
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-2193                                  JUNO SRL, ET AL.,                               Plaintiffs - Appellants,                                          v.                                S/V ENDEAVOUR, ET AL.,                               Defendants - Appellees.                                 ____________________          No. 95-1426                                  JUNO SRL, ET AL.,                               Plaintiffs - Appellees,                                          v.                                S/V ENDEAVOUR, ET AL.,                               Defendants - Appellants.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               Michael X. Savasuk, with whom Bradley & Savasuk was on brief               __________________            _________________          for appellants JUNO SRL, et al.               Bradford D.  Conover, with  whom Dickerson  & Reilly  was on               ____________________             ___________________          brief for appellees S/V ENDEAVOUR, et al.                                 ____________________                                     June 9, 1995                                 ____________________                                         -2-                    TORRUELLA, Chief  Judge.  This case  presents issues of                    TORRUELLA, Chief  Judge.                               ____________          first  impression before  this Court.   The  first issue  is what          weight private  rules and  procedures should have  in determining          the liability of  sailing vessels that  collide while engaged  in              _________          the sport  of yacht racing.  The second issue is what forum shall          assess the damages that result from such circumstances.                     _______                    The district court decision  is reported.  Juno  v. S/Y                                                               ____     ___          Endeavour, 865  F. Supp. 13 (D. Me. 1994).  That court ruled that          _________          the S/V  CHARLES JOURDAN was liable to  the S/V ENDEAVOUR after a          collision between  the two vessels, but found  that the ENDEAVOUR          was 40% at  fault in causing  the encounter.   It also  concluded          that the CHARLES JOURDAN suffered $10,000 in damages,  from which          sum  the court deducted its  60% finding of  fault, and dismissed          all other claims for compensation by both the CHARLES JOURDAN and          the  ENDEAVOUR.   For the  following reasons,  we reverse  on the          issue of liability and affirm in all other respects.                                      BACKGROUND                                      BACKGROUND                    On October 3, 1992,  the CHARLES JOURDAN, a seventy-two          foot  sloop, was  racing  in  the  La Nioulargue  Regatta,  which          included a series of sailing races in and around the Bay of Saint          Tropez, off  southern France.   The Sailing  Instructions of  the          Regatta provided that it would be conductedpursuant to the 1989 -           1992  edition of  the International  Yacht Racing  Rules (IYRR).          Also  competing in  this Regatta  on a  different course  was the          ENDEAVOUR, a restored "J" class sloop 120 feet in length overall.          Both race  courses, however,  converged at a  mark designated  as                                         -3-          "A,"  located at  the  entrance to  Saint  Tropez Bay.    CHARLES          JOURDAN's course  called upon it to  round Mark A to  port on its          way to the finish line at Bouillabaisse Buoy, while the ENDEAVOUR          was required to finish its course at Mark A.                    As  CHARLES JOURDAN headed  for Mark  A on  a starboard          spinnaker reach, another competing racing yacht, LA POSTE, was on          a similar tack, overlapping CHARLES JOURDAN in close proximity to          leeward.   Pursuant to IYRR 37.1,1 the CHARLES JOURDAN, being the          windward vessel, was the burdened vessel and was required to keep          clear of  LA POSTE.  While  racing along at eleven  knots in this          position,  CHARLES  JOURDAN caught  up  with  ENDEAVOUR, who  was          sailing  slower at  seven knots  and was  to windward  of CHARLES          JOURDAN converging  on a  course approximately  40  from that  of          CHARLES  JOURDAN.  Because  the CHARLES  JOURDAN believed  it had          right of way as leeward yacht over the ENDEAVOUR, its crew hailed          the ENDEAVOUR seeking to alter its  course.  Although the crew of          ENDEAVOUR acknowledged the hail, it failed to change course until          a last minute attempt was made  by the master of the ENDEAVOUR to          alter its   direction to  windward.   The boom of  the ENDEAVOUR,          which  was held in  place by a  preventor, and thus  could not be          sheeted  in, struck  CHARLES  JOURDAN's  backstay,  damaging  the          backstay and rigging.                    