Moore-v-Keane When Rules Collide with Common Law

06 Jul 2026

When the Rules Collide: Racing Rules, COLREGS and the Common Law After Moore v Keane

A working paper for sailors, protest committee members, clubs and Australian Sailing

1. Introduction

Moore v Keane [2026] NSWSC 475 (with the subsequent costs judgment, [2026] NSWSC 565) is, on its face, an ordinary personal injury case arising from a collision between two racing yachts at a mark rounding. Underneath that, it is one of the few reported Australian decisions to work through — in real detail — how three separate rule systems bear on a collision between racing yachts: the Racing Rules of Sailing (RRS), the International Regulations for Preventing Collisions at Sea (COLREGS), and the common law of negligence, as modified by the Civil Liability Act 2002 (NSW).

This paper is written for three audiences who each need something different from the case:

• Sailors — crew and helmsmen — who need to understand what legal exposure actually looks like when a race goes wrong, and where the comfortable assumption that “we were racing under RRS” stops protecting them.
• Protest committee members, who need to understand the relationship (and the gap) between a protest finding and a civil liability finding.
• Authorities — clubs and Australian Sailing — who need to understand where their risk-management documentation held up, where it didn’t, and what regulatory framework sits behind the RRS’s authority to govern a race in the first place.

Sections 2 to 7 set out the facts, the interaction between RRS, COLREGS and negligence law, and what each audience should take from the case, in plain and practical terms. A second part of the paper, for readers who want the full legal architecture — the detailed negligence and statutory-defence reasoning, a note on a related evidentiary judgment, and the NSW regulatory framework behind race-day right-of-way rules — follows the Conclusion.

2. The Case in Brief

Facts. On 12 December 2020, Brand X (owned and skippered by the second defendant, Greg Brand, with the plaintiff, David Moore, as crew) and Knockabout (owned and skippered by the first defendant, Jeffrey Keane) were both converging on a rounding mark in a Cronulla Sailing Club race on Port Hacking, each carrying a spinnaker. As the boats rounded and gybed, Knockabout’s bowsprit struck Brand X, and Mr Moore was struck in the lower back.

Cause. The court found the collision was caused solely by Mr Keane’s failure to keep a proper lookout. For a period of around 10 seconds during the critical manoeuvre, Mr Keane’s attention was on a tangled mainsheet and his son, rather than on where Knockabout was headed. He conceded in cross-examination that he could have looked up and avoided the collision at any point during that window. Mr Brand, by contrast, was found not to have been at fault — even accepting a possible technical breach of RRS 18.4 (sailing further from the mark than his proper course required before gybing), the court held this was not causative and “not negligent in the strict sense.”

Statutory defences — both failed. - Section 5L (obvious risk of a dangerous recreational activity): failed. Collision is an obvious risk of competitive sailing, but the court held the materialised risk did not reach the threshold of a “significant risk of physical harm” required to make sailing a dangerous recreational activity on the evidence before it (including statistical evidence of a low incidence of serious injury from racing collisions). - Sections 5M and 5N (risk warning defeating duty of care; contractual exclusion of liability): failed at the threshold. The defendants argued Mr Moore was bound, via a SailPass “temporary membership” completed on his behalf by Mr Brand using a QR code, by a contract incorporating a risk warning and liability waiver. The court held no contract was ever formed with Mr Moore at all — the QR-code process was too thin, and too disconnected from anything Mr Moore himself did or authorised in the necessary legal sense, to bind him.

Result. Judgment for Moore against Keane only. Judgment for Brand against Moore. Brand’s cross-claim for contribution against Keane succeeded; Keane’s cross-claim against Brand was dismissed. Costs (565) followed the result, including an adverse costs order against Moore for unreasonably rejecting an early offer of compromise from Brand.

A friction point worth holding onto. The Cronulla Sailing Club’s own protest committee, convened shortly after the incident, found both boats at fault and disqualified both. The Supreme Court, on a fuller evidentiary record built around 15 minutes of continuous stern-camera video, reached a different, single-fault conclusion. That divergence is a recurring theme in what follows.

