So, this came up today in our Remote Control fleet while sailing in some very shifty winds.
One boat attempting to do his one-turn penalty could not get the boat to jibe, even after turning a full 360 degrees.
The other boat, was sailing in a straight line and completed both a tack and a jibe.
One is still trying to complete his penalty turn, while the other is on his merry way having not really been penalized.
Does this just turn out to be just a matter of good luck/bad luck for each of them?
That said, and to your question: yes - bad luck!
DSQ in real sailing. Bad luck then for the auto tacker!
44.3 the required number of turns in the same direction, each including one tack and one gybe
I'd just point out that for this to go anywhere, there has to be a valid protest, and the protest committee has to conclude that the boat has broken a rule and is not exonerated.
Despite the OP saying that the second boat sailed in a straight line, I'd be inclined to the presumption that she did change course.
I might ask her "Did you change course to initiate your tack/gybe?", or perhaps non-leadingly, "What action did you take to initiate...?", and unless they stick their head in the noose by saying "Nothing, I just kept sailing in a straight line", I'd accept their evidence that they did turn.
Philip Hubbell
I think you've slipped a cog in applying the exception rule.
Rule 44.1(b), and the RC rule (which I'm sure its devotees think is "real sailing ") E4.3 (1) (shown below) refer to the boat having " gained a significant advantage in the race or series by her breach "
That is, the significant advantage has to have been gained by the underlying incident (and not been taken away by the penalty), not that an advantage was gained by taking the penalty.
So a protest committee not only has to conclude that the boat broke a rule in the underlying incident, but that she gained a significant advantage by that breach.
What rule E4.3(1) does is change the specification of the "applicable penalty".