Forum: Protest Hearing Procedures
Determining validity with multiple boats protested
Drew Robertson
Nationality: Canada
Certifications:
- Club Judge
0
For a recent point-to-point race the SI's were amended to define an on-water construction zone as a Keep out zone. When the fleet reached the construction area a mid-fleet boat witnessed six boats sailing though the keep out area. He hailed "protest' to the closest offending boat and flew a protest flag but the other five were not within hailing distance. The protestor notified two more boats at the dock before submitting a protest against all six boats for breaching rule 28.1 and the SI (as the Protestor was up against the TL). Three protested boats did not learn of the protest until they saw the protest on the notice board or were informed by the P.C. (both which were done by the P.C. Secretary, immediately after the filing )
Questions:
Questions:
- When the protest involves a large number of protestees who are beyond hailing distance (such as entering a restricted area or claims of breaking RRS 28), and as in this case each boat’s infringement is a unique incident, how does the Protestor weigh the obligations of informing the protestees vs filing the protest within the TL?
- If contact information was not readily available to the Protestor for each Protestee, and not all of them were at the same dock, does the Protestor’s obligation to notify their intention to protest end once the Protest is posted on the Official Notice Board and contact is initiated by the P.C. to schedule the hearing?
- For those Protestees that only learned about the protest from the PC or the notice board, is the protest against them valid (assuming that other validity requirements are met)?
- Under a different scenario where all the Protestees did return to the same club (instead of being spread out), but even then the Protestor was running close to the PTL, can the Protestor abandon searching-out individual notice of intent and prioritize submitting the protest on time?
- Are there any circumstances that these events could be considered a single incident?
Comments
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Unless NOR or SI states something differen,t its the competitor's responsability be informed about protest against her, usualy posted at the official notice board.
In the extreme case when the protestee can not be reached by the protestor after reasonably efforts, the communication in the official notice board will be enough.
In any case, if notification by posting on the notice board represents "first reasonable opportunity" to notify the protestees then that's that and the protest would I think be valid. PC could also protest any boats identified as breaking the SI under 60.3(a)(2).
Regarding #5, I don't know that a protest committee couldn't decide that this represented a single incident as I don't think "incident" is defined in the rules. Alternatively the PC could find that all of these incidents are "connected" (in kind, if not necessarily in time) and hear them together.
There is no requirement that all boats be informed of the intent to protest before the written protest is delivered to the race office. Time taken in writing the protest form and delivering it to the race office should be taken into account by the protest committee in determining when the first reasonable opportunity for informing protestees expired.
No. The usual wording of Si about notices concerning protests on the official notice board does not relieve the protesting boat of the obligation to notify all protestees of her intention to protest under rule 61.1.
The race committee or protest committee should make contact details available to the protesting boat to facilitate her complying with rule 61.1.
If the race committee or protest committee is unwilling to disclose contact details for privacy reasons, they should dial the phone number, or initiate SMS or email on the protesting boat's behalf.
Probably not.
What the protest committee can, and probably should, do is, identify all the protests about the same or similar incident, and begin by hearing the first apparently valid protest, and determine its validity, then if it is valid, continue hearing it until it can identify all boats not parties to that protest who may have broken the rule concerned, then the protest committee can protest those boats following the procedures in rule 61.1c, which shifts the responsibility for informing protestees onto the protest committee and starts the reasonable time clock running again.
In terms of mechanics, the protest committee might schedule a hearing of all the protests delivered by the protesting boat in which it deals first with the first valid protest, gets sufficient detail to identify all potential rule breakers, then closes the hearing, and before the parties leave the protest room, informs them of the protest committee's intention to protest, hands out completed details of the necessary protest information, and asks/allows them necessary additional time to prepare, as required by rule 62.2, then either immediately opens the new hearing, or allowing necessary time, schedules it for later.
Yes. See answer to 1 above, but for all the protests to be valid the protest committee needs to be satisfied that the protesting boat informed all protestees.
No. Certainly not for purposes of validity.
What they are is 'very closely connected' so protests should be heard together in accordance with Case 49. If the protest committee protests boats, rule 61.1c prescribes that the protests shall be heard together.
Case 49
How about I try this argument on for size?
61.1 says, “A boat intending to protest shall inform the other boat at the first reasonable opportunity.”
“Intending to” do something is prior to doing something. Once a protest is filed, a Protestor is no longer intending to protest, but rather has protested, and thus the Protestee’s notice after that is of being protested, which will come from the Notice Board and/or PC.
