Question:
In light of the facts described below, where boat Y was pushed over the starting line before the starting signal by boat X, which failed to keep clear from astern, how should the Protest Committee act in response to a request for redress submitted by Y?
Which Racing Rules of Sailing (RRS) and Cases or Interpretations from the World Sailing Case Book could be cited to support a possible decision by the Protest Committee to cancel the UFD penalty and reinstate Y in the race results?
Facts Found:
10 seconds before the starting signal (Uniform flag displayed), boat Y, on starboard tack, was stationary, positioned near to leeward of the starting line and about few meters to port of the race committee boat.
Boat X, also on starboard tack and clear astern of Y, was approaching from behind. X failed to keep clear and made contact with Y’s stern, causing Y to be pushed over the starting line before the starting signal.
The Race Committee identified Y as being over the line during the period before the start and scored her UFD under Rule 30.3.
Immediately after the contact, Y maneuvered back to the pre-start side of the line and successfully started from the correct side.
The PC should start the Redress hearing, and then protest X and hold that hearing, and then if they DSQ X, there are grounds to exonerate Y and require the RC to change the scoring.
Here are the applicable rules.
43.1 (a) When as a consequence of breaking a rule a boat has compelled another boat to break a rule, the other boat is
exonerated for her breach.
43.2 A boat exonerated for breaking a rule need not take a penalty and shall not be penalized for breaking that rule.
61.4(b)
(5) an action of another boat, or a crew member or support person of that boat, that resulted in a penalty under rule 2
or a penalty or warning under rule 69.
90.3
(d) The race committee shall implement scoring changes directed by the protest committee or national authority as a result of decisions made in accordance with the rules.
John
A successful protest of boat X, or their acceptance of a penalty for the incident, would help her case, for sure.
World Sailing Case 140, particularly Question 1, provides some good insight into this situation.
Now .. we have a request for redress .. however .. the claim of the boat against the RC isn't going anywhere as the RC did not make an error or omission.
In the redress hearing the PC might find grounds to make a report under RRS 69, but based on an R4R hearing, the PC can't protest X for breaking RRS 2 or any other rule. The PC is specifically barred from protesting another boat from information learned in an R4R under 60.4(b)(1). Such a protest is invalid.
Information for RRS 69 can come from anywhere at any time.
Boat Y needs a valid protest against Boat X for a PC to find Y is exonerated in a protest hearing .. or an RRS 69 finding for the change to happen in redress.
Without a valid protest against X by Boat Y or by the RC that saw the incident, or a warning/penalty against Y under RRS 69, I think Y is out of luck.
Interesting, I believe the Rule, 43.1(a), (b) or (c) exonerates the boat, not the PC. For example, I break Rule 10 against you and as a result you break Rule 11 against a boat to your windward. The windward boat may protest you, or not. You are not required to protest me for breaking Rule 10 to be exonerated by 43.1(a). You are immediately exonerated on the water for breaking Rule 11 with the windward boat by Rule 43.1(a).
Back to the original post:
I agree the request for redress against the RC will not hold as the RC made no error or omission scoring Y UFD.
If Y protests X, instead of asking for redress alone, for breaking Rule 12 and the PC finds that indeed X broke Rule 12 pushing Y over the line, I don't believe redress can be given unless there was damage or injury, 61.4(b)(2) and Case 110.
Seems like Y is in a tight spot.
Wasn't there a case almost exactly like this at this year's US Opti Team Trials? The difference being it was a 30.4 start with a General Recall, and Boat Y did not restart because she had been Black Flagged.
Who is going to change the score?
Based on what rule?
Answer: Boat X reports to the PC that they took a penalty for breaking RRS 12. The PC can now protest Boat X, because it's a report from Boat X representative. RRS 60.4(b)(3).
Further question is whether there is a rule that allows the PC to take the penalty report from X and turn that into a direction to the RC to change Y's score without a hearing?
How or why is Boat X going to make that report to the protest committee?
I agree that IF X does make that report the protest committee can protest her and get the Case 140 show back on the rails.
