Anyone who wants to add a Sydney-Hobart race to their bucket list, but who has very limited sailing experience, can effectively buy a berth on a yacht.
It is difficult for non-sailors to imagine the forces at play when a 10-tonne yacht is coping with 30 knots of wind and a lumpy sea. Accidents happen. Injury is common. I consider myself very lucky to have survived two moments during Sydney-Hobart races when I might easily have been swept overboard at night in bad weather. Chances of rescue: slim to nil.
Any lawyer will confirm that ocean racing is acknowledged as an inherently hazardous activity. There is a general view among the offshore community that we compete at our own risk. The organising authority of the Hobart race, the Cruising Yacht Club of Australia, requires every crew member to sign a “Disclaimer” document which includes this condition:
But there is another, more complex, issue at stake, particularly in the fatality aboard Flying Fish Arctos. The boat is operated by a sail training business based in Sydney, and was presumably carrying paying customers as crew. The company’s website urges us to:“Live, Learn and Adventure with Flying Fish Sailing! Book your spot in the legendary Sydney to Hobart yacht race. The sense of achievement when you sail across the finishing line is immense.
In Australia, the old assumption that “you take part at your own risk” has been substantially overridden by consumer protection law which imposes liability on the basis of negligence.Public policy, quite rightly, is intolerant of trade and commerce not doing all that a reasonable person would do to prevent injury, damage and loss in a contractual relationship where money is involved.
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