Kommentarwerk Onlinekommentar

Besonderer Teil: Bretter mit Segelantrieb

Kitesurfen (Drachensegelbrett)

Jun 3, 2022 von Anne Mirjam Schneuwly

Zitiervorschlag: Anne Mirjam Schneuwly, Kitesurfen,
in: Anne Mirjam Schneuwly (Hrsg.), Wassersportkommentar, https://wassersportkommentar.ch/BT_kitesurfen, 1. Aufl., (publiziert am 3. Juni 2022).


Kurzzitat: Schneuwly, Rz. xx.

Literature

Materials

  1. General information about the sport
  2. Public-law regulations concerning kitesurf
    1. Historical background: original kite ban in Switzerland
    2. Aviation regulations
    3. Water and navigation regulations
      1. Definition according to navigation regulation
      2. Rules of conduct according to BSV
      3. Comparative legal insight into national regulations of neighboring countries
    4. General rules of conduct of the kiters
    5. Landkiting and snowkiting
  3. Liability law issues
    1. Liability insurance requirement and minimum guarantee sum
      1. Aviation law
      2. Inland navigation law
    2. Exclusion of kite sports from liability insurance
    3. Discrimination of Swiss Kiters on the International Insurance Market
  4. Other aspects
    1. The legal qualification of bodydrag
      1. The verdict
      2. Legal analysis
      3. Conclusion
    2. Unequal treatment compared to other water sports

Disclaimer: This version is a www.DeepL.com machine translation of the original German text and is intended to give the reader an overview of the contents. Only the German version is authoritative; the translated form of this text may not be quoted.

Suggested citation for the original German text: Anne Mirjam Schneuwly, Kitesurfen, in: Anne Mirjam Schneuwly (Hrsg.), Wassersportkommentar, https://wassersportkommentar.ch/X, 1. Aufl., (publiziert am xxx). Kurzzitat: Schneuwly, Rz. xx.

Literature

Bianchi, Giannina/Müller, Christoph, Sicherheitsanalyse des Kitesurfens auf Schweizer Seen: Unfall-, Risikofaktoren- und Interventionsanalyse, in: Beratungsstelle für Unfallverhütung (bfu), Bern 2014; Decurtins, Nico, Nachhaltigkeit im Wassersport, in: Anne Mirjam Schneuwly (Hrsg.), Wassersportkommentar; Gfeller, Katja, Wassersport auf öffentlichen Gewässern der Schweiz, in: Anne Mirjam Schneuwly (Hrsg.), Wassersportkommentar; Gonin, Luc, Droit constitutionnel suisse, Genève 2021; Häfelin, Ulrich/Müller, Georg/Uhlmann, Felix, Allgemeines Verwaltungsrecht, 8. Aufl., Zürich/St. Gallen 2020; Kraemer, Raphael, Verkehrsregelungen auf ausserordentlichen Verkehrsflächen, Unter Berücksichtigung der Geltung des SVG auf Skipisten Wanderwegen, Diss. Freiburg 2015; Kwiatkowski, André, Unfall- und Präventionsmechanismen beim Kitesurfen unter Wettkampf- und Freizeitbedingungen, Diss., Hamburg 2009; Märki, Raphaël/Wyss, Karl-Marc, Bungeesurfen im Recht, Eine verwaltungsrechtliche Einordnung des Bungeesurfens im Kanton Bern sowie haftpflicht- und versicherungsrechtliche Hinweise, in: Jusletter 8. April 2019 (zit. Jusletter); Märki, Raphaël/Wyss, Karl-Marc, Bungeesurfen, in: Anne Mirjam Schneuwly (Hrsg.), Wassersportkommentar (zit. Wassersportkommentar); Pikora, Terri J./Braham, Rebecca/Hill, Catherine/Mills, Christina, Wet and wild: results from a pilot study assessing injuries among recreational water users in Western Australia, in: International Journal of Injury Control and Safety Promotion, Vol. 18 (2), 2011, 119 ff.; Pikora, Terri J./Braham, Rebecca/Mills, Christina, The Epidemiology of Injury among Surfers, Kite Surfers and Personal Watercraft Riders: Wind and Waves, in: Medicine and Sport Science, Vol. 58, 2012, 80 ff.; Schneuwly, Anne Mirjam, Kitesurfen im Schweizer Rechtsraum, in: AJP 4/2017 539 ff.; Zademack, Sophia, Motorboot und Wakeboard, in: Anne Mirjam Schneuwly (Hrsg.), Wassersportkommentar.

Materials

Bericht des Bundesrates über Motionen und Postulate der gesetzgebenden Räte im Jahr 2014 vom 6. März 2015, BBl 2015 3158 ff.; Botschaft an den Grossen Rat, Einführungsgesetz zum Bundesgesetz über die Binnenschifffahrt: Änderung, vom 18. Februar 2015 (zit. Botschaft an den Grossen Rat, Kt. Aargau); Botschaft zu einem Bundesgesetz über die Binnenschifffahrt vom 1. Mai 1974, BBl 1974; Botschaft zu Teilrevision I des Luftfahrtgesetzes vom 20. Mai 2009, BBl 2009 4915 ff., 4941; Erläuternder Bericht zur Änderung der Verordnung über die Schifffahrt auf schweizerischen Gewässern (Binnenschifffahrtsverordnung, BSV) und der Verordnung über die Typenprüfung von Schiffen (Typenprüfungsverordnung), 2001 (zit. Erläuternder Bericht); COWI, Kitesurfing and Birds – A Review, Literature Study, Global Kitesports Association, November 2017 (zit. COWI Study); Justiz- und Sicherheitsdepartement des Kantons Luzern, Erläuterungen zu den Änderungen der Verordnung über die Schifffahrt [Vernehmlassungsentwurf] vom 8. September 2015 (zit. Vernehmlassungsentwurf Kt. Luzern); Kitesurfclub Schweiz – Kitegenossen, Factsheet Rechtslage Kitesurfen Schweiz (zit. Factsheet); Kitesurfclub Schweiz – Kitegenossen, Kitesurfen in der Schweiz, Zug 2013: (zit. Kitesurfen in der Schweiz); Kitesurfclub Schweiz – Kitegenossen, Sicherheit Kitesurfen (zit: Verhaltensregeln); OECD-Kodizes zur Liberalisierung des Kapitalverkehrs und der laufenden unsichtbaren Transaktionen, 2003 (zit. OECD-Kodex).