Pursuant  to  the  IYRRs   and  the  Regatta's  Sailing          Instructions,  the CHARLES  JOURDAN filed  a protest  against the                                        ____________________          1   IYRR 37.1  reads:  "A  windward yacht shall  keep clear  of a          leeward yacht."                                         -4-          ENDEAVOUR.  An  International Jury was  convened,2 and a  hearing          was conducted at which evidence  was presented and arguments made          by representatives of both vessels.  The International Jury found          that ENDEAVOUR was at fault for failing to meet its burden as the          windward yacht under IYRR 37.1.   See supra note 1.  In a written                                            ___ _____          decision, which  was notified  to the parties,  the International          Jury disqualified the ENDEAVOUR from the race.3                                        ____________________          2  The  jury was  composed of international  judges from  France,          Belgium, Andorra, Switzerland, Italy, and the United Kingdom, all          of  whom are certified  by the  International Yacht  Racing Union          (IYRU), yacht racing's ruling body.          3  The decision reads as follows:                                  INTERNATIONAL JURY                      Races:  Omya Saint-Tropez Series Heat 8th                              Coupe     D'Autohne    Nioulargue                      Classic          Yachts                      ENDEAVOUR and CHARLES JOURDAN  sailing in                      separate   races   approached  the   same                      finishing  line  on  converging  courses,                      reaching on starboard.                      CHARLES  JOURDAN  established an  overlap                      from clear  astern  at least  60 feet  to                      leeward of ENDEAVOUR.                      The yachts continued  to sail towards the                      finish, at this time ENDEAVOUR  had ample                      room and opportunity to keep clear.                      CHARLES  JOURDAN  was  travelling  faster                      than ENDEAVOUR, when CHARLES  JOURDAN was                      in ENDEAVOUR's windshadow CHARLES JOURDAN                      slowed down and  ENDEAVOUR's boom  struck                      CHARLES  JOURDAN['s]   backstay  and  the                      collision  resulted  in  serious  damage.                      ENDEAVOUR never changed her course.                      ENDEAVOUR  infringed  Rule  37.1  and  is                      disqualified.  CHARLES JOURDAN is granted                      redress according to  Rule 69(c)  (Points                                         -5-                    Various  incidents  happened thereafter  which  are not          presently relevant.  Suffice it to say that the owners of CHARLES          JOURDAN caught up with the ENDEAVOUR sometime in  September 1993,          in Maine, and proceeded to file the present action, and to arrest          said  vessel.    The  owners  of  CHARLES  JOURDAN  claimed  that          ENDEAVOUR  is liable  in damages  to them because  of ENDEAVOUR's          violation of IYRR 37.1, as  well as the provisions of  Article 12          and  13 of the Convention on the International Regulation for the          Prevention of Collisions at Sea ("COLREGS"), 33 U.S.C.    1601 et                                                                         __          seq., 33 C.F.R.    80.1 et  seq.   They claimed the  right to  be          ____                    ________          compensated  for damage to the  CHARLES JOURDAN, and  for loss of          business   and  sponsors   resulting   from  the   vessel   being          incapacitated  after the collision.  In its answer, the owners of          ENDEAVOUR  denied liability  and counterclaimed  for  damages for          loss of business, and for the alleged false arrest of the vessel.                    After  a   lively  and  mostly  unnecessary   round  of          discovery, the matter went to trial on the admiralty  side of the          bench.  The district court  found that because the IYRRs  are the          rules of a private  racing organization, they "do not  and cannot          preempt the application of the COLREGS which have been adopted by          treaty to  govern worldwide."   Juno,  865 F. Supp.  at 17.   The                                          ____          court thus  ignored the  findings of  the International Jury  and                                        ____________________                      equal to the place she had at the time of                      the incident).                                         -6-          concluded  that, under COLREG Rule  13, 33 U.S.C.  foll.   1602,4          CHARLES JOURDAN was  an overtaking vessel required  to keep clear          of  ENDEAVOUR.  Pursuant to the "Pennsylvania  Rule"5 the CHARLES                                           ____________          JOURDAN was  presumed at  fault.   Nevertheless, the court  found          that,  under  COLREG  Rule  8,  33  U.S.C.  foll.     1602,6  the                                        ____________________          4  Rule 13.  