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Assumption of the risk in boat racing: a study in maritime jurisprudence.



I.   The Traditional Doctrine of Assumption of the Risk
     A. The Doctrine at Common Law
     B. The Doctrine at Maritime Law
       1. The "Equitable" Roots of Maritime Law
       2. Maritime Law's Rejection of Assumption of
          the Risk
II.  Assumption of the Risk in Sports on Land and at Sea
     A. The Rise of Assumption of the Risk as a Defense to
        Risks Inherent in Sporting Activities on Land
     B. Maritime Law's Rejection of Assumption of the Risk
        as a Defense to Risks Inherent in Sporting Activities
        at Sea
III. The Argument for Assumption of the Risk in Maritime
     Boat Racing
     A. Competitive Boat Racing: Not for the "Timorous"
     B. Assumption of the Risk in Non-Maritime WaterSports
     C. The Case for Assumption of the Risk in Competitive

Maritime courts traditionally shaped maritime law in a flexible and equitable manner, borrowing rules according to what was "fairer and more flexible" under the circumstances. Accordingly, the maritime courts did not adopt the all-or-nothing approach of the contributory negligence and assumption of risk doctrines. Instead, the maritime courts were forerunners in embracing an approach centered on comparative fault. In this Article, the authors explain the historical sources and modern implications of this maritime tradition. The Article provides the groundwork for the revitalization of this "fairer and more flexible" tradition, using the example of assumption of the risk in boat racing. Like many sporting activities, boat racing carries inherent risks; these risks include property damage, personal injury, and even death. Under the laws of many states, the primary assumption of risk doctrine would bar a claim for injuries resulting from negligent conduct in boat-racing that did not increase the risks inherent in that activity. But in contrast to the treatment of other sporting activities, the assumption of risk defense is generally not available in boat racing tort cases because maritime law, and not state law, governs those disputes. This Article makes the normative case for why maritime courts, which shaped maritime law by borrowing the fairest and most reasonable rules, should now recognize that the same policies require adoption of the assumption of risk defense for cases involving maritime sports like boat racing. More broadly, this study in maritime jurisprudence can serve as a blueprint for resolving future issues that may arise as maritime law continues to develop.


Recreational boat racing, a sport "once dominated by tycoons[,]" exploded in popularity in the last two decades. (1) The sport has had its share of growing pains, including in the legal arena. Yacht racing is fiercely competitive and potentially dangerous. (2) Collisions among competitors are common. Indeed, most participants acknowledge the risk of collision is unavoidable--and even desirable, as it adds to the challenge of the sport. (3) Competitors "consider th[e] risk part of the job." (4)

Nevertheless, along with this explosion of popularity has come an onslaught of lawsuits. (5) As one prominent sports writer described America's Cup, the country's most prestigious regatta, it "as litigious sporting events go, nothing tops the America's Cup.... [It] is a legal battle that happens to be sailed on the water.... [G]iven the event's limitations, the legal brawls over the years have provided the only reliable source of tension." (6) Many yacht racing organizations lack dispute resolution procedures, and so competitors' disputes are played out in court. (7)

Because boat racing occurs on navigable waters, disputes involving collisions are generally governed by maritime law. (8) But the application of maritime law to such cases creates a troubling asymmetry between yacht racing and land-based sports, the latter of which are governed by state law. (9)

One such asymmetry arises in the context of assumption of the risk. Many states now recognize the doctrine of primary assumption of risk as applied to sports. Under that doctrine, participants generally have no legal duty to protect one another against risks inherent in a sport. Thus, competitors in most states may not recover against other players for injuries resulting from negligence during a sporting activity if the negligence does not increase the risks inherent in that activity. (10) This defense has gained significant currency in past decades as courts have increasingly recognized the unfairness that results in allowing negligence suits among players--for example, permitting a sports participant to sue a fellow participant for a sprained ankle resulting from a rough tackle during a football game. (11)

By contrast, maritime law generally does not recognize the assumption of risk defense. (12) As a result, in boat-racing cases, a competitor may be liable to co-competitors for negligently causing a collision even if the co-competitors entered a race knowing full well the risk of collisions inherent in the sport. Thus, the choice of maritime law can preclude the assumption of risk defense even in states where the defense would apply to all other sports.

