Alvah Simon's cruising blog - So sue me!
Years ago I was anchored up fore-and-aft alongside the mangrove bank of the New River behind Cairns, Queensland. I had been safely attached to that piece of mosquito-infested mud for many months and thought myself, and my floating neighbors, safe.
But when a nasty low pressure system hit us directly on the head, all hell broke. In the dark of night, for isn't that when these things inevitably happen, an ebbing spring tide combined with rushing floodwaters to rip me and half the fleet loose. I found myself dragging, then spinning down river with all ground tackle in tow. I finally managed to retrieve my bow anchor only to find it encased in a Medusa-like coil of carelessly discarded rod rigging. Just then my bowsprit slammed into the delicate side of a catamaran with a sickening thud.
The owner rushed on deck in a panic. As I drifted downstream into the windy abyss I shouted, "I promise you that I will come back tomorrow and fix or pay for fixing any and all damage I have done to you."
He shouted back, "Good on ya Mate," taking me at my word. He did so because in those days there was an unspoken code of conduct among all serious sailors. This stated that although the cause of me hitting his vessel may or may not have been directly my fault, it certainly was not his. I was the offending and therefore burdened vessel. I should and would assume all responsibility. It's as simple as that. Or is it?
Recently, I leant my mooring to a friend while we were off in the islands. It is a registered, two-tonne, meticulously maintained piece of ground tackle. In a storm, once again in the dark of night, a nearby H28 came off its mooring and slammed into my friend's boat, doing serious damage.
When the H28 owner was contacted, his position was, "I'm insured. That's the insurance company's problem."
The insurance company claimed that the fault and therefore liability lay with the company that laid the mooring, for it had failed. The mooring company stated that although they are licensed by the Regional Council to place and maintain moorings, no guarantee was given or implied. Closing this circular run-around, my friend re-approached the H28 owner, assuming that at the end of the day, he would compensate my friend for the damage, and then pursue reimbursement himself from the insurance and/or mooring company. Instead the H-28 owner basically said, "Sue me."
Had he said that to a less even-tempered man, he might have become the proud owner of two H14s. But sue my friend did, in the small claims court, and, to everyone's surprise, lost. The court decided it was an act of God and exonerated the H28 owner, the insurance company, and the mooring company, ultimately laying the loss squarely on the shoulders of the only party that clearly had played absolutely no part in the accident.
The question of personal responsibility and honour aside, I was flabbergasted by the court's position, and remain at a loss to explain their reasoning.
But we cannot and should not lay aside the question of personal responsibility and honour. This old fashioned code of conduct has run-on benefits, for out there on an unforgiving sea, we have traditionally not only relied on ourselves, but also on each other.
We immediately respond to any distress call in the belief that our fellow sailors would, without hesitation, do the same for us. This trust is not based on paragraph 8.1, clause 2b, hidden in the fine print, clever barristers, or arbitrary decisions handed down by landlubber magistrates.
It is based on the belief that as sailors we are free and independent, yes, but still bound as kindred spirits in our mutual love of the sea. There is an elemental difference between that philosophy and "every man for himself" be it physical or financial. And I hate to think that New Zealand is heading in that direction.