Izvorni znanstveni članak
The role of Rrules in cases of liability for damages occurring during sailing regattas
Igor Gliha
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Sažetak
One of the basic issues connected with damages occurring during sailing regattas is the assessment of illegality. Sailing rules for safe navigation in territorial seas and on inland waters are laid down in the Regulations for Preventing Collisions at Sea, and for open sea navigation by the Convention on International Regulations for Preventing Collisions at Sea (IRPCAS). Observance of these regulations is obligatory for any navigators. Sailing regattas are separately regulated by the Regatta Rules of the International Sailing Federation (ISAF) recognised by the national sailing federation, including the Croatian Sailing Federation. However, since the Regatta Rules have not been adopted according to a legislative procedure, the question arises as to what extent and for whom they are binding, or whether they constitute a part of the legal order so that their violation is considered illegal. The Regatta Rules belong to the category of sports rules. The regulation of sports does not fall within the primary interest of public authority. From the viewpoint of a state, sports are considered as a subsidiary activity left to the corresponding sports organisations recognised by the state as national federations of particular sports. Regatta sailing is thus regulated by the Regatta Rules of the International Sailing Federation, also recognised by the Croatian Sailing Federation as a sports organisation authorised by public authority for sailing activities. Sport is of great importance for the social community and its importance in Croatia is proclaimed in the Constitution. The importance of sports is also proclaimed at the level of the Council of Europe and the European Union by the European Sports Charter and the Declaration on the Specific Characteristics of Sport and its Social Function in Europe. Sailing is a sport which is undoubtedly of immense social importance.
The Regatta Rules applied to the area where a regatta is held and for its duration are a substitution for the general navigation rules applied to all other participants in a regatta (unless there are particular regatta instructions issued by the regatta committee specifying that the general rules are applied). Public authority tolerates the derogation of its own coercive rules because it has recognised sailing competitions as being of special social importance not specifically regulated by public authority. This tolerance applies only to regattas and those who voluntarily participate in them. Therefore, in the case of sailing boats not taking part in a regatta or encountering those which do participate, the Regatta Rules do not derogate the application of general navigation rules. The sailing regatta rules are part of the legal order (just like the rules of other recognised sports) and have their specific place within the legal order. They do not constitute independent, generally binding legal rules, and the bodies of state authority will refer to them in cases of liability for damages occurring during sailing regattas only as an additional criterion to assess the conduct of a wrongdoer as a member of society in order to establish whether the conduct during a regatta has been illegal or not.
Risk is a constituent part of sailing activity. A certain level of sailing risk must be accepted by all those who voluntarily and freely decide to participate in it. Therefore, they must also accept the possibility of damages occurring during a sailing competition. In principle, consent to risk operates within the limits which the participants in a regatta have accepted when informed about the possible consequences. Every participant must acquaint himself or herself with the basic rules of sailing in a regatta and with the knowledge of at least some typical dangers that can be expected by a good seaman in any type of navigation. Having accepted the risk, they also accept to undertake various acts which may cause damages. Such acceptance excludes the illegality of an act comprised by consent (volenti non fit iniuria), and illegality is one of the preconditions for liability for damages. In the absence of such illegal acts, a wrongdoer is exempted from such liability. The consent to undertake an act which may result in some damage is a legally relevant declaration of will and must, therefore, satisfy all the preconditions required by a legal order for a valid expression of the legally relevant will. Such a declaration may be expressed in any form, and in the case of sailing regattas, it is most frequently given conclusively, i.e. by voluntary participation in a regatta.
Ključne riječi
illegality; sport rules; acceptance of risk; liability for damages; sailing
Hrčak ID:
20415
URI
Datum izdavanja:
18.1.2008.
Posjeta: 2.091 *