                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 02-1531
                               ________________

Joseph Sander; Barbara Sander; Ivy       *
M. Smith; Ruby Smith; Lawson             *
Burford; Mary Burford,                   *
                                         *      Appeal from the United States
            Appellees,                   *      District Court for the
                                         *      Eastern District of Missouri.
      v.                                 *
                                         *             [PUBLISHED]
Alexander Richardson Investments,        *
doing business as Yacht Club of St.      *
Louis,                                   *
                                         *
            Appellant.                   *

                               ________________

                               Submitted: November 4, 2002
                                   Filed: July 1, 2003
                               ________________

Before HANSEN,1 Chief Judge, BEAM and RILEY, Circuit Judges.
                           ________________

HANSEN, Circuit Judge.




      1
       The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. He has been succeeded by the Honorable James B. Loken.
      Boats owned by Joseph and Barbara Sander, Ivy M. and Ruby Smith, and
Lawson and Mary Burford (collectively "the boat owners") were destroyed while
moored at the Yacht Club of St. Louis ("Yacht Club") when another boat caught fire.
The boat owners sought recovery from the Yacht Club, which defended based on an
exculpatory clause in the Boat Space Rental Agreement ("slip agreement") that the
Yacht Club had with each of the boat owners. The district court granted recovery to
the boat owners, from which the Yacht Club appeals. Siding with the Fifth and Ninth
Circuits in an existing circuit split concerning the enforceability of exculpatory
clauses in marine contracts, we reverse the district court's judgment.

                                           I.

      Ronald and Martha Jessup owned the motor vessel (M/V) A-OK, a houseboat,
which they moored at the Yacht Club marina. After noticing a fuel leak near the
starboard engine fuel pump, Mr. Jessup approached the Yacht Club's service
department to discuss needed repairs. The service manager informed Mr. Jessup that
he would be unable to repair it in the time frame Mr. Jessup requested. The Yacht
Club's general manager suggested to Mr. Jessup that he hire Charlie Shulte, a Yacht
Club maintenance worker, to repair the fuel leak, assuring Mr. Jessup that Mr. Shulte
was qualified to perform the repair work. Mr. Jessup hired Mr. Shulte, who
determined that the fuel pump needed to be replaced and installed a new pump.

       Mr. Jessup returned to the boat three days after Mr. Shulte replaced the fuel
pump to show the boat to an interested buyer. After starting the boat and letting it run
for a period of time, Mr. Jessup heard a loud thud that was later described as an
explosion. Flames engulfed the hatch area where the engines were located. Mr.
Jessup was unable to extinguish the flames with a fire extinguisher and the boat
became engulfed. The fire spread to other docks of the marina and ultimately
destroyed the M/V Never Better, owned by the Sanders, the M/V My Prerogative,
owned by the Smiths, and the M/V Lady Ellen, owned by the Burfords.

                                           2
       The Jessups brought an action in federal district court seeking exoneration
from, or limitation of liability for, all claims arising from the incident. Each of the
boat owners filed claims within the suit against the Jessups and the Yacht Club, and
the Yacht Club and the Jessups filed claims against each other. The claims against
the Yacht Club were premised on a negligence theory, alleging that Mr. Shulte
improperly installed the fuel pump, which caused the fire, and that the Yacht Club
was liable for assuring Mr. Jessup that Mr. Shulte was qualified to perform the repair,
when in fact he was not.

      The Yacht Club defended against the boat owners by asserting that an
exculpatory clause printed on the back of each boat owner's slip agreement
exonerated it from any liability for damages caused by the fire. The clause read as
follows:

      19. INSURANCE: TENANT AGREES that he will keep the boat fully
      insured with complete marine insurance, including hull [property]
      coverage and indemnity and/or liability insurance.

      THE LANDLORD DOES NOT CARRY INSURANCE covering the
      property of the TENANT. THE LANDLORD WILL NOT BE
      RESPONSIBLE for any injuries or property damage resulting, caused
      by or growing out of the use of the dock or harbor facilities; that the
      TENANT RELEASES AND DISCHARGES THE LANDLORD from
      any and all liability for loss, injury (including death), or damages to
      person or property sustained while in or on the facilities of
      LANDLORD, including fire, theft, vandalism, wind storm, high or low
      waters, hail, rain, ice, collision or accident, or any other Act of God,
      whether said boat is being parked or hauled by an Agent of
      LANDLORD or not.