Yet the question whether to apply the assumption of risk defense to sports and sporting activities is undeveloped under maritime law. To date, only three federal or state appellate decisions applying maritime law have considered whether to recognize the defense against claims of negligence arising from accidents during boat races. (13) All three decisions reject the doctrine. The only maritime decision that applies the primary assumption of the risk defense in the sporting context is a district court decision from 1954. (14) But the decisions rejecting the defense do so without fully considering the issue and instead in large part draw mechanically on precedent from non-sports cases. Moreover, those decisions ignore the policy trend at common law in favor of recognizing the defense.

Given the undeveloped state of maritime law on the primary assumption of risk defense, the maritime courts should revisit the issue. And given the jurisdictional splits that have developed among the maritime and common law courts, the need for the maritime courts to do so is great. (15) This Article shows that maritime courts should allow maritime jurisprudence to evolve and to recognize the assumption of risk defense in competitive boat-racing cases. Maritime courts should give greater consideration to the state law trend of recognizing primary assumption of the risk where co-participants are engaged in a sporting activity. Under state law, the primary assumption of risk doctrine recognizes the unfairness of imposing a duty of care upon co-competitors to avoid inflicting damage that is an inherent risk of sport. Maritime law should follow suit.

As this Article explains, maritime law was historically a progressive, flexible body of law that aimed for maximum fairness and efficiency for its litigants. This was true from its ancient roots, when it began in local, quasi-arbitral tribunals operating ex aequo et bono, (16) to its development in England in Admiralty Courts that were empowered to provide relief of an "equitable" nature, (17) to its modern development in England and the early United States, where, as the United States Supreme Court recognized, maritime and admiralty courts followed their "own fairer and more flexible rule[s]" (18) and adjudicated cases as they saw "most just and equitable." (19) Because of this unique heritage, maritime courts were free to elect their substantive law from among the best practices of the day and from whatever source of law was the best reasoned-- regardless of whether that source was an international norm or a civil law or common-law tradition. (20) Maritime courts today should stay true to this tradition of fairness and flexibility. Given the ascendancy of primary assumption of the risk in sports cases, maritime courts should fully consider the policy reasons in favor of the doctrine--analysis should not begin and end at the fact that maritime law has not traditionally recognized such a doctrine.

In this Article, we hope to unearth a historical treasure of maritime law--its unique method for sourcing substantive rules. Although American courts have recognized the equitable tradition of maritime law's search for "fairer and more flexible rule[s,]" (21) they have ignored the implications of that tradition for the modern development of maritime law. Our aim in this Article is twofold: first, to identify and explain this historical tradition to encourage its revitalization in the modern maritime context; and second, to apply this tradition to a recurring problem in maritime law--whether to recognize assumption of the risk.

This Article proceeds in three parts. Part I lays the foundation for our discussion of the modern treatment of the assumption of risk doctrine under maritime law. In part I-A, we summarize the rise, fall, and resurgence of the assumption of risk defense in American common law courts. In part I-B, we contrast the approach of the common law courts with that of the maritime courts to the assumption of risk defense. First, in part I-B-l, we briefly trace the development of maritime law from its ancient, international roots to its modern iteration in American courts, with an eye toward demonstrating that maritime law has always aimed to achieve justice in a fair and flexible manner--and has sourced its substantive rules accordingly. We then explain, in part I-B-2, the current state of the assumption of risk defense in maritime law--namely, that maritime courts generally do not recognize the defense, as they consider it to be one and the same as contributory negligence, a doctrine that maritime law has long rejected as unfair.

