Yes.

Yes. This falls under the actions by a competitor listed in Case 138.

Thanks thirsted and Clark.  This what I thought as well.  Now the hard question, what facts would need to be found to support a rule 2 DNE?

Thanks thorsten and Clark.  This what I thought as well.  Now the hard question, what facts would need to be found to support a rule 2 DNE?

I’d answer this question in steps. 

First, you use the word “willfully”. That goes to a competitor’s state of mind and would necessarily need to be determined by the PC. 

Next, are there other mitigating factors?  For instance, I could willfully break rule 11, not be exonerated for breaking that rule, but not break RRS 2. 

.. there are other examples we can think of I’m sure.  

Thanks Ang, in scenario 1, would turning circles provide exoneration?

I'd be most interested in the evidence to support "willfully". Very hard to get in the helm's head.

Paul re: "in scenario 1, would turning circles provide exoneration?"

First, when given the opportunity, I try to break people of the habit of using "exoneration" when speaking of taking penalty turns (RRS 44) and to reserve the term "exoneration" for those instances where RRS 43 applies.

So, the question reframed might be, "Is taking a 2-turn penalty sufficient and applicable in this case for breaking RRS 11?".  

I think the answer would be (assuming there was no serious damage or injury) whether or not despite taking the 2 turn penalty the boat breaking RRS 11 still gained a significant advantage. If they did, RRS 44.1(b) states the 2-turn penalty is not available to the boat.

to  me I do not have the facts.
Is this approaching to start and barging, here why talk of two lengths.

Is it a finish mark where you can have RRS 18 rights, then it depends on the wind and which end of he line.

I could not say with the facts we have.
mike

Paul .. PS ..

"applicable penalty" is the operative phrase that needs to be assessed to answer your question if 2-turns will be sufficient.

If the RRS 11 breach resulted in no significant damage, no injury and no significant advantage (after taking the penalty) to the boat breaking the rule, and it was found they they did not break RRS 2 in the process, then a 2-turn penalty is "applicable" and RRS 63.4(a) states that "...she shall not be further penalized under this rule...." .

.. then there is the "... unless the penalty for a rule she broke is a disqualification that is not excludable from her series score." which follows, which would be the RRS 2/69 determination.

Sorry. I should have said at the start

And yes I will try to use your phrasing above in the future. ;;Is taking a 2-turn penalty sufficient and applicable in this case for breaking RRS 11?".  

As long as when the leeward boat established the overlap the windward boat could bail out, it should have done so.
In match racing, you would get a double penalty for this, similar to a two turns penalty.
I do not, therefore, consider there would be a "significant advantage" so I would be happy with the voluntary penalty.
Since WS in its wisdom upped the rule 2 penalty I would not now want to use this rule, but I would be in agreement with an RRS 69 hearing to consider "Deliberate", this gives a sensible result but the procedure is bulky.
I do believe we should be prepared to use this procedure and did so only the other week.
I typed the notice (using the WS precedent) showed this on the screen to the party, then e mailed it to him and we held the hearing at the time specified. He was asked to attend by notice on the electronic system in use initially.
 

Clark and Mike

Clark first .. when looking at Case 138 and thinking about the OP scenario, I get the most out of Q&A #3.  Misjudgments are commonplace.

Then when I go through the Cases related to Rule 2, there seems to be a pretty high bar painted by those examples.  They describe very clear and deliberate actions that ".. clearly established that these principles [of sportsmanship] have been violated."

The vast majority of us do not have live computer generated projections of where our boat and other boats will be or a drone feeding live bird's eye views.  We are limited by our distorted POV from the back of the boat.

On the other hand, I appreciate Mike sharing his experience and his approach.  It is a strange fact about RRS 69 that, as it is written now, it actually provides more flexibility in application and penalty than RRS 2 and therefore could have a lower bar for application given that the result could simply be a warning from the PC in the end.  

