dissenting:
The majority holds that assumption of risk does not apply to the “facts as presented.” I believe assumption of risk should apply to preclude recovery by one racing yacht from another when ordinary negligence is claimed. Because only ordinary negligence was pleaded, the “facts as presented” require us to say that assumption of risk should apply in this case. Therefore, I respectfully dissent.1
The majority remands, in part, for the district court to determine whether the Navy may have been guilty of gross negligence. But the issue of gross negligence is raised for the first time by the majority and not by the parties.2 De Sole in his complaint could have pleaded gross negligence but chose not to. Instead, he sought “recovery of damages caused by the negligent navigation of the U.S. vessel” (emphasis added). He further pleaded that the master of the Cinnabar was relieved from duty as master by the U.S. Navy “for his negligent navigation” (emphasis added). De Sole’s complaint alleged that the damage was
solely brought about through the negligence of the United States vessel Cinnabar and those in charge of her, among others in the following particulars:
a. In that those in charge of her were incompetent and inattentive to their duties;
b. In that they failed to proceed with care and due regard for vessels in their vicinity;
c. In maneuvering Cinnabar recklessly and dangerously;
d. In permitting Cinnabar to go off course and into collision with Ciro, in violation of the U.S. Inland Rules of the Road, Rule 13, 33 U.S.C. § 2013.
(emphasis added). The majority would convert De Sole’s complaint into a complaint charging gross negligence by isolating the words “recklessly and dangerously.” These words, however, stand alone without any factual allegations to support a charge of gross negligence, and even the majority recognizes that these “somewhat concluso-ry” words “might appear insufficient by themselves.” Op. at 1177. The majority further concedes that De Sole, the amici curiae, and the district court did not consider the words to be pleading gross negligence.3
The majority, therefore, has turned to other facts shown in the pleadings in the attempt to find gross negligence. It relies on the facts that: the sailing master of the Cinnabar had been removed from that role; that there was alleged $41,600.05 in property damage to Ciro; and that the rule *1180violated, International Yacht Racing Rule (IYRR) 37.24, was so well known that violation of it may be gross negligence. However, each of those reasons for suspecting gross negligence fail.
First, De Sole himself pleaded, and we have no basis to doubt, that the sailing master was relieved from being sailing master “for his negligent navigation.” It requires much straining to go beyond the clear statement of De Sole as to why the midshipman was relieved. Certainly, there are other more severe penalties which the Navy could have imposed had the young master been guilty of gross negligence or an intentional tort. But we should not have to engage in such a debate, since even the plaintiff, De Sole, attributed the sanction only to “negligent navigation.”
The next fact relied upon by the majority is that the Ciro suffered $41,600.05 in damages.5 But a connection between the degree of damages and the degree of fault of the parties is supported by neither logic nor precedent. That severe damages can be caused by simple negligence and nominal damages by gross negligence or even an intentional tort is at once apparent, and the attempt in the majority opinion to correlate the amount of damages with the degree of negligence has previously been rejected by this court. In Collins v. Risner, 269 F.2d 654, 658-659 (4th Cir.1959), cert. denied, 361 U.S. 924, 80 S.Ct. 293, 4 L.Ed.2d 240 (1959), an automobile collision, we rejected the plaintiff’s contention that the “extent of the damage resulting from the collision” might, in part, be evidence “to raise the ordinary negligence of ... [the defendant] to the higher degree of gross negligence.”
The final argument of the majority is that the rule which the Navy allegedly violated is so well known that any violation of it must be gross negligence. As noted by the court in Ferrell v. Baxter, 484 P.2d 250, 261-263 (Alaska 1971), violation of a traffic law6 is treated differently from jurisdiction to jurisdiction, with the majority holding that a violation is negligence per se, but a substantial minority holding the violation is merely evidence of negligence. However, I know of no jurisdiction that equates the violation of a traffic law, without more, to gross negligence. Just because the rule is well known does not make a violation of the rule gross negligence. The mere fact that a car exceeds the posted speed limit, for example, does not without more make the driver guilty of gross negligence even though the rule is well known.