(App. of Exs., tab 2.) The case was tried to the bench and the district court found that
the Jessups were not negligent. The court also found that the fire resulted from the
improper installation of the fuel pump by Mr. Shulte, an agent of the Yacht Club, and

                                           3
that Mr. Shulte's actions constituted negligence on the part of the Yacht Club. The
district court found that the exculpatory clause did not release the Yacht Club from
liability for its own negligence because "exculpatory clauses that completely absolve
a party from all liability are invalid." (Add. at 10.) The court found alternatively that
the exculpatory clause did not clearly and unequivocally indicate that it released the
Yacht Club from liability for its own negligence, and that the provision was
overreaching because of the unequal bargaining power of the parties. (Id.) The court
ordered the Yacht Club to pay $60,000 to the Sanders, $49,400 to the Smiths, and
$58,600.50 to the Burfords as the value of their respective boats.

       The Yacht Club appeals, arguing that the clause is sufficiently clear to release
it from liability stemming from its own negligence, and urging us to adopt the views
of the Fifth and Ninth Circuits, which enforce exculpatory clauses that fully exonerate
a party from liability for its own negligence. The Yacht Club does not dispute the
district court's finding that it was negligent. The Jessups are not parties to this appeal.

                                            II.

       The issues of the validity of an exculpatory clause and the construction of a
contract, including whether it is ambiguous, are legal issues that we review de novo.
Western Forms, Inc. v. Pickell, 308 F.3d 930, 933 (8th Cir. 2002). We will reverse
the district court's determination of the parties' intentions in an ambiguous contract
and its finding of unequal bargaining power only if those factual findings are clearly
erroneous. In re Y & A Group Sec. Litig., 38 F.3d 380, 383 (8th Cir. 1994) (parties'
intent); Dillingham Tug & Barge Corp. v. Collier Carbon & Chem. Corp., 707 F.2d
1086, 1090 (9th Cir. 1983) (unequal bargaining power), cert. denied, 465 U.S. 1025
(1984). Because the subject matter of the contract at issue–the slip rental
agreement–is maritime, we apply admiralty law. See S.C. State Ports Auth. v. Silver
Anchor, S.A., 23 F.3d 842, 846 n.3 (4th Cir. 1994) ("[C]ontracts for wharfage,
dockage, and crane rental are maritime."). "[A]dmiralty jurisdiction brings with it a

                                            4
body of federal jurisprudence, largely uncodified, known as maritime law." La
Esperanza de P.R., Inc. v. Perez y Cia. de P.R., Inc., 124 F.3d 10, 16 (1st Cir. 1997)
(internal quotations omitted).

        There is a split in the circuit courts of appeals on the issue of whether, under
admiralty law, an exculpatory clause (also called a red letter clause) that fully
absolves a party from liability for its own negligence is enforceable. Compare Diesel
"Repower," Inc. v. Islander Invs. Ltd., 271 F.3d 1318, 1324 (11th Cir. 2001) ("[T]he
limitation [in a red letter clause] must not absolve the repairer of all liability and must
still provide a deterrent to negligence.") and La Esperanza, 124 F.3d at 19 ("[P]arties
may not totally absolve themselves of all liability and, more substantively, the
prospective wrongdoer's potential liability should be enough to deter negligence."
(internal quotations omitted)), with Royal Ins. Co. of Am. v. S.W. Marine, 194 F.3d
1009, 1014 (9th Cir. 1999) ("[E]xcept in towing contracts, exculpatory clauses are
enforceable even when they completely absolve parties from liability for negligence."
(footnote omitted)) and Theriot v. Bay Drilling Corp., 783 F.2d 527, 540 (5th Cir.
1986) (applying federal maritime law and enforcing indemnity agreement that fully
exculpated party from liability for its own negligence). We will address that issue
shortly, but we turn first to the issue of whether the contract provision at issue was
sufficiently clear to absolve the Yacht Club of liability for its own negligence, for it
is universally agreed that exculpatory clauses, whether fully exonerating a party from
its own negligence or not, must "be clearly and unequivocally expressed." Randall
v. Chevron U.S.A., Inc., 13 F.3d 888, 905 (5th Cir. 1994) (internal quotations
omitted). See also Edward Leasing Corp. v. Uhlig & Assocs., Inc., 785 F.2d 877, 889
(11th Cir. 1986) (recognizing that courts will enforce red letter clauses if "the
contractual language at issue is clear and unequivocal and clearly indicates the
intentions of the parties"); M/V Am. Queen v. San Diego Marine Const. Corp., 708
F.2d 1483, 1488 (9th Cir. 1983) (holding parties to an exculpatory clause where the
parties' intent is clear).



