"Invalid protest per RRS 60.1(a)" [not for an alleged breach of a rule of Part 2 or rule 31].

Scenario
Boats A, B, C and D competed in a regatta, finishing in that order.  The protest time limit passed an hour prior and the skippers were in line for beers after the race.  Boats A and B were talking ahead in line of Boats C and D.

Boats C and D overhear Boat A and B talking about an incident between them in today's regatta.  Boat B asks Boat A if she knew she (Boat A) broke a rule (Part 2 or 31) and if so, why didn't Boat A take a penalty like she should?  Boat A clearly states that, yea, she knows she broke the rule at that time, but since Boat B didn't protest her on the water, Boat A figured Boat B didn't care and so Boat A didn't do her turns or take a penalty.

Boats C and D are pretty disgusted by this and confirm with each other what they heard.  A few moments later, after they get their beer and are away from the beer line, Boat C approaches Boat A telling her that she overheard the conversation, that Boat A knows she broke a rule in a race today and did not take a penalty and therefore Boat C is going to protest her for breaking Rule 2.

Boat C emails a written protest to the email address provided in the SI's within 90 min's of when she overheard the conversation.  The protest filing describes Boat C and D overhearing the conversation where Boat A admits breaking a rule and not taking a penalty because Boat B did not protest her.  Boat C lists Boat D and Boat B as witnesses.

Q1: Is the protest valid?

Q2: If the protest is valid ...

• What limits if any are there on the PC?

• What is the "incident"?

• Based on information learned in the hearing of the valid protest, may a PC protest Boat A regarding the alleged rule breach on the water?

Q3: What if Boat A refuses to attend the hearing, so the PC proceeds under 63.3(B) where Boats B, C and D attend and confirm the content of the conversation?

• Boat C can certainly protest over this.  As this is not a Part 2 issue but a sportsmanship/basic principle issue via rule 2 issue.  There is nothing in 60.1(a) that would cause you to say it is not permitted.
• The incident is a breach of rule 2 and is actually ongoing.  The incident starts when Boat A realizes they broke a rule and does not take a penalty until she takes a penalty, is penalized, or is exonerated.
• This is not hearsay as Boat C heard it directly from Boat A.  Boats B & D can testify as to what they heard Boat A say, just as they can testify to what they saw Boat A do.  It's hearsay when Boat E tells Boat C what Boat A said.
• Boat C met the obligation in 61.1(a) to inform the protestee at the first reasonable opportunity per the OP's 'a few moments later'.
• Unless there is something in the NoR or SI about time limits, this would seem to fall into the 2 hour window for filing from 61.3.
• Assuming Boat C properly wrote up her protest with all the required information, I don't see how the PC could decide the protest is invalid.
• Boat A has the option not to attend and the PC can proceed under 63.3(b).

... the penalty for a breach of Rule 2 is a DNE. If a boat retires (presumably excludable result) for an admitted breach of Rule 2 has she taken the appropriate penalty, or might a jury still award a DNE? 

My thoughts:

• Boat C can certainly protest over this.  As this is not a Part 2 issue but a sportsmanship/basic principle issue via rule 2 issue.  There is nothing in 60.1(a) that would cause you to say it is not permitted.

• The incident is a breach of rule 2 and is actually ongoing.  The incident starts when Boat A realizes they broke a rule and does not take a penalty until she takes a penalty, is penalized, or is exonerated.

• This is not hearsay as Boat C heard it directly from Boat A.  Boats B & D can testify as to what they heard Boat A say, just as they can testify to what they saw Boat A do.  It's hearsay when Boat E tells Boat C what Boat A said.

• Boat C met the obligation in 61.1(a) to inform the protestee at the first reasonable opportunity per the OP's 'a few moments later'.

• Unless there is something in the NoR or SI about time limits, this would seem to fall into the 2 hour window for filing from 61.3.

• Assuming Boat C properly wrote up her protest with all the required information, I don't see how the PC could decide the protest is invalid.

• Boat A has the option not to attend and the PC can proceed under 63.3(b).