More importantly, we have held, in Miller v. Semet-Solvay Div., 406 F.2d 1037, 1038 (4th Cir.1969), cert, denied, 395 U.S. 921, 89 S.Ct. 1776, 23 L.Ed.2d 239 (1969), that the violation of an almost identical rule of the nautical road involved here “spells negligence.”7 If the Navy violated the rule, it was negligent. However, the violation, by itself, cannot be considered to be gross negligence.
Finally, on this subject, I think my view of negligence was not only admitted by the parties in their pleadings, such was probably made obligatory as shown by the penalty that the Protest Committee leveled against the Cinnabar. The Protest Com*1181mittee8 disqualified the Cinnabar from the race, which is the penalty provided for in IYRR 74.4 under the “PENALTIES AND EXONERATION” section. Under IYRR 75, “GROSS INFRINGEMENT OF RULES OR MISCONDUCT,” the rules provide that when a protest committee “finds that there has been a gross infringement of the rules or a gross breach of good manners or sportsmanship, it may exclude a competitor, and a yacht when appropriate, either from further participation in a series, or from the whole series, or take other disciplinary action.” The fact that the Protest Committee did not penalize the Cinnabar or her master or the Naval Academy under IYRR 75 is strong evidence that there was no gross negligence involved here, and indeed, if we assume, as we should, that the Protest Committee did its duty, that gross negligence was not involved should be a necessary conclusion.
One undertaking on remand as ordered is to supplement the record. And one purpose apparently is to discover whether there is, as amici asserts, and the majority infers, “a long-standing tradition in sailboat racing that the party at fault in a collision bears the responsibility for the damages caused.” Op. at 1173. Under the rules in effect at the time of the accident, and the current version of the rules, IYRR 76.1 states “[t]he question of damages arising from an infringement of any of the rules shall be governed by the prescriptions, if any, of the national authority” (emphasis in original). At the time of the race, the rules of the United States Yacht Racing Union (USYRU) made no provision whatsoever for damages.9 However, this has not always been the case.10 IYRR 72(4)11, as late as 1968, provided that “[t]he owner of a yacht which infringes any rule shall pay all damages caused thereby.” The rule was deleted by the USYRU in 1969.12 See J.H. Feller, Yacht Racing Protests & Appeals, 1972, pg. 48.13 The repeal of the very rule we are asked to impose judicially is, of course, significant. The USYRU must have intended to make a change when it repealed the rule.14 If we *1182require a yacht which infringes any rule to pay for damages, then we are simply reimposing the repealed rule, amounting to a decision that, as a matter of law, the re-pealer is of no effect.15 The existence of the rule up until early 1969 also explains the relatively few cases 16 involving yacht collisions during races. As noted by the court in Salvesen v. Young, 1966 S.L.T. (Sh.Ct.) 81 (1965), the Royal Yachting Association’s (RYA) rules, which, like the old American rules required the yacht which violated the rules to pay for damages17, provided an “expeditious and uncomplicated” procedure which could “be likened to an arbitration clause in a contract, which also has the effect of excluding the jurisdiction of the court.” The rule, therefore, has resulted in few cases involving damages from a yacht race reaching the courts. Given the existence and later repeal of the rule, I see no need for a remand to further consider the traditions of the sport in that regard. Far from the Corinthian traditions relied upon by the amici or the inference therefrom relied upon by the majority, the absence of litigation, an inspection of the authorities cited reveals, has been due to a repealed rule. So I think further inquiry is neither appropriate nor desirable.