If that line of thought makes sense, the obligation to provide notice of intent ends once then protest is filed.
I think you are travelling towards a triumph of semantics over substance.
I'd much prefer to see a protest delivered within the time limit, with informing the protestee requirements met after the time limit, than have the protesting boat delay delivering the protest until all protestees had been informed, which might possibly be a matter of days, then seeking to justify delay in delivering the protest.
And from a protest desk management point of view, I would much prefer just one protest form (or a sheaf of protest forms one per boat) delivered at the same time, to some dellivered before then some more after protest time.
Who? Me? ;-)
I agree with the other points you make in your reply above, but I do think there is some ambiguity as to whether or not a protest would be invalid if a Protestor did not have a reasonable opportunity to notify the Protestee prior to their filing of the protest and stopped attempting once it was posted on the Official Notice Board.
In the other thread we talked about the ability to withdraw a protest. That entire discussion assumed the interpretation that a protest occurs upon filing. Therefore, notifications, from the time of the incident until the filing, are all notifications of the intention to protest.
Once then protest is filed and posted, that intention is realized and complete. That goes back to your original answer #3 “probably not”. I’m exploring the argument that those protests were also valid (based on my logic above). - Ang
Once the protest is filed, the intention is clear, unambiguous and out of the hands of the Protestor (only reversible with the permission of the PC). Therefore, once the protest is filed, I think there is a good argument that it ends the Protestor’s notification-of-intent obligation.
There is a rules issue in that the boat does not break rule 28 until she finishes, There is also the problem that, in handicap cruiser racing, the time and distance between boats may mean that communication by VHF is not reliable. A further complication is that, once on shore, crews may be spread over 4 clubs, or various other watering holes. It is not practical for a protestor to physically contact all the boats they intend to protest.
Applying strict criteria that boats must be informed directly in this context leads to controversial situations in which some protests are deemed valid but others are not, situations which discredit the judges.
In the case of RC or PC protests we require race officials to inform boats of their intention to protest by posting a notice on the ONB. I see no reason why we should not allow, indeed we should encourage, protestors to do the same. Why not make it a requirement for all protests in the cruiser handicap classes?
How does someone notify another that they are intending to do something when that something is already done? After the fact, that notice is not of intent but of an actuality.
Since all protests shall be heard, the next notice is of the hearing ... not of intent to protest.
I think that if it was found that there wasn’t a reasonable opportunity prior to filing (a question of validity for the hearing), that these protests should still be valid even without an SI allowing ONB notice between competitors.
Using your application of the word "intend" and filing after the protest time limit (but also after informing all the boats involved) I think the PC would find that the protest was filed after the deadline for good reason and then extend the time limit, under RRS 61.3.
A sailing instruction which says that the PC posting notice of a protest on the notice board serves to inform the protestee would be one way to meet the requirements in 61.1, but if one includes such an instruction, one should also include another which obligates all competitors to check the notice board shortly after the end of protest time, so they will be sure to see such a notice. The PC also has to be sure to post the list of pending protests immediately at the end of protest time, so protestees can be assured of seeing notice of a protest filed in time when they look right after protest time ends. (The good news is that most of them are checking the board to see what the day's results are anyway, so the scorer could conceivably post those results at the same time as the hearing schedule / protest notice sheet is posted). All of that is burdensome, but solves the problem, I believe. I've seen this done in circumstances where an event was held where the cell phone coverage was insufficiently reliable.
However, in most cases, cell coverage ashore is perfectly adequate to permit us to rely on that technology to help solve the problem much more efficiently. In the vast majority of current cases, the odds that the person in charge of each boat has a cell phone in his or her pocket anyway (and that they will be able to receive a call or text) are approaching 100% (unless they're small children at an Opti event). Including the "informing the protestee via the notice board" SIs mentioned above but also requiring that the mobile number of that person (or in the case of the Opti event, the parent or coach responsible for each child) be included on the entry form, and putting language in the SIs that indicates that an attempt will be made to notify competitors who have been protested on those mobile numbers "as a courtesy" makes it possible for the PC (or jury secretary) to easily be sure that a protestee that the protestor couldn't find has been informed, either by providing the mobile number to the protestor or better yet, by dialing it directly, as John Allan has suggested in the case of privacy concerns. The courtesy call takes two minutes, and it's well worth the time.