I think, overall, Boat A is at risk of being found to have broken rule 2.  I'm not sure this would rise to the level of misconduct though.

• I do think it is an ongoing breach.  I think it is similar to sailing a race in violation of your class rules.  Are you breaking the rule only at the instant you start racing or are you breaking it the entire time you are racing?  The 'incident' lasts longer than a brief moment in time.  The breach begins when the boat does not promptly take a penalty.  However, if the boat retires later in the race or after it you can argue that is when the incident is closed.  The appropriate penalty may vary, it may be too long to take a 2-turn penalty but not long enough that she can't retire.  The Part 2 incident is brief, but that isn't relevant here.
  
  
• It isn't hearsay if you are testifying to what you heard someone say.  If that were the case it would always be hearsay when you testify that you heard someone hail protest.  What they said is hearsay but not that they said it.  If Boat C tells the PC that Boat D told them Boat A told them they did something, it is still a fact that Boat A heard Boat D say it.  The PC will want to hear from Boat D as to exactly what Boat A said and not necessarily make their decision based on Boat A's testimony alone.  In this case it is tantamount to a confession, it is the person who did it saying they did it.  We essentially have this in the exception in RRS 60.3(a) where the PC is allowed to protest a boat over a report from the boat herself.  Suppose it was the PC and not Boat C in the beer line.
  
  
• The PC would have to decide whether that was the first reasonable opportunity, but, unless the beer line was really long, it sounds reasonable to me.
  
  
• Rule 2 relates to the boat and not an individual.  I think you could get to a 69 issue but there is a lot more I would need to know.  How many people are on the boat?  Was the person who said they knew they broke a rule in a decision making role, i.e. owner, skipper, tactician, or the starboard genoa winch grinder?  Lots to know first before saying a specific individual committed misconduct.

If B, the ROW boat, voluntarily allows A to cross (wants to continue left, doesn’t want A to lee bow, maybe thinks A has the cross until very late), has A really broken a rule?

If B, the ROW boat, voluntarily allows A to cross (wants to continue left, doesn’t want A to lee bow, maybe thinks A has the cross until very late), has A really broken a rule?

Please, let us not tweak the scenario here.  

This is why RRS 60.1 is a rule folks.  I think that the rule writers understood the issues that are coming up in this forum.  

...

At the hearing, A admits: (1) that A fouled B; (2) that A knew that A fouled B; and (3) that A probably should have taken a penalty.  A says that A thought we were all friends here and it wasn't a big deal, but A will be more careful next time.

Does the PC have discretion to do anything other than find a Rule 2 violation and score A DNE?  

• A broke a rule
• A knew she broke a rule (at the time she broke the rule) and 
• A didn't take a penalty

Does the outcome change if A retired immediately after learning of C's protest?

Has B also broken Rule 2 by encouraging A to sail on when B knew that A broke a rule?

• Where, and in what words is it stated? 
• How is it 'recognised'?

... let's say B hailed "starboard" leading up to the crossing, indicating that B would prefer that A tack.  B holds course long enough to make clear that the boats would collide if B did not alter course.  B states at the hearing that B intended to assert right of way and did to wish to allow A to cross, that B believed A fouled B, and that B held course to be sure that A knew that A would not have crossed cleanly, but that B did not want to pursue a protest after the incident occurred.

To decide whether A was in breach of RRS 2 we need her understanding of the rules.

 If the conversation makes it clear that A knew she was in breach of a rule and she decided to not take a penalty, 

then they maybe have enough for a hearing.

 But the defence for A would be very easy, because she could just say that it was a grey area call between breach or not. Even a prior admission of guilt can be reversed.

We would need to protest everyone for RRS2 after a valid protest if the mental image of the protestee isn't the deciding factor.

 That's why I would be uncomfortable continuing under 63.3b without really good evidence on hand.

"clearly established that these principles have been violated" This demands a higher burden of proof than normal cases.

Retiring is an appropriate action if A comes to the conclusion that their actions broke a rule. This retirement need to be taken promptly after A comes to the realisation. Which maybe hours or days after the competition. If she doesn't, then she is in breach of RRS2. 