I. General information about the sport

The term kitesurf is used in Swiss legislation (Art. 2 para. 1 let. a item 16 BSV) in the German version as "Drachensegelbrett", but in the French or Italian version as "Kitesurf" (in France the term planche aérotractée is used and in Italy tavola ad aquilone or tavole con aquilone). The German term (as well as the one in the French and the one in the Italian legislation) immediately names the two elements that characterize this sport. In kitesurfing, the kiters fly a stunt kite that develops enough traction to keep them afloat and glide with a board on their feet. On the one hand, the method of locomotion is similar to wakeboarding, although kiteboarders are not pulled over the water by motorized traction (usually a specially equipped motorboat) (see Zademack, marg. [coming soon]); on the other hand, kitesurfing is related to windsurfing because of the wind component. Unlike kitesurfers, however, windsurfers have enough self-buoyancy due to the size of their boards and need the wind alone to move. The kitesurfers, on the other hand, need strong wind in the kite chute for the combined function of lift and locomotion.

In the sport of kitesurfing, a distinction must also be made between kitesurfing on water, kitesurfing with a buggy on solid ground (landkiting), and snowkiting over snow-covered terrain or frozen waters. Historically, the pioneers of kitesurfing were already tinkering with the construction of a steerable kite in 1970 and 1980, which would pull them over water as well as land and especially snow (Kitesurf Club Switzerland, Kitesurfing in Switzerland, p. 7). However, kitesurfing did not become popular until the late 1990s and has since become a worldwide trend. The number of kitesurfers has increased rapidly in recent years and the sport now has around half a million followers worldwide.

II.  Public-law regulations concerning kitesurf

For kitesurfing, the two elements of 1) steering a kite and 2) surfing over water are legally relevant and need to be examined under the relevant public law standards. After a historical background on the lifting of the kite ban in Switzerland, it needs to be clarified whether kiteboards are defined as aircraft or watercraft, and kitesurfers are accordingly subject to the Federal Law of 21 December 1948 on Aviation (Aviation Law, LFG; SR 748.0) or the Federal Law of 3 October 1975 on Inland Navigation (BSG;SR 747.201). This overlap of applicable standards can lead to complex legal issues.

A. Historical background: original kite ban in Switzerland

With the emergence of the sport of kiteboarding in Switzerland, the cantonal competent navigation offices accordingly identified a growing need for coordination and requested regulation by the federal government. Since there had apparently been individual incidents of kitesurfing, some cantons called for a general ban on Swiss waters (Explanatory Report, p. 8; the report did not specify which incidents were involved). In 2001, the legislator finally established a general ban on kitesurfing on Swiss waters with Art. 54 para. 2bis aBSV (AS 2001 1089): "Riding kiteboards outside officially authorized water areas is prohibited. Water areas may only be released for use by kiteboards if the safety of other lake users within the released area remains guaranteed and the natural environment is not impaired." However, the cantonal authorities were granted a reservation of permission. Thus, kitesurfing was initially prohibited in all Swiss regions, with the exception of areas that were released by the cantons; for example, the Silvaplanersee (Bündner Einführungsgesetz vom 24. September 2000 zum Bundesgesetz über die Binnenschifffahrt, EG zum BSG, BR 877.100), the Walensee, the Neuenburgersee and restricted zones of the Urnersee (Urner Reglement vom 14. Oktober 2003 über die Beschränkung der Schifffahrt und des Surfersports; RB 50.2115).

The ban was justified by safety concerns, questions of maneuverability, problems with salvage on the lakes, lack of right-of-way regulations and accidents with other lake users (AB 2012 p. 830; motion "Equal treatment of kitesurfing with other water sports" [Curia Vista, Gesch.-Nr. 12.3496]). Since the sport is usually practiced in strong winds and kiteboarders reach quite high speeds on the water in appropriate wind conditions, a certain risk was also assumed for other water sports enthusiasts. In addition, the important safety precautions for detaching from the stunt kite in an emergency were not yet fully developed. However, safety standards and materials have evolved and the concerns of the time are now outdated. Experience shows that kitesurfing is no riskier than other sports (on the risk of injury, see below para. 35), and the environmental impact is also less than that of motorboating or sailing (AB 2012 S 830; motion "Equal treatment of kitesurfing with other water sports" [Curia Vista, Gesch.-Nr. 12.3496]).

Initiated by the motion of Council of States member Hans Hess, the improvement of safety standards and technical progress have now been taken into account and the general ban was lifted as of February 15, 2016 (motion Hess "Equal treatment of kitesurfing with other water sports" [Curia Vista, Gesch.-Nr. 12.3496]; AB 2012 N 2239). However, no new (fundamental) right to kitesurf on Swiss lakes could be derived from the lifting of the general kitesurfing ban. As Gonin aptly summarizes it, "il n'existe pas de droit à faire du kitesurf sur un lac suisse spécifique, pas plus qu'il n'existe, en droit constitutionnel suisse, de droit à acquérir - ou posséder - une arme" (Gonin, para. 2177). The released water areas were immediately restricted again by some cantons for environmental reasons. This was due to the fact that in isolated cases the kite became entangled in the reed belts of the protected zones. For example, the canton of Lucerne banned kitesurfing on Lake Sempach in 2011 (cf. draft consultation of the canton of Lucerne, 7). Environmental concerns are even so great in some cantons that kitesurfing is banned on the entire territory; for example, in the canton of Aargau (cf. Message to the Grand Council, Canton of Aargau, p. 11).