Overtaking                      (a)   Notwithstanding  anything contained                      in the  Rules of  Part B, Sections  I and                      II, any vessel overtaking any other shall                      keep out  of the way of  the vessel being                      overtaken.                      (b)    A vessel  shall  be  deemed to  be                      overtaking  when  coming up  with another                      vessel  from a  direction more  than 22.5                      degrees abaft her beam, that is, in  such                      a  position with reference  to the vessel                      she  is overtaking,  that  at  night  she                      would be able to see  only the sternlight                      of   that  vessel  but   neither  of  her                      sidelights.                      (c)   When a vessel is in any doubt as to                      whether  she  is overtaking  another, she                      shall  assume that  this is the  case and                      act accordingly.                      (d)   Any  subsequent  alteration of  the                      bearing between the two vessels shall not                      make  the  overtaking  vessel a  crossing                      vessel within the  meaning of these Rules                      or relieve  her of  the  duty of  keeping                      clear of the  overtaken vessel until  she                      is finally past and clear.          5  The  Pennsylvania, 86 U.S. (19  Wall.) 125 (1873) (failure  to             _________________          abide by navigational rules creates a presumption of negligence).          6  Rule 8.  Action to avoid collision                      (a)   Any action taken to avoid collision                      shall, if the  circumstances of the  case                      admit,  be positive,  made in  ample time                      and with due regard to the observance  of                      good seamanship.                                         -7-          ENDEAVOUR's  failure to take action to avoid the collision "was a          significant  cause of the accident,"  and found it  40% at fault.          Juno, 865 F. Supp. at 18.          ____                    On the question of consequential damages,  the district          court  dismissed all claims  for loss of  charter and sponsorship          income by  all parties, for lack  of proof.  The  court reached a          similar conclusion regarding the counterclaims.  The court made a          determination of physical damages in the amount of $10,000 to the          CHARLES JOURDAN  caused by  the collision,  which was  reduced to          $4,000.  This appeal ensued.                                       ANALYSIS                                       ANALYSIS                                        ____________________                      (b)   Any  alteration  of  course  and/or                      speed  to avoid  collision shall,  if the                      circumstances of the case admit, be large                      enough  to be readily apparent to another                      vessel observing visually  or by radar; a                      succession of small alterations of course                      and/or speed should be avoided.                      (c)    If there  is sufficient  sea room,                      alteration  of  course alone  may  be the                      most effective  action to avoid  a close-                      quarters  situation  provided that  it is                      made  in  good time,  is  substantial and                      does not result in another close-quarters                      situation.                      (d)  Action taken to avoid collision with                      another vessel shall be such as to result                      in  passing  at  a safe  distance.    The                      effectiveness  of  the  action  shall  be                      carefully checked until the  other vessel                      is finally past and clear.                      (e)  If necessary  to avoid collision  or                      allow  more time to assess the situation,                      a vessel shall slacken  her speed or take                      all way off by stopping or reversing  her                      means of propulsion.                                         -8-                    A.  Standard of Review                    A.  Standard of Review                        __________________                    Our standard for reviewing  a district court's findings          of fact and conclusions of  law made in conjunction with a  bench          trial is well settled.  We review claimed errors of  law de novo.                                                                   __ ____          Williams v. Poulos, 11  F.3d 271, 278 (1st Cir.  1993); Blanchard          ________    ______                                      _________          v. Peerless  Ins. Co., 958  F.2d 483, 487  (1st Cir. 1992).   The             __________________          district court's findings of fact, however, will not be set aside          unless  they are demonstrated to be clearly erroneous.  Williams,                                                                  ________          11 F.3d at 278;  Fed. R. Civ. P. 52(a).  