                                            5
                  A. Is the Exculpatory Clause Sufficiently Clear?

        The clause at issue here required the boat owner to carry full property insurance
on the boat and informed the boat owner that the marina did not carry insurance that
covered the boat owner's property, including the boat. It further provided that "THE
LANDLORD WILL NOT BE RESPONSIBLE for any injuries or property damage
resulting, caused by or growing out of the use of the dock or harbor facilities; that the
TENANT RELEASES AND DISCHARGES THE LANDLORD from any and all
liability for loss, injury (including death), or damages to person or property sustained
while in or on the facilities of LANDLORD, including fire . . . ." (App. of Exs., tab
2.) The boat owners argue that it is not enough that the clause released the marina
from all liability, it must do more by specifically referring to liability caused by the
marina's own fault. The boat owners made clear during oral argument that they do
not suggest that the clause is deficient for not using the magic term "negligence,"2 but
argue that it must refer to liability arising from the marina's fault in some manner. We
recognize that the Supreme Court of Missouri requires something more, see Alack v.
Vic Tanny Int'l of Mo., Inc., 923 S.W.2d 330, 337 (Mo. 1996) (en banc) (holding that
exculpatory clause in health club membership did not exculpate the facility from
liability for a personal injury stemming from the facility's negligence because the
clause did not use the term "negligence," "fault," or equivalents), but we are applying
federal maritime law, which must control our construction of the contract at issue.

      Despite the alleged shortcomings, we hold that the clause releasing the Yacht
Club "from any and all liability for . . . damages to . . . property . . . ., including fire"
(App. of Exs., tab 2 (emphasis added)), unambiguously released it from liability
stemming from its own negligence. Even in maritime law, we construe contracts by

       2
       See United States v. Seckinger, 397 U.S. 203, 213 n. 17 (1970) ("We
specifically decline to hold that a clause that is intended to encompass
indemnification for the indemnitee's negligence . . . must explicitly state that
indemnification extends to injuries occasioned by the indemnitee's negligence.").
                                             6
giving their terms their normal and everyday meaning. We look to the contract as a
whole to determine whether it unambiguously states the parties' intentions. The slip
agreement clearly shifted the risk of loss to the boat owners by requiring the boat
owners to fully insure their boats, including hull coverage. The agreement informed
the boat owners in capital letters that the marina did not carry insurance that would
cover the property of the boat owners. The term "any and all" used in the exculpatory
clause is all-encompassing and leaves little doubt as to the liability from which the
boat owners released the Yacht Club. "In short, 'all' means all." Knott v. McDonald's
Corp., 147 F.3d 1065, 1067 (9th Cir. 1998) (enforcing clause in which franchise
seller assigned "all [their] right, title and interest" to the buyer, including cause of
action for breach of franchise agreement).

       We decline to accept the boat owners' invitation to require more than "all"
when the liability at issue stems from the Yacht Club's own negligence. The
agreement as a whole clearly shifted the risk of loss to the boat owners and
exculpated the marina from liability for damage resulting from the fire. When
language is this explicit, "it is beyond the province of this Court to imply limitations
or conditions on the exercise of a power to allocate risks so unmistakably expressed."
Morton v. Zidell Explorations, Inc., 695 F.2d 347, 351 (9th Cir. 1982) (construing
clause providing that "all risk of loss of or damage to the Vessel shall be upon First
Party" and "Second Party shall not, under any circumstances whatsoever, be
chargeable with or liable for damages . . . ."), cert. denied, 460 U.S. 1039 (1983).
Even those circuits that are hostile to exculpatory clauses have found similar
language equally unambiguous. See La Esperanza, 124 F.3d at 20 (holding a contract
clause stating that "[t]he yard shall in no case be held responsible for the damages
resulting from any loss of use or profit of the vessel" to be unambiguous). But see
Randall, 13 F.3d at 906 (holding that clause indemnifying party "for losses
'howsoever arising' [was not] sufficiently clear and unequivocal to shift liability for
Chevron's negligence onto Sea Savage"). Having determined that the exculpatory
clause unambiguously included liability for damage caused by a fire stemming from

                                           7
the Yacht Club's negligence within its exclusion, we must determine whether the
clause is enforceable.