Well .. one reason could be that they were required by the SI's to report penalty turns. I just did an Opti Regional Champs that had that SI.
Another is Boat Y asks Boat X to tell the PC that they took a penalty.
Is there a rule that that forbids the PC from just simply asking, "Did you take a penalty turn at the start and why?"
There is a recall on that start. Y is, on the facts found, over and is, correctly from the point of view of the RC, BFD. Y's number is displayed, and Y leaves the race area as required.
X starts the restart, while Y, prejudiced by the fault of X, is disqualified from the race without recourse against the RC. That's clearly an entirely unjust outcome, that Y is prejudiced by another boat breaking the rules, but is there a route to a result that cures that outcome?
No rule requires Y to leave the racing area (unless it is in the SI). RRS 30.4 only requires that she not start in the restarted race.
The bar for redress is high. There are many incidents where a boat is 'prejudiced' by another boat breaking the rules, typically, any Part 2 incident, where no redress is available.
Case 96 addresses the BFD restart scenario.
Once it is established that Y was compelled to break RRS 30.4 in the first start she is exonerated for breaking RRS 30.4, but because the first start is General Recalled, Y was never able to return to the pre-start side and overcome her OCS and sail the course and obtain a finishing place as described in Case 140, so she can't be reinstated into that place by way of redress.
Case 96 Answer 1 gives us an answer: she should be given redress based on her results in other races.
However, if you get protested you have to prove your exoneration to the extent that a PC can find you were in fact exonerated ... otherwise you are now not exonerated (and never were exonerated actually).
The RC has properly scored Y. If she wants her exoneration to be recognized she needs the PC find she is exonerated and instruct the RC to change the score ... or find X broke RRS 69 and warn/penalize her.
While I always encourage sailors who feel that have been exonerated by rule 43.1 to protest the boat breaking a rule, this is the instance that I have been made aware that a valid protest is required for exoneration. I wonder if there are more?
You can't morph a request for redress into a protest. That's exactly what RRS 60.4(b)(1) is there to prevent.
Consider also the insertion of ' took an appropriate penalty or was penalized' into what is now the RRS 61.4((b)(2) injury or physical damage grounds for redress in the 2021 RRS and the removal of Case 142.
If X broke RRS 12 and 14 and compelled Y to break RRS 30.3, then Y is exonerated for breaking RRS 30.3 by RRS 43.1(a)
BUT
Neither the race committee nor the protest committee 'knows' this until the protest committee properly states, at least the breach of RRS 12 and 14 as a conclusion in a proper [protest] hearing.
OK, maybe if the event is using a Penalty Acceptance Form that identifies the incident, the race committee can take a short cut to reinstating Y.
If the race committee, somehow or other had in it's own records or observations that Y had broken a rule and compelled Y to break RRS 30.3, then RRS 90.3 would require the race committee to correct Y's score, but how could the race committee come by such [reliable] information?
As Ang has indicated, the RRS can overcome the impasse by calling a RRS 69 hearing against Y.
But let's say this is indeed a valid request for redress by Y, not a protest. The jury calls X in as a witness. X cannot be penalized through this hearing (60.5(b)). Let's say X freely admits that they hit Y's stern and pushed them over the line causing the UFD.
It seems reasonable to me at this point for the jury to conclude that Y was compelled to break 30.3 because of X and thus the jury can affirm that they are exonerated under 43.1. As others have noted, this is backed up by Case 140.
With that conclusion, while RC did what was proper at the time, they unknowingly broke 43.2 "shall not be penalized".
RC breaking 43.2 would qualify to me as "score made significantly worse through no fault of her own" by an improper action of race committee, so 61.4(b)(1).
Thus it seems reasonable to grant redress to Y without this being a protest hearing.
I don't think Y would need to protest X to satisfy the "no fault of her own" language. She is exonerated of 30.3. RC marked her UFD. To me, those are the relevant elements and both are through no fault of her own. Granted it would take the jury affirming Y's exoneration for RC to correct the UFD, but I feel like requiring this to be a protest hearing is extending "no fault of her own" too far, even if it indeed would be wiser for Y to protest X.