Specifically, according to Art. 5 para. 1 lit. g WZVV, the following spots are closed to kitesurfers: Lake Biel: Hagneck delta and St. Petersinsel (vis-à-vis La Neuveville); Lake Constance: Ermatingerbecken (TG), Stein am Rhein (SH, TG), Alter Rhein: Thal (SG), Rorschacher Bucht / Arbon (SG); Lake Geneva: Rive droite du Petit-Lac (GE, VD), Rive gauche du Petit-Lac (GE), Pointe de Promenthoux (VD), les Grangettes (VD, VS); Lac de la Gruyère à Broc (FR); Lago Maggiore: Bolle di Magadino (TI); Murtensee: Chablais (FR), Salavaux (VD); Neuenburgersee: Fanel - Chablais de Cudrefin, Pointe de Marin St. Blaise (BE, FR, VD, NE), Chevroux jusqu'à Portalban (FR, VD), Yvonand jusqu'à Cheyres (FR, VD), Grandson jusqu'à Champ-Pittet (VD); Lake Thun: Kander delta to Hilterfingen (BE).

It should also be noted that the lifting of the general kitesurfing ban only applies to inland waters and to Lakes Geneva, Lugano and Lake Maggiore. On Lake Constance, kitesurfing is still generally prohibited (Art. 16.02 para. 5 Ordinance on Navigation on Lake Constance of March 17, 1976 [Bodensee-Schifffahrts-Ordnung, BSO; SR 747.223.1]). Kitesurfing can only be permitted in certain shore areas by means of an official exemption permit (Art. 16.02 para.1 BSO/a>).<

B. Aviation regulations

The use of airspace over Switzerland is regulated by law for aircraft and missiles; DETEC issues the corresponding traffic regulations (for hang gliders, DETEC's ordinance of November 24, 1994 on special category aircraft [VLK; SR 748.941] applies). Aircraft are flying machines that can be kept in the atmosphere by the action of the air (Art. 1 para. 2 LFG). The stunt kite falls by definition under the Aviation Act and is assimilated to the kites as well as the kite parachutes. In the annex to Art. 2 Para. 1 and Art. 23 Para. 1 of the Ordinance of 14 November 1973 on Aviation (Aviation Ordinance, LFV; SR 748.01), these are described as heavier-than-air aircraft without motor propulsion. The kite usually hovers with a sail area of 4 to 18m2 at a height of 25m to 30m above the kite sportsmen or sportswomen who are coupled to the lines of the kite by a harness. With the steering device they can move the kite sideways to move around. Depending on the size and wind conditions, the kite can lift the athletes into the air for the time of a jump, but usually the kiters ride over the water or terrain and stay connected to the ground.

C. Water and navigation regulations

1. definition according to navigation regulation

According to Art. 2 para. 1 lit. a item 16 BSV, the kiteboard is "a sailing vessel with a closed hull, which is towed by non-motorized flying devices (flying kites or similar devices); the flying device is connected to the person standing on the kiteboard via a line system." It should be noted here that it is defined by the legislator as a sailing vessel within the meaning of Art. 2 para. 1 lit. a no. 9 in conjunction with. No. 1 BSV (see Gfeller, para. 12). In the regulations regarding navigation on Lake Geneva (Regulations on Navigation on Lake Geneva of December 7, 1976 [SR 0.747.221.11]), on Lake Constance (Ordinance on Navigation on Lake Constance of March 17, 1976 [Bodensee-Schifffahrts-Ordnung, BSO; SR 747.223.1]) and on Lake Maggiore and Lake Lugano (Agreement between Switzerland and Italy concerning navigation on Lake Maggiore and Lake Lugano of December 2, 1992 [SR 0.747.225.1]), the term kiteboard or kitesurf is not defined; however, it may be subsumed under the term sailing craft. According to the wording of the BSV, the entire construct, both the board and the stunt kite, is subject to the regulation. Thus, if the kiters move with their surfboard and kite in the airspace above Swiss waters, they are basically subject to the Inland Navigation Act; accordingly, the aviation regulation for kiteboards is only subsidiary.

For a more concrete legal understanding, a distinction must be made between the following three functions: The kitesurfers can (1) launch their kites in shallow waters or (2) be taken to open waters by an escort vessel to launch them there. If the terrain is suitable, the kitesurfers (3) can also launch the kite on land and then climb into the water. In these scenarios, it is basically up to the municipalities to designate appropriate launching and mooring zones so that the kiteboards do not obstruct regular shipping traffic (Art. 54 para. 2 terBSV in conjunction with e.g. Annex 5 to the Uri Regulations on the Restriction of Navigation and Surfing [SR/UR 50.2115]; for an overview of the cantonal and municipal ordinances, see Kitesurf Club Switzerland, Factsheet; see also Gfeller, para. 65).

Due to the basic definition as a sailing ship, the following curious question finally arises: Is the kitesurf also considered a ship when it is not on water but on land? Here again two scenarios have to be distinguished: If the kiters walk to the water entrance with their boards under their arms, it can be assumed that this is equivalent to other vessels that are on land on a trailer, and kiteboards thus do not lose their qualification as a vessel. However, if the kiteboarders steer the stunt kite on land for practice purposes, it is by definition a kite under application of the LFG (on the question of the legal qualification of body drag, see below para. 43 ff.).

2. rules of conduct according to BSV

From the right of way rules (Art. 44 para. 1 lit. f BSV) it is clear that kitesurf as well as windsrufs do not enjoy right of way and must give way to all other vessels. It is particularly important to keep a distance from harbor entrances for safety reasons. Likewise, kitesurfing is only permitted during the day, between 8:00 and 21:00, and when visibility is clear (Art. 54 para. 1 BSV).