The majority further sees a need to remand in order to determine if De Sole contemplated and assumed “the risk of a collision through ignoring a universally established rule.” Op. at 1178. Again, I disagree. Assuming assumption of risk applies, then De Sole, like participants in oth*1183er sports, assumed the risks that were “obvious and foreseeable.” Novak v. Lamar Ins. Co., 488 So.2d 739, 740 (La.App.1986) cert. denied 491 So.2d 23 (La.1986).18 Certainly, it is obvious and foreseeable that racing rules will be violated. The USYRU has developed an organized procedure including rules, protests and appeals to handle situations when there is a claim the racing rules are violated. Neither can it be said that it is not obvious and foreseeable that yachts in a race will, from time to time, collide. The very existence of rules, past and present, regarding payment for damages, is proof certain that participants in the sport are aware of such risks. Yacht racing is not without very real dangers.19 See Sutterfield, Personal Injury and Death Aboard Racing Yachts, Journal of Maritime Law and Commerce, Yol. 12 No. 2, Jan. 1981. De Sole is bound to have understood the danger of collision as well as such other risks when he entered the race. Even if it is true that by participating in a sport, one does not expect a fellow participant to intentionally violate a safety rule or to be grossly negligent, such an intentional violation or gross negligence is not a part of this case. This case deals with, in the words of the complaint, “the negligent navigation of the U.S. vessel.” There is simply no need to remand.
This brings me to the primary question on appeal: Whether assumption of risk applies to preclude recovery in this case?20 I believe it does and would affirm the district court.
Assumption of risk has long been applied in cases involving competitive sports. The court in Ross v. Clouser, 637 S.W.2d 11 (Mo.1982), summarized one motivation for courts to apply the doctrine in sports cases. “Fear of civil liability stemming from negligent acts occurring in an athletic event could curtail the proper fervor with which the game should be played and discourage individual participation.” Ross, 637 S.W.2d at 14. The doctrine has been applied to many different types of athletic events and sporting situations. See Novak v. Lamar Ins. Co., 488 So.2d 739 (La.App.1986), cert. denied, 491 So.2d 23 (La.1986) (softball); Kuehner v. Green, 436 So.2d 78 (Fla.1983) (karate); Nesbitt v. Bethesda Country Club, Inc., 20 Md.App. 226, 314 A.2d 738 (1974) (golf); Kabella v. Bouschelle, 100 N.M. 461, 672 P.2d 290 (App.1983) (football); Heldman v. Uniroyal, Inc., 53 Ohio App.2d 21, 371 N.E.2d 557 (1977) (tennis); Oswald v. Township High School Dist., 84 Ill.App.3d 723, 40 Ill.Dec. 456, 406 N.E.2d 157 (1980) (basketball); Hanson v. Kynast, 38 Ohio App.3d 58, 526 N.E.2d 327 (1987) (lacrosse); Maddox v. City of New York, 66 N.Y.2d 270, 496 N.Y.S.2d 726 (1985) (baseball); Gauvin v. Clark, 404 Mass. 450, 537 N.E.2d 94 (1989) (hockey); Ford v. Gouin, 227 Cal.App.3d 1175, 266 Cal.Rptr. 870 (1990), review granted, 269 Cal.Rptr. 720, 791 P.2d 290 (1990) (waterskiing); Ramos v. City of Countryside, 137 Ill.App.3d 1028, 92 Ill.Dec. 607, 485 N.E.2d 418 (1985) (bombardment, played with a softball).
The doctrine is very appropriate in the context of competitive racing. See Gehling v. St. George’s Univ. School of Medicine, Ltd., 705 F.Supp. 761, 766-767 (E.D.N.Y.1989) affirmed by 891 F.2d 277 (2d Cir.1989) (table) (foot racing); Knowles v. Roberts-At-The-Beach Co., 115 Cal. App.2d 196, 251 P.2d 389 (1953) (hobbyhorse racing); Clark v. State, 195 Misc. *1184581, 89 N.Y.S.2d 132, 139 (Ct.C1.1949) affirmed by 276 A.D. 10, 93 N.Y.S.2d 28 (1949) (bobsled racing); Santiago v. Clark, 444 F.Supp. 1077 (N.D.W.Va.1978) (horse racing); Provence v. Doolin, 91 Ill.App.3d 271, 46 Ill.Dec. 733, 414 N.E.2d 786, 795 (1980) (auto racing); Mayer v. Howard, 220 Neb. 328, 370 N.W.2d 93 (1985) (motorcycle racing); Dunion v. Kaiser, 124 F.Supp. 41 (E.D.Pa.1954) (motorboat racing)21; Pressler v. Peter U, 1990 WL 161974,1990 Ohio App. LEXIS 4617 (Ohio Ct.App.1990) (yacht racing).