Each time someone uses Case 140 here as a reason this can be in the R4R without a protest hearing, IMO they are making a repetitive error in Case 140's application.
From Case 140 .. (emphasis added)
Each scenario of Case 140 involves a protest hearing .... and in either the facts for the scenario or the question itself, the PC .. in the protest hearing .. " ..finds that B, as a consequence of breaking a rule, has compelled A to break rule 30.3 or 30.4."
On the other hand and at least as compelling and important a factor, all exonerations are dependant on conditions. The conditions must surely be validated. Even excluding dishonesty competitors may be mistaken.
So on the one hand we have 43.2 which says, unequivocally, a boat exonerated shall not be penalised. To penalise a boat which is exonerated is, I submit, an improper action.
On the other hand there appears to be no way in which the exoneration may be validated in a situation where a boat is penalised without a hearing. It seems something of an impasse.
As discussed the pragmatic remedy is to always protest if you believe you are entitled to exoneration. But if a boat has already taken a penalty for an incident it seems excessive to protest.
I think this section in 140: "Had A returned to the pre-start side of the starting line, started, sailed the course and finished, A would have been exonerated by rule 43.1(a) for breaking rule 30.3 or 30.4; and, had she done so, the race committee would have been required to score her in her finishing place, and rescore the race accordingly." is very useful in deciding how to examine the situation posed by the original poster.
Related thoughts:
You don't have to find a boat guilty in valid protest hearing in order to conclude that they broke a rule. A boat isn't exonerated because the jury finds another boat guilty. You can end up in a situation where you decide a boat broke a rule but that you can't penalize them given RRS 60.5 constraints.
Case 51 reminds us: "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."
so I don't see 140 as a non-useful input. Perhaps I misunderstood your point.
p.s. I don't know what R4R stands for. Rules for Racing?
No, the only way a protest committee can direct a race committee to implement scoring changes is 'as a result of [a] decision ... made in accordance with the rules., (RRS 90.3(d)), so that would have to be a decision made in a protest committee hearing.
As I said previously, if there was a written report from X saying she took a penalty and sufficiently identifying the incident, the protest committee could pass that on with some advice to the race committee.
What rule allows the RC to override the "shall" in 30.3? It's not a "correction" from their own records, right? (as we've stated when talking about the R4R, the RC did not make an error applying the UDF score).
Also, under RRS 43.1(a) someone has to make a judgement about 'compelled': it's not sufficient that X broke RRS 12 and 14, which a Penalty Taken for might show, but certainly will not contain enough information about compulsion.
I'm a bit unhappy that by this form of logic chopping X is found to have broken a rule without necessarily being heard. There are all sorts of messy implications in that as others have noted.
The race committee has no duty to observe whether boats are breaking any Part 2 rule, or any other rule for that matter.
It is not an improper omission for the race committee not to observe a boat breaking a rule, much less to evaluate whether that breach compelled some other breach.
It's an artifact of penalising without a hearing. If there had been a hearing then the full story would have come out. I suppose the lesson is to always protest for a start line incident. One may also wonder if Y was aware she broke the line.
There are many lessons in this thread. Thank you to Tiziano for teeing this one up for the forum!
Anywhere on the race course, I think a boat should always protest the compelling boat when they are banking on RRS 43.1(a) exoneration for themselves. Otherwise, they risk a 3rd boat protesting them and being out of luck. A PC "may" decide to protest the compelling boat .. or not (and many judges take a harder line than others about crossing the line of protesting a boat when it was possible for an effected boat to do so themselves).
Here it's the RC that is the 3rd party ... not a 3rd boat that is putting Y in jeopardy .. but it's sort'a the same pickle.
Yes, if a boat wants to maximise her chances of redress she should protest.
In accordance with RRS 61.4(b) a boat is only entitled to redress if her score or place has been worsened through no fault of her own.
While no rule requires a boat to protest another, in this case Y's failure to protest X is the cause of the race committee and the protest committee not being officially aware that X broke a rule and Y is exonerated for her UFD.