1. After the race Boat A admitted to knowing at the time that she broke a Rule X in Race Y.
2. Boat A did not take a penalty at the time or after the incident."

1. Boat A broke Part 2 Rule.
2. Boat A knew she had broken the Part 2 rule.  Boat A did not take a penalty for her breach.
3. By not taking penalty, Boat A broke the fundamental principals of sportsmanship and fairness.

• If the two incidents are very closely connected, the protest committee may hear what may technically be separate protests together in one hearing in accordance with RRS 63.2. 
• otherwise, separate incidents should be heard separately 

• A broke a Part 2 rule, and 
• Knowing that she had broken a rule A did not promptly take a penalty, thus breaking RRS 2. 

• RRS 60.1(a) prohibits a boat from protesting another boat for an alleged breach of Part 2 unless she was involved in or saw the incident:  C's knowledge of the Part 2 rule incident arose from her overheard conversation. 
• RRS 61.1(a) requires that for a protest concerning an incident in the racing area the protesting boat shall hail 'protest' and display a red flag at the first reasonable opportunity, subject to exceptions, none of which apply to this scenario.  C did not do this. 
• Inconsistently with RRS 60.1(a) and 61.1(a), RRS 61.3 permits a boat protesting about an incident other than one she observed in the racing area to deliver her protest no later than two hours after the protestor receives the relevant information, in this case, overhearing the conversation:  C complied with this requirement. 

• This was not a breach of a rule of Part 2 or rule 31, therefore C's right to protest A for this breach of RRS 2 is unrestricted. 
• The alleged breach of RRS 2, in failing promptly to take a penalty after breaking the Part 2 rule concerned an incident in the racing area, even though it was not observed by C, and RRS 61.1(a) nevertheless requires the protesting boat to hail 'protest' and display a red flag.  The exceptions to the early informing of the protestee for incidents the protestor did not observe in the racing area available to committee protest in RRS 61.1(b) are not available to protesting boats.  C did not comply with this requirement. 
• C's written protest, not being about an incident observed in the racing area, was delivered not later than 2 hours after the protestor received the relevant information, and C complied with the requirement of RRS 61.3. 

Haha...Will 2 cents do it?  Ok - didn't really want to get into this too deep, but here goes...

I would start by warning Boat A of the following, in hope that she decides to 'take a penalty' by retiring before any hearing is set up.

Q1: Is the protest valid? Why/Why-not?

Q2: If the protest is valid ..?  What limits if any are there on the PC?

There are no special limits on the PC.  The question is 'has Boat A broken a fundamental principal of fairness and sportsmanship?'.

What is the "incident"?

The incident is "failing to take a penalty in keeping with the fundamental principals of fairness and sportsmanship".

May/must/should the PC take evidence about the rule breach on the water?

The Part 2 breach must be stated as a fact

in order to logically support the breach of Rule 2 based on a failure to take a penalty.

  However, an admission of guilt can essentially be given 100% weight (unless there is any intimidation or foul malice at play or the testimony is so clearly flawed,

...

Based on information learned in the hearing of the valid protest, may a PC protest Boat A regarding the alleged rule breach on the water?

Yes.  60.3(a) says the protest committee may protest a boat.  There is no limit to a protest committee protesting a boat if the information is learned at a valid protest.  But doing so separately is moot.

The fact and conclusion that Boat A broke a Part 2 rule is a requirement in a Rule 2 'failing to take a penalty for breaking a rule' conclusion.  Anyway, rule 64.2 requires that when the PC decides that a boat that is a party to a protest hearing has broken a rule and is not exonerated, it shall disqualify her.

So the Part 2 breach would be rolled into the same conclusion for the Rule 2 breach.

Conclusions

1. Boat A broke Part 2 Rule.

2. Boat A knew she had broken the Part 2 rule.  Boat A did not take a penalty for her breach.

3. By not taking penalty, Boat A broke the fundamental principals of sportsmanship and fairness.

If so, are there special conditions for the qualifying "information learned"?

The phrase 'Information learned' (from 60.3(a)) is not relevant.  The protest is made per 60.1(a).  "A boat may protest another boat."