However, the wording of the law is unclear with regard to the obligation to carry life-saving equipment, which in principle applies to all ships (Art. 134 para. 4 BSV). Although "water sports equipment suitable for competition", which also includes kitesurfs and windsurfs, are exempted from this obligation (according to the Inland Navigation Ordinance: Art. 134 para. 2 in conjunction with 134a para. 1 BSV; for Lake Constance: Art. 13.20 para. 5 let. a BSO; for Lake Geneva, the Regulations on Navigation on Lake Geneva refer to the BSV and for Lake Maggiore and Lake Lugano, Art. 4 para. 2 of the Agreement refers to the BSV). It is further added, however, that outside the shore zone, instead of life-saving appliances with a buoyancy of at least 75 newtons, the carrying of buoyancy aids is permitted. It has not been conclusively clarified whether it must be deduced from this that water sports equipment suitable for competition must carry a buoyancy aid, e.g. in the form of an ISO-certified (SN EN ISO 12402-5:2006 in the version of November 2006) life jacket, from a distance of 300m from the shore. It should be noted that the wetsuit already has a certain water buoyancy and also the air-filled kite and many surfboard models provide a buoyancy aid. In France, the wetsuit is already considered a recognized rescue aid (Article 204-2.05 II de la Division 240, Règles de sécurité applicables à la navigation en mer sur des embarcations de longueur inférieure ou égale à 24m).

Kitesurfs must be clearly marked with the name and address of the owner or keeper (Art. 16 Para. 3 in conjunction with. Lake Constance: Art. 2.01 Para. 1 Letter b BSO; Lake Geneva: Art. 18 Para. 3 Regulations for Navigation on Lake Geneva; Lake Maggiore and Lake Lugano: Art. 17 Para. 5 Letter c International Regulations for Navigation on Lake Maggiore and Lake Lugano [SR 0.747.225.1]). By means of labeling, abandoned kiteboards can be identified on the waters, which, among other things, supports the work of the police and rescue forces and can avoid unnecessary search and rescue operations (Märki/Wyss, Jusletter, para. 21). Further general rules of conduct are: the prohibition to kite in an unfit condition (due to alcohol, narcotics or medication influence, see art. 40a BSV) and the night driving ban (art. 54 para. 1 BSV allows kiting only during the day between 8:00 and 21:00 and only in clear visibility).

3. comparative legal insight into national regulations of neighboring countries

Kitesurfing is also basically allowed in neighboring countries, but local authorities can limit the drivable zones. A distinction must be made between the practice of kite sports inside and outside the shore zone. In France, for example, the mayors have the competence to distinguish surfable and surf-free zones and to define them accordingly (art. L 2213 - 23 du Code général des Collectivités territoriales).

In Germany, certain water areas are also released in the fairway to allow "surfing with a surfboard pulled by a kite" (§ 2 para. 1 item 21c of the Seeschifffahrtsstraßen-Ordnung (SeeSchStrO) of May 3, 1971) as well as water skiing and the like. Kiting in the shore zones outside the so-called fairway is generally permitted according to § 31 para. 1 SeeSchStrO. In the Austrian Navigation Act, kiteboards are referred to as "floating bodies" which, like fins and other navigable constructions, assemblies or objects with or without machine propulsion, do not qualify as either vehicles or floating installations (§ 2 item 12 Federal Act of June 30, 1997 on Inland Navigation (Navigation Act) and § 3 para. 4 item 2 Ordinance of April 15, 2013 of the Federal Minister of Transport, Innovation and Technology concerning a lake and river traffic regulation; SFVO). In general, the other regulations in the German-speaking neighboring countries are very similar to those in Switzerland. Analogous to Switzerland, the national rules on inland navigation provide the framework and local regulations, e.g. on launching lanes, are set through consultations. As a common rule, it should be emphasized that all neighboring countries impose time restrictions (§ 31 Abs. 3 i.V.m. § 60 Abs. 1 SeeSchStrO; articolo 24 Ordinanza di sicurezza balneare e disciplina generale delle attività diportistiche, ordinanza No 67/2011, Ministero delle infrastrutture e dei trasporti capitaneria di porto di Cagliari) and prohibit kiting at night or reduced visibility. Also, the right of way rules of all countries prescribe that kitesurfers and sailors have to give way to all other vessels (§ 31 para. 2 SeeSchStrO in conjunction with the International Rules of 20. October 1972 for the prevention of collisions at sea [Collision Prevention Rules - KVR]; articolo 26 ordinanza No 67/2011; Instruction no 00-119 J.S. du 2 août 2001, Recommandations pour la pratique des glisses aérotractées [kitesurf, char à cerf-volant]).

Noteworthy is the Italian regulation that has introduced an age restriction for surfing with kiteboards. Thus, in Italy, kitesurfing is allowed only from the age of fourteen (art. 23 ordinanza No 67/2011: "L'uso delle tavole con aquilone, di seguito denominate kitesurf, è consentito esclusivamente a coloro i quali abbiano compiuto i 14 anni di età."; art. 1 ordinanza N° 31/2007, Ministero dei trasporti, ufficio circondariale marittimo di Piombino), depending on the local regulation only from the age of sixteen (art. 11 al. 2 lit. a Ordinanza di sicurezza balneare N° 68/2017, Ministero delle infrastrutture e dei trasporti capitaneria di Porto di Trieste). However, Italian regulations on the practice of kiteboarding also vary by region. As in all other neighboring countries, the requirements of the Ministry of Transport and Infrastructure, in this case the "Regolamento Diporto Nautico", are implemented in each case by the local harbor master's office or coast guard in ordinances, so-called "ordinanza di sicurezza balneare", specific to the location.