There's a legal principle of equity that says 'equity helps those that help themselves'. Y hasn't been diligent in taking care of her own interests. I'd be prepared to conclude that Y was at fault in not protesting X and was therefore not entitled to redress.
Yes, and she was hit and damaged by an undetermined boat.
Boat Y simply informing the RC that they are exonerated, doesn't have any weight with the RC in my opinion.
Boat Y must protest Boat X to involve an authority able to direct the RC to change her score if required.
Who is requiring the RC? It's the PC through their direction.
Just before your quote ..
"The protest committee may exonerate A under rule 43.1(a) for her breach of rule 30.3 or 30.4, and if so, the race committee shall score her DNS under rule A5.1." .. .then the "had she .. " statement and then the PC would have required the RC (directed) to change her score.
.. and this is after the establishment of a protest hearing.
Each statement builds upon and depend upon the prior one.
As none of the five conditions apply she is not entitled to redress.
In this case boat Y should have filed a protest. However, rule 63.2(c) allows the protest committee to change the type of case from a request for redress to a protest if the validity requirements are met.
I'm glad you said and not me!!!! :-)
For those who don't know .. some of us had a long discussion about how that could be possible with the now protestor meeting his notification requirement of his intent to protest (for validity).
In scoring Y UFD, the race committee acted properly at the time.
However, the RRS supports the relevance and use of significant new evidence. I see 63.7(a)(3) as a foundation for this even though I am not talking about a re-opening.
To narrow this scenario and take a protest off the table, let's say that X took a penalty on the water and Y does not file a protest. We can even say that the scores aren't posted until the next morning. Y sees the UFD within minutes of posting and immediately files a request for redress.
In the redress hearing, both X and Y testify that the UFD was caused by the contact.
The jury realizes that Y is exonerated. (exoneration is not defined by a valid protest)
Thus the jury realizes with this significant new evidence that RC broke 43.2.
The jury concludes that Y's score was made significantly worse through no fault of her own, and that RC did make an improper action by breaking 43.2. Thus redress can be granted under 61.4(b)(1).
I think Case 140 provides useful guidance here to the jury for their next move, even if this is a redress hearing and not a valid protest hearing. If Y did not restart, then in granting redress, the only appropriate score change would be for RC to turn the UFD to OCS. If Y did restart and sail the race, then RC would be directed to score them in their finishing place and rescore the race accordingly.
As far as the request for redress goes, given the 'free admission', I'd be happy to give redress.
Hoooever, and this is an unusual take from me, I think X is putting herself in real RRS 2 hot water.
X says flatly that she knows she broke RRS 12 and 14.
Its a fundamental principle of sportsmanship that when a boat breaks a rule and is not exonerated, she will promptly take an appropriate penalty or action, which may be to retire (RRS Basic Principles). RRS 2 requires boats to compete in compliance with recognized principles of sportsmanship and fair play.
IMHO, X is breaking RRS 2. The protest committee should remind X about RRS 2 and invite her to retire, and if she does not do so, should protest her for breaking RRS 2.
You can't have a boat coming into a hearing and saying 'I broke a rule, but ha ha ha, you can't touch me'.
What’s to stop X, in essence, going when asked to be a witness, “Nice, nope, bye”, pocketing the better result and walking away whistling like one of Bob Massingberd’s clients in Blackadder?
I don't think that is correct.
RRS 44.1 provides that(emphasis added)
A boat may take a Two-Turns Penalty when she may have broken one or more rule
A boat may take an 'insurance' penalty when she has not actually broken a rule.
I also note US Sailing Prescription to RRS 65.5
A boat that retires from a race or accepts a penalty does not, by that action alone, admit liability for monetary damages.
I would argue by extension from that prescription simply that a boat by taking a penalty does not admit that she has broken a rule.
There are no powers in the RRS to either:
So the question of self-incrimination never arises.
But Giff's scenario was that X freely put her head in the noose.
