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MANNING v. GORDON

May 13, 1994

PAUL AND LESLIE MANNING, Plaintiffs,
v.
MARTIN GORDON, JACK AIR, MAC CRANFORD, AND THE S/V NEVER AGAIN II, YACHT #75 its apparel, sails and appurtenances, Defendants.



The opinion of the court was delivered by: WILLIAM H. ORRICK

 In this action involving a collision between two yachts in the course of a sailboat race, the Court is met with the threshold question as to whether the doctrine of assumption of risk may be applied to a case arising under the General Maritime Law of the United States. The question, one of first impression in this district and circuit, comes before the Court on plaintiffs' Rule 12(e) Fed. R. Civ. P. *fn1" motion to strike the defendants' eighth, ninth and tenth affirmative defenses of assumption of risk. For the reasons stated hereinafter and in the course of oral argument, the motion is GRANTED.

 I.

 On April 17, 1993, the sailboat Xarifa, skippered and owned by the plaintiff, Paul Manning, took part in a race in the San Francisco Bay waters. The race was sponsored by the Yacht Racing Association of San Francisco Bay ("YRA") and the U.S. Sailing Association ("U.S. Sailing"). During the race, the Xarifa collided with another sailboat, the Never Again II, owned and skippered by defendant Martin Gordon. *fn2" The collision occurred as the two boats were rounding one of the course marks. The Xarifa protested the collision, and a protest committee of the Corinthian Yacht Club, convened after the race, disqualified the Never Again II from the race for violation of the International Yacht Racing Rules ("IYRR"). Damage to the boat, including lost wages of the owner in dealing with the repair process, totalled approximately $ 25,000. *fn3"

 II.

 A.

 Preliminarily it should be noted, as the Fourth Circuit has held, that "the tenets of admiralty law, which are expressly designed to promote uniformity, do not permit assumption of risk in cases of personal injury whether in commercial or recreational situations. Indeed, admiralty law has been credited as giving birth to the idea of comparative negligence." De Sole v. United States, 947 F.2d 1169, 1174-75 (4th Cir. 1991) (emphasis added). And so it is a matter of common knowledge that there is no assumption of risk defense in the context of a Jones Act seaman's injury, Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 83 L. Ed. 265, 59 S. Ct. 262 (1939) or in the context of a recreational boating accident involving personal injury. Skidmore v. Grueninger, 506 F.2d 716 (5th Cir. 1975). Furthermore, in United States v. Reliable Transfer, 421 U.S. 397, 411, 44 L. Ed. 2d 251, 95 S. Ct. 1708 (1975), the Supreme Court barred the doctrine in admiralty cases involving commercial collisions, stating:

 
We hold that when two or more parties have contributed by their fault to cause property damage in a maritime collision or stranding, liability for such damages is to be allocated among the parties proportionately to the comparative degree of their fault, and that liability for such damages is to be allocated equally only when the parties are equally at fault or when it is not possible to fairly measure the comparative degree of their fault.

 421 U.S. at 411.

 The question here is whether sailboat racing is an exception to the generally applicable rule barring assumption of risk as a defense in admiralty actions. *fn4"

 The applicable case law is sparse. There are only three reported cases, two from the federal district courts and one from the court of appeals, that deal with the application of assumption of risk to boat racing collisions.

 The earliest reported case discussing this issue is Dunion v. Kaiser, 124 F. Supp. 41 (E.D. Pa. 1954). Dunion involved a collision between two motor boats racing in New Jersey. The defendant's boat failed to make a tight turn and struck the plaintiff's boat, causing major damage to plaintiff's motor boat. The plaintiff brought suit in admiralty to recover damages. The court held that plaintiff's recovery was barred by the assumption of risk, stating:

 
Libellant, having chosen to enter his boat in a racing event in which he knew it would encounter high speed manoeuvres and close proximity to other craft operating in rough and confused waters must be left to bear the loss that has resulted. He will not be heard to say that he should recover because other drivers were less skillful than his or that other boats were groomed to a lesser degree of perfection . . . ...

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