Part II takes a closer look at the assumption of risk defense as applied in the modern sports context. Part II-A explains the modern resurgence of assumption of the risk in competitive sports, a trend that has developed in recognition that sports participants willingly accept the risks inherent in sports, and that such risks are unavoidable without altering the fundamental nature of sports. In part II-B, we survey the maritime cases that have addressed assumption of the risk in competitive boat racing, which, like land- based competitive sports, can be unavoidably dangerous. Most, but not all, of the maritime courts facing this question have rejected the assumption of risk defense, but without fully considering the unique issues raised by that defense in the context of sports such as boat- racing involving inherent risks.

In Part III, we present our argument that maritime courts should recognize assumption of the risk in the boat-racing context. In part III-A, we observe that, like land-based sports, boat racing involves a well-known inherent risk of property damage, injury, and even death. In Part II-B we observe that courts outside the maritime context have in fact applied the assumption of risk defense in numerous water-sports cases, including competitive boat- racing. As we explain, the only difference between those cases and the maritime cases rejecting that same defense has been the failure of the parties to invoke maritime law--although in many of those cases, they likely could have done so. Finally, in Part III-C, using our historical blueprint for addressing maritime sourcing of law, we present our case that maritime courts should recognize the assumption of risk defense in boat-racing cases because it is the fairest and best-reasoned approach given the unavoidable risks of boat-racing.


Most states recognize at least some form of assumption of the risk as a defense to negligence. (22) The most common variant of the doctrine is a complete bar to recovery only if the plaintiff had actual knowledge of the danger, and proceeded in the face of that danger--a doctrine most commonly applied today in the sports and recreation context. (23) This is known as "primary" assumption of the risk. (24) Other forms of assumption of the risk include "express" (i.e., contractual) assumption of the risk and "secondary" assumption of the risk (usually analyzed as an aspect of comparative negligence). (25) However, primary assumption of the risk is the doctrine perhaps most closely associated with sports, where the risk of injury may be inherent in the activity.

In previous years it was in vogue to criticize the assumption of risk defense, whether because it was conceptually indistinguishable from contributory negligence, unfairly let defendants who were "at fault" escape liability, or was too "confus[ing]." (26) However, today, a majority of American jurisdictions have come out in favor of the doctrine in its fairest and most reasonable iteration: whereby "primary" assumption of the risk is a complete bar, but "secondary" assumption of the risk is not. Put one way, most courts have now accepted in at least some circumstances "the traditional notion that one who consents to a risk may not obtain damages when the risk materializes in harm." (27)


The common law recognized the doctrines of assumption of the risk and contributory negligence. Contributory negligence barred all recovery when the plaintiff's negligent conduct had contributed as a legal cause to his or her harm. (28) Assumption of the risk operated in two distinct situations. First, it barred liability on the part of a defendant when a plaintiff encountered a known risk within the defendant's control, but as to which the defendant had no legal duty to protect the plaintiff. Second, it barred liability on the part of a defendant when a plaintiff deliberately assumed a risk that the defendant negligently created. (29) In other words, like contributory negligence, assumption of the risk at common law prevented recovery when the plaintiff was negligent (even if the defendant was in part at fault). The doctrine embodied the common law maxim volenti non fit injuria--that if a plaintiff willingly places himself in a position knowing that harm might result, then that plaintiff cannot recover for any resulting injuries. (30)

In the United States, courts early on adopted the doctrines of both contributory negligence and assumption of the risk. (31) The effect was to completely bar a plaintiffs claim if the plaintiff contributed to her own injury. However, the vast majority of states abandoned contributory negligence in the 1960s and 1970s, adopting some version of comparative negligence either by statute or judicial decision. (32) For example, the California Supreme Court abandoned contributory negligence in favor of comparative negligence in 1975. (33) Under comparative negligence, damage is "borne by those whose negligence caused it in direct proportion to their respective fault." (34) A few holdout jurisdictions still observe a contributory negligence regime. (They are Alabama, (35) the District of Columbia, (36) Maryland, (37) North Carolina, (38) and Virginia. (39) But most states have abandoned contributory negligence in favor of the more equitable (40) doctrine of comparative negligence.