Partly what I’m worried about is that there appears here to be a mechanism for someone unscrupulous but intelligent to take out a competitor on a black flag, possibly even initiate a bunch going over to engineer a recall on a black flag start where they’re buried, make it hellishly difficult for those affected not to be penalised and to be able to roll the dice on getting away untouched.
In a sport where ILCA sailors exist, that gives me pause as to whether this might need to be considered further.
But if you get that close to the line under B/UFD, then you're taking some risks yourself.
If a boat, trying to drive her competitor over the line breaks a rule its up to the other boat to protest. That's what she is expected to do by Basic Principles Sportsmanship and the Rules.
If you've got a reasonably warm fleet and want to do a Black Flag, you might be wise to make sure that you have an alert pin boat crew, and remember you've got all race long to look at the video to identify BFD.
Perhaps it might be desirable to extend case 140 to highlight the situation where A fails to lodge a valid protest?
Case 140 requires a protest hearing. See my detailed reply here. Cases are interpretations of the RRS for the facts given in the case. In every instance in Case 140 a protest hearing preceded the R4R.
You can't simply (repeatedly) brush that aside.
To narrow this scenario and take a protest off the table, let's say that X took a penalty on the water and Y does not file a protest. We can even say that the scores aren't posted until the next morning. Y sees the UFD within minutes of posting and immediately files a request for redress.
In the redress hearing, both X and Y testify that the UFD was caused by the contact.
The jury realizes that Y was exonerated at the time of the incident.
Thus the jury realizes with this significant new evidence and that RC broke 43.2.
The jury concludes that Y's score was made significantly worse through no fault of her own, and that RC did make an improper action by breaking 43.2. Thus redress can be granted under 61.4(b)(1).
But I'm interested to know what is behind your stance about how to use the Case book?
To me, we aren't meant to take the Case book solely literally and completely confined to the facts of each one. That's akin to looking at Case 20 and saying, well, if isn't a dinghy who capsized where another dinghy sailed over to offer help, the case does not apply.
There is nothing in the World or US Sailing Judges Manual that says that Cases must be read and used literally and only constrained to the situation of the case.
On the contrary, the WS Judges Manual merely says, "World Sailing publishes The Case Book as authoritative interpretations of the racing rules. They are based upon appeals and questions submitted to the Racing Rules Committee. They clarify the meaning of a rule or answer questions about conflicting interpretations. Judges are required to follow the RRS and Cases when interpreting the rules."
To me the word "interpreting" is very important.
I'm not trying to be uselessly argumentative. If I've missed something, I am very open to hearing it.
I don't think we can find any fault in a boat, seeing another boat taking a penalty immediately after an incident, not protesting her.
Case 140 is really very useful, particularly to remind us how to deal with how to give redress when a B/UFD boat does sail the course, and, more difficultly, when she does not start in a resailed race.
I don't think its useful to be thinking about whether evidence is new or not: it's just evidence in a hearing, and we take it on its merits.
To the degree that the circumstances of a hearing match up with a case, judges must apply the case quite strictly.
Otherwise judges should use judgement and discretion in how broadly or narrowly they apply interpretations contained in a case and should, where necessary, argue from the basis of the case by extension and analogy.
Cases vary in how well they explain the rationale for the interpretation.
That's not what I said.
What I said is that a Case is based on a set of facts and are often born out of PC decisions and many out of the resulting 1 - 2 levels of appeals.
Just like a PC decision, conclusions (how the rules apply) are derived based on those facts. The Case discussions often elaborate on those conclusions.
You change a key fact .. the Case might not apply and it actually may lead you astray.
The fact that all the scenarios in Case 140 are post protest hearing where a PC found that Y was compelled to cross the line, is a key fact .. and the conclusions take that fact as a given. That is why it is repeated in each question fact-set.
If that's not enough ....
I think we all agree that IF there was a PC hearing as described in Cass 140, and the other facts aligned, we would apply Case 140 and the PC would direct the RC to correct her score as a result of the protest hearing decision. Right?
Q: Whose fault is it that did not happen? ... and then how does she get past "no fault of her own" coming into an R4R-hearing only?