In France, the legal regulation of beach safety for bathers and all types of floating bodies is also reserved for the local mayors or city councils (art. L2213-23 du Code Général des Collectivités Territoriales; see also Cadre réglementaire de la pratique du surf et des activités de vagues, Direction technique nationale, 2007). However, their jurisdiction is limited to a 300m wide shoreline zone. It should be noted that on open waters, the carrying of floats as well as light signals is mandatory (art. 240-2.05 II de la Division 240, Règles de sécurité applicables à la navigation en mer sur des embarcations de longueur inférieure ou égale à 24m). In addition, France has introduced special precautionary regulations at the national level and sensitizes kitesurfers to various ecological concerns (art. 17 de la loi no 84-610 du 16 juillet 1984 modifiée pour la discipline: cerf-volant de traction [glisses aérotractées] le 19 décembre 2002; décret no 2002-1269 du 18 octobre 2002). Finally, the generally restricted maximum kite speed of 5 knots in the shore zone is a special feature, which can only be waived by exceptional permits from the local authority (Instruction no 00-119 J.S. du 2 août 2001, Recommandations pour la pratique des glisses aérotractées [kitesurf, char à cerf-volant]). Such regulations are also found in Italian ordinances. However, in contrast to France, these do not refer to the surfed kite speed, but to the measured wind speed. In some regions of Italy, kitesurfing is even only allowed with a measured wind speed of up to and including 20 knots (see e.g. articolo 24 ordinanza No 67/2011).

From the described regulations it is obvious that the norms in the neighboring countries are not harmonized and consequently the kiters at each new spot in Europe have to take note of the relevant regulations.

D. General rules of conduct of the kiters

Accordingly, whether the kite is designated as an aircraft or a sailing vessel depends on the specific circumstances. In the case of locomotion over water or land by means of wind power in a kite in combination with a board, the different legal jurisdictions of air, water and land are affected in each case. The discussion of the comparative legal contexts is correspondingly diverse. Since kiteboarding cannot be clearly assigned to any previous sport, legal practice is also challenged to reconcile the evolving understanding of norms and to ensure legal certainty with regard to the needs of kiteboarders. This also applies to wingfoiling and other water sports that are still being invented. Rules of conduct can be found in the LFV as well as BSV, furthermore kiting on certain traffic areas also affects the SVG. In case of a legal dispute, the international kite rules of the International Kiteboarding Organization (IKO) or Verband Deutscher Windsurfing- und Wassersportschulen (VDWS) can be consulted, as the Federal Court did with the FIS rules (see also Märki/Wyss, Jusletter, para. 14; Kraemer, para. 55). The rule of conduct is the observance of the general duty of care according to Art. 22 BSG and Art. 5 BSV.

The sport of kitesurfing has established general rules of conduct, similar to the aforementioned FIS rules, which do not qualify as a legal norm, but can be used to interpret responsibility. They are based on the right of way rules of the national inland and maritime navigation standards and apply to all kitesurfers. As a rule, every kitesurfer has attended a basic course and has also learned the valid rules of conduct and safety standards in theory lessons.

Various associations such as the IKO or VDWS represent the sport of kitesurfing on an international level and are committed to the water sports schools. Among other things, these international associations advocate for a license that certifies the skill level of kitesurfers. Other associations such as the Kitesurf and Snowkite Association e.V. (KSA), the World Watersports Federation (WWS-WWC e.V.) or the Fédération Française de Vol Libre (FFVL) also issue licenses. However, even if these attested classifications are partly used as criteria for admission to certain kitespots (see e.g. § 3 No. 6 Ordinance of the District Authority Bregenz on the approval and use of kitesurfing equipment in the area of the Austrian shore of Lake Constance in the municipalities of Fussach, Höchst and Gaissau of 30. January 2015: "The use of kitesurfing equipment is subject to the successful completion of a basic course ('IKO' license).") or used for the rental of kitesurfing equipment, such a license is not mandatory. The kitesurfing license only serves as a proof for a responsible practicing of the kitesport under all safety aspects and as a guideline for the kitesurfer or their instructors.

E. Landkiting and snowkiting

If kiters ride with a buggy over solid ground or with skis or a snowboard over snow-covered terrain (so-called snowkiting), they are obliged to exercise caution and have to pay attention to the open areas (see the international rules of conduct of the VDWS; Kitesurfing Club Switzerland, Rules of Conduct; these general rules can also be derived from the applicable case law BGE 122 IV 17 E. 2b bb)). Whether the Road Traffic Act of December 19, 1958 (SVG; SR 741.01) and the Traffic Rules Ordinance of November 13, 1962 (VRV; SR 741.11) are applicable must be examined on a case-by-case basis, because the traffic rules apply in principle only to users of public roads.

Public roads are defined as traffic areas used by vehicles and pedestrians that are not exclusively for private use (Art. 1 para. 1 and 2 VRV). If, on the other hand, kiteboarders ride exclusively on private land, these regulations would generally not apply (e.g. private lake). However, on public terrain, such as ski slopes, it should be noted that the Federal Supreme Court has already pronounced itself on the duty of caution by referring to the ten FIS rules of conduct for skiers and snowboarders (rules of conduct of the Fédération Internationale de Ski, adopted at the Congress in Beirut in 1967) and applying Art. 26 SVG by analogy (BGE 106 IV 350 E. 4; BGE 122 IV 17E. 2b; BGer 6B_345/2012, October 9, 2012, E. 2.2.1). According to this provision, everyone must behave in traffic in such a way that they neither obstruct nor endanger other road users in the proper use of the road.

If snowkiting is practiced on mountain slopes that lie outside the area of responsibility of ski lift and cable car operators, it must be checked whether the snow sportsmen and women are subject to the Federal Law on Mountain Guides and the Provision of Other Risk Activities of December 17, 2010 (SR 935.91) according to Art. 1 Para. 2 Letter b. However, the due diligence obligations according to Art. 2 only apply to providers of such activities (see in detail the articles on ski touring, off-piste skiing and piste skiing in the Mountain Sports Commentary [coming soon]).

III. Liability law issues

A. Liability insurance requirement and minimum guarantee sum

Since, as in any other sport, there is no such thing as zero risk, the liability issues related to kiteboarding are examined below. As can be seen from the previous analysis, the sport of kiteboarding must basically be considered under the aspect of aviation and inland navigation regulations. And from these same regulations, it is clear that kiteboarders must take out private liability insurance with a minimum guarantee sum.