In  other words, we will          give  such findings  effect unless,  after carefully  reading the          record and according due deference to the trial court, we form "a          strong,  unyielding  belief  that   a  mistake  has  been  made."          Cumpiano v. Banco Santander  Puerto Rico, 902 F.2d 148,  152 (1st          ________    ____________________________          Cir.  1992).    Where there  are  two  permissible  views of  the          evidence,  the interpretation  assigned by  the trial  court will          therefore be adopted.  Williams, 11 F.3d at 278.                                  ________                    The clearly erroneous standard also  ordinarily applies          to our review of a district court's resolution of mixed questions          of law  and fact.    Id.   In such  situations,  however, we  are                               ___          obligated to determine whether  the court's decision was infected          by  legal error.   If  a trial  court bases  its findings  upon a          mistaken impression of applicable legal principles, the reviewing          court is not bound by the clearly erroneous standard.  Id.                                                                  ___                    B.  The Contractual Nature of the                    B.  The Contractual Nature of the                        _____________________________                        Sailing Instructions and the IYRR                        Sailing Instructions and the IYRR                        _________________________________                    The history of the COLREGS shows that they were enacted          because of the need to establish a code of international rules of                                         -9-          the road for maritime  traffic throughout the  world.  See   H.R.                                                                 ___          Rep.  No.  447, 95th  Cong., 1st  Sess.  1977, reprinted  in 1977                                                         _________  __          U.S.C.C.A.N. 509.  However,  nothing in their history, or  in the          public policy issues  that led to their enactment, indicates that          they were meant to regulate voluntary private  sports activity in                                                                         __          which the participants have waived their application and in which          _________________________________________________________________          no  interference  with   nonparticipating  maritime  traffic   is          _________________________________________________________________          implicated.    Therefore,  by  entering a  regatta  with  sailing          __________          instructions  which  unambiguously  set  forth  special,  binding          "rules of  the road," the participants  waive conflicting COLREGS          and must sail in accordance with the  agreed-upon rules.  We base          this conclusion not only  on the nature  and history of both  the          COLREGS and the private activity in question, but also because of          the  strong public policy in  favor of the  private settlement of          disputes.                    Surprisingly, considering the extent and history of the          maritime and  yachting tradition within its  jurisdiction, we can          find  no published  cases of  this circuit  regarding the  issues          raised by this  appeal.  In fact, even outside  the First Circuit          there  is a  dearth of  applicable jurisprudence,  although older          reported  English  cases reveal  that  these  questions have  not          altogether avoided judicial scrutiny over the years.                    The cases that we have  found, however, are helpful  to          the extent that they establish the principle -- with which we are          in full accord -- that  when one voluntarily enters a yacht  race          for which  published sailing instructions set  out the conditions                                         -10-          of  participation,   a  private  contract  results   between  the          participants requiring  their compliance therewith.   See De Sole                                                                ___ _______          v. United States, 947 F.2d 1169, 1173 (4th  Cir. 1991); Clarke v.             _____________                                        ______          The  Earl  of Dunraven,  the Satanita,  [1897]  A.C. 59,  64, 66;          _____________________________________          Meggeson v. Burns, [1972]  1 Lloyd's Rep. 223; Clarke  v. Thayer,          ________    _____                              ______     ______          43 N.Y.S. 897, 898 (1897).                    The legally binding nature  of the obligations  created          by the IYRR and the sailing  instructions is not altogether a new          or revolutionary concept.  In 1897, in The Satanita, A.C.  at 64-                                                 ____________          66,  a case  involving  a  collision  between two  racing  yachts          sailing under the rules of the Yacht Racing Association (of Great          Britain), the House of Lords concluded that the owners were bound          by  the  Association  rule  making  one  yacht  liable  "for  all          damages," notwithstanding the liability limitation  provisions of          the  Merchant Shipping  Act.    