            B. Does the Exculpatory Clause Contravene Public Policy?

        This case pits two competing public policy doctrines against each other:
holding parties responsible for their actions by limiting their ability to absolve
themselves from liability for their own negligence versus recognizing the liberty to
contract. The circuits are in agreement that while exculpatory clauses were generally
disfavored by admiralty courts, such clauses are routinely enforced today based on
"the consideration that businessmen can bargain over which party is to bear the risk
of damage and set the price accordingly, thus achieving a more rational distribution
of the risk and allocation of price than the law would otherwise allow." See La
Esperanza, 124 F.3d at 19 (internal quotations omitted); Edward Leasing, 785 F.2d
at 888 (same). The rub comes from whether a party should be allowed to absolve
itself from all liability for its own negligence.3

      The boat owners urge us to adopt the reasoning of the First and Eleventh
Circuits. Both of those circuits have stated that exculpatory clauses in maritime
contracts are valid and enforceable if the limitation of liability is clear and
unequivocal, the clause does not absolve a party from all liability for its own
negligence, the liability risk provides a deterrent to negligence, and the parties are of
equal bargaining power. See Diesel "Repower," Inc., 271 F.3d at 1324 (upholding
warranty in ship repair contract that limited liability to the purchase price of the parts
purchased); La Esperanza, 124 F.3d at 209 (upholding ship repair contract that
limited liability to cost to repair and excluded recovery for loss of use or profit of

      3
       We note that no circuit has allowed a party to absolve itself from higher levels
of culpability, including gross negligence or recklessness. See Royal Ins. Co., 194
F.3d at 1015. That issue is not before us, however, as this case deals with ordinary
negligence.
                                            8
vessel). The rationale for the limitation on exculpatory clauses stems from the
Supreme Court case of Bisso v. Inland Waterways Corp., which held that an
exculpatory clause in a towage contract violated public policy. See 349 U.S. 85, 90-
91 (1955).

       The Ninth Circuit has distinguished Bisso and limited it to cases involving
towage contracts, see Morton, 695 F.2d at 350 ("Bisso merely reaffirmed the rule
applicable to tugboat towing . . . ."), and we think rightly so. See also Kerr-McGee
Corp. v. Law, 479 F.2d 61, 64 (4th Cir. 1973) (enforcing exculpatory clause in private
carriage contract and noting that both before and after Bisso, exculpatory clauses in
private contracts of affreightment have been upheld against public policy attacks).
The Bisso Court explained, "This rule [that release-from-negligence clauses in
towage contracts are unenforceable] is merely a particular application to the towage
business of a general rule long used by courts and legislatures to prevent enforcement
of release-from-negligence contracts in many relationships such as bailors and
bailees, employers and employees, public service companies and their customers."
Bisso, 349 U.S. at 90-91 (internal footnotes omitted). The purpose of the rule in
towage contracts is two-fold: "(1) to discourage negligence by making wrongdoers
pay damages, and (2) to protect those in need of goods or services from being
overreached by others who have power to drive hard bargains." Id. at 91. The
Supreme Court explained that the rule was first articulated during "an era of manifest
judicial hostility toward release-from-negligence contracts particularly those made
by businesses dealing widely with the public and having potentially monopolistic
powers." Id. at 89 (discussing The Wash Gray, 277 U.S. 66 (1928) and The Steamer
Syracuse, 12 Wall. 167, 20 L. Ed. 382 (1871)).

      During that same period of judicial hostility toward exculpatory clauses, the
Supreme Court upheld a liability exemption clause between a railroad and a
construction company because the railroad was not acting as a common carrier. See
Santa Fe, Prescott, & Phoenix Ry. Co. v. Grant Bros. Const. Co., 228 U.S. 177, 184-

                                          9
85 (1913). The railroad had contracted with the construction company to extend the
railroad's rail lines and agreed to haul the equipment and men necessary to perform
the work to the end of the existing line. The contract provided that "[a]ll risk of loss
or damage to be borne by the contractor." Id. at 183. Following a fire on one of the
rail cars, the construction company sued the railroad to recover damages for property
lost in the fire. The Court explained the long standing doctrine "that common carriers
cannot secure immunity from liability for their negligence by any sort of stipulation"
based on "broad grounds of public policy." Id. at 184. The Court noted that the rule,
which restricted the liberty to contract, was justified by "[t]he great object of the law
governing common carriers [which] was to secure the utmost care in the rendering of
a service of highest importance to the community" and the fact "that the carrier and
the individual customer are not on equal footing." Id. at 184-85. The Court went on
to hold, however, that "[t]he rule extends no further than the reason for it," id. at 185,
and that because the railroad was not acting in its capacity as a common carrier, the
contract clause was enforceable.