Q3: What if Boat A refuses to attend the hearing and the PC proceeds under 63.3(b) where Boats B, C and D attend and confirm the content of the

63.6(d) says the protest committee shall base its decision on the evidence presented.  If Boat A does not attend, then no evidence from her side is presented.   The absent boat will surely lose.

-------------------------------------------
Now, down to whether Boat A broke Rule 2.  This is tough.

... 
So in OP, Boat A admitted that she knew she broke the rule at the time of the incident.  So there doesn't seem to be any discussion to have.  She admitted she broke a rule and didn't take a penalty.  She broke Rule 2

I think we established that neither B, C nor D could protest the original Part 2 incident at this point. But if C protests citing Rule 2, the PC would need to establish that A infringed a rule of Part 2 before they could consider rule 2.

Could the PC penalize A for her Part 2 breach with a DSQ but let her off the hook for Rule 2 (if they conclude that A didn’t have "guilty knowledge" of her breach?

John re: “OK, I think it might be open to a protest committee, having initially decided to proceed in the absence of the protestee, to stop in the course of the hearing, decide that because of the seriousness of the breach it was no longer appropriate to proceed ”

I had said in the OP that Boat A “refuses to attend the hearing”.  I meant that to convey that Boat A is not going to attend no matter any accommodation by the PC. 

John A “qualifying information learned” 

On reflection … I was probably thinking a PC might recognize that it was the boat’s representative admitting to braking a rule and not taking a penalty, but then realize that the report of what was said (Boat C’s protest) came from a source with a conflict of interest.  Therefore the PC couldn’t protest Boat A under 60.3(a) based on the information learned in Boat C’s protest filing.   

I thought a PC might pause quickly to examine that question and once satisfied, move on. 

• There was an incident involving her that may have resulted in injury or serious damage, or 
• It learns that the boat may have broken a rule: 
  • During the hearing of a valid protest 
  • The boat was involved in the protested incident 
  • the boat was not a party to that protest. 

I'm interested that there still seems to be a question about whether this protest is valid based on whether it complies with informing the protestee for "an incident in the racing area" as required by 61.1(a). If instead the RRS 2 violation is considered to be ongoing, then the hail and flag are not required and the protest is valid. Otherwise John Allan, Ben and others seem to be in agreement.

I'd ask John Allan to again describe why he feels the RRS 2 violation is only brief and on the water, and where the word "promptly" comes into play.

 I understand that the Part 2 violation happens on the water, as does the failure to take a two turn penalty. However the boat is not suddenly sailing fairly once they pass the opportunity to take a 2 turns penalty. They could make the situation fair by retiring. From what I see at the moment (and I don't have much experience with RRS 2 or the relevant cases), this is an ongoing issue, and likely one that could be corrected by A retiring from that race.

Two more points:
(2) As stated before I'd work really hard to be sure A in fact KNEW they had broken a rule and chose not to take a penalty, as opposed to say knowing that B ducked, but assuming they ducked because they felt it was a better tactical choice than forcing a lee-bow.
(1) as a PC, I'd want to see A retire rather than a DNE, as that's a heavy penalty for a relatively minor infraction

One more question that someone sorta brought up... what if the leeward jib trimmer (for example) knew that A fouled, but the helmsperson and tactician never fully understood this? Related, what if there was disagreement on the boat whether there was an actual infraction? The latter seems clear to me that they didn't "know", but in the former case, if one person on the boat KNOWS this to be the situation, does that mean the boat knows?

A boat calls the RC and tells them they are retiring after racing or tells the PC that they are retiring.

Does the PC interrogate the boat [about why she is retiring].

 and if they say they are retiring because they broke a rule of Part 2 or 31, the PC rejects the request to retire

 and tells the boat their only recourse now is to accept a DNE because they did not retire promptly?

The alleged breach of RRS 2, in failing promptly to take a penalty after breaking the Part 2 rule concerned an incident in the racing area, even though it was not observed by C, and RRS 61.1(a) nevertheless requires the protesting boat to hail 'protest' and display a red flag.