1. aviation law

Art. 11 VLK in conjunction with. Art. 125 para. 2 LFV states that the liability claims of third parties on earth must be secured by the owner of a hang glider through a liability insurance with a guarantee sum of at least CHF 1 million. It is interesting to note that the guarantee sum determined by DETEC is thus higher than that of aircraft with a take-off weight of less than 500kg, which according to Art. 125 para. 1 lit. a LFV was set at CHF 750,000.

Furthermore, according to Art. 20 VLK, kites with a weight of less than 1kg and a climb height of less than 60m are exempt from the minimum guarantee sum. Here the question arises whether the kite meets the requirements to be exempted from the minimum guarantee sum. In the sport of kiteboarding, two categories of kites are used: the soft kites and the tubekites. The Tubekite, as the name (tube) suggests, consists of a tube system that gives the kite its shape and great stability, and also allows it to float on the water. Its weight is well over 1kg. The soft kite, on the other hand, is very similar to the paraglider; the sewn-in air chambers fill with air when the wind blows, making it very light. According to the interpretation of art. 20 VLK, snowkiting with a small softkite under 1kg would not be subject to any minimum guarantee sum. Nevertheless, the owners are responsible for the damages they cause and a good insurance coverage is recommended in any case.

2. inland navigation law

As mentioned above, the kiteboard is considered a sailing vessel. In principle, sailing vessels may only be watered if the owners have taken out insurance (Art. 31 para. 1 BSG and Art. 153 para. 1 BSV). The message to the BSG of May 1, 1947 (BBl 1974 I 1549 ff.) also shows how the insurance obligation for ship owners and drivers came into being. Following Switzerland's accession to the Convention for the Unification of Certain Rules Relating to Collisions between Inland Navigation Vessels (Convention of 15 March 1960 for the Unification of Certain Rules Relating to Collisions between Inland Navigation Vessels [SR 0.747.205]; AS 1972 883) in 1972, the BSG was introduced three years later. In the consultation on the BSG it was already clarified that damage events in navigation, which as a rule mean ship collisions or collisions with installations of shipping traffic, are based on fault liability. For other cases of damage not covered by the Convention, it was assumed that the Code of Obligations was sufficient and that general causal liability was not justified. It was also disputed whether cantonal shipping regulations could validly prescribe compulsory liability insurance. Consequently, it was proposed to anchor the insurance obligation in a special section of the law (BBl 1974 I 1549 ff., 1554).

When the BSV was enacted, this insurance obligation was relaxed for some categories, in particular for vessels without engine propulsion, for rafts under 2.5m in length and for sailing vessels without engine whose sail area is 15m2 or less (Art. 153 para. 2 BSV). As there were safety concerns on the part of the authorities when the kite regulations were introduced in the BSV, and with the argument that at least the material damage should be covered in the event of accidents, kiteboards were made subject to compulsory insurance at that time, notwithstanding the exceptions of Art. 153 para. 2 BSV (Art. 153 para. 2 bisBSV, see also AS 2001 1089). The minimum guarantee sum for the accident caused by kiteboards was set at CHF 750,000 damage coverage (Art. 155 para. 5 BSV).

As is well known, kitesurfers usually practice the sport in strong winds and reach quite high speeds on the water in appropriate wind conditions. In addition, due to the potentially large radius of action and a possible loss of control, depending on the conditions, the jumps also pose a certain risk to other water sports enthusiasts (Bianchi/Müller, p. 15).  However, experts from the Swiss Kitesailing Association and the maritime and cantonal police consider this risk to be low, since kitesurfers responsibly adhere to the safety rules and are usually well trained (Bianchi/Müller, p. 15). As already mentioned, the initially criticized safety precautions have long been standardized today, and this fact would have to be taken into account in a possible revision of the BSV by exempting kitesurfs as well as windsurfs from the insurance obligation.

B. Exclusion of kite sports from liability insurance

In principle, most private liability insurance policies cover the minimum guarantee amounts according to LFV and BSV. However, a large number of insurances explicitly exclude damages resulting from kite accidents. The reason for this is not immediately obvious, because according to Art. 101b para. 6 lit. a VVG. a large risk only exists if the risks are affected that are classified under the corresponding insurance classes of aircraft liability and marine, inland marine and river navigation liability. Consequently, reference is made to the BSG as well as the LFG, from which, however, it is not evident that kite sports would fall into a risk group.

Just as little does kiting fall under the description of a risk according to Art. 39 UVG (see also Art. 50 UVV). As shown above, it can be ruled out that kiteboarders take an absolute risk by exposing themselves to a danger according to the definition, which could not be reduced to a reasonable extent (according to the definition of SUVA, the following sports fall under the absolute risk: base jumping; full-contact competitions [e.g. boxing competitions]; motocross races; downhill biking; ski speed record runs; diving at a depth of more than 40m). In individual cases, kite sports can at most be subsumed under the relative risk, which SUVA defines only for actions worthy of protection, where the objectively great risks have not been reduced to an acceptable level. Accordingly, in the event of an accident, the interests are weighed and the concrete circumstances are taken into account. In other words, the personal abilities as well as the way of performing an action are examined. The following criteria are mentioned as particularly high risks that justify a reduction of cash benefits by 50%: the performance of a sport or activity at a very high speed, in very unfavorable weather conditions, with inadequate equipment or with little experience (information on relative risks on the SUVA website). In such cases, the usual rules or precautions are seriously disregarded by the athletes. According to SUVA, this includes, for example, "mountaineering or climbing or snow sports activities off marked slopes in serious disregard of the usual commandments (equipment, experience, etc.) or paragliding and hang gliding in very unfavorable wind conditions".

If one compares the injury statistics (Kwiatkowski, passim) and takes into account the experts' assessment of the risk to others, kiteboarding does not appear to be any riskier than skiing, for example. The kiteboarding accidents recorded so far in Switzerland and various studies show that the frequency and severity of injuries is limited (Bianchi/Müller, p. 10; see also Pikora/Braham/Mills, p. 80 ff.; Pikora/Braham/Hill/Mills, p. 119 ff.). Consequently, the exclusion of kite sports from private liability insurance seems unfounded. It is rather argued for an equal treatment of kiteboarders and windsurfers, because the latter as well as skiers are not excluded from private liability insurances.

