WHAT DOES SAILING HAVE TO DO WITH ADMINISTRATIVE LAW?
This weekend, the vessel I race on participated in the 2016
Newport to Ensenada Regatta, also known as the N2E 2016. It's one of the biggest international regattas in the world. This year, over 200 vessels participated. The race started outside Newport Beach Harbor
and finished, as you might have already guessed, just outside Ensenada, a
mid-sized coastal city approximately 60 miles south of the border between
California and Mexico. This year’s event
was quite challenging. The event has
often been referred to as a light wind race.
This year, however, there was a lot of wind. We experienced 20 knots or
more and even higher gusts. The waves
were quite big as well, sometimes rolling by in the 8 to 10 foot range with even larger sets experienced every so often. The race course handicap is calculated on a length
of 125 miles. Thus, for all but the
fastest multi-hull race boats, these difficult sea conditions had to be endured
over night. Our boat finished in just
under 20 hours.
Sailboat racing is governed by a set of rules. It is according to these rules that events
are conducted and issues are addressed. There are a number of
different bodies all over the world that establish
the various parameters to which racing sailors are required to adhere. And, when disputes arise over the conduct of
a vessel during the race, such disputes are resolved according to these
rules.
When an event such as the N2E is established, the entity
conducting the race (in the case of N2E, the Newport Ocean Sailing Association or NOSA)
publishes what is called a Notice of Race.
This document describes the organizing authority and invites eligible
skippers to participate under the conditions established by the Notice. The Notice also identifies the rating authorities
(i.e. PHRF or ORCA) and tells all interested parties which set of rules will
govern the event. In the case of N2E, the
Notice states that all boats will be governed by the rules as defined in The
Racing Rules of Sailing published by US Sailing, the US Safety Equipment
Regulations, and the Sailing Instructions published by NOSA. In the case of
class-racing within the N2E, certain class rules may also apply. The Notice may amend or modify certain rules
established by the Racing Rules of Sailing as well as the US Safety Equipment
Regulations.
A perhaps more important document, however, is the final
Sailing Instructions published by the host organization, generally very close
to the start of the event. The Sailing
Instructions, like the Notice of Race, establish the parameters for conducting
the event including, but not limited to, the rules that will apply, as well as
the specifics as to how the race will be conducted; i.e. where the start line
is located, where the finish line will be located, what sound or flag signals
may apply, how the start will be conducted, etc.
Now that you have read the foregoing, you are probably
wondering what place this discussion has in a blog about legal issues. Well, here's the segue. Our society is governed by a variety of rules
and regulations promulgated by government entities and agencies. Sailboat racing is also
governed by a variety of rules and regulations promulgated by its governing agency or entity. In sailboat racing, there is a system to resolve disputes, commonly
referred to as “protests.” In dealings with government entities or agencies, there is also a mechanism by which issues are resolved, often referred to as Administrative Remedies. In sailboat racing, the published Notice of Race, but most
often the Sailing Instructions, establishes the procedures by which protests in sailboat racing are resolved. In dealing with government agencies and entities, there are also procedural requirements often established by the same bodies. Thus, whereas administrative agencies are typically involved when disputes
arise involving government agencies (i.e., city, state, county, or even the federal
government) concerning rules, regulations, applications, licenses, as well as
application of certain laws such as those prohibiting discrimination or applying
for disability, workers compensation, or unemployment benefits, Protest Committees are involved when disputes arise over the conduct of the race either by the participants or the conductors (aka Race Committee).
In resolving sailboat racing protests, a
protest committee is established which is often the first step in the protest
resolution process. In matters involving
the government or its agencies, often the first step is a hearing before an
administrative law judge. In both
sailboat racing and in matters involving government or its agencies, there may
be an appeal process spelled out in the regulations, not to mention a variety of
other steps that must be taken before the outcome can reach finality. Regardless, in both cases, the process is called “exhausting
administrative remedies”, and whether you are dealing with a permit to add a
deck onto your house or challenging the means by which a competing vessel
rounded a mark of the race course, all administrative remedies generally must
be exhausted before one can resort to the judicial system.
In dealing with any government entity and its administrative
proceedings, it is important to remember two key things: first, the rules and regulations are often
special for each agency and are not usually found in statutes. Second, one must exhaust all administrative
remedies before one can challenge the administrative ruling with a lawsuit in
court. There are exceptions, but they
are rare. Moreover, the government
agency may even employ the judge or administrative hearing officer making the decision affecting its interests.
So as you may have understood, resolving a dispute in sailboat
racing is very much like resolving a dispute with a government entity or
agency. The entity holding the race,
like a government agency, establishes its rules of operation as well as they
way in which disputes are resolved, and who makes the decision. In
some cases it’s a good thing. In others
it is not. Yet, in either case, as a
general rule nobody goes to court unless and until all the administrative
remedies are exhausted. Sometimes the
rules and regulations, as well as the procedures to go forward with an
administrative proceeding are complex, so it’s good to have a lawyer with
experience in administrative proceedings.
If you are interested in seeing an example of what the administrative rules and procedures for resolving disputes in sailboat racing look like, check out this
website: http://www.sailing.org/documents/protests-forms.php.
In spite of the apparent strictness and complexity of the racing rules of sailing, the fact is that the great majority of disputes that arise out on the race course are resolved between the skippers over a cold beer after the race, and rarely is there a need to resort to the complexities of administrative proceedings in front of a Protest Committee. After all, we race against our friends.
In spite of the apparent strictness and complexity of the racing rules of sailing, the fact is that the great majority of disputes that arise out on the race course are resolved between the skippers over a cold beer after the race, and rarely is there a need to resort to the complexities of administrative proceedings in front of a Protest Committee. After all, we race against our friends.