It appears that Blue made no effort to stay clear of Green or communicate with Yellow to give room. Why is Yellow penalized? 

So no exoneration for Blue.

John

Why is Yellow penalized? The PC determined that Blue could not change course without immediately making contact with Yellow, i.e. part (b) of definition of keeping clear.

Penalise Yellow.  Exonerate Blue.

Communications not required.

Ditto what Ben said but to add to "communication not required" ...  also "contact is also not required".   Blue has an obligation by rule 14 to avoid contact. 

What we are trying to determine is ...

Was Yellow was so close to Blue that Blue could not change course in either direction without immediately making contact with Yellow?  Also the same question between Blue and Green. 

If you are satisfied by the picture above that was true for both Blue vs Yellow and Green vs Blue ... then both Blue and Yellow did not keep clear, penalize Yellow and exonerate Blue. 

But that said, Blue and Yellow must keep clear of Green ... and communication between boats is one way that a boat may demonstrate that she attempted to keep clear.   

Case 107  talks about communication as one way to attempt to avoid contact ...  I think that also conveys to a boat keeping clear as one of the possible immediate outcomes of not keeping clear is contact between boats. 

Johan ... maybe we can illustrate a finer point in your question.

A boat cannot be penalized by the PC unless they are a party to a hearing of a valid protest.

In your OP you state that Blue does not protest Yellow, yet Green protests Blue.  Let's assume that Green's protest of Blue is found valid. 

The PC brings Blue and Green into the hearing and starts taking testimony.   There are a few directions this can go.

1) Blue and Green both agree about Yellow's proximity to Blue. 

The PC might be satisfied with this testimony, exonerate Blue, conclude Yellow broke rule 11, but because she was not a party to the hearing, not penalize Yellow.  A boat IS exonerated at the time of the incident if she meets a condition under rule 43.

The PC may also decide that Yellow may have broken a rule, stop the hearing, protest Yellow, combine those protests and start the hearing over.  Now if Yellow is found to have broken 11, Yellow may be penalized.

2) Green cannot corroborate Blue's testimony about Yellow's distance .. but also does not contradict it.

Again, like above the PC may stop the hearing and protest Yellow ... or decide that it's a boats responsibility to enforce the rules and protest and thus decide not to protest Yellow.

Blue is at risk here.  A PC could decide either way as it's only Blue's testimony indicating Yellow wasn't keeping clear.

3) Green contradicts Blue's testimony regarding the room between Blue and Yellow. 

This is where Blue is most at risk.  The PC is under no obligation to protest Yellow and get her testimony.  

The only thing we know as fact is that Yellow broke R11 with Blue, and Blue broke R11 with Green.  Also, only Green protested Blue.

There may have been all levels of communications between the boats.

However, I'm happy to entertain the notion that this was a silent affair.  Let's say that Blue did not hail Yellow.

Ang has listed a few ways the protest hearing might play out, again with various paths to Yellow being available for penalty or not.  I'm most interested in a scenario where Yellow is available for penalty, either due to being initially protested by Green or protested by the PC.

==================================

We have two questions.

1) Whether Blue's silence (inaction) mitigates/exonerates Yellow's breach of R11.

2) Whether Blue's silence (inaction) discounts her from exoneration under 43.1(a).

1.  Yellow's R11.

Let's face it.  Yellow simply got too close.  It is irrelevant whether Blue hailed 'Up!' or 'Room'.  No hail for 'room' or 'rights' is required during a keep-clear/RoW scenario.

Unfortunately for Yellow, she may not have seen Green converging with Blue. However, that is also irrelevant.  Allowing herself to get so close to Blue that Blue was unable to change course, broke R11.

Yellow's penalty sticks.

2.  Blue's Exoneration

There are a number of interesting discussions we could have on this.  First, let's dispel the rumour that Blue was required to take action by hailing, as is the principal of Case 107.

Case 107 identifies that 'hailing' is valid action to avoid contact, and since boats must avoid contact if reasonably possible, the RoW boat in Case 107 was expected to do so.