Also, the alignment with the already improved safety measures has not yet been made. In particular, not enough attention has been paid to the fact that kiteboards are far from being subsumed under the category of risky sports. Accident statistics show that in kiteboarding, as in other sports, the objective risk of accidents can be reduced to an acceptable level. Only in the case of irresponsible actions of the kiter can be concluded a relative risk, which would justify a reduction of the insurance benefit. The exclusion from private liability insurances is unfounded, but as long as kiteboards are not included in the legal list of exceptions of art. 153 para. 2 BSV, the insurance companies feel encouraged to maintain the exclusion. Finally, not only the equality of kiteboards in terms of liability law is postulated, but also a legal harmonization, so that Swiss kiteboarders have equal access to the European insurance market.

C. Discrimination of Swiss Kiters on the International Insurance Market

Finally, it is necessary to refer to a regulation of the insurance obligation in Art. 35 BSG in conjunction with Art. Art. 154 BSV. It states that ship owners of Swiss ships operating on Swiss waters must be subject to an insurance institution authorized by the Federal Council. For foreign vessels, in casu kitesurfs, an insurance policy taken out abroad is recognized, provided it has the minimum guarantee sum. Through this practice, the market is reserved for companies with their registered office or branch in Switzerland. This poses the following problem for Swiss kitesurfers: If they want to benefit from attractive offers of foreign liability insurances, they will enjoy a worldwide liability protection for damages caused by kite accidents, but not for damages in Switzerland. This is surprising because Switzerland is actually committed to an open policy in the area of current cross-border insurance contracts.

Until the 2011 revision of the LFG, it was also stipulated that owners of aircraft registered in Switzerland must be insured against the consequences of their liability to third parties with an insurance company licensed by the Federal Council for this line of business in Switzerland (Art. 70 para. 2 aLFG). The dispatch on the partial revision of the Aviation Act states that "[t]his wording, which was taken over from the old Insurance Act of 1855 [...] has become obsolete, however, since the Federal Council no longer issues such licenses today" (BBl 2009 4915 ff., 4941). Due to developments in the risk insurance market in recent years, especially the introduction of the OECD Code on the Liberalization of Capital Movements and Ongoing Invisible Transactions adopted in 2003, the Swiss legislator has had to revise the LFG, among other things. Accordingly, insurance companies domiciled abroad without a branch in Switzerland have been approved to cover insurance risks related to aviation (this already applies to ocean shipping, aviation and cross-border transportation; see Art. 1 para. 1 lit. a Ordinance of November 9, 2005 on the Supervision of Private Insurance Companies [AVO; SR 961.011]).

The retention of the requirement of a place of business or a branch in Switzerland in the IWT regulations is no longer justified. The opening of the market has already taken place and insurance policies should be freely concluded "regardless of whether the insurer is located in the state [...] of the policyholder or in another Member State" (BBl 2009 4915 ff., 4941). Thus, in the next revision, Art. 35 FSIO and Art. 154 FSIO would have to be brought into line with developments and Art. 153 para. 2 bisFSIO would have to be repealed.

IV. Other aspects

In the following, further, special aspects of kitesurfing will be examined. In 2017, the question of the legal qualification of bodydragging arose. Furthermore, it should be noted that the unequal treatment of kitesurfing in comparison to other water sports appears blatant with regard to regulations of the inlet spot and bird protection, even though since 2012 the motion "Equal treatment of kitesurfing with other water sports" (Curia Vista, Gesch.-Nr. 12.3496) had already aimed to put kitesurfing on Swiss waters on an equal footing with other water sports.

A. The legal qualification of bodydrag>

1. The verdict

In 2017, the District Court of la Broye had to clarify the question whether "bodydragging" legally qualifies as "kitesurfing" and is thus subject to inland navigation regulations. This is because in mid-September 2017, a kitesurfer was reported by the Fribourg police for allegedly bodydragging his kiteboard in a zone closed to navigation near the beach of Protalban (Fribourg waters of Lake Neuchâtel). By penalty order dated October 27, 2017, he was found guilty of violating the Inland Navigation Act (Art. 40 para. 1 BSG) and sentenced to a fine of CHF 100 and to pay the costs of the proceedings. The kitesurfer appealed against this penalty order before the District Court la Broye (judgment of the District Court la Broye of December 20, 2017). According to his statements, he had first moved in the open waters before he got off his board and let himself be pulled through part of the zone closed to navigation (bodydrag) to finally reach the shore on foot, with the board under his arm. Since it could not be clearly proven that the defendant was standing on his board in the closed zone, he was acquitted by the appealed judge. The court also held that crossing the zone closed to navigation on foot does not fall under the prohibition of navigation and is therefore not punishable.

This acquittal let not only the accused, but also the entire Swiss kitesurfing community breathe a sigh of relief. However, not only a stale aftertaste remains, but also the uncertainty of how bodydrag is to be legally qualified.

2. Legal analysis

Kitesurfers who move with their board and kite in the airspace over Swiss waters are not defined as aircraft according to the Aviation Act, but as watercraft, which is subject to the inland navigation regulations. In bodydragging, the athletes are pulled by a kite in the water without standing on the surfboard. According to Art. 2 para. 1 lit. a item 16 BSV, the kiteboard is "a sailing vessel with an enclosed hull, which is towed by non-motorized flying devices (kites, windsurfs or similar devices); the flying device is connected to the person standing on the kiteboard by a line system." According to the wording of the law, a kiteboard is to be referred to as such only when the kiter* is standing on their board. In the French and Italian version of Art. 2 para. 1 lit. a No. 16 BSV, it is not explicitly required that the kitesurfers* are standing on the board, but only that they are on the board. However, it can be assumed that the legislator wanted to describe the locomotion on the board. The so-called bodydrag is not included. From this it can basically be deduced that a kite without a board or with the board under the arm is not a kiteboard so-called "kitesurf" in the sense of the law and consequently is no longer subject to the inland navigation regulations or the prohibition of navigation.