Lord  Herschell  found  that  the          "sailing rules  by which  they have become  contractually bound,"          id.  at 66, were a valid  basis for seeking all damages suffered,          ___          in  effect deciding that the  limitation of the  statute had been          contractually waived.   In Clarke  v. Thayer, 43  N.Y.S. at  898,                                     ______     ______          also an 1897 case, but of an American state court, the court held          that  a yacht  club's racing  rule  bound a  member  of the  club          participating in  a club  regatta, notwithstanding  a conflicting          navigation  law of the  United States. The  court explained that,          although those  laws were imperative, nothing  prevented a person          from voluntarily waiving them.   Id.  More recently,  in Meggeson                                           ___                     ________          v. Burns,  1 Lloyd's Rep.  223, a British  court found that  "the             _____                                         -11-          parties  had  agreed to  be  bound  by  the IYRU  rules  and  the          [protest]  committee's findings of fact,  as far as  they go, are          final."7  Finally, a recent case in the  Fourth Circuit, De Sole,                                                                   _______          947  F.2d at 1173, involved  a sailing race  in which one private          participant collided  with another participating  vessel owned by          the U.S. Naval  Academy.  The central issue in  that case was the          applicability of the  assumption of risk  doctrine.  In  deciding          that issue, the court  assumed the applicability of the  IYRRs to          race participants and  the authority of the  protest committee to          determine  fault.  The De  Sole court also  strongly implied that                                 ________          racing authorities may provide for private resolution of all such          disputes, including the apportionment of damages, to promote "the          traditional   role  of   encouraging  private   determination  of          liability."  Id. at 1173 n.6.                       ___                    To  our knowledge,  only one  court has ruled  that the          IYRRs  are inapplicable.  In  Sletter v. Hawaii  Yacht Club, 1993                                        _______    __________________          A.M.C. 2863 (D. Hawaii 1993), the court ruled that  the IYRRs "do          not  preempt the  applicable statutory  provisions."   As in  the          district  court's  opinion  in  the  instant  case,  however,  no          reasoning or authority was provided for this conclusion.                    In   the  present   case,   the  Sailing   Instructions          established the  conditions by which race  participants agreed to          be bound.  One of these was that "[t]he event [would be] governed          by  the International Yacht Racing Rules of  the IYRU (1989). . .                                        ____________________          7  Curiously, it nevertheless reviewed the evidence, affirmed the          committee's ruling, and then decided the damages to be assessed.                                         -12-          ."  These rules, particularly IYRR 37.1, clearly establish that a          windward yacht  must keep clear of one to leeward.  Supra note 1.                                                              _____          More  significantly,  however, these  rules  set  out a  detailed          mechanism   for  determining  who   among  competing  yachts  has          infringed these rules of conduct.   See IYRR, Part VI - Protests,                                              ___          Penalties  and  Appeals,  (Plaintiffs-Appellants' Appendix,  Vol.          VIII, pp. 2432a-2437a).   The  IYRRs, together  with the  Sailing          Instructions, establish  the procedure for filing  a protest, see                                                                        ___          IYRR  68, and  the procedures  to be  followed thereafter,  which          include the  conduct of  a hearing, at  which the parties  have a          right  to be present, and  may introduce and  rebut evidence, see                                                                        ___          IYRRs 71-74, and which  require that the decision of  the protest          committee hearing the  protest issue a  written decision that  is          notified  to all interested parties, see IYRR 74.6.8  Pursuant to                                               ___          Amendment  No. 1 to the  Sailing Instructions in  effect for this          Regatta,  and  the provisions  of Appendix  8  of the  IYRRs, the          protest committee was substituted by an international jury, whose          decisions on all protests  is final and unappealable.   