Although we have noted “the general inapplicability of the assumption of the risk doctrine in maritime law”, see McCoy v. United States, 689 F.2d 1196, 1198 (4th Cir.1982), I am of opinion that this is not a case of “general inapplicability”22 and that the doctrine should apply in the context of a yacht race.23 A yacht race, in most respects, is like any other competitive race. Given that the doctrine of assumption of risk is especially appropriate in the competitive sports context, I believe that it should apply here.24
I am not dissuaded by the fact that much admiralty law is based on comparative negligence. Many comparative negligence jurisdictions have continued to apply assumption of risk principles. Florida, for example, adopted a comparative fault system in Hoffman v. Jones, 280 So.2d 431 (Fla. 1973). Yet in Kuehner v. Green, 436 So.2d 78 (Fla.1983), it applied assumption of risk to prevent recovery for injuries which occurred while participating in karate. Similarly, the Supreme Court of Rhode Island concluded that the adoption of comparative negligence “neither diminishes the validity of assumption of the risk as a defense to negligence actions nor makes it a mere mitigating factor in assessing liability.” Kennedy v. Providence Hockey Club, Inc., 119 R.I. 70, 376 A.2d 329, 332 (1977). Massachusetts, likewise a comparative fault jurisdiction, applied assumption of risk principles to prevent recovery for an injury that occurred in a hockey game. The court noted
[s]ome jurisdictions explain the limitation on liability in sports competitions to *1185cases of reckless conduct in terms of the doctrine of assumption of the risk ... (citations deleted). The Legislature has abolished the defense of assumption of the risk in Massachusetts, however. G.L. c. 231, § 85 (1986 ed.) Because the doctrine has been abolished, “the focus of the analysis in [sports cases] has shifted entirely to the defendant’s duty....”
Gauvin, 537 N.E.2d at 97 n. 5. Although Massachusetts refrained from calling its doctrine assumption of risk, the result and most of the analysis is the same. New York, in a case involving a jockey injured when a fellow jockey violated a racing rule, applied much the same analysis. Turcotte v. Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964 (1986). The court stated:
[traditionally, the participant’s conduct was conveniently analyzed in terms of the defensive doctrine of assumption of risk. With the enactment of the comparative negligence statute, however, assumption of risk is no longer an absolute defense ... (citation deleted). Thus, it has become necessary, and quite proper, when measuring a defendant’s duty to a plaintiff to consider the risks assumed by the plaintiff.
Turcotte, 502 N.E.2d at 967. The court treated the jockey’s participation as a complete bar to recovery, reasoning that his coparticipants owed him no duty to refrain from negligence. Turcotte, at 968.25 The mere fact that admiralty law applies comparative fault principles, and not assumption of risk, in the context of injuries to a seaman in a seaman’s case as mentioned, should not prevent the doctrine of assumption of risk from applying in the context of a yacht race.
The majority’s application of Jones Act cases to the present action is of little or no value. This litigation involves a race, not a statutory cause of action on behalf of an injured employee. As I have shown, the general rule in racing of any kind, is that assumption of risk applies. I see no reason to depart from that rule merely because this race took place on Chesapeake Bay instead of at the Charlotte Motor Speedway or Churchill Downs.
I also must note that the majority has written over ten pages of admitted dicta on the issue of assumption of risk.26 It is of interest that while the majority is “loathe to countenance reaching ... a decision” on whether assumption of risk applies to yacht racing it nevertheless discusses at length the very issue that it holds should not be decided by this court at this time.