Rule 14 includes the phrase 'if reasonably possible'.  This effectively requires boats to take reasonable anticipatory action to avoid the rule breach (contact), and provides that a boat unable to do so does not break the rule.

However, in our scenario, we are not discussing R14.  We are talking about 'keeping clear'.  The definition of 'keeping clear' does not require any 'anticipation'.  A boat is not required to anticipate that another will fail to keep clear.

Blue's silence does not make her liable for her breach of R11.

That leaves a technical analysis of the rules.

Well, at the point Blue needed to change course to keep clear of Green, she was constrained by the presence of Yellow who is found as fact to have been too close. So close, that Blue was not able to keep clear of Green. This satisfies the requirements of Rule 43.1(a) and thus Blue was exonerated on the water for her breach of R11.

Summary

Had there been damage or injury due to contact, Blue's silence would have put her under the Case 107 radar.  Without even any contact, and a factual breach by Yellow, Blue, the meat in the sandwich, must be exonerated.

We have Case 51 which portrays a similar, but importantly different scenario.  Unfortunately, I start to think that Case 51 serves to confuse our discussion, by merging the requirements of R14 with the requirements to keep clear.

Nevertheless, in Case 51 the boats are defending their actions.  They have to show that they were compelled to take the actions they did, and therefore still able to be exonerated.  In our case, Blue took no action, so nothing to defend.

The principal of the case still stands.

A protest committee must find that boats were exonerated at the time of the incident when, as a result of another boat’s breach of a rule, they were compelled to break a rule.
Case 51

That's how I see it all, anyway.

Ben re: "First, let's dispel the rumour that Blue was required to take action by hailing, as is the principal of Case 107."

I'm sorry Ben, it was not my intention by referencing Case 107 to imply thay Blue was required to hail.  What I said was "... and communication between boats is one way that a boat may demonstrate that she attempted to keep clear. "

What I was trying to say is that when attempting to keep clear, hailing is one action a boat may take to attempt to do so. 

I never meant to imply that a haul was required in anyway. 

Got it Ang.  I didn't mean to misquote or point at you. My bad.

I was interested in JohnBall's post more than yours.

HI Ben,
my comment is based on the positions of the boats at P2. Blue is keeping clear of Green and Yellow is keeping clear of Blue - meets the definition. Green's protest is premature. We need to know what happens next. Blue has the responsibility to to begin to stay clear of Green but Yellow may not even know that Green is there - her view could be blocked by Blue as the boats converge. 

A PC needs more facts as listed in the replies above to be able to reach a decision.

Yes, ultimately Yellow would be penalised if she fails to act, and Blue could be exonerated.

John

John B re: "...at P2. Blue is keeping clear of Green and Yellow is keeping clear of Blue - meets the definition. Green's protest is premature."

This goes back to my first comment in this thread.  

One person can look at the boats at position 2 and conclude that neither Green or Blue can alter course to windward without immediately making contact (maybe to some extent depending upon the speeds of the boats). When you look at position 2, you think they can. 

Ang,

So I go with the OPs post as the facts. 

I take position 2 as being the snapshot depicting  R11 being broken by both boats.  The distance between being not enough to change course without immediately making contact with the leeward boats. (Actually, Yellow appears to have to have broken R11 at position 1!)

This disagrees with John's view of the diagram, but tries to give us a common starting point for discussion.

OP said Blue and Yellow broke R11. Let's go with that. The diagram may be not to scale! 

Thanks Ben ... deep into the thread I had forgotten that the OP included PC conclusions. 

The OP does not specify whether the PC determined Yellow broke 11 vis-a-vis Blue or vis-a-vis Green.
If Green had held her course, she would have collided with both Blue and Yellow.
Also: Does Yellow COMPEL Blue to break a rule? Or was Blue complicit? Yellow and Blue were doing fine...

I wonder what OP Johan Bergkvist thinks...