When rejecting contributory negligence, states also rejected or curtailed implied assumption of the risk as a complete defense. Both doctrines were criticized as suffering from the same flaw--they unfairly barred a negligent plaintiff from any recovery even if the defendant were also negligent. (41) In a number of jurisdictions, implied assumption of the risk was therefore subsumed into the doctrine of comparative negligence, which merely reduces a plaintiff's recovery according to her relative fault. (42) However, some jurisdictions have recognized that the common law doctrine of implied assumption of the risk encompassed at least in part the distinct issue of a plaintiffs deliberate choice of a dangerous course of action. (43) On this basis, these jurisdictions have allowed assumption of the risk to coexist with the comparative negligence regime as a distinct doctrine. (44)

The best-reasoned approach, however, has been for states to distinguish between the different types of assumption of the risk. When the plaintiff deliberately chooses a dangerous course of action, the plaintiff cannot recover against a defendant because she has assumed the risk; but when the plaintiff is merely negligent, her recovery is reduced in proportion to her fault. (Today, courts commonly refer to the former as "primary" assumption of the risk, and the latter as "secondary" assumption of the risk. (45)) This approach has garnered a following in 20 states, including California, (46) Delaware, (47) Hawaii, (48) Illinois, (49) Iowa, (50) Kentucky, (51) Massachusetts, (52) Michigan, (53) Minnesota, (54) Mississippi, (55) Missouri, (56) New Hampshire, (57) New York, (58) Ohio, (59) Pennsylvania, (60) South Carolina, (61) Tennessee, (62) Utah, (63) Vermont, (64) and Washington. (65)

California's rule exemplifies this nuanced approach. In the 1992 case Knight v. Jewett, the California Supreme Court affirmed the continuing vitality of assumption of the risk alongside the doctrine of comparative negligence. (66) In doing so, the court was among the first to make a nuanced distinction between primary and secondary assumption of the risk. A plurality of the court explained that secondary assumption of the risk applies "where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant's breach of duty." (67) In contrast, primary assumption of the risk applies "where, by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury." (68)

Primary assumption of the risk "operate [s] as a complete bar to the plaintiffs recovery." (69) In contrast, secondary assumption of the risk is not a bar to liability but is instead a basis for allocating fault to the plaintiff. (70) As Knight held, while primary assumption of the risk is a complete defense under California law, secondary assumption of the risk is "subsumed in the comparative negligence system." (71) Many other states have followed a similar approach. (72)

Thus, although many states purport to have abandoned the assumption of risk defense along with contributory negligence and to have merged both into the doctrine of comparative negligence, they have in fact merged only one form of assumption of the risk ("secondary" assumption of risk). The other form, "primary" assumption of the risk--involving the plaintiffs deliberate act in the face of a known risk--remains a viable defense in many states.


Unlike the common law, maritime law generally did not recognize the assumption of risk defense. Maritime courts were principally concerned with reaching fair and efficient results, and sourced their substantive rules from the best-reasoned authorities available. For most maritime courts, this emphasis on fairness meant rejecting the all-or-nothing assumption of the risk defense. In this section, we outline these historical maritime traditions with an eye toward demonstrating, in the forthcoming sections, that maritime courts should not rule out the assumption of risk defense in the context of maritime competitive sports.


Historically, maritime law was a progressive, flexible body of law that aimed for fairness and efficiency. This was true from its ancient roots in international maritime tribunals (from which the lex maritima developed) to its development in Admiralty courts in England and the early United States.

Maritime law first began to develop in local courts that served in a capacity akin to those of modern international arbitration tribunals. (73) These ancient maritime tribunals, based mostly in large European trade cities, aimed to administer swift justice in the interest of business efficiency and fairness to the sailor and merchant litigants. (74) These tribunals applied a hybrid of customary international law and Roman civil law, and were made up of both jurists and laymen with expertise in maritime issues. (75) This combination of lay expertise and goal of efficient arbitration made flexibility and fairness paramount. Maritime courts were charged with hearing cases "duly, briefly, summarily and forthwith, without the noise or formality of a judgment, sold facti veritate attenta, that is to say, looking solely to the truth of the facts, according as has been accustomed to be done after the usage and custom of the sea." (76)

