Forum: Rule 18 and Room at the Mark
Is the Presumption stated in Rule 18.2(e) a Fact or a Conclusion?
- International Judge
According to Rule 18.2(e), if there is reasonable doubt that a boat broke an overlap in time, the PC should recourse to 18.2(e) and presume that she did not.
In a hearing, the PC finds as fact that a few lengths before the boats reached the zone, boat O had been overlapped outside boat I. However, the evidence for the PC to decide whether O bore away in such way as to eliminate the overlap just as she reached the zone, were insufficient. So the PC presumes that the overlap was not broken, according to Rule 18.2(e).
How should the PC formulate her decision? Namely, the presumption that the boats were overlapped when O reached the zone, is a fact or a conclusion?
Writing as a fact that the boats were overlapped when O reached the zone and just mentioning Rule 18.2(e) as a rule that applied, seams insufficient, since that fact was never actually “found”. It is not a statement of what happened, rather than of what the PC “presumes” happened.
Could that be a conclusion, in which the PC reached by applying Rule 18.2(e) to the fact actually found, thus that the overlap existed a few lengths before the boats reached the zone?
Anyhow, could the parties appeal on the grounds that the application of Rule 18.2(e) cannot be justified, since the evidence were sufficient and there was no reasonable doubt regarding the overlap?
Hi Myrto:
This is a great question. In these cases it is helpful to use the language contained in the rule as you write your facts and any conclusions that flow from them. In cases such as this, many of us apply the umpiring principle "last point of certainty" (you may search for it's application on this site in Appendices C&D). Though one would not want to use "Umpire-speak" in writing a fleet race decision, its a helpful way for PCs to think through the problem.
To the question, I think you capture the fact that at X boatlengths, the boats were overlapped and offer no additional facts with respect to the overlap. In the conclusiuon section, you succintly explain the reasons the PC applied 18.2(e) and apply the appropriate elements of RRS 18 accordingly.
Hi Myrto,
Case 104 also sheds some light on the issue https://www.racingrulesofsailing.org/cases/732
You could also write that
Conclusion
As there was reasonable doubt that O broke the overlap when she reached the zone, it is presumed under RRS 18.2(e) that she did not.
There is a similar issue in finding as a fact that "S had a reasonable apprehension that she would contact P" in Case 50. https://www.racingrulesofsailing.org/cases/673?page=5 .
Here is what WS 2017 Judges Manual says regarding this matter
"K.22 Onus of Satisfying the Protest Committee
For protest hearings, the burden of proof is the “balance of probability”, unless
a rule specifies a different burden of proof.
There is one rule, 18.2(e), that permits the protest committee, when there is a
reasonable doubt, to presume facts about whether a boat obtained or broke an
overlap in time. However, the protest committee must not merely rely on this
rule; it must take an active part in trying to resolve the doubt by other means. It
should question the parties and witnesses to elicit all available evidence to find
facts and to learn what actually happened. Then, if still in doubt, it may use rule
18.2(e) to resolve the protest.
When making its decision, rule 18.2(e) is relevant only when the protest
committee is in doubt. In this case, the decision might use such words as: ‘The
protest committee is not satisfied that A, astern established an inside overlap
before B ahead reached the zone,’ and cite rule 18.2(e). When the protest
committee is satisfied by the evidence that A astern failed to obtain an overlap,
then the words used might be: ‘A astern failed to establish an inside overlap
[etc.],’ and rule 18.2(e) would not be cited in the decision."