Finally, I believe there has hardly ever been a race of any kind involving either vessels or vehicles in which one of them has not suffered injury due to the claimed action of another in such a context that it is arguable that the operator of one or the other of the vessels or vehicles was negligent. The opinion of the majority in this case permitting the prosecution of a claim for ordinary negligence is not only contrary to the principle of universal application that one participant in a race cannot recover from another participant for mere negligence, it does a disservice to the sport by permitting the intervention of the courts of admiralty for every stay or other bit of rigging broken during a race which can be blamed on another participant, and it is an invitation to every racer in this circuit to avail himself of the courts of the United States for damages occurring during a race due only to the negligence of another participant.
Being of opinion that the doctrine of assumption of risk should apply in this case, I would affirm the judgment of the district court.
Accordingly, I respectfully dissent.
.Yacht racing has a long and interesting history. My hope is that the invitation to litigation of this decision will not damage the sport. Yachts appeared some 5,000 years ago. See J. Rousmaniere, The Golden Pastime: A New History of Yachting, 1986, pg. 10. (hereinafter cited as Rousmaniere). In 1661 King Charles II of England won the first recorded yacht race over his brother, James. Rousmaniere at 17. The first yacht club, Ireland’s Water Club of the Harbour of Cork, was formed in 1730. Rous-maniere at 47. Unfortunately, yacht racing has not been without an occasional breakdown of civility. During the 1829 King’s Cup of the Royal Yacht Club race, the yachts Lulworth and Louisa intentionally collided near the finish line. The crews "went at it with an assortment of weapons.” Rousmaniere at 56. The race committee eventually awarded the cup to the Lulworth after deciding that the Louisa’s crew’s "use of axes in the cutting away of rigging was unjustifiable.” Rousmaniere at 56.
. De Sole alleged negligence. The Navy responded to a charge of negligence, and the district court treated the case as a case involving negligence; gross negligence was not mentioned. We are out of place, I think, in trying to read gross negligence into the complaint. In addition, I believe, as I will demonstrate, the absence of gross negligence has probably been definitively decided by the acts of the parties and the fact finding of the Race Committee.
. Exactly, the opinion states: “Certainly the district judge appeared to allow them no consequence and the amici curiae and De Sole did not appear to do so either.” Op. at 1177.
. IYRR 37.2 requires that "[a] yacht clear astern shall keep clear of a yacht clear ahead." (emphasis in original). It is virtually identical to the Rule 13 of the Road as found in 33 U.S.C. § 2013 that "any vessel overtaking any other shall keep out of the way of the vessel being overtaken.”
. I am not persuaded that $41,600.05 worth of damages to a racing yacht is of unusual significance. Yachts are notoriously extremely expensive as shown by J.P. Morgan’s response when asked by millionaire oil man Henry Clay Pierce what it cost to run a yacht. Morgan’s advice was "If you have to ask how much it costs, you can’t afford it." Rousmaniere suggests that what was meant was that the rewards of yachting always outpace the cost and that Morgan's advice was not a boast, rather a reflection of spiritual humility. Rousmaniere, p. 98. I have no comment to make, either on Morgan’s advice or Rousmaniere’s justification, but point out that the discussion reflects yachting’s regard for money.
. Although traffic laws and maritime rules of the road are obviously two distinct subjects, the two are similar enough to compare.
. The rule violated was Western River Rule 22, not essentially different from the rule involved here.
. Under IYRR 1.3 and 1.4, the Race Committee may perform the function of a Protest Committee, as obviously happened here.
. According to supplemental authority submitted by DeSole, at the USYRU’s 1991 annual meeting, the Union adopted the following prescription: "USYRU prescribes that liability for such damages shall be determined in accordance with the rules and apportioned solely by comparative fault principles under general federal maritime law.” The new rule has no effect on the present litigation as it was enacted subsequent to the race in question. In addition, it is unclear what effect the rule will have in the future. If, under the new prescription, the race committee is to assess damages then the USYRU will have achieved what I have advocated; courts will not intrude into yacht races. If, however, the new prescription is merely a statement of the law which is to be applied by courts, then the USYRU has changed nothing. The statement "damages shall be determined in accordance with the rules” is of no consequence since the rules do not deal with the question of damages. The further statement that liability for damages shall be "apportioned solely by comparative fault principles under general federal maritime law,” except for the enigmatic reference to comparative fault, merely states what would be true in the absence of any prescription; the law in effect, general federal maritime law, will govern in a yacht racing case in which a federal court's admiralty jurisdiction is invoked.