Maritime courts early on developed unique legal principles, which differed from those in the civil and common-law traditions and which benefitted the maritime community. Traditional maritime law recognized a variety of "equitable" protections for maritime parties. Among others, these included: "equity of contribution" (if goods were thrown overboard in order to lighten the ship, what was sacrificed for the common benefit should be made good by the common contribution); (77) wage guarantees (sailors were entitled to their wages and ordinary care in the event of illness aboard the ship, and were entitled to their full wages in the event of wrongful discharge); (78) protection in case of capture ("A sailor sent ashore on the service of his ship and robbed or captured .... [was] to receive his wages while he [was] in captivity, and ... his losses [were] to be made good or his ransom paid by those for whose benefit he was sent"); (79) protection from wrongful termination (captains could be liable for shipwreck if they negligently hired an unskilled replacement worker after wrongfully discharging a more skilled sailor); (80) observation of principles of good faith and fair dealing in the purchase and sale of ships; (81) and protection of borrowers from the risks of maritime loans ("Whether from kindness to the borrower or from some other reason, it was settled that in a contract of maritime loan the lender took the maritime risk" and that merchants were subject to limited liability in case of negligence). (82)

In early England, maritime courts largely adapted the international lex maritima (although the admiralty jurisdiction was slowly whittled away over the centuries due to xenophobia and competition for jurisdiction among courts). (83) In England, maritime law developed in the Admiralty Courts alongside the Court of Chancery (the court of the "King's Conscience"). (84) Both courts appear to have exercised concurrent jurisdiction over certain admiralty matters, which is not surprising since both courts exercised the equitable powers that were the hallmark of maritime law. Like the Court of Chancery, the Admiralty Courts were empowered to eschew "the technical limitations surrounding a court of common law ... [and] act in accordance with broad equitable principles." (85) This similarity was reflected in the structural affiliation of the two courts. From at least the twelfth to the seventeenth centuries, "the court of chancery seems to have claimed a general concurrent jurisdiction with the admiralty and even asserted the right in the exercise of that jurisdiction to remove any cause out of the admiralty." (86) At times the Court of Chancery even exercised appellate jurisdiction over English admiralty courts. (87)

For these reasons, the Court of Admiralty had much in common with the Court of Chancery, both in the types of remedies available and in the level of flexibility and discretion afforded. The Court of Admiralty was empowered to provide relief of an equitable nature. For example, "an agreement made under a clear mistake [would] be set aside. And after a case has been closed, it [could] be reopened for sufficient cause.... In general, a far less rigorous strictness prevail [ed] in the construction of maritime contracts in courts of admiralty than in those of common law." (88) To this end, the Admiral's lieutenant-general was required to "make oath to the high admiral to do right and due justice to all manners of parties complaining in the court of Admiralty, as well to plaintiffs as to defendants, without having to do more for one party than the other, and he ought to make summary and hasty process ... where it may be equitable, knowing the right of the parties." (89)

This trend continued through maritime law's modern development in England and the early United States. The United States Supreme Court noted that maritime and admiralty courts followed their "own fairer and more flexible rule[s]" (900 and adjudicated cases as they saw "the most just and equitable[.]" (91) As has often been recognized, maritime courts act with "enlarged principles of justice and equity," and maritime law is "governed by equitable principles." (92) Still, rather than labeling the maritime courts' approach "equitable," the better nomenclature would be that they operated ex aequo et bono--"according to what is equitable and good." (93) It is often repeated that maritime courts employ equitable practices, and as such are courts of "equity"; for example, a federal court explained that "a court of admiralty is, as to all matters falling within its jurisdiction, a court of equity. Its hands are not tied up by the rigid and technical rules of the common law, but it administers justice upon the large and liberal principles of courts which exercise a general equity jurisdiction," (94) But as one professor clarified,
   Courts of admiralty are not, strictly speaking, courts of equity;
   thus, if a libellant disclose that his case rests upon a trust, he,
   in general, destroys his own right of action in admiralty, because
   the court cannot take cognizance of a bill in equity in the
   disguise of a libel in admiralty.... But they have still very
   general and extensive powers, analogous to those which belong to
   courts of equity, and in general govern themselves by similar
   principles.... Thus no party prevails there who does not come into
   court with clean hands and make out a case ex aequo et bono (95)