Y protests X.
X takes a two penalty turns.
Y returns to the pre-start side of the line and starts.
Both boat finish.
Later that day after the protest time limit has expired, the scores are posted, Y is scored UFD.
Y files for redress in which she claims RC broke RRS 43.2.
Is Y at fault for not following through by requesting a hearing after racing protesting X even though X took a penalty?
Had Y taken certain actions (valid protest) she wouldn't be in this pickle. Therefore she is at least partially at fault she's in the pickle she's in as she entered the R4R hearing.
It is Y's responsibility to validly protest X and have this adjudicated in a protest hearing ... and as Mark clearly details in his post, this does not meet any of the R4R conditions.
(Or convert the R4R request into protest .. but the notifying the protestee her intent to protest will be a hurdle in validity)
The scenario of one boat breaking a rule which causes another boat to be over the starting line within the last minute of a penalty start is rare, but it does happen.
Just as a matter of logic, Case 140 tells us what to do IF a boat is disqualified in a protest hearing. It does not tell us what to do if the boat is not disqualified or penalized in a protest hearing.
We've gone through a few gradations of facts about X breaking a rule in this thread, I think in the following order:
I'm happy that for the purposes of redress, X admitting that she broke rules in a redress hearing is equivalent to a protest committee concluding in a protest hearing that she broke rules.
While, in my opinion, we cannot safely conclude that X taking penalty turns proves that she broke rules (RRS 44.1: a boat may take a penalty when she may have broken a rule), it X takes a turns penalty immediately after an incident with Y, we cannot fairly conclude that Y is as at fault for not protesting.
And we're only grasping after fault of her own to complete the technical requirements of RRS 61.4(b) to dismiss the request for redress when we cannot fairly conclude that X broke rules.
We wouldn't be in this pickle <g> if we hadn't agreed that it was unfair, in the course of a redress hearing, to concluded that X broke a rule. If X freely admits that she broke a rule, the unfairness goes away.
How do you describe it in the write-up? .. or are you choosing another section of 61.4(b)?
As in OP.
Additional facts
X took a Two turns penalty immediately after contact with Y.
There was no injury or damage
Comment
If I was hearing the request for redress, I would want to get X into the room as a witness, and I would hope she would give evidence consistent with OP Fact Found.
But let's suppose that X does not appear as a witness (for whatever good reason).
Facts found.
Conclusion
Decision
Redress is given as follows: X is to be scored in her finishing place and boats finishing behind X are to be moved down one place.
In other words ... outside of this R4R hearing .. can you describe the scenario/process that the RC should have followed?
This is the thing I am struggling with all the way through. No matter whether there was a protest or not, scoring X UFD was an improper action under 43.2, which is no less important a rule than 30.3.
This is a problem that exists in any circumstance where a competitor can be disqualified without a hearing for a rule breach that may be exonerated. Currently there does not appear to be a solution.
1. Case 140.
2. Race committee does nothing because they don't know she was exonerated until the protest committee tells them.
Maybe I'm just being thick (not uncommon occurrence for sure).
If Y and X walked up to the RC directly with all the same info (no R4R hearing),
should[was] the RC [required to] have changed Y to her finish place?But there still has to be a conclusion about 'compelled' which then race committee might or should be reluctant to make.
What's the consequence if the race committee does change the score on th spot?
Another boat requests redress and now the protest committee can make the decision that changing the score from UFD to place score was not improper and the changed score stands.
I don't think it's that much of a problem.
The only penalties affected are ZFP, UFD, and BFD, which are all able to be resolved using Case 140, and SP or DSQ under a SI, which can probably be resolved easily enough by redress.
So there are 2 elements to the validity ..
I've been wrestling with #2. I'm tossing this out there ... it's admittedly a bit half-baked.
So the PC converts the R4R into a prostest. AFTER the conversion, Y (newly minted protestor) immediately notifies X (now protestee) regarding the conversion and Y's intent to protest.
Given the circumstances and timing of the conversion, could a PC look at the time of conversion as the start of the "first reasonable opportunity" clock?