If the written protest expressly alleged that the boat did not comply with the fundamental principle that includes the 'promptly' requirement, then, likewise, I would take that to mean an incident in the racing area requiring a hail and flag.

If the written protest alleged more generally that the boat did not take a penalty, in a more open ended time frame, then I could be persuaded that the protest included a breach of RRS 2 other than in the racing area, in which case, I'd have to flip-flop my opinion about validity once again.

A point of admin first.

The last line of my last post says... "Let's not extrapolate OPs scenario until we have satisfactorily solved OPs scenario."

Boat A clearly states that, yes, she knows she broke the rule at that time, but since Boat B didn't protest her on the water, Boat A figured Boat B didn't care and so Boat A didn't do her turns or take a penalty.

•  +1 the # of entrants or 
• +1 # of starters or 
•  +1 # of finishers (sometimes an SI’s custom change)

I think that the PC must present a rule 69.

John … I just want to say that you made a great case for BOTH sides!  It’s still fuzzy for me.

• If there was a hail and flag and the protest is otherwise valid, then A broke RRS 2 and her penalty is DNE, and she cannot avoid this penalty by Retiring or taking a PRP.
• If there was no hail and flag, the protest is invalid and the hearing is closed.

• C observes a Part 2 incident between A and B during the race and observes that A does not take a RRS 44 penalty.

• C is beyond hailing distance of A but she immediately displays a red flag and later, coming close to A hails 'protest - fail to keep clear, protest - fail to take a penalty'.

• C, in the company of D, also a competitor, later when ashore, overhears Boat A and B talking about the incident between them Boat B asks Boat A if she knew she (Boat A) broke a rule (Part 2 or 31) and if so, why didn't Boat A take a penalty like she should?  Boat A clearly states that, yes, she knows she broke the rule at that time, but since Boat B didn't protest her on the water, Boat A figured Boat B didn't care and so Boat A didn't do her turns or take a penalty.

• C then approaches Boat A telling her that she overheard the conversation, that Boat A knew she broke a rule in a race today and did not take a penalty and therefore Boat C is going ahead to protest her for breaking Rule 2.

• C delivers two written protests within the protest time limit
  • Protest against A for not keeping clear of B, and
  • Protest against A, specifying the time of the incident, for not taking a RRS 44 penalty, thus breaking RRS 2.

• Before the protest time limit A retires.

• C does not withdraw either protest.

• The protest committee decides to hear both of C's protests together.

• When opening her case C states that she is aware that A has retired but that she considers that A's failure to promptly take a RRS 44 penalty on the water when she knew she had broken the Part 2 rule was seriously unsportsmanlike, contravening the 'promptly' requirement of the fundamental principle, and deserves the RRS DNE penalty.

• The protest committee finds facts sufficient to conclude that:
  • Both C's protests are valid.
  • A broke the Part 2 rule as alleged.
  • A knew that she broke the Part 2 rule at the time of the incident.
  • A did not take a RRS 44 penalty at the time of the incident.
  • A has retired from the race.

I thought there was a Case or Q&A somewhere which basically concluded that despite a protest was invalid, since the boat herself learned she had the sailed the course wrong, the PC threatened her with Rule 2 hearing.  Can anyone remember that?

1. The one and only fundamental principle stated in the RRS is not clearly established to be a 'recognised principle of sportsmanship' by the plain words of the RRS?
2. In the scenario I posed it is not clearly established that A broke a Part A rule, knew that she did that at the time, and did not promptly take a penalty?
3. A did not break RRS 2?
4. The applicable penalty for breaking RRS 2 is anything other than disqualification that is not excludable? 

Yea … you being one of my panel buddies could probably convince me otherwise. I guess it comes down to “recognized” by who?

  I was making the arguement that, IMO, many or maybe most sailors might recognize that behavior as meeting this standard.  I think I’ve been clear that’s what I’m saying.

On the other hand,  Q&A 2019-006 (which is retained into 2023) kinda blast a hole in the entire idea that “retire” is available, thus torching all this possibility. 