       The reasoning of Santa Fe convinces us that Bisso's limitation on exculpatory
clauses should be limited to towage contracts, which have been likened to common
carriers. In fact, Justice Douglas concurred on the basis that "tugboats are common
carriers when they so hold themselves out." Bisso, 349 U.S. at 96 (internal footnote
omitted). The Bisso majority compared the "particular application [of the rule] to the
towage business" to other similar relationships, including bailors and bailees,
employers and employees, and public service companies and their customers. Id. at
90-91. The Supreme Court has limited the rule within maritime jurisprudence,
upholding an exculpatory clause in a pilotage contract, wherein a pilot from a tow
agreed to pilot a vessel that the tow was assisting and the contract exempted the tow
company from liability arising from the pilot's negligence. See Sun Oil Co. v. Dalzell
Towing Co., 287 U.S. 291, 294 (1932). Noting that the "services covered by the
contract were less than towage," id., the Court held that "[t]here is no foundation in
this case for the application of the doctrine that common carriers and others under like

                                           10
duty to serve the public according to their capacity and terms of their undertaking
cannot by any form of agreement secure exemption from liability for loss or damage
caused by their own negligence." Id. Because the tow company did not operate a
monopoly on pilotage services and the petitioner was not compelled to accept the
terms of the agreement, the Court concluded that "'the matter lies within the range of
permissible agreement, [and] the highest public policy is found in the enforcement of
the contract which was actually made.'" Id. (quoting Santa Fe, 228 U.S. at 188).

       Thus, we believe that within admiralty law, the doctrine prohibiting a party
from completely absolving itself from liability for its own negligence is limited to
circumstances involving relationships similar to towage agreements, such as bailment,
employment, or public service relationships. The Supreme Court has explained the
circumstances justifying the limitation of exculpatory clauses in those situations as
those involving a monopoly or unequal bargaining power. Bisso, 349 U.S. at 91-92
& n.19; Sun Oil, 287 U.S. at 294. Where the peculiarities of those types of
relationships do not justify application of the doctrine, we uphold the strong public
policies of recognizing parties' liberty to contract and enforcing contracts as written.

       We think this is especially true in the relationship at issue in this case, which
involved a marina and a boat owner contracting to rent a slip at the marina to dock
a boat. The slip rental cases we have located recognize exculpatory clauses that
absolve the marina from all liability as valid contractual negotiations. See
Woodworth v. Tacoma Yacht Club, 377 F.2d 486, 488 (9th Cir. 1967) (noting
validity of clause but holding it inapplicable when marina employees moved boat out
of marina, which was not covered by slip agreement); Commercial Union Ins. Co. v.
Blue Water Yacht Club Ass'n, 239 F. Supp. 2d 316, 321 (E.D.N.Y. 2003) (noting that
"[w]here the exculpatory agreement states in unequivocal terms the intention of the
parties to relieve a defendant of her liability for negligence, the agreement will be
enforced," but finding the slip rental agreement to not be sufficiently clear as to the
parties' intentions); In re Wechsler, 121 F. Supp. 2d 404, 433-34 (D. Del. 2000)

                                          11
(noting the circuit split and following the Ninth Circuit's approach, finding it more
persuasive given the circumstances of the case, which involved boat owners who
could have attempted to negotiate with the marina or "simply moored their vessels at
a different marina with a more favorable rental agreement"); Commercial Union Ins.
Co. v. Bohemia River Assocs., Ltd., 855 F. Supp. 802, 806 (D. Md. 1991) (noting that
"exculpatory clauses of this type are enforceable only if the clause sufficiently reflects
the parties' intention to absolve the marina of liability for its own negligence," but
finding the clause insufficiently clear because it did not use the term "negligence" as
required under Maryland state law) (internal quotations omitted)).