In the United States, this tradition of fairness and flexibility continued. But the American maritime courts first wrestled with the question of whether to adopt English admiralty law, including the limited jurisdiction of its admiralty courts, or to look to a broader array of sources in developing American maritime law. Early decisions in this country "assumed without much consideration" the English admiralty cases should be followed without question. (96) This view persisted until Justice Story broke the mold in DeLovio v. Boit, (97) a bold and prescient opinion in which he contended that "it was to the maritime jurisdiction known over all Europe that the language of the Constitution had reference." (98) The Supreme Court validated Justice Story's assertion in the 1847 case Waring v. Clarke," in which the Court rejected what it saw as the crabbed English view of maritime law. Following Waring it became well-established that
   the admiralty and maritime jurisdiction of the United States is not
   limited either by the restraining statutes or the judicial
   prohibitions of England, but is to be interpreted by a more
   enlarged view of its essential nature and objects, and with
   reference to analogous jurisdictions in other countries
   constituting the maritime commercial world, as well as to that of
   England. (100)

Waring thus permitted the maritime jurisdiction to expand to its constitutional limits under Article III. That Article provides that "[t]he judicial Power shall extend ... to all Cases of admiralty and maritime Jurisdiction." (101) Accordingly, the reach of maritime law today is very broad indeed, covering a wide-ranging subject matter. (102) And it is now recognized that maritime law in our country was "adapted to our circumstances and molded by our practice" rather than being mechanically "lifted from English jurisprudence as our common law was." (103)

However, this enlarged scope of maritime jurisdiction did not settle the question of the sources of substantive maritime law. Prior to Waring, many courts assumed that the admiralty law of England was the one and only source of substantive maritime law in the United States. But after the Supreme Court handed down its decision in Waring, that all changed. In expanding maritime jurisdiction, Waring necessitated a cosmopolitan approach to sourcing substantive maritime law. (104) That is to say, once American maritime courts rejected England's limitations on admiralty jurisdiction, the American courts had to decide what substantive law would apply in cases over which they exercised their newfound admiralty jurisdiction. (105) Finding England's maritime law insufficient, American maritime courts drew substantive rules from a variety of sources including the general maritime law (lex maritima). They even drew inspiration from some common law principles that did not "contravene the essential purpose to the general maritime law[.]" (106)

American maritime courts thus mixed and matched the substantive rules that seemed fairest and most sensible--regardless of their source. (107) By way of (a somewhat esoteric) example, this approach is apparent in American maritime courts' adoption of rules protecting the rights of minority part-owners of ships. (108) Traditionally, English admiralty courts lacked power to decree the equitable remedy of partition and sale. This English rule caused problems when, for example, two part-owners of a ship disagreed as to whether to employ the ship in a particular commercial venture. English admiralty courts could not resolve the dispute by forcing a partition of the ship, and so they instead permitted the majority owner to employ the ship over the dissident owner's objections. While American courts adopted some English admiralty rules, American courts found this rule rigid and unfair. The only upside of the English practice was that dissident owners in this situation were entitled to security for the safe return of the vessel from their co-owners who had forced the voyage. Thus, if the ship sank (a common occurrence), the dissident minority owners at least had security for their investment.