3. The Three Rulebooks: How RRS, COLREGS and Negligence Actually Interact

3.1 What the RRS Part 2 Preamble does — and doesn’t — replace

The Preamble to RRS Part 2 (When Boats Meet) provides, in substance, that the rules of Part 2 apply between boats racing (or about to race, or having raced), and that when a boat racing meets a vessel that is not, she must comply with COLREGS or applicable government right-of-way rules instead. Critically, the RRS’s own wording is careful: it replaces the right-of-way rules of COLREGS. It does not purport to touch COLREGS’ general seamanship obligations.

That distinction tracks COLREGS’ own internal structure. Part B of COLREGS splits into:

• Section I (Rules 4–10) — conduct required in any condition of visibility, of every vessel, at all times: keeping a proper lookout (Rule 5), proceeding at a safe speed (Rule 6), assessing risk of collision (Rule 7), and taking action to avoid collision (Rule 8).
• Section II (Rules 11–18) — the actual right-of-way allocation between vessels in sight of one another (opposite tacks, overtaking, crossing, and so on).

RRS Part 2 substitutes its own right-of-way scheme for Section II. Nothing in the preamble touches Section I. A helmsman racing under RRS is not thereby relieved of the Rule 5 lookout obligation — RRS 14 (Avoiding Contact) sits alongside that duty, not in place of it.

3.2 The NSW mechanism that actually makes any of this operative

This structural point in the RRS is not merely persuasive or analogical in NSW — it is backed by a specific, gazetted legal instrument, discussed in full in the Appendix at the end of this paper (and treated there as background rather than as part of the case analysis, since it played no part in the judgment). In short: NSW’s exemption regime for sailing events exempts participants only from COLREGS Rule 12 — the give-way rule for sailing vessels — and from nothing else. The lookout obligation was never within the scope of what either instrument — RRS or the NSW regulatory exemption — actually displaces.

3.3 What the judgment actually did with “proper lookout”

Here is the notable feature of Moore v Keane itself: the judgment never once mentions COLREGS. Keane’s failure was pleaded and found purely as a common law negligence question — a failure to keep a “proper lookout,” assessed under ordinary principles of breach of duty and causation. Counsel argued the case on RRS 14 and 18.4 and on the general law of negligence; nobody raised COLREGS Rule 5 at all.

Yet the substance of what the court found — a sustained failure, over some 10 seconds, to look at what was happening around the boat during a critical manoeuvre — is precisely what Rule 5 requires, independently of racing status. This is worth naming clearly: two independent legal sources, COLREGS Rule 5 and the ordinary common law duty of care, arrive at the same substantive lookout standard. The court did not need COLREGS to reach its conclusion, because negligence law’s own “reasonable care” standard for a helmsman already demands the same thing. That convergence is reassuring for the coherence of the law, but it also means sailors cannot treat “we were racing under RRS, not COLREGS” as any kind of answer to a negligence claim — the same lookout obligation reaches them by an entirely separate legal route regardless.

4. For Sailors (Crew and Helmsmen)

A right-of-way boat under RRS still owes a common law duty of care.

A right-of-way boat under RRS still owes a common law duty of care. RRS 14’s “need not act to avoid contact until it is clear the other boat is not keeping clear” is a racing rule, not a shield from negligence. It did not feature as a defence for Keane, and would not have helped him — his failure was a failure to look, not a failure to give way correctly.

Keeping a lookout is not something RRS ever excuses you from — under the RRS’s own words, under the NSW regulatory exemption, and under ordinary negligence law.

Keeping a lookout is not something RRS ever excuses you from — under the RRS’s own words, under the NSW regulatory exemption, and under ordinary negligence law. Three separate sources point the same way. Treat “we’re racing, COLREGS doesn’t apply” as true only for the specific give-way rule — never for watching where you’re going.

“I was entitled to assume the other boat would keep clear” is not a defence to a lookout failure.

“I was entitled to assume the other boat would keep clear” is not a defence to a lookout failure. Brand was entitled to expect Keane would follow him around the mark under RRS 18.4 — but that entitlement doesn’t excuse a helmsman who stops watching the boat he’s about to cross paths with.

A protest committee outcome is a different question from a civil liability outcome, and won’t necessarily align.