. It is inexplicable that the existence and the later repeal of the rule which required yachts which were found to have violated racing rules to pay for damages, was not brought to the attention of the court by the parties or the amici.
. I refer to the rule as adopted by the North American Yacht Racing Union which is the earlier name of the USYRU.
. I am unable to find anything published which explains the USYRU’s decision to delete the rule. I note, however, that the yacht racing rules are different in character from the traditional rules of the road. Yacht racing rules are designed to allow for maximum maneuverability in close proximity to another yacht. A comparison of the yacht racing rules and the normal rules of navigation leaves me with the firm conclusion that there is more inherent risk of collision involved with the racing rules.
. Feller's treatise goes on to state that ”[t]he tendency of some insurance companies to press a race committee into the role of a claims adjuster should be firmly resisted.” Feller at 49.
. Amici's failure to disclose to the court the USYRU’s repealed rule seriously undermines their credibility. In addition, amici’s argument *1182that the sport will be disrupted by keeping the courts out of disputes between yachtracing participants is incredible. The position advocated by amici and adopted by the majority opens the doors for litigation every time a rule is alleged to have been violated in a yacht race. This, to me, seems a dangerous precedent for the future of racing.
If the amici believes that the party in a yacht race who violates a rule should pay for damages then it should reinstate its repealed rule. Then, damages would be paid and the sport could continue to govern itself without the interference of the courts.
Because of the ambiguous language in the new prescription enacted by the USYRU at its 1991 annual meeting, it is unclear what effect it will have. See note 9. If the USYRU intended to make a party that violates a rule pay damages it should have expressly said so. Instead, it enacted a prescription which appears to have no effect, except for the enigmatic reference to comparative fault, other than to restate the law.
.This we should not do. If we are to allow this sport to continue to govern conduct between its own participants, we must not be tempted to look to custom to reinstate a rule which was expressly and purposefully taken out by the USYRU. If the USYRU believes it appropriate to reinstate the earlier rule on damages, it should do so and not turn to the courts for help it should provide for itself.
I note that, according to supplemental authority submitted by DeSoIe, at the USYRU’s 1991 annual meeting, the Union adopted the following prescription: "USYRU prescribes that liability for such damages shall be determined in accordance with the rules and apportioned solely by comparative fault principles under general federal maritime law." The ambiguity of this language makes its effect uncertain. See note 9.
. Amici argues that it is "highly significant" that "in [yacht racing’s] long history this sport has not produced one reported decision involving a collision between two boats." The following cases were overlooked.
Kayfetz v. Walker, 404 F.Supp. 75 (D.Conn. 1975), which involved a collision between the yachts Pegasus and Wildcat during a race conducted by the Larchmont Yacht Club of New York.
Salvesen v. Young, 1966 S.L.T. (Sh.Ct.) 81 (1965), which involved a collision of the yachts Namhara and Tinto during a race organized by the Loch Long Sailing Club.
Meggeson v. Burns, 1 Lloyds Rep 223 (1972), which involved a collision of the yachts Samantha and Suzalah during a race organized by the Royal Southern Yacht Club.
Clark v. Earl of Dunraven, (1897) A.C. 59, which involved a collision of the yachts Satanita and Valkyrie during a race organized by the Mu-dhook Yacht Club.
. Both the RYA rules and the USYRU rules at the time of Salvesen required the yacht which violated the rules to pay for damages. The current RYA rules “prescribe that: 1. No claim for damages arising from an infringement of any of these rules or the sailing instructions shall be adjudicated upon by any race committee or appeal authority, but shall be subject to the jurisdiction of the Courts.” IYRR 76.1 for 1989-1992, as adopted by the RYA. Just as interesting is RYA prescription 3 under Rule 76.1: "The finding of fact and decision of protest committees shall be relevant only to the purposes of IYRU Yacht Racing Rules and shall not be referred to in any proceedings for damages without the written consent of all parties to the protest.” So the Royal Yacht Association has come to the opposite conclusion than the majority seeks here.