I think RRS 69 carries the "fear of stigma" in its application from the POV of the PC and competitors, which creates its own very high bar for use.  Also, I've had many discussions  with my local judging-mentors regarding RRS 69 hearings and only 1 or 2 have had any experience with a RRS 69 hearing.  I do believe that lack of experience on the side of judges also causes a hesitancy in use, which again raises the bar. 

Mike, am I reading your point correctly, that you seem to be saying that you have been consciously trying to work past those hesitancies and being more open and willing to apply RRS 69, leveraging it's flexibility in application and resulting penalty?

On the use of RRS 69:  Please remember the procedure to investigate and have a hearing on RRS 69 is very different from the protest procedure. Often it is recommended that less experienced PCs get guidance before proceeding in this action. In Canada, Sail Canada has established a panel to assist in cases where a PC may wish to proceed with RRS 69 action. I'd encourage all to contact their MNO to see what the situation is in your country.

Greg .. you seemed to have read my mind :-)

I've been talking with some judges locally here that it would be a good idea to develop a list of judges who have had experience in RRS 69 hearings.  That way those who have chaired them before can guide others on the panel and experience can be spread over time.  Given that we are all accustomed to remote hearings now, leveraging the learned-experience of others is easier than ever before.

In the United States, we are bound not only by the Racing Rules of Sailing, but also by the dictates of the US Olympic and Paralympic Committee (USOPC) and the Ted Stevens Act. From page 76 of the US Sailing Judges Manual:

The Racing Rules of Sailing, the Ted Stevens Olympic and Amateur Sports Act (variously referred to as “TSOASA” or “Amateur Sports Act” or the “Ted Stevens Act”), the USOC Bylaws and the US Sailing Regulations all “…protect the opportunity of an amateur athlete, coach, trainer, manager, administrator, or official to participate in amateur athletic competition” (Ted Stevens Act - 36 U.S.C. Sec. 220501 et seq.). Primary among these safeguards is the right to a hearing, including “…a reasonable opportunity to present oral or written evidence, to cross-examine witnesses, and to present such factual or legal claims as desired” (USOC Bylaws, Section 10.7). US Sailing’s Regulation 15 establishes administrative, grievance and disciplinary procedures that must be observed. 
These safeguards extend beyond the Olympic-path sailors to include most sailors in the United States. Since a penalty issued under rule 69 can lead to a sailor’s loss of eligibility to participate in the sport, all rule 69 hearings in the United States must be conducted with scrupulous attention to due process and the following additional requirements in mind: 

A person who believes that his or her rights have been violated can file a grievance under US Sailing Regulation 15. If the grievance is not resolved, the party may demand a hearing through the USOC Arbitration process. US Sailing may be required to pay the costs for conducting these hearings."  
Because of the right to counsel, a rule 89 hearing can be difficult to conduct during a regatta.

I am happy to join any rrs 69 group. 
I intend to use rrs 69 more generally, bad language, bullying at marks, bad behavior ashore. Since the bar dropped to just misconduct it is very open. If used more it would loose its stigma and be even more useful. It can appear less confrontational as there need not be a complaining party always present, just your chosen witnesses. 

Michael
IMHO I think 69 needs to be the “big stick”. And it needs to be feared. Bad language and bullying at the start and at marks are all so open to interpretation.
If you shout at someone trying to barge or take mark room to which they are not entitled, it may be seen as bullying by some. 
69.1 and 69.2 come with heavy burdens of procedure, consideration, and judgement. It seems to me that going through those exacting procedures because someone shouted a word or two that can be headed every night on TV, or shouting at the start or at marks would be a misuse of RRS and volunteers time. Many heated arguments at the bar have good informative outcomes. 
69 needs to be kept for grievous misconduct. 

Serious misconduct was changed to just misconduct. Look ar the guidance examples. We need to use it more. You can get the hang of the procedure. 

I really disagree with MIke's opinion that rule 69 should be applied more often, especially in the situation described.  Rule 69 is an allegation that a person has committed misconduct.  It nominally has nothing to do with the actions of the boat.  Rule 69 and Rule 2 are fundamentally different in this aspect.  Rule 2 is meant to penalize a boat for the actions of the boat and not the actions of a person.  In the case described, which person are you going to charge?  The owner, the skipper, the tactician, the trimmer, ...?  Then, you can only penalize the boat if you have decided that the person committed misconduct.