A protest committee outcome is a different question from a civil liability outcome, and won’t necessarily align. The CSC protest committee disqualified both boats; the Supreme Court found only one negligent. Don’t assume a protest result predicts, or is admissible proof of, your civil exposure.

“Obvious risk” defences have a real ceiling.

“Obvious risk” defences have a real ceiling. The general riskiness of racing (congestion, collision at marks) is real, but the court held the specific risk that materialised here didn’t reach the threshold of a “significant risk of physical harm” needed for the statutory obvious-risk defence to succeed. Don’t assume “sailing is dangerous, everyone knows that” defeats a claim if you hurt someone.

Crew signed up “by someone else, on the day” may not be bound by waivers they never saw.

Crew signed up “by someone else, on the day” may not be bound by waivers they never saw. Moore never personally completed any entry document; a skipper completed a SailPass using Moore’s phone via a QR code, without Moore’s direct involvement in, or apparent understanding of, its terms. That was found insufficient to bind him to a risk warning or liability waiver.

Momentary distraction carries real legal weight.

Momentary distraction carries real legal weight. A single ~10-second lapse — attending to a tangled sheet, checking on a crew member — was, on its own, enough to found sole liability. Where possible, delegate below-deck problems to crew so the helm’s eyes stay up during the highest-risk seconds of a rounding.

5. For Protest Committee Members

Your findings and a court’s findings are answering different questions, and may not align.

The CSC protest committee found both boats at fault and disqualified both; the Supreme Court, with a fuller evidentiary record, found only one boat negligent. A protest decision is not authoritative on civil liability and shouldn’t be assumed to predict, or be relied on in, later litigation.

RRS breach and negligence are not the same inquiry.

The court treated Brand’s possible RRS 18.4 breach as, at most, context — not itself negligent, and not causative. Protest committees apply RRS’s own rule-breach framework; courts apply a reasonable-care/causation analysis. The two can diverge sharply on identical facts.

A DSQ under RRS 14 or 18 says nothing, by itself, about civil fault.

A disqualification for failing to avoid contact or keep clear doesn’t establish degree of fault, causation, or a substandard standard of care for negligence purposes. Language in protest write-ups should be careful not to suggest otherwise.

Evidence quality matters, and a court may simply have more of it than you did on the day.

The Supreme Court leaned heavily on 15 minutes of continuous video and detailed cross-examination unavailable to a protest hearing conducted quickly after a race. Contemporaneous, well-preserved evidence — video, incident reports, prompt witness statements — is exactly what later ends up mattering.

Recognise the limits of your role.

Protest committees adjudicate racing rules; they are not, and shouldn’t be treated by sailors or clubs as, a substitute forum for resolving personal injury liability.

6. For Authorities (Clubs and Australian Sailing)

Risk-warning and waiver systems need to actually reach the participant they’re meant to bind.

The SailPass QR-code process — completed on a crew member’s behalf by someone else, with minimal information captured — was held insufficient to form a contract with Mr Moore at all, let alone incorporate a risk warning or liability exclusion. A process that isn’t demonstrably completed by or with the direct involvement of the actual participant offers little or no protection.

Design entry systems for evidentiary robustness, not just administrative convenience.

The finding turned on the thinness of the process — no clear record of who completed it, on what device, with what actually shown to them. Systems should ideally capture an affirmative acknowledgment from the participant themselves, not just a next-of-kin field and a button click completed by someone else.

“Obvious risk” defences under s5L have a real ceiling.

Even a strongly worded club risk warning listing collision and equipment injury as risks did not, on its own, establish the “dangerous recreational activity” threshold here. Clubs should treat a risk warning as one factor supporting a defence, not a complete answer to it.

The RRS/negligence gap has governance implications, not just litigation ones.

Because protest outcomes are not determinative of negligence, clubs and Australian Sailing may wish to consider guidance to protest committees and members about the distinct purpose and legal weight of protest decisions, to avoid members treating a protest outcome as a proxy for their legal exposure.

The crew/agent-entry problem is systemic, not specific to this case.

Many crew are entered by skippers, not themselves. This case shows how easily that defeats a club’s own risk-allocation documentation. A standardised, individually completed acknowledgment for all crew — not just boat owners — would materially strengthen the position clubs and Australian Sailing are trying to achieve.