Instead of adopting the English rule that disallowed a sales decree, American courts turned to the rule in general maritime law, and to its most prestigious iteration at the time, French law. French maritime courts could decree the sale of a ship on request of a part owner who had good reason to object to a co-owner's plan to send the ship out on a particular voyage. (109) However, the adoption of the French rule posed another problem from the perspective of American courts. The French rule provided no security for part-owners who could not obtain such a partition, and who therefore were forced to allow use of the ship over their objection. American courts found this French rule unfair to minority owners, who risked losing their interest in the ship during the voyage when they had not agreed to its use in the first place. (110)

American courts solved this dilemma by selecting what they saw as the best of both worlds. They adopted the French rule permitting partition and sale of a vessel if a dissident owner of a ship had good cause for objecting to the ship's use in a voyage. For those situations in which a forced partition was not justified, American courts adopted in part the English rule that required the majority owners who had forced the voyage to give the dissident owners security for the safe return of the ship. (111) In other words, the solution devised by the American courts was to pick and choose the fairest and most suitable principles. (112)

What resulted was a patchwork of best practices, the development of maritime law "upon a broad and sound basis." (113) As the foregoing example demonstrates, the American maritime courts exercised "independence ... in the formulation from all available sources of a body of rules thought to be best adapted to American conditions." (114) Thus, the flexibility and "equitability" of maritime law was not limited to its manner of adjudication--it extended to the maritime courts' approach to selecting substantive legal rules. This is the forgotten treasure of maritime law. Modern maritime courts should continue to select substantive legal rules by this "equitable" method.


Consistent with the "equitable" maritime tradition, maritime courts never adopted the harsh common law rules of contributory negligence or assumption of the risk. In the United States, the Supreme Court refused to adopt the contributory negligence regime in admiralty cases, emphasizing maritime law's adherence to substantive rules that were equitable and fair. (115) The Court's decision in Pope & Talbot exemplifies this point. The Court first addressed the question of whether state law or maritime law governed the tort claims of a worker who was injured on a vessel in navigable water. (116) If state law were to apply, then the plaintiff was barred from recovering under the state's rule of contributory negligence. The Court, in an opinion by Justice Black, held that federal maritime law governed the conflict. Because the plaintiff "was injured on navigable waters while working on a ship," his action sounded in maritime tort and was subject to federal maritime power. (117) Moreover, the Erie doctrine (requiring that federal courts exercising diversity jurisdiction apply state substantive law) did not require courts sitting in their maritime capacity to yield to state substantive law. (118) "While states may sometimes supplement federal maritime policies ... a state may not deprive a person of any substantial admiralty rights[.]" (119)

The Court in Pope & Talbot next considered whether maritime law should recognize the defense of contributory negligence. In rejecting that defense, the Court emphasized both the historical prerogative of maritime courts to establish substantive rules as they saw fit, regardless of the prevailing state rules, and the inconsistency between the all-or-nothing contributory negligence doctrine and the more flexible maritime tradition. Said the Court, "[t]he harsh rule of the common law under which contributory negligence wholly barred an injured person from recovery is completely incompatible with modern admiralty policy and practice. Exercising its traditional discretion, admiralty has developed and now follows its own fairer and more flexible rule which allows such consideration of contributory negligence in mitigation of damages as justice requires." (120)

As the Pope & Talbot Court recognized, the "harsh" common law rule of contributory negligence ran contrary to the interests of the maritime community of compensating sailors injured while engaged in maritime commerce. Maritime law had long sought to protect and compensate sailors engaged in such commerce. For one thing, maritime trade was risky for investors and dangerous to sailors. Ships at sea often sank or were besieged by pirates. Because this form of commerce was so risky, maritime contracts shifted the burden of loss to the lender. (121) Such contracts were seen as high-risk investments rather than as traditional contracts--a feature that at the time was unique to maritime law. Secondly, maritime courts were historically made up of mixed panels including not just jurists but laypeople from the maritime community with expertise in maritime matters. (122) This unique makeup permitted the panels to shape the maritime law to benefit the commercial maritime community. Thus, maritime law developed unique protections for sailors, such as wage guarantees and other rights in the event of wrongful discharge or kidnapping (123)--protections that were not adopted in the common law until centuries later during the reform eras following the industrial revolution. Consequently, a specialized set of maritime laws arose that encouraged maritime commerce by shifting the risks toward investors and protecting sailors from some of the risks of seafaring.