. The Louisiana Supreme Court has since held that because the legislature had adopted comparative fault, "courts, lawyers, and litigants would best be served by no longer utilizing the term assumption of risk_” However, the court went on to state that its decision did not mean "that the result reached in ... common law's 'implied primary’ assumption of risk cases was incorrect." Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1134 (La.1988).
. Racing is today probably not as dangerous as the sport engaged in by yachtsmen of the late 1600’s, who engaged in mock battles with their yachts. Rousmaniere at 14-15. Nor may it be as dangerous as King Charles II’s habit of naming his yachts for his paramours. To be fair to King Charles, he also named two yachts for his wife, Catherine. Rousmaniere at 16-17.
.The majority opinion, while expressly not reaching the issue .of whether assumption of risk should apply, op. at 1176, in admitted dictum indicates that "the majority would be disposed to hold that there is ordinarily no assumption of risk doctrine applicable to collisions between contestants in a maritime race of the nature here presented.” Op. at 1174.
. This admiralty case was relied upon by the district court but is rejected by the majority.
. McCoy was a case of the claim of a seaman injured in slip and fall accidents on board ship. These claims, I suggest, have no relation to a collision in a yacht race.
. The majority gives great weight to the fact that assumption of risk was not alluded to in Clarke v. Earl of Dunraven, (1897) A.C. 59. Op. at 1176, n. 11. Assumption of risk had no place in that lawsuit because it was an action for breach of contract. Clarke, the party who violated the rules, was contractually bound, by the sailing rules of the Yacht Club Association, to "pay all damages” caused by the violation.” (1897) A.C. at 59-60. Assumption of risk would not bar a suit brought on the contract. Clarke argued that the Merchant Shipping Act Amendment Act’s limitation of liability was not overridden by the contractual obligation to "pay all damages” and therefore he should be required to pay only the statutory amount of damages. The court appropriately held that Clarke was contractually bound to pay all damages.
The majority incorrectly asserts that the yacht racing rule then in effect allowed “an owner of a yacht [to] sue unrestrictedly for negligence." Op. at 1176-77, n. 11 (emphasis added). Rather, an owner could sue unrestrictedly for breach of contract if a party failed to pay for damages he caused while violating the racing rules. Had the parties in the present lawsuit contractually agreed to pay damages, then De Sole, like the Earl of Dunraven, could have sued for damages for breach of contract and assumption of risk would have no place in the lawsuit.
Lord Halsbury’s statements that "the case of yachts is different from that of merchant vessels,” and "the conditions under which merchant ships sail and yachts sail are different,” (1897) A.C. at 62, are good evidence that he believed that a rule of general maritime law may not be appropriate in the context of a yacht race.
.The majority's statement that assumption of risk is inappropriate because sailboat races can occur in waterways used by many other nonparticipant vessels, op. at 1178, n. 14, implies that invoking assumption of risk in the present case would bar future suits by non-participants damaged by participants. This implication indicates a misunderstanding of my position. I would hold that assumption of risk should apply to preclude recovery by one racing yacht from another yacht in the race when ordinary negligence is claimed. The situation certainly would be different when the injured party was not a participant in the race. Cf. Clark v. Thayer, 14 A.D. 510, 43 N.Y.S. 897 (1897) (collision between participant in yacht race and non-participant after the participant had crossed the finish line).
. But see Rutter v. Northeastern Beaver County School Dist., 496 Pa. 590, 437 A.2d 1198 (Pa. 1981), especially 437 A.2d at 1210, n. 6.
. For dicta, see, e.g., op. at 1172-77. For admission of dicta, see, e.g., op. at 1178-79. ("Whether and, if so, under what circumstances assumption of the risk applies in admiralty we again emphasize that we do not, in the present posture of the case, reach.”)
The discussion of the issue germane to the court's actual holding can be found on the last six pages of the opinion. See op. at 1178-79.