       We believe that the cases from the First and Eleventh Circuits can be
distinguished on this basis because those cases involved ship repair contracts as
opposed to slip rental agreements. A ship repairer who takes control of a vessel and
enters an agreement to perform work on the vessel is in a much different situation
than a marina that provides a dock to which numerous boat owners have access and
dock their boats. Thus, we limit our holding–that an exculpatory clause that absolves
a marina from liability for its own negligence is enforceable as long as the parties'
intent to do so is clear and the clause is not the result of overreaching–to clauses
contained in slip rental agreements, and we leave for another day the broader question
of whether exculpatory clauses are valid in all maritime contracts save towage
agreements.

       We have already determined that the clause is clear and unambiguous. Our
final inquiry is whether the Yacht Club exerted unequal bargaining power over the
boat owners or engaged in overreaching. We defer to the district court's factual
findings related to these inquiries unless they are clearly erroneous. The district
court, without discussion of the negotiations between any of the parties, found that
"the parties to the agreement do not have equal bargaining power." (Add. at 9.) The
only facts stated by the district court to support its conclusion were that "[t]he Yacht



                                           12
Club is a corporation and the claimants are individuals who own leisure vessels" and
the slip rental agreements are "form contracts." (Id.)

       Although the district court's observation that the Yacht Club is a corporation
and the boat owners are individuals is accurate, it does little to inform the issue of
whether the Yacht Club exerted unequal bargaining power. See, e.g., Royal Ins. Co.,
194 F.3d at 1014 (finding no overreaching in contract between individual boat owner
and corporate ship repairer). It is not enough to assert that one party was less
sophisticated than the other. There must be some evidence that the party holding the
superior bargaining power exerted that power in overreaching the less sophisticated
party by, for example, engaging in fraud or coercion or by insisting on an
unconscionable clause. See Outek Caribbean Distribs., Inc. v. Echo, Inc., 206 F.
Supp. 2d 263, 268 (D.P.R. 2002) (rejecting claim of unequal bargaining power
although one party refused to negotiate certain terms because "[u]nder Outek's
theory, any individual that had signed a form contract with a large corporation could
subsequently invalidate any contract clauses that he considered to be unpleasant
simply by claiming the existence of unequal bargaining power.") Similarly, the mere
fact that the contracts were form contracts does not per se lead to the conclusion that
the Yacht Club engaged in overreaching. See Surman v. Merrill, Lynch, Pierce,
Fenner & Smith, 733 F.2d 59, 61 n.2 (8th Cir. 1984) (noting that standardized
contracts of adhesion are not per se unenforceable, but courts must determine whether
a particular clause is unconscionable (citing 6A A. Corbin, Contracts § 1376, at 20-22
(1962))). Without further factual support, the district court's conclusion that the
exculpatory clause was the result of overreaching is clearly erroneous, as it relies on
facts that are insufficient as a matter of law to establish overreaching.

       The parties have directed us to no further evidence to support the district
court's finding of overreaching by the Yacht Club. While the facts addressing the
issue of overreaching or unequal bargaining power are not well developed in the
record, the parties agree that there were several other marinas in the area and that the

                                          13
Yacht Club negotiated at least some of the terms of the slip agreement as evinced by
the fact that the Jessups negotiated a month-to-month lease with the Yacht Club
although the Yacht Club normally required an annual lease. (App. of Exs., tab 1.)
None of the boat owners claim that they attempted to negotiate any of the terms of the
slip agreement and were unable to do so because of the Yacht Club's superior
bargaining power or refusal to negotiate or that they even objected to the exculpatory
clause. On this thin record, the boat owners simply failed to establish that the
exculpatory clause was the result of overreaching. See Royal Ins. Co., 194 F.3d at
1014 (noting that courts "have refused to invalidate an exculpatory provision in a ship
repair contract where the ship's owner assented without complaint to the terms of the
agreement" (internal quotations omitted)); Woodworth, 377 F.2d at 488 (dismissing
claim of unequal bargaining power in slip rental case because the boat owners "did
not have to join the club"); Wechsler, 121 F. Supp. 2d at 434 (finding no
monopolistic power where boat owners were free to accept or reject slip rental
agreement and could have moored their vessels at a different marina).

                                         III.

        We hold that the exculpatory clause contained in the slip rental agreements is
valid and enforceable. The agreement clearly and unequivocally shifted the risk of
loss to the boat owner and released the Yacht Club from all liability, including that
liability arising from its own negligence. Public policy demands enforcing contracts
as written and recognizing the parties' freedom to contract. The district court's
judgment awarding the boat owners recovery against the Yacht Club is reversed.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

                                          14