Similar concerns informed the view of the maritime courts regarding assumption of the risk. Applying logic comparable to that in Pope & Talbot, the United States Supreme Court in Socony-Vacuum Oil Co. v. Smith refused to adopt assumption of the risk in maritime cases. The case raised the issue whether a sailor who was injured while working in a ship's engine room was barred from recovery because he had assumed the risk of injury. (124) The Court declined the defendant's invitation to overrule the longstanding ban on doctrines akin to contributory negligence. It explained, "[a]ny rule of assumption of risk in admiralty, whatever its scope, must be applied in conjunction with the established admiralty doctrine of comparative negligence and in harmony with it. Under that doctrine, contributory negligence, however gross, is not a bar to recovery but only mitigates damages." (125)

The Court relied on maritime law's traditional solicitude for the injury claims of a sailor on a commercial boat. (126) Thus, the Court described sailors as "wards of the admiralty, whose traditional policy it has been to avoid, within reasonable limits, the application of rules of the common law which would affect them harshly because of the special circumstances attending their calling." (127) The Court also cited maritime law's longstanding rejection of contributory negligence. (128) The Court reasoned that there was no difference between a sailor who negligently "assumed the risk" of injury by choosing to use defective equipment when safe equipment was available, and a sailor's negligent use of either safe or defective equipment. (129)

Socony-Vacuum thus addressed only the form of assumption of the risk that is akin to contributory negligence and is now subsumed into most jurisdictions' comparative negligence regimes. Recall that at common law, the assumption of risk doctrine covered two distinct situations: cases in which a plaintiff encountered a known risk within the defendant's control, but as to which the defendant had no legal duty to protect the plaintiff; and cases in which a plaintiff assumed a risk that the defendant negligently created. (130) Early on, maritime law explicitly rejected the latter form of assumption of the risk, as illustrated by Socony- Vacuum. (131) Significantly, the Socony-Vacuum Court did not reject assumption of the risk in all its forms, but rather rejected the iteration of the doctrine that approximated the doctrine of contributory negligence. (132) The Court explained, "[a]ny rule of assumption of risk in admiralty ... must be applied in conjunction with the established admiralty doctrine of comparative negligence and in harmony with it," (133)

As later cases recognized, an important distinction can be made between the first type of assumption of risk ("primary" assumption of risk) and the latter ("secondary" assumption of risk). Primary assumption of risk is analyzed as either a "consent" theory (the deliberate undertaking of a known risk) or a simple absence of duty on the part of the defendant (where the defendant owes the plaintiff no duty in light of the nature of the activity and the relationship of the plaintiff and defendant to that activity, most often in the sports context). (134) By contrast, secondary assumption of risk is treated in many jurisdictions as synonymous with contributory negligence, and therefore as "subsumed" into those jurisdictions' comparative negligence regimes. (135)

It was the latter type of assumption of risk ("secondary") that was asserted in Socony-Vacuum. The defendants contended that the sailor "assumed the risk of injury" by "choosing" to use defective equipment when safe equipment was available. (136) However, this amounted to an argument that the plaintiff should not recover because he acted negligently himself--not that he knowingly and deliberately elected an inherently dangerous course of action that, because of the nature of the activity, could not be made safer without fundamentally altering the activity. As the Court noted, there is no conceptual difference between a sailor who "chooses" to use defective equipment when safe equipment is available, and a sailor's negligent use of either safe or defective equipment. (137)

Because the Court in Socony -Vacuum considered the assumption of risk defense in a case where the defense was indistinguishable from contributory negligence, the Court's decision should not preclude future recognition of the defense in its other forms. Although maritime courts generally have not made this distinction, we argue they should do so. As demonstrated in the following sections, there is good reason for maritime courts to recognize this distinction in maritime sporting cases.
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Title Annotation:I. Introduction through I. The Traditional Doctrine of Assumption of the Risk, p. 271-298
Author:Wright, Robert H.; Ellis, Josephine Mason
Publication:Loyola Maritime Law Journal
Date:Mar 22, 2013
Previous Article:Vessel status reconsidered.
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