Mike,

Did all this contact occur before or after the starting signal? I ask because, by definition, a boat has no proper course before her starting signal.

Let's start by assuming that the leeward-most boat (L) does not alter course as they approach the line and all the course changes are by boats to windward of them.  Each windward boat (W i) is required by rule 11 to keep clear of the boat directly to leeward of them (W i-1 or L).  However, if the boat directly to windward of them does not give them the room they need to keep clear of the boat to leeward of them then the boat (boats W 1 through W n-1) can be exonerated for breaking rule 11 under rule 43.1(a).  If there is a protest between W2 and W3 then W3 should protest W4 or W3 may not be exonerated.  The rule 14 contact issue is resolved in a similar fashion.  Was it reasonable for W i+1 to avoid contact with W i?  If not the rule wasn't broken.  If it was then W i+1 may be exonerated under rule 43.1(a).

John ….. The scenario was after the start, but I said that the leeward boat did not sail above his proper course.  
If 2 boats in the middle of the pile protest and the boats to leeward and windward of the 2 were not identified, can the facts found state the “an unidentified leeward boat did not give boat W room to keep clear “? 
Would the Protest Comm have to protest all boats in the incident if only 2 in the middle protested each other? 

If leeward boat was clear astern of windward and sailed into a leeward overlap she would initially have been required to keep clear by R12 then acquired ROW when she gained the leeward overlap. If that is the case R15 applies and she must give the windward boat room to keep clear including space to  comply with her obligations under the rules of Part 2 and rule 31, while manoeuvring promptly in a seamanlike way. 

If the windward boats were unable to keep clear they are exonerated.

So when did the overlap occur? 

Mike - Yes, the PC could find that an unidentified boat to windward failed to give room but equally as likely is that the windward most identified boat could be found to not have given room and be disqualified.  If you are close enough to not be given room you should be able to identify them!  It is really in the best interest of each boat to know which boats are to windward and leeward of them.  The PC should protest all the boats that are identified as being involved in the incident if they were not identified in the original hearing request and include them as parties to the hearing.

When this happens, before or after the start, really doesn't matter unless L is limited by 17 and must bear away to her proper course after the start.  In this case she is giving the W's more room not less.  Before or after the start if L comes up at all then she will always be limited by rule 16.  This is true no matter what her proper course is.

I agree with John that it's really the protesting boat's responsibility to protest the right boat, if she wants to get the right answer.  Having said that, the answer to the original question is, yes, two boats in the middle of the sandwich can protest each other.  If there was contact between the boats in question, and assuming the leeward boat of the pair did not turn and break rule 16.1 or establish her overlap from astern and break rule 15, the windward boat will likely be disqualified unless she can identify the boat to windward of her and claim she was exonerated under rule 43.1(a).  I suppose the protest committee could say she's exonerated even without identifying the boat to windward of her, but how can they say the unidentified windward boat was breaking a rule without even bringing her in to hear her story?  I doubt such a conclusion would survive an appeal.  As everybody points out, the protest committee could take it on themselves to identify the boat(s) to windward of the protesting pair, protest them and hold a hearing on the incident.  However, there is no rule requiring them to do so, it's a huge hassle, and many protest committees will not take that on.  Bottom line: The windward boat of the pair should protest the boat to windward of her, not the boat to leeward.

Rob re: “As everybody points out, the protest committee could take it on themselves to identify the boat(s) to windward of the protesting pair, protest them and hold a hearing on the incident.  However, there is no rule requiring them to do so, it's a huge hassle, and many protest committees will not take that on.”

It just so happens a few days ago I was reviewing the USJM on his exact issue (USJM 2021 - pg 61)

To my reading, the narrowness of that list seems to basically nullify RRS 60.3(a)(2). 

Looking at these 3 conditions individually.

#3 …that’s just Appx P, so RRS 60.3(a)(2) isn’t usually relevant
#1 … to get to RRS 60.3(a)(2), we have a valid protest of a boat for an incident and we are hearing evidence from the parties and witnesses. By definition of that situation, there are boats nearby that could have protested.

So that only leaves #2, a likely break of RRS 2.

Seeing that RRS 2 protest/decisions are rare by themselves, to have sufficient evidence presented for a PC to conclude that a 3rd boat, who is not a party to the current hearing, “likely” broke rule 2 … well that’s going to be incredibly rare.

The guidance seems to accumulate to basically recommending that US Judges not use RRS 60.3(a)(2), except for RRS 2

PS: After rereading the USJM, I now believe that the 3 points above were intended to instruct ONLY PC's that are 1st hand witnesses of the incident and NOT to restrict US PC's abilities generally under RRS 60.3(a)(2) . 

Rob re: "I suppose the protest committee could say she's exonerated even without identifying the boat to windward of her, but how can they say the unidentified windward boat was breaking a rule without even bringing her in to hear her story?"

