RRS 21.2. should be reworded thus:
"A boat taking a One- or Two-Turns penalty shall keep clear of one that is not."
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The current rule does not exempt Scoring Penalties.
"A boat taking a penalty shall keep clear of one that is not." [21.2]
"A boat takes a Scoring Penalty by displaying a yellow flag..." [44.3a]
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Yes, the intent seems self-evident, but Rules should state what they mean, and not rely upon traditional thought.
The scoring penalty is intended to keep action moving safely. No change of right of way is intended in the Scoring Penalty rule.
One might argue that, literally, the penalty is taken only in the hoisting of the flag.
But even then, dangerous, unexpected situations might arise if the boat must keep clear of all others while hoisting a yellow flag.
There are other types of penalties possible depending on what is written in the race documents. For example, for foiling (WASZP, Moth) or high speed boats (49er, 29er, I14) you may want the penalty to be the match racing ones, a gybe or tack depending on the leg. The original wording works and simplifies the changes that need to be made in the race documents. It separates the what the penalty is and how it changes the right of way/keep clear rules.
I don't think this is a problem with the current rules.
Imho the rules are quite clear in this respect.
Rule 21.2 deals with all types of penalties. It's just that 21.2 requires that taking the penalty occur over a period of time where a boat could have to keep clear of another. Scoring and retiring penalties happen instantaneously so 21.2 has little application.
Just as there can be other types of penalties where 21.2 could apply, there are other types of instantaneous penalties. For example, a time penalty is often used in long distance races.
Certainly, a boat begins taking a scoring penalty when she begins to raise the yellow flag.
When is the penalty "taken"? When all the actions required have been satisfied. Hoisting a flag is not usually enough. There's usually a requirement to draw attention or notify someone. Taking things literally you can even make the case that the penalty is not "taken" until it's applied by the scorer.
I'd go with something along the lines of "A boat that is carrying out a penalty shall keep clear" (preface with "When racing" and add "of other boats" to taste)
"if the boat..., despite taking a penalty, gained a significant advantage in the race or series by her breach her penalty shall be to retire."
Maintaining a position she was not entitled to achieve could count as a significant advantage.
To argue that it isn't until the scorer types in the penalty into a scoring program is somewhat absurd. Following that logic a boat isn't given some of the letter scores until the scorer writes it down i.e. you haven't retired from the race or you aren't ZFP until the scorer scores you that way.
I'm still interested in some examples of the 'dangerous, unexpected situations' that might arise.
This seems to be a lot angels dancing on the head of a pin.
Also, what happens if two boats that are flying yellow flags (and therefore each have no rights) meet on the course, e.g., a port/starboard crossing, room at obstruction, or room at the mark... how to resolve those situations?
If you really wanted to get microscopic on this, as I pointed out previously, a boat could go from ROW to KC (just for an instant) and back to ROW with rule 15 applying briefly as they go from starting to display the flag to having it displayed. But all this is over so brief a period of time to be a really silly distinction.
And before someone starts to argue that the display of the flag starts earlier, apply this definition to when the start of a protest flag or signal flag is considered as being displayed. It isn't the moment you start to go below to get the protest flag or while the signal flag is being hoisted.
While we are pin dancing does acquiring right of way come into it if our boat becomes keep clear as the flag is hoisted and immediately regains ROW (if she were before). I always had the impression that the whole point of scoring penalties was that they were applied after the race. Imagining an instantaneous change of ROW on the water seems to add unnecessary confusion and complication.
I would say that the scoring penalty is taken during the race (think also about a ZFP) but the magnitude of the penalty is not found until the race is scored and you can apply 44.3(c) .