Assume a scenario with 4 boats overlapped at a leeward rounding A -> D with A inside and D outside. A touches the mark. There is various bumper-boat contacts for all boats.
All 4 boats deliver protests to the Race Office. The PC, seeing that the protests are likely from the same incident, combines the protests into a single hearing. Representatives for all 4 boats are at the hearing.
- A protests B, C & D;
- B protests A & C, and
- C protests only D
Starting with A's protest, since it names all parties, the PC takes evidence that A's protest might be invalid. Next they look at B's and again they take evidence that B's might be invalid as well. When they get to C's, it seems solid and likely valid, but her protest only identifies D.
The PC excuses the parties to discuss validity and finds that only C's protest of D is valid.
Understanding that it is likely that during C's hearing the PC will receive evidence that shows A and B were involved in this incident and may have broken a rule, how do you proceed after you bring the parties back for your validity decision? Does your approach change if this hearing was scheduled days after the race and A and B drove a significant distance to be there?
Then continue.
During the validity part of A and B's .. the information gained cannot be used because those were invalid. During C's validity the only thing learned was that C hailed "protest" and flew the red flag timely.
Do you excuse A and B .. start C v D, start taking evidence and then follow 60.4(c)(2) and 63.2(d) and start over?
The protest committee may also protest if, during the hearing of a valid protest, it learns that another boat (not a party to the original protest) was involved in the incident and may have broken a rule.
In practice, this means that if a protest committee is involved in a hearing (or otherwise informed), and discovers another boat was implicated in the situation, it can close the original hearing, lodge its own protest, and then hear the cases together under Rule 63.2(d).
The boats are all parties then can hear all evidence and ask questions and of course later as a party be disqualified.
.. or ..
Might a PC, seeing this coming, gather some evidence during C's validity .. enough to justify 63.2(d) for efficiency?
Under RRS 61.2(c), a protest “shall identify the incident.” That incident may involve one or more boats. So, a single protest form can validly include multiple boats, provided they were all part of the same incident (e.g., a three-boat mark-room pile-up).
Huh .. sounds interesting .. but in which protest was that evidence gathered if that evidence is gathered prior to validity?
I think the protest committee should advise or request A and B to remain nearby.
There is no way to get around the requirements of RRS 63.4(a)(1).
The protest committee should then hear C's protest against D up until the protest committee 'learns that A and B may have broken a rule'.
The protest committee should then close the hearing of C's protest and protest A and B (including writing protests, informing A and B of the intention to protest, providing them with the protests, and informing them of the time and place of the hearing (which will be about 5 minutes after putting the protests into their hands)).
The protest committee then opens a new hearing to hear PC v A, PC v B, and C v D together.
As long as A and B don't leave (or advised not to leave) the protest hearing venue after initially having their protests declared invalid, there should be no problem
PS: Precisely the dialog i was hoping with this scenario. "Being forewarned is being forearmed" :-)
Then am I right, there is some change in the order you hear evidence due to the invalid protests as compared to if they were valid?
Really happy to see you working through this in your head Niko. That was exactly my hope .. especially for JIT's like yourself.
When looking a combined hearings, 99% of the time I will start validity at the protest that names all the parties directly (if one exists). The reason being that if that protest is clearly valid, there is really no need to spend a lot of time checking validity of the remaining protests.
The other thing I was hoping people would consider is under what umbrella evidence is gathered. 60.4(c)(2) requires the evidence be found in a valid protest. Therefore, logically, I think that evidence can only come after validity has been established or during the validity evidence-gathering for that particular valid protest.
The other thing is that hearing procedures require that witnesses be excused when not giving evidence. So, as John A nicely laid out, being prudent about who is in the room and when is important, in the possible event that the dismissed boats become PC witnesses instead of parties to a PC protest.
1. If the PC doesn't protest A, they aren't a party, and thus can't be penalized in the new hearing. However, they are not privy to the other parties' testimony, nor are they able to question the other parties during the hearing, but can be called as a witness against B, C & D by the PC.
2. It seems redundant for the PC to protest C as well as B since C is already a party and can be penalized by their original valid protest.
3. If during the new hearing one of the parties brings up A hitting the mark or the bumper boat contact - the PC isn't required to make A a party by 60.1, 60.4(c)(2) and 63.2(d) again because the PC is implicitly agreeing that A was exonerated by 43.1.
As witnesses, until they become parties to a valid protest they have to stay out of the protest room.
Actually, I wouldn't mind telling them 'It may be that as a result of the hearing of C's protest the protest committee will proceed to hear the allegations made in your protests'.
Check for cases to be held together
Invalid cases exposed on the papers.
Cases with insufficient parties where witnesses may beed to be parties.
We then in advance protest some extra sailors to ensure a swift resolution of hearings.
A protest committee cannot validity protest a boat based on information from a person with a conflict of interest.
A protestor is a person with a conflict of interest, so a protest committee cannot validly protest a boat based on a written protest
UNTIL
it learns, in a valid hearing that a boat may have broken a rule.
OK .. I hear you Graham. What do people think about this direct approach?
Sometimes it's smart to hear from the party with the biggest story to tell, or the protests against the most boats first.
Sometimes you can start with the party whose evidence you expect to be least contentious, so as to build up some uncontested facts that everyone can work from.
You can protest as a committee who you want, they lie on the file until possibly invalid.
When you hear the valid protest your protests validated. The parties have notice and you can continue without delay on what will be a difficult matter.
While, arguably it's nobody's business how a protest committee learns that a boat may have broken a rule, Personally, I'd be wanting to hear at least one description of incident from a party to a valid protest saying how A and B may have broken a rule, before I delivered a protest committee protest.
I, being subject to appeal, and often serving on PC panels with the members of my local appeals comm, I'd rather not endure those, "Ang, what the $%#! were you thinking" looks (more than I already get!). :-)
Isn't it the business of the boats protested by the PC? On appeal, those boats can argue improper action by the PC and have the protest invalidated if the evidence was gathered outside of a valid protest.
Whenever I've chaired a PC that protested another boat, and I restart the hearing combining the protests, I go though the validity all over again including the validity of the PC protest. During that time, I have re-established the validity of the hearing the evidence was taken in and summarized what/when the PC "learned" leading to the PC protest.
I want to address the last question the OP asked about distance and time. If the participants are traveling significant distances, I would think protest hearings would be scheduled when daily racing is complete. Waiting days after poses risks of failing memory and scheduling conflicts. In the current technological environment, hearings, if not