I guess Boat A’s only option is to write a confession note to the PC and ask the PC to protest her for Rule 2 (since as you say, a boat can’t take a DNE herself).  That in my scenario where Boat A tells C that she’ll retire.

 FWIW, taking away the ability to have a talk with a boat after racing and convincing them to take a penalty/retire .. is an important tool that this Q&A seems to negate. That’s unfortunate IMHO. 

• There is a Part 2 incident between A and B during the race and A does not take a RRS 44 penalty.

• C, in the company of D, also a competitor, later when ashore, overhears Boat A and B talking about the incident between them Boat B asks Boat A if she knew she (Boat A) broke a rule (Part 2 or 31) and if so, why didn't Boat A take a penalty like she should?  Boat A says 'Gee was it that close?  If you had a reasonable apprehension, then I didn't keep clear.  But the race is over now, so let's leave it at that'.

• C then approaches Boat A telling her that she overheard the conversation, that Boat A knew she broke a rule in a race today and did not take a penalty and therefore Boat C is going to protest her for breaking Rule 2.

• C delivers a written protest against A within the protest time limit with the following detail:
  • The incident:  A broke a Part 2 rule and has not taken a penalty.
  • Where:  In the racing area and at the regatta venue.
  •  When:  ongoing.
  • Rule broken:  RRS 2.

• Immediately before the scheduled time for the protest hearing, A advises the race office and the protest committee that she is retiring from the race.

• C does not withdraw the protest.

• The protest committee finds facts sufficient to conclude that:
  • C's protest is valid.
  • A broke the Part 2 rule as alleged.
  • A knew that she broke the Part 2 rule from the time of the conversation with B.
  • A did not take any penalty until immediately before the hearing.
  • A has retired from the race.

I’m taking about competitor to competitor. I’ve been in many of these talks.  A boat comes up to me after racing and says, “Hey Ang, that was a real bone head move .. I thought I could make it but i definitely fouled you and hosed you in the process”. 

That’s when the talk starts to happen.  I tell them that if they were aware … blah blah … what would you do if you hit a mark alone when nobody can see … blah blah … then at somepoint suggest that it’s not too late. They can take a penalty (retire, Appx T or Appx V). 

It’s not just a teaching opp … but offering that last step is huge part of pushing the bolder up the mountain of getting people to be more penalty-taking/sportsmanship-obligation aware. 

I read the Q&A to say that retiring is only available to a boat if they do it promptly after they are aware (know) they broke a rule.  So if they become aware 5 mins later on the water, they can’t wait until they come to shore. I think the implications of the Q&A are clear. 

Personally, I hope that this non-authoritative interpretation does not graduate to a Case in its present form, though it did survive forward from the last quad, so it looks like it might have legs. 

1. A did not take a penalty promptly therefore she broke Rule 2
2. Retiring is not the appropriate penalty for breaking Rule 2
3. A retires saying nothing about her Rule 2 breach hoping that nobody will notice and she'll have a excludable RET.

1. G knowingly breaks rule 10
2. G knows the appropriate turns penalty for the breach is 2-turns
3. G does 1-turn hoping that people will see her turning and nobody is counting her turns and won't notice

John re: So A retires, but makes no statement to the protest committee, and there is no other valid protest. The protest committee can't penalise A without a hearing. I think it stops, or stalls at A scored RET.

Q&A 2019-006 "By knowingly breaking a rule and not promptly taking a penalty, the boat violated a fundamental principle of sportsmanship, therefore she also broke rule 2."

1. A did not take a penalty promptly therefore she broke Rule 2

2. Retiring is not the appropriate penalty for breaking Rule 2

3. A retires saying nothing about her Rule 2 breach hoping that nobody will notice and she'll have a excludable RET.

That looks to me to be an act of deceit.

1. G knowingly breaks rule 10

2. G knows the appropriate turns penalty for the breach is 2-turns

3. G does 1-turn hoping that people will see her turning and nobody is counting her turns and won't notice

That looks to me to be an act of deceit.

Both boats knowingly took insufficient penalties for their breach hoping nobody will notice.  Both actions walk and quack like an unsportsmanlike act to me.