OP Johan thinks Ben and Ang provided excellent answers and thanks them for taking the time to help him understand! Especially Ang point that the PC might not include Yellow in the hearing; I hadn't thought of that.

The diagram was meant to show that the three boats were so close to one another that Blue and Yellow did violate R11.

 

Angelo Guarino Created: Wed 15:24 said

While it is true that the rules do not oblige the protest committee to protest Y, or a boat at any time, I think the protest committee should protest Y. 

 

I think it is wrong for a protest committee to conclude that a boat has broken a rule, but that she may not be penalised because of a choice of the protest committee not to exercise the committee's power to penalise her. 

 

If the protest committee is not going to use it's power to protest boats when it is prepared to state a formal conclusion that she broke a rule, when is the protest committee going to use that power? 

 

I don't agree that the protest committee is under no obligation to get the evidence that can be given by Y. 

 

RRS 63.6(a) requires the protest committee to take the evidence of: 

·        the parties present at the hearing and of their witnesses and 

·        other evidence it considers necessary. 

 

Where there is contested, or scanty evidence about the distance between B and Y, which is a fact critical to concluding whether Y did not keep clear of B, in my opinion, the evidence of Y is absolutely necessary to accurately find the relevant facts. 

 

Y has to be got into the protest room, and the neatest, fairest and best way to do that is for the protest committee to protest her. 

Obligation to communicate, complicit, Case 51

I wondered what Case 51 looked like before we had RRS 43.

Here's Case 51 Decision in the 2005 Case Book
 

Case 51, 2005 version 

When it can be shown conclusively, in any such situation, that an intervening boat connived in a windward boat’s failure to keep clear by accepting the windward boat’s lee side as a refuge or by exercising little or no initiative in attempting to force her to keep clear, the intervening boat should be disqualified under rule 11. In making such a determination, the following points may be considered, although no one of them may be conclusive. Was the intervening boat herself purposely bearing away? Did she luff so as to force the windward boat to luff to keep clear? Did she hail the windward boat to keep clear and do so promptly? Was she benefited or hindered by the windward boat’s failure? Finally, did she sail herself into an obviously untenable position between two boats ahead?

To more modern eyes this looks absolutely cringeworthy.

 

It was rewritten in 2009 to read 

 

Both appeals are upheld. MW and ML are to be reinstated. Both of them, by their hails, attempted to avoid having to bear away, and neither bore away before becoming obligated to do so to avoid contact with the boat immediately to windward. Rule 14 required them to avoid contact if it was ‘reasonably possible’ to do so, and they complied with the rule. Each of them broke rule 11, but each was compelled to do so because W broke rule 11. Therefore, each of them is entitled to exoneration under rule 64.1(c). 

By deleting all the factors in the 2005 Case, the RRC is telling us that they are not relevant factors.

John A re: "I don't agree that the protest committee is under no obligation to get the evidence that can be given by Y. "

I don't whole heartedly disagree with what you are saying. I was trying to be very careful in distinguishing between what I think a PC should do, what it "may" do, and "shall" do.

To differentiate this ... maybe we can elevate this to the level of an "appeal". 

Let's assume that in all of my 3 scenarios above the PC decides not to close the hearing to protest Yellow and based only on Green and Blue's testimony ..

#1

Or ...

#2

Now .. assume that either Blue or Green appeals #1 or #2.   Yellow can't appeal as she was not a party. 

Q: Do you think an MNA Appeals Comm would grant an appeal based upon the PC's decision or procedures, based upon the PC not protesting Yellow?

John A .. the Cass 51 comparison is very interesting.  Thanks!

Ang,  Appeals.

No fair asking us to simulate an appeal decision without stating the appellants grounds for appeal.

Is it decision or process.

If process what particular process is alleged is improper.

If it's  based upon the PC not protesting Yellow, then I would expect the Appeals Committee to uphold the protest committee's discretion as to whether or not to protest and dismiss an appeal.

John A ... I thought I did ... 

