This race is no place for beginners, yet trainee sailors buy their way onto boats

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 to Hobart races when I might easily have been swept overboard at night in bad weather. Chances of rescue: slim to nil.

Yesterday’s loss of sailors from Bowline and Flying Fish Arctos is a tragedy. But it also makes us confront two questions: to what extent can the risk of such disasters be limited, and, who is truly liable when things go wrong?

Flying Fish Arctos in dock at Jervis Bay after a crew member died during the Sydney to Hobart yacht race. Credit: Nine News

Both sailors died of head injuries. A crash helmet would have been next to useless. When a hefty boom swings across the boat during an involuntary tack or gybe, it does so with such huge momentum and speed that anything in its path is destroyed or flung into danger. A crew member who happens to be standing at the time has little chance of survival.

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:

“... the Crew Member acknowledges that their participation in the Race … is entirely at their risk and responsibility and that CYCA and each Beneficiary are not responsible for the boat or its crew.”

Elsewhere, the disclaimer requires each crew member to “accept the risks” of racing, and that he or she “waives all rights against and releases the CYCA from any and all claims and liability in respect to loss of life or injury to persons ...”

Flying Fish Arctos.

In reality, Australian law prevents people from signing away their rights in that manner. Maybe the CYCA believes its disclaimer protects the club unless it is found to be directly negligent in its own conduct of the race.

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.”

That course, which costs $12,990 per head, includes some flat-water inshore training and just one 24-hour offshore sail. Flying Fish states that it would “like” participants to have completed the Australian Sailing Safety & Sea Survival course, but that it is not mandatory. (Fifty per cent of all crews participating in the Hobart race must hold that qualification, or its equivalent. They must also have completed a substantial offshore event.)

Sail training is a legitimate business, as are the courses offered for safety and survival at sea qualifications. But they are commercial operations driven by the profit motive. In my experience, few, if any, participants are ever failed. Anyone who wants to add a Hobart race to their bucket list can effectively buy a berth with very limited experience, and irrespective of their ability.

It is because of this “fee for service” relationship that issues of liability arise when things go pear-shaped, and questions are asked about the level of competence in the crew.

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. The CYCA could equally find itself liable because the race entry fees they charge (between $1400 and $5250 depending on the boat’s length) makes it the provider of a paid service to customers – the yacht owners and their crews.

None of this is any comfort to the families and friends of those who have lost their lives. They now face a lengthy and painful coronial inquiry into the causes of those deaths. Perhaps one of its recommendations could be that the teaching of safety at sea, and the grant of qualifications, should be the responsibility of an independent government agency, not of a business. Genuine credentials should not be earned without proper regulation.

The track of the Sydney-Hobart race takes the fleet as far South as 43 degrees latitude – well into the “Roaring Forties”. That’s no place for beginners.

David Salter is an experienced offshore sailor who has competed in 12 Sydney-Hobart races. He is also an independent journalist and TV producer who has filled senior roles at ABC-TV and the commercial networks.