The right of way situation here is between a boat on starboard and a boat on port, the applicable rule is RRS 10.
RRS 10 states that port (L) has to keep clear from starboard (R).
When you have to keep clear, you have to keep clear. Until your last dying breath.
This rule cannot be negotiated or neglected in this situation.
By steaming into R, L did not keep clear and broke this rule.

She can only be exonerated from this if she was sailing within room or mark-room to which she was entitled (RRS 21) or if she was compelled to break RRS 10 by somebody else breaking a rule.

In addition, every boat has an obligation to avoid contact (RRS 14). 
While the description sounds like it was reasonably possible for L, the keep clear boat, to avoid the collision, it was probably not reasonably possible for R to avoid the collision after it became clear that L would not keep clear.
This would mean that L broke RRS 14, but R did not.

In the scenario described above, involving serious damage (nearly sinking), L retired from the race and by that took the appropriate penalty under RRS 44.1(b).
This would be the end of it, scoring wise.

The threshold for a RRS 2 infraction usually is intentionally breaking a rule or not taking the appropriate penalty despite knowing that you broke a rule.

L denying any liability does sound more like an insurance thing and like some disagreement that will end up in a court rather than before a protest committee.
I have no idea what Ls argumentation there might be or what a court would possibly find or how she would explain having taken the appropriate penalty by retiring.

On the question of Ls character I cannot comment ;)

Ben, breaking a Part 2 rule is not alone a basis of Rule 2 (Sportmanship) or Rule 69 (Misconduct).  People miscalculate and bang boats.

When there is serious damage which is obvious, the damaged boat need not protest on the water.  That said, someone should have protested this boat before the time limit and held a hearing.  Even if it was after the TL, with good cause, the TL could have been extended.

I actually had this happen to me last summer.  Exactly the same scenario .. I'm on STB and I get T-boned on the rear quarter and a BIG hole in the boat extended just above the waterline luckily.  I was thrown across the boat, hit my head and knocked silly (I know .. how can you tell right?) .. and someone remembered to fly the flag but never said "protest". It didn't matter.

The damaged boat could have done this, but also the Protest Committee can have done this as well as Serious Damage and Injury is an exception of the PC filing a protest when it learns of an incident from other parties.

For the purpose of liability, I have heard that some insurance companies require a protest decision.  It's all based upon the insurance co and their policy in my experience.

Thorsten is spot on.  Absent a protest, which in the circumstances would have required neither flag nor hail, or someones's willingness to consider a misconduct hearing (but is there a basis?) your advice to the party or parties might be "absent protest, take it to your insurers and decide whether to negotiate a settlement or sue."  It is a shining example of why you should protest ...

Surely there are no grounds for a protest here.  The offending boat has retired, so it has taken its penalty and there is nothing for a protest committee to decide.  I'm sure that a lot of us have been asked to hear protests so that our decision can go to the insurance company and while this is sometimes a bit annoying, it's understandable because it makes the claim much easier.  Obviously R could ask the protest committee to hold a Rule 69 hearing but there would have to be some sort of quite strong evidence that L's actions were much more than bad sailing.  I think it would be difficult to protest under Rule 2 after the retirement unless the evidence of bad sportsmanship was very clear and then a Rule 69 hearing would probably be better.

I agree with the comments that a protest is unlikely to result in a worse outcome from the boat on port.  That said, if a boat so damaged wanted to file and the filing was found valid, a PC could find what rules were broken with a decision being no further penalty to be assessed since the boat retired.  I think that's a reasonable and understandable thing for a PC to be asked to do.

I think that are clear grounds for a protest. There seems to be at least two questions the jury could help answer.  First, was it reasonably possible for starboard to avoid port.  We really have very little evidence on this issue.  And second, did port conduct herself in a sportsmanlike manner.  I think summarily dismissing either question is a mistake.  And I would think a jury must seriously consider protesting both had they learned of this incident from either party.

Unless there is some RRS 2 or 69 infraction, or a request for redress by R for a scoring adjustment, there is nothing a protest committee can do.  The request by insurance companies in these situations is essentially a request for private arbitration.  And I would not do it for free.

I think there's grounds for a protest as it appears L broke 10 & 14 and R may have broken 14. But if the jury finds that rules were broken it seems likely that the decision would be that both boats, having retired, took appropriate penalties and no further penalty is assessed. Based on facts given I don't think you get to rule 2.