Not protesting Yellow would be a procedure.  

I gave the FF's for both conclusion/decision sets so I guess that's in play too (but I didn't think that was much of a Q given the FF's). 

JohnA,
Are you saying that you think Case 51 implies that Blue must communicate with Yellow in order to earn exoneration?

If yes, I beg to differ. Could you elaborate? 

Ben,
Absolutely not. I'm saying that all that mumbo jumbo about   exercising initiative, forcing to keep clear, hailing the windward boat to keep clear and benefit was purposely deleted from the 2005 version of Case 51 in 2009 indicating that those considerations are irrelevant to exoneration.

JohnA,

Phew.  We totally agree then.  I stand by my first post.  'Communication not required'.

As I hinted earlier, I even think the remnants of the the old 2005 case wording somewhat confuse our discussion on OPs case.  There is still a great deal of mumbo jumbo in the Case decision.  Case 51 mingle R14 and 'keeping clear'.  There may be people who interpret Case 51 to think that Blue should have shouted something to Yellow.  That's not correct.

Phillip,

You raise again the question of whether Blue was 'compelled' to break R11.  I think so.

As Green approached from the south on a collision course, there would come a time when Blue would have to change her course.  That time was just before the Green was so close that a change of course would make immediate contact or just before Green would need to take avoiding action.

When that critical moment finally came for Blue (the moment she needed to change course to keep clear of Green) she was unable to do so, since Yellow (as a fact found) was too close and any course change would have immediately caused contact.  Blue must avoid contact.  So there was nothing Blue could do to keep clear of Green.  The only thing she could do was hold her course and hope Green bears off.

Yellow, by letting herself get that close broke R11 vis-à-vis Blue.  Blue is not required to communicate anything to Yellow.  She does not have to anticipate that Yellow would fail to keep clear at exactly the moment she needed to alter course.  Yellow broke R11 irrespective of Green's presence.

Ang,

My 2 cents on the Appeal.

I think your Scenario #1 is frustrating and PC should protest Yellow using R60.3(a)(2) in order to resolve the rule breach not paid for by any boat.

However, I do not think an Appeal would stand on this matter by any boat, since there is no breach of procedure.

Philip again,

Re: Yellow-Green relationship.

If Green had held her course, she would have collided with Blue and Blue would have collided with Yellow.  Does that mean Yellow broke Rule 11 vis-a-vis Green?  Or does it mean that Yellow broke with Blue, and Blue broke with Green?

We know and agree that Part 2 rules apply between pairs of boats.

In the definition of Keep Clear, what is meant by 'no need to take avoiding action'?  Action to avoid what or who?

Keep Clear

Doesn't it mean the other boat referred to in the rule and definition?

In our scenario, there was no chance for Green to collide with Yellow, since Blue was between them. So Green would never have need take action to avoid Yellow.  To me then, Yellow could not have broken R11 vis-à-vis Green.

Johan,

It's a good question.  As you said in post #1, its hypothetical, since in real life, I'm sure there would be a lot of shouting by Green and Blue!  Most likely, Green shouts and Blue and Blue shouts up or down.

So Thanks.

Most of my posts here include the word "hypothetical" to clarify (for Ang benefit) that it is not the subject of an appeal.

I see this situation regularly between radio controlled boats either between the windward and offset marks or when running downwind in a fleet of skippers not that familiar with the rules. Blue, unsure of the rules, usually just keeps going and does not protest Yellow. I wasn't sure if Blue would be exonerated and I'm certain most of my fellow skippers don't know either. Now I can share my newfound knowledge. Educating skippers on the RRS is a never-ending task...

Ben, I was just trying to underline the difference between "may", "should" and "shall" for the PC in this situation. 

I thought putting it in the context of an appeal was a good way to highlight that. 

Ang,

You nailed it.

All,

I think the meat in a sandwich (middle boat) rarely is subject to penalty for most rules.  The exception being R14.

Can anyone think of a scenario?