See IYRR,                                                                  ___          Appendix 8.                    These mechanisms were agreed to  by the parties for the          resolution of one of the issues  that have become the subject  of          this  suit,  i.e., who  was at  fault  for the  collision between                       ____               _____                                        ____________________          8  They even provide an appeals procedure, see IYRRs 77-78, which                                                     ___          although not applicable in  this case includes appeals on  issues          of rule interpretation, first to the national yachting authority,          and  then to  the IYRU.   These  appellate bodies  commonly issue          published   opinions  and   comprise  a   considerable  body   of          jurisprudence cited and relied  upon by yacht racers, and  by the          protest committees and international juries.                                         -13-          ENDEAVOUR  and  CHARLES  JOURDAN.    The  parties  agreed  to the          substantive  rules  for determining  fault,  they  agreed to  the          adjudicating  forum, and  they were  apprised of  the procedures.          They appeared  before this forum, submitted  to its jurisdiction,          presented evidence and argument,  and thereafter were served with          that body's findings and final decision.                    Thus,  the  CHARLES  JOURDAN  and  the  ENDEAVOUR  were          contractually bound to race by the rules of the road contained in          the  IYRRs,  and  to resolve  issues  related  to  fault for  any          collisions according to those rules.  This is consistent with the          long-established traditions  and rules of conduct  of this sport.          See generally J. Rousmaniere, The Golden Pasttime:  A New History          _____________                 ___________________________________          of Yachting (1986).  Moreover, there is a well-established public          ___________          policy  encouraging the  private resolution  of  disputes through          arbitration  and   other  non-judicial   forums.     See  Federal                                                               ___          Arbitration Act, 9  U.S.C.     1 et  seq.; Allied-Bruce  Terminix                                           ________  ______________________          Cos., Inc.  v.  Dobson,  __  U.S. __,  115  S.  Ct.  834  (1995);          __________      ______          Shearson/Am.  Express,  Inc. v.  McMahon,  482  U.S. 220  (1987);          ____________________________     _______          Southland Corp.  v. Keating,  465 U.S.  1, 10  (1984).   See also          _______________     _______                              ________          United Paperworkers Int'l Union  v. MISCO, Inc., 484 U.S.  29, 36          _______________________________     ___________          (1987) (labor disputes); Vimar Seguros Y Reaseguros, S.A.  v. M/V                                   ________________________________     ___          SKY REEFER, 29 F.3d 727 (1st Cir.) (COGSA), cert. granted, 115 S.          __________                                  _____ _______          Ct. 571 (1994); Scherb v. Alberto Culver Co., 417 U.S. 506 (1973)                          ______    __________________          (international arbitration agreements).                    We also note that  our decision here comports with    2          of  the Federal Arbitration Act, which pointedly states that "[a]                                         -14-          written provision in any maritime transaction . . . to settle  by          arbitration a controversy  arising out of such  . . . transaction          . . .  shall  be valid,  irrevocable,  and  enforceable."   These          conditions exist here.9   Yacht racing is a maritime transaction,          and  the provisions of the IYRR establishing the racing rules and          the   protest  procedures   are   in  writing   and  binding   on          participants.                    Furthermore, the  procedures  established by  the  IYRR          meet  the requirements  of  due process:    there is  appropriate          written notification  of the allegations, notice is  given of the          hearing; the parties  are allowed to appear  and present evidence          and  witness  testimony;  they  may  also  cross-examine opposing          witnesses and argue  orally; and generally,  engage in all  those          accepted activities held so dear by common law lawyers.  Finally,          a  written decision, in which findings of fact are made and fault          apportioned,  is  issued  to  all interested  parties.    Equally          important, the evidence is heard soon after the events take place          by a panel of experts who are fully versed in the niceties of the          activity  in question.   It  is hard  to find  fault with  such a          process, particularly  when it  is exactly what  the participants          agreed to.                    