate mysteriously disappeared, a forklift was provided to swing the two sections onto the truck we'd hired for the occasion, and away we went, clattering down the freeway to the rigger's shop.

Yacht Rigging & Swaging Inc. was destined to be our home away from home for the next three days. Nestled in a seedy section of downtown Honolulu, its façade was made of faded old weatherboard panels in classic Wild West style. Inside, and sprawling into the backyard, was a remarkably well-equipped light engineering works. Beautifully maintained lathes, presses, guillotines and drills, plus chests crammed with every socket, spanner and metal-working tool imaginable. The Americans are great mechanics. But the most vital piece of equipment (and the one which saw the most use) was
a large, well-stocked fridge. Tim Rhea, sailor, bon vivant and proprietor of Yacht Rigging & Swaging Inc., was also racing in the Clipper Cup. He said we were free to come and go as we pleased, make phone calls, use any of the equipment and drink his beer on the normal ‘money on the fridge' honour system. He would just observe, advise and maybe do some of the trickier stuff if it proved to be beyond our expertise.

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.'

A
S 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':

(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 equipment, 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:

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:

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-
paying
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.)

So, what is the likely effect of all this on yacht racing? Perhaps the most important aspect to remember is that no aspect of this maze of legal principles is new: we've just become more aware of them. The obligations to take reasonable care, foresee risk and prevent injury or loss have been with us long before the current passion for damages litigation. At the same time, the unpredictable nature of ocean racing will always make it impossible for the owner/skipper to absolutely ensure safety (or for every crewmember to be fully aware of – and accept – any or all the risks associated with going to sea). What might, at one point in a race, have seemed a sound tactical decision could, just 10 minutes later, appear more like reckless disregard for safety.