If this consideration is taken further, the purpose of the launching and mooring zones designated by the municipalities (Art. 54 para. 2 terBSV), so that the kiteboards do not obstruct regular shipping traffic, seems to be undermined. According to Art. 54 para. 2 terBSV>, the competent authorities are authorized to "restrict the sailing of kiteboards in the shore zones to launching lanes authorized by the authorities and marked as such." This is because kitesurfing is prohibited in the riparian zone, outside of authorized launch lanes or access corridors (Art. 54 para. 2 BSV). It is in the public interest that the competent authorities may prohibit or restrict navigation on their waters, especially in sensitive water areas (e.g. shore zones with bird sanctuaries) or in zones with special risks (e.g. bathing beaches during the bathing season) the use of kiteboards (Explanatory Report, p. 10). Even if bodydragging does not fall under the definition of kitesurfing according to Art. 2 para. 1 lit. a No. 16 BSV, the ban on navigation or kitesurfing also applies to kitesurfers who allow themselves to be pulled into the open waters with the board under their arm or completely without a board. The purpose of the launching lanes is to prevent kitesurfers from entering the water unrestrictedly and everywhere.

Finally, a distinction must be made between bodydragging and kiteboarding when kitesurfers steer their kite on land. In this case, it is by definition a kite under the application of the aviation law (see above para. 9). Nevertheless, a sailing vessel does not lose its qualification just because it is on land on a trailer; so does the kiteboard. In my opinion, the judgment of the Berzirkgericht la Broye is to be understood in such a way that the kitesurfer "walking" on foot is not subject to the prohibition of navigation because he is not moving on the waters where right of way rules also apply. Nevertheless, he is still subject to the inland navigation regulations. This is because a hang glider board may in principle only be put into the water if the owner has taken out insurance (Art. 31 para. 1 BSG and Art. 153 para. 1 BSV), irrespective of whether he is standing on the board, being pulled through the water (body drag) or moving to the shore on foot with the board under his arm.

3. Conclusion

Even if the first-instance ruling of the District Court of la Broye did not advance the legal qualification of bodydrag, it was determined that kitesurfers who move on foot with their board under their arm do not violate the navigation ban. However, according to further considerations, kitesurfers do not lose their qualification as sailing vessels and are still subject to the inland navigation regulations due to the liability obligation. If kitesurfers are pulled through the water with their boards under their arms (bodydrag), they are - like the kiteboard - subject to the inland navigation regulations and have to comply with prohibitions and right-of-way rules. Consequently, bodydrag must qualify as kitesurfing and cannot be used to circumvent municipal regulations on in-water and mooring zones.

B. Unequal treatment compared to other water sports

The interest in trend sports such as kitesurfing, wingfoiling or bugeesurfing (Wyss/Märki,Wassersportkommentar, Rz. [coming soon]) continues to grow, and although the safety standards in this regard are continuously being harmonized, some are lagging behind the development. The aim of the motion "Equalization of kitesurfing with other water sports" (Curia Vista, Gesch.-Nr. 12.3496) was also to put kitesurfing on Swiss waters on an equal footing with other water sports (AS 2014 261 and explanatory report, p. 5; BBl 2015 3158 ff., 3158).  As part of the revision of the BSV of January 15, 2014, the general ban on kitesurfing on Swiss waters was already lifted. However, the promise to put kiteboards on an equal footing with other water sports was not kept, among other things, in terms of mandatory insurance (Art. 153 para. 2 bisBSV) and practicing the sport in protected areas (Art. 5 para. 1 lit. g in conjunction with Art. 2 para. 2 WZVV).

In terms of bird protection, kitesurfing is banned in some areas on the grounds that the constant changes of direction of the kite mean a high potential for disturbance for breeding migratory birds (consultation draft Canton of Lucerne, p. 11; message to the Grand Council, Canton of Aargau, p. 3; statement of the Federal Council of 15 May 2013 Interpellation: Extended protected area planning due to the equal status of kitesurfing [Curia Vista, Gesch.-Nr. 13.3197]). But it seems arbitrary that kiteboards are banned as the only water sport in protected areas of category III, if at the same time navigation is not restricted there, motorboats are allowed to operate and even wakeboarding is permitted (cf. the Federal Inventory of Waterbird and Migratory Bird Reserves of International and National Importance of July 15, 2015 as well as Art. 5 para. 1 lit. g in conjunction with Art. Art. 2 para. 2 WZVV). The unequal treatment is particularly striking in the case of the navigation regulations on Lake Constance: the restriction of use for kitesurfers is massively limited both spatially and temporally, in contrast to other water users such as sailboats, motorboats, wakeboarders or Windsurfers (Art. 16.01 para. 1 and 5 BSO; see above para. 8). The authorities fear negative impacts of kitesurf on breeding birds.

Reserves of national and international importance are to be protected, and the welfare of wild birds and nature in general is also close to the hearts of kitesurfers. The sustainability of kitesurfing is also supported by the kitesurfing community (Decurtins, para. 1 ff.). However, the unequal treatment of kitesurfers compared to other aquatic species is unjustified. Many studies by bird observatories in the European region consider kitesurfing in isolation, which means that no scientific conclusion can be drawn about the effects of kitesurfing relative to other recreational activities in coastal regions (COWI Study, p. 42). There is no empirical evidence that kitesurfing poses a greater threat to birds than other human activities on the water (COWI Study, p. 43 f.). In addition, no account is taken of the fact that kitesurfing is practiced when the wind is strong, and the more wind that blows on open water, the fewer birds in the area rest and feed. This fact reduces conflicts between birds and kitesurfers in many places (COWI Study, p. 44). It can be stated that kiting is not more harmful than other water sports.