This courtesy leaves the notice board as the repository for official protest notices, but permits the competitors to expect to be informed by phone, whether in the boat park, in the tent, at the various yacht clubs involved, or in whatever watering hole they have retreated to, instead of having to check the notice board. It also permits the PC or its secretary to plan the impending hearings with a pretty good idea of when the parties will show up. Those competitors who for some reason don't have a working cell phone on them still have to check the board, but the rest can expect to find out by phone that they have to present themselves for a hearing (and when). Maybe most importantly, neither protestor nor PC has to figure out where protestees are or what they look like (in cases where that's not easy), or chase after them to inform them. The whole process can proceed much more smoothly and reliably, even at large, unwieldy, or widely based events. It's becoming increasingly common, in my experience, and it works very well.
I think I've also made reasonable argument that one can not inform another of their intent to do something after they have already done that thing. It is a plain reasoning of the language that I have not seen disputed directly, which I think Q&A 2018-15 also supports.
It seems to me the reason for informing the Protestee of protest-intent at the first reasonable opportunity, is so the Protestee has a fair opportunity (if they so choose) to avail themselves of an OTW or after-race penalty (which might be to retire) thus possibly removing the Protestor's perceived need to file a protest, or in the case of RRS 28 correct their error and finish. I do not see the purpose of 61.1 as to inform the Protestee that a hearing is upcoming, which shall be the result after the protest is filed, because all protests filed shall be heard. Hearing notice is provided elsewhere in the rules. Once the protest is filed, it is out of the hands of the Protestor/Protestee and in the domain of the PC and only with the approval of the PC can it be withdrawn and not go to a hearing.
For sticking to the PTL (if a reasonable opportunity to inform does not present itself) and then resume the notice attempts,
For delaying the protest filing until notice had been accomplished, with the hope that this will be found to be a valid reason to delay a filing
For sticking to the PTL (if a reasonable opportunity to inform does not present itself) and attempts stopped after the protest is filed and posted
In the end, I think we all have it right. There is enough ambiguity in how this could be interpreted that a PC should be open to hear the rationale of the Protestor and their interpretation of what the rules say and possibly not invalidate a protest if the Protestor explains their actions relative to notice and filing with any of the rationales expressed above.
The intention may be clear and unambiguous, but, on your scenario, the protestee has not been informed.
Might I suggest this formulation:
The protesting boat is required to inform the protestee of the existence of an intention on the part of the protesting boat to protest. If the written protest has actually been delivered and it is thought that the intention no longer exists, then the requirement is to inform the protestee of the previously existing intention to protest.
More simply, there's no getting out of the obligation on a protesting boat under rule 61.1 to inform the protestee.
That's the function of hail and flag under rule 61.1a.
Yes, it might encourage that.
Maybe
Que? Note that rule 61.1a(3) permits the protesting boat to delay informing the protestee until after she finishes and her rule 28 error is irreversible.
I would suggest that the purpose of rule 61.1 is precisely to inform the protestee that a hearing may be upcoming, and to alert them that they should watch the notice board for notification of time and place
'present itself' is not good enough: the protesting boat must actively seek reasonable opportunity.
Well, if the duty judge gets through to the protestee, that phone call will be a 'reasonable opportunity', and it would be sensible for the protesting boat representative to say to the duty judge "I have not yet informed the protestee, and if you get through to them, I would like the opportunity to use your phone to do so".
No. There's no requirement in the rules for the protesting boat informing the protestee of her intention and the delivery of the written protest to be in any particular sequence.
Whatever is reasonable.
A reasonable competitor is just as able to assess what is reasonable as the protest committee.
It's only unreasonable competitors or those who have not made diligent attempts and are trying to stretch what is reasonable that will have difficulty.
Yes. They will know not to waste time argueing for invalidity under rule 61.1 at the commencement of the hearing (unless they want to focus on unreasonable delay.
In the particular case of coastal or offshore racing I believe that the race office and protest committee should have in place a system so that protestees can be informed without fuss. It is not good public relations for the jury to start declaring protests invalid when the protestees may already have left the venue before the protestor comes ashore or be spread over several clubs or bars or restaurants.
There are several possibilities:
- use phone/text/ whatsapp - I would always prefer to use a written medium so that there is a trace. This may prove cumbersome in the case of protests 'against the rest of the fleet'.
- a notice on the ONB (and/or virtual notice board). I would argue that all boats are required to pay attention to the ONB until the end of protest time limit or the time limit for scheduling hearings.
The advantage of the notice is that there is already a common procedure for informing competitors of a RC/TC/PC intention to protest.
It may be necessary to write a sailing instruction to say that boats intending to protest shall inform the other boat at the first reasonable opportunity AND place a notice on the ONB before the end of protest time limit.
Gordon