Isn't the main issue here that a boat that is not a party to a hearing can't be penalized, not that they can't be included/ID'd in the decision and found to have broken a rule (a rule-breach which becomes the basis for exoneration for a boat that is party to the hearing)?

I could see 2 scenarios where the testimony consistently describes the actions of a boat that is not a party to the hearing (let's call it Boat-U) ...

In either case above, given the apparent guidance in the USJM, it seems to me consistent with that guidance for a US PC to .. 

I think Angelo is right, but it bothers me.  The consequence of what he's saying is that in any multi-boat scenario the protested boat can claim another boat broke a rule and compelled her to break a rule, but not only is she not protesting that boat, she's not even identifying her!  If I were on a protest committee hearing the original protest, I don't think I would give a lot of credence to an argument that claims a third boat made contact, or at least got so close that she wasn't keeping clear, yet the boat making that claim doesn't know who that third boat is; and maybe the USJM should say that.  

What bothers me here is that the leeward boat got fouled and protested, yet no boat is penalized.  Maybe we should think of this as a flaw in rule 43?  Note that we changed rule 62.1(b) in 2021 to eliminate a very similar situation with respect to redress, where a boat used to be able to get redress by claiming she was damaged by a boat breaking a rule, but didn't protest that boat or maybe even identify her.  Now, boat that allegedly broke a rule and caused the damage must take a penalty (which, given the damage, would be to retire), or if not, the boat claiming redress has to protest her successfully.

Rob - I think most PCs would tend to follow your logic.  It is the windward-most identified boat that is most at risk and likely going to get penalized.  You have to know who is around you.

Although I have to admit, at the Opti Nationals we had a busy leeward mark rounding situation where a boat was entitled to mark-room and was hit from behind causing her to hit the mark and another boat protested her for hitting the mark.  The PC was confident that there was another boat involved that could not be positively identified by the parties and the witness because of the number of boats going around all at once.  We exonerated her for hitting the mark by an unidentified boat that broke a rule.  She probably should have taken a turn for insurance but she isn't required to.

Rob, "I think Angelo is right, but it bothers me." .. LOL .. that really cracked me up! :-)

FWIW, in the USJM guidance and their 3 points, on a more careful reading we find it has the phrase "on the water" buried in it.  I think the intention of the USJM authors' 3-points were not to cut the legs out of RRS 60.3(a)(2), but rather outline guidance for PC's that are first-hand witnesses of the incident. 
Just before the USJM quote above is  ...

.. which would again lead to a reading that it's talking about competitors protesting each other.   

If the intent of the USJM authors was focusing toward judges witnessing incidents on the water, I think that could be stated more clearly.  Along with that, separate and additional guidance could be given as to when a PC might decide to halt the hearing and protest an outside boat when ID'd.

Unless there’s damage or injury or the most windward boat gets protested it seems like the easiest thing would be for the intermediate W boats to either not file or request to withdraw.

Mike,

Just like Rob O, I too am ‘not happy’ about outcome that does not bring a penalty of any kind to a boat(s) that broke a rule and did not take an exoneration penalty, whatever it may be.

In the discussed scenarios, if the PC received a valid protest from any of the ‘middle’ boats it had the option of protesting other boats, if identified. None were.

That in itself is a questionable practice in a fleet of boats of reasonable size. John Ch brought an example from the Opti’s regatta. As we know, boat on boat contact is quite common in the Opti fleet at the start. The PC generally does not receive any protests. Not the best situation, and ….. we are talking boats weighing 77 lb. and ability to make a turn within its length (7’9”). 

However, if the situation Mike describes takes place in a fleet of bigger boats (say 20+ ft) with lot less maneuverability than the Opti, then not knowing who the boat next to you is less likely. Just to make sure, I am not limiting this to boats 20+. This is just a sample.

What I detect from this scenario is that there may possibly be a tendency to ‘not knowing’ who the next boat is when it comes to protests.

In Mike’s question, if the PC received a valid protest, then it knows at least two boats involved. The PC should conduct the hearing as the incident between the two boats. Should the boat that was denied room ‘remember’ the boat windward of it, then the PC may take action about that.

I would guess that when the windward boat gets DSQ, it may remember the boat windward of it.

Kim

I don’t disagree with Kim, but on the other hand there’s the perspective that if the competitors aren’t concerned enough to protest why should the PC?

Also I think we need to account for the fact that it’s not necessarily the most windward boat who’s guilty. If W1 wants to come up and W2 doesn’t at least try to respond, then W2 broke a rule and W3 didn’t. In that case W2 should be penalized as she wasn’t compelled to break the rule. A PC would need to satisfy itself on that before making a more windward boat a party.

