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...
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