I think the issue of liability or whether L belongs on the water are not suitable for a PC to decide. 

Apart from Paul's comment about the judges protesting (but there may be issues around time limit with the scenario as written - and can a PC extend the time limit for its own convenience?) 'private arbitration' appears to be the only solution.  But can ca judge take on such a role in good conscience when the rules do not permit a protest (possibly PC excepted) under the rules.

I have had a similar experience where I was asked to 'arbitrate' and I refused.  The competitors agreed to race under the rules, the rules provided an opportunity to protest, and the competitors let that opportunity pass.

The final two lines of rule 64.1(a)(4) are important in respect to protesting without a flag or hail - in the case of serious damage": 

"...but she shall attempt to inform the other boat within the time limit of rule 61.3". 

No attempt, no protest. Also, what was said between the parties at the time? Was the word "protest" ever used?

Cowan Lake Sailing Association Sailing Instructions provide: "In the event of serious damage or injury, a protest hearing is required."  This seems like a good idea.

So John, how does that work if neither boat lodges a valid protest? Does the PC protest one or both boats for Rule 14 and take it from there?

Tim 

.. and also is it written correctly as a change to the RRS? .. and if boats do not protest, are they breaking an SI/rule and therefore if the jury finds that they didn't protest are they both DSQ'd?

Putting aside whether it's a good idea or not to have an SI that "requires" a hearing in the event of 'serious damage or injury', what would a properly crafted SI look like?  Here is my first go at it, feel free to make better.  There are some interesting challenges and contingencies to consider and take care of.

I think what John Ellers is suggesting is a change to 60.3(a)(1)..  It changes it to mandatory.  And I think trying to further define the issue with the SI's will only lead to more confusion.  As a general matter, I believe it good policy not to allow a boat to withdraw a protest if there is serious damage or injury (and the judges manual has a bit to say on this idea).  And this just extends that concept to; any time a protest committee learns of serious damage or injury, they shall protest and conduct a hearing. I don't think the PC needs any further definition.

Paul sail  ..

Yea .. I get that.  Maybe my version above would be for those RC/PC's that want to take the tack of  "first seeing if they will sort it out themselves".

For the "just make it mandatory" (and much simpler) version ...

We perhaps have people reading this that can do more than speculate, but I think that some of the reasoning behind the policy (to not allow a protest to be withdrawn where there is damage or injury) is to remove it from the competitors resolving it themselves.  I think that most competitors do not understand RRS 14 well enough to parse responsibility well.  The policy against banging boats is well understood and well publicized.  So when it happens, I'm not adverse to additional scrutiny allowed (or required) by the RRS or the SI's.  I do prefer that the judges remain judges though, not police, so I cringe at loading up the PC with the responsibility of seeking out incidents. But if the PC becomes aware of an incident through their normal activities, I have less of a problem requiring a process that produces a more thorough result (presumably...).

And as for timeliness, doesn't the RRS already provide a framework for it?  RRS 61.1(b).  I'm not trying to be argumentative, but I firmly believe that the less said in the SIs, the better....

re: timeliness .. yea .. I thought about that.  It's not necessary if you take my situation 1 out of my orig SI language.  I had the time extension for the situation where the PC was aware of the incident but didn't file (purposely waiting until after the PTL to see if a party did themselves).  If you take that away, you are correct .... and if we go with the simplified one-liner you suggested, the TL language isn't necessary at all. - Ang

I think the language in the Cowan SI ("protest hearing is required") is a little too vague & passive. Better I think to say PC shall file a protest if it learns of an incident where contact may have caused injury or serious damage. Basically changing "may" to "shall" for 60.3a1 only, and only if the damage may have been serious (which I don't think can be known for sure until a hearing has occurred and the jury has found that fact). 

If a competitor also files for the incident then the PC can either hear with or withdraw its protest. 

Yes, the proposed language seems better, but ad: :or injury

John, “injury” is in there. It’s 60.3(a)(1) just replacing “may” with “shall”, but also making the required reference at the end of the RRS being changed. 

1,  I did not write the Cowan Lake Rule.  2.  I still think the latest Sailing Instruction suggestion making the Protest hearing mandatory is a good idea, especially in the U.S. where the insurance Company will require an opinion or insist upon the claimant paying the deductible amount.

THANK YOU ALL FOR THE DISCUSSION.