Tim, here's my problem with all this.  Suppose I'm in Don't Worry and you're to leeward of me in Come Up, in the middle of a pack of boats approaching the RC boat to start, as in the original post.  Don't Worry and Come up are on converging courses. Don't Worry doesn't respond to Come Up's presence and the boats touch.  You protest Don't Worry for breaking rule 11.  We go to the room and tell our stories.  You claim there was room for me to luff up to get away from you, but I've got a great "some other dude did it" defense.  I tell the PC what I undoubtedly believe, that the boat to windward of me was so close that I couldn't keep clear of your boat without hitting her.  Let's say I think this whole protest thing is BS and besides, the boat to windward of me is sailed by a good friend, so I don't identify her.  You're unlikely to know exactly what the separation was between me and the boat to windward, and you don't know who she was.  Without the windward boat to tell her story, the PC is left with little choice but to take my word for it and decide Don't Worry was exonerated under rule 43.1(a).  So much for your protest!  It seems to me, if I'm going to use the SODDI defense, I should have to identify that other boat and protest her; but there's no rule saying that.

The bandaid solution I suggested in an earlier post is that the Judges Manual could say, in the section "Taking Testimony and Gathering Evidence", in Chapter 6, that if a party or witness can't even identify the boat they're talking about, their testimony should be given little to no weight.

Rob, can’t we rely upon our judges to weigh the evidence.? If it’s only one boat describing a mystery boat, well that’s not going to have much weight. 

However, as John described his incident and in the occasion that I had a mystery boat in a hearing, both parties and witnesses described a boat and it’s actions, but couldn’t ID it.  In my case it was a boat from a different class … and the parties being in the same class were familiar with each other but not this other boat. 

Can’t the PC weigh the evidence and apply a ‘balance of probabilities’ standard to the testimony and figuring out what likely happened?

In a protest hearing the middle boat, protestee, in the sandwich is compelled by a boat to windward to break a rule concerning the boat to leeward.  The protestee, middle boat, confirms that they did break a rule, but that they were compelled to do so by a boat windward of them that broke a rule.  Therefore, the protestee states that they were exonerated for their breach by RRS 43.1.  I agree.  And 43.1 does not require the protestee to protest or identify the windward boat that cause her to break a rule.

But what about the Basic Principles, Sportsmanship And The Rules?  Specifically "Competitors in the sport of sailing are governed by a body of rules that they are expected to follow and enforce." 

Should a jury conclude that the protestee, by not protesting the boat to windward which broke a rule forcing her to break a rule, broke the Basic Principles and is therefore disqualified for her breach?  I think so, although I have not yet experienced this scenario.  There is no case or appeal to give guidance.

In seminars, I  tell sailors when they use 43.1, it is in their best interest to protest the boat which caused them to break a rule.

Thanks,

Jerry

Jerry re: “Should a jury conclude that the protestee, by not protesting the boat to windward which broke a rule forcing her to break a rule, broke the Basic Principles and is therefore disqualified for her breach?  I think so, although I have not yet experienced this scenario.  There is no case or appeal to give guidance.”

The way I’ve been told to apply and explain BP’s is through rule 2/69. BP: Sportsmanship “supports” those rules. 

Using that approach,  the question isn’t “does it break BP: Sportmanship?” but rather does not protesting a boat in that circumstance break Rule 2/69? 

I’d say “no”. A boat “may” protest a boat. 

PS: Jerry, in a sense what you are suggesting is that 43.1(a) should have the new additional requirement that 62.1(b) has … (emphasis added)

“ …  because of the action of a boat that was breaking a rule of Part 2 and took an appropriate penalty or was penalized …”

43.1(a) could have the above but does not. 

I think I go back to Angelo's reply to Rob earlier - the PC can decide what weight to put on evidence presented by the parties.

If a the middle boat says that another boat to windward was so close that she was preventing them from coming up to fulfill their rule 11 obligation, and presumably close enough to hear the leeward boat's hails to middle even if middle didn't hail herself, and yet middle has declined to protest and also says they're unable to even identify the boat to windward so the PC might call them as a witness, then I don't expect I'd give much weight to middle's testimony. Probably I'd conclude that middle broke 11 and the "mystery boat" either didn't exist or had enough separation that middle could have kept clear of leeward.

If competitors understand that not protesting the boat that caused them to break the rule puts them at risk of losing their 43.1(a) exoneration, they'll likely be more inclined to protest. And I'm still of the opinion that if a competitor decides not to protest it isn't the PC's job to do it for them. Maybe if the breach is extreme and has implications beyond the immediate incident, but not just to satisfy the PC's sense of justice.

Tim I agree with you and Ang.  The rub is when the middle boat knows the boat to windward of him broke a rule and doesn't protest, but takes exoneration.  I agree it is not the protest committee's place to protest a boat a competitor should have.  

It’s not clear to me this works. Middle boat only believes windward boat broke a rule - until that’s established, I’d be reluctant to accept it as a valid defence. And without a protest, it’s not proven.

I’m happy with multiple witnesses but no id- the Oppie example.  But this smacks of laziness and a tolerance for cheating that we should discourage, and reminding people to remember who is the subject of their defence by dsqing those who rely on us believing there was someone so close they couldn’t manoeuvre but we’re unable to tell who it was is not unreasonable…..