Insurance and costs exposure follow the civil liability finding, not the protest outcome.

With costs following the substantive result (565), clubs and insurers should treat a protest finding of “both boats at fault” as no guide at all to where civil liability, damages and costs exposure will actually land.

Regulatory Framework.

See the Appendix for a discussion of the regulatory framework (Marine Safety Act, the TfNSW Exemption Order, and SENS) that clubs rely on to run races under RRS at all — this framework was not before the court in this case, but is directly relevant to how clubs should think about their compliance and record-keeping going forward.

7. Conclusion

Step back from the detail, and Moore v Keane tells a consistent story from three different angles — and it is not the story a sailor steeped in RRS and COLREGS might expect.

The common law needed none of the machinery this paper has spent so much time on.

Section 3 showed that COLREGS Rule 5’s lookout obligation survives RRS Part 2’s displacement of the right-of-way rules — but the court never had to say so, because ordinary negligence law’s own “reasonable care” standard for a helmsman already demanded the same thing, and reached it unaided. The statutory defences — s5L, s5M, s5N — each failed not because the law left a gap for defendants in this position, but because the facts on the ground (a QR code completed by someone else, statistics that undercut the “significant risk” threshold) didn’t clear a real, workable, well-established bar; the full doctrinal detail of why is set out in Part II for readers who want it. And the Appendix shows that an entire regulatory architecture — the Marine Safety Act, the gazetted Exemption Order, the specific mechanism by which RRS acquires legal authority to govern right-of-way on Port Hacking at all — was operating in the background of this exact event, evidenced by Mr Keane’s own incident report, without anyone needing to invoke a word of it.

The throughline is that the common law of negligence is self-sufficient here.

It doesn’t need COLREGS to define a lookout standard; it doesn’t need the RRS to define a standard of care; and it doesn’t need the statutory exemption chain to be pleaded for a court to work out who was at fault and why. Three sophisticated, purpose-built rule systems — one international maritime convention, one international sporting code, and one detailed NSW statutory licensing scheme — all sat unused or only partially used, while a single, general-purpose legal principle (take reasonable care; keep a proper lookout) did all the real work. That is not a criticism of the specialised systems — RRS and the Exemption Order both exist for good reasons, mostly about fair racing and administrative efficiency respectively, not about compensating injury — but it is a genuinely important thing for every audience in this paper to internalise: none of the rulebooks are a substitute for, or a defence against, the ordinary law of negligence.

That has different practical shapes for each reader:

• For sailors, it means the comfortable shorthand — “we were racing under RRS,” “I was the right-of-way boat,” “the protest committee cleared me” — answers a racing question, not a legal one. The lookout obligation that actually decided this case exists independently of all of that, and would have applied whether COLREGS, RRS, or nothing at all governed the right-of-way rules that day.
• For protest committees, it means your findings — however carefully reasoned under RRS — are not, and were never intended to be, findings about civil fault. The CSC committee’s “both boats at fault” finding and the court’s “one boat, solely at fault” finding are not in tension; they are answers to two different questions, asked under two different frameworks, for two different purposes.
• For clubs and Australian Sailing, it means risk management has to operate on two tracks at once: administrative compliance with the regulatory framework that lets you race under RRS at all (documented, auditable, and — as the Appendix shows — directly evidenced by exactly the kind of incident report this case turned on), and a genuinely robust, individually-completed risk-warning and entry process that can actually withstand the same scrutiny a s5L or s5M defence received here. This case shows both halves matter, and that neither is any substitute for the other.

A final observation, offered carefully. Nothing in this paper should be read as suggesting the court, or counsel, got anything wrong by not addressing COLREGS or the Exemption Order — on the pleaded case, once the contractual and negligence pathways were chosen, that framework may simply have added nothing the court needed. But it is worth naming plainly, for the benefit of the next case: a public, gazetted, conditional regulatory instrument sits directly behind every RRS-governed club race in NSW, is triggered by exactly the kind of incident this case involved, and was not identified once in over 200 paragraphs of combined judgment. Clubs and Australian Sailing are best placed to make sure that gap doesn’t recur — not because it changed this outcome, but because the next case may turn on facts where it does.

You can download this article including the Appendix as a PDF Version Here.