Insistence on blind application of COLREGS to the facts          of this case is not only unsupported by any historical imperative          in  this legislation  and contrary  to the  weight of  the sparse                                        ____________________          9   Section  1 of  the  Federal Arbitration  Act, 9  U.S.C.    1,          states:  "'Maritime transactions,' as herein defined, means . . .          agreements relating to . . . collisions . . . ."                                         -15-          relevant authority,  it is  logically unsound.   Such application          would  turn  on its  head and  render  rife with  uncertainty the          thousands  of private yacht races that  take place throughout the          United States  and  worldwide in  which participants  voluntarily          agree to be bound by the IYRRs.   See De Sole, 947 F.2d at  1170.                                            ___ _______          The  decision could even have  a serious negative  impact on such          international races as the  America's Cup or the  yachting events          of the forthcoming Olympic  Games in Atlanta.  Under  such logic,          notwithstanding  agreement by  Olympic participants  to abide  by          IYRRs and to have protests decided by international juries,  they          could thereafter  relitigate any issues  in the courts  under the          COLREGS.  Such absurdity is difficult to countenance,  and cannot          have  been contemplated  by  Congress or  the treaty  negotiating          authorities when the COLREGS were  adopted.  Such legislation  is          simply  not  applicable  to private  yacht  racing  in  which the          participants have voluntarily adopted a different set of rules of          the road for application among themselves.10                    ________________________________                    In  sum,  the  International  Jury  found the  ENDEAVOR          solely responsible  for the  collision, and it  was inappropriate          for the  district court to have gone  beyond this decision in the          assignment of fault.  We conclude that the findings of that forum                        _____          were final and binding  on the parties, and we  therefore reverse          the decision of the district court in that regard.                    The question of damages is another matter.                                        ____________________          10   As to third  parties, of course,  the COLREGS fully regulate          normal maritime traffic vis-a-vis private races.                                         -16-                    C.  Damages                    C.  Damages                        _______                    No   provision  was   made   in   either  the   Sailing          Instructions  or the IYRRs for  the assessment of  damages by the          International Jury, and damages were not assessed.  In fact, IYRR          76.1 (entitled "Damages") states  that "[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."   The  De Sole  court  interpreted this  language  as                             _______          meaning that:                      [The] courts are the rightful location of                      litigation  over   yacht  racing  damages                      unless racing  union authorities provide,                      in essence, for private resolution.          947  F.2d at 1173  n.6.  We  agree with this  conclusion, as only          such  matters  as  are agreed  to  may  be  submitted to  private          resolution.  See International  Broth. of Teamsters v. Washington                       ___ __________________________________    __________          Emp., Inc., 557  F.2d 1345 (9th Cir.  1977); Anheuser-Busch, Inc.          __________                                   ____________________          v. Brewers and  Maltsters Local Union, 346  F. Supp. 239 (D.  Mo.             __________________________________          1972) (parties cannot  be required to  submit to arbitration  any          dispute which has not been agreed upon for submittal).  Thus, the          CHARLES  JOURDAN was  entitled  to claim  and  prove the  damages          caused by ENDEAVOUR, based upon the determination of fault by the          International Jury.                    The district court concluded that the ENDEAVOUR  caused          the  CHARLES JOURDAN  damage in  the amount  of $10,000  and that          neither vessel  was able to prove the other claims made.  We find          these  conclusions  to  be  fully  supported  by  the record  and          therefore  affirm them.  As  we have explained, the International                                         -17-          Jury found the ENDEAVOUR  solely at fault for the  collision, and          therefore the district court's reduction of the CHARLES JOURDAN's          award to $4,000 based on its finding that the CHARLES JOURDAN was          60%  at fault  was in error.   The  district court  is ordered to          enter judgment in favor  of plaintiffs in the amount  of $10,000.          Costs are granted in favor of defendant.11                                        ____________________          11   The record shows that  an offer of judgment  by defendant in          the amount of $50,000 was refused by plaintiff.                                         -18-