I also don't understand why the change from DSQ to DNE is such a big deal.  Generally, there is already another rule that was broken and the boat would have received a DSQ for that.  If that was the only penalty for rule 2 then what is the point?  Breaking rule 2, i.e. committing bad sportsmanship, needs to carry a heavier penalty than what they can already get..  It's the difference between 'aggravated X' and regular 'X'.  I don't get why this would be a deterrent to applying the rule.

As Clark pointed out, here in the US, the requirements for a rule 69 hearing now can mean that it would be very difficult to have the hearing in a timely manner for scoring the regatta.  Additionally, the appeal procedures are also much different.  There is the threat of additional litigation that is not there for rule 2.  In the US you should only be on a jury for a rule 69 allegation if you have liability insurance that will cover you against these types of lawsuits.

A discussion that has been had deals with the what is the level or burden of proof.  For most rules it is based on the 'balance of probability' (64.1(a)), for rule 69 it is 'comfortable satisfaction' (69.2(g)), for rule 2 it is 'clearly established' (2).  While there is some disagreement as to what 'clearly established' actually means, it may be a lesser bar than 'comfortable satisfaction'.

Michael
Yes I am aware of the change to RRS 69 and I am somewhat aware of the procedures.
I think that lowering the bar of misconduct by WS is a mistake.
 If, as you suggest, 69 is used more often for breaches of simple “misconduct”,  then it would result in weakening the rule for the following reasons. 
1. Most likely for minor offences the result of an inquiry would be a warning. This may not be a sufficient deterrent.
2. PC may shy away from setting up RRS 69 hearing,  thinking that if the outcome is  just a warning, the results are not worth the arduous procedures.
3. If the occasional swear word, lack of manners, shouting at the start or heated argument ashore are too often the subjects of a breach of 69 it may create an atmosphere of “political correctness” 
4. The rule is trivialised when it’s used for misdemeanours.  
5. Under 69.2 (e) (2) 
“a person against whom an allegation has been made under this rule shall be entitled to have an advisor and a representative with him who may act on his behalf.”
                                          
It would be ridiculous to have the possibility of legal advise present for a hearings about, bad manners, a swear word, or shouting at the start. 
       


However,I’m convinced that due to

“69.2 (g)
The standard of proof to be applied is the test of the comfortable satisfaction of the protest committee, bearing in mind the seriousness of the alleged misconduct.” (My emphasis)

The only transgressions that would get to a 69 hearing would be serious breaches.

Using 69 for other than serious misconduct should not be encouraged. And sometimes the sport need a big stick 

 

I took the time to reread the 2021 quad US Sailing JM on Rule 69 hearing in response to this thread.  It’s hard to not reach the conclusion that, at least in the US, we seem to be guided that this is for “serious” incidents. The USJM uses “serious” repeatedly as well as all the repeated warnings about process and exposure in the US to legal ramifications. 

Maybe “gross” is removed from the title, but how less worse is “serious” (as used in the USJM)?

This may come down to MNA jurisdictional differences because of this. 

It’s hard to read the USJM and not come away that conducting a 69 hearing in the US is daunting and perilous. 

Ws and USA make the rules. My job as a judge is to get the correct outcomes from the tools we have. I disagre with a number of points, such as asking a boat to do turns disqualifying you from proresting even if you shout protest later.

There is no serious in the rule just perhaps old text. 

Just a quick on, can comfortable satisfaction be less than balance of probability for a more minor offence. 

I can understand it being more than this for a bigger offence. 

There are consequences under rrs 69 but you cannot do much at an event hearing. 

The big guns only come out with the referred Hearings, and the mna or ws handle these. So should not be much problem at an event. 

The only time I was on a jury and threatened with litigation was in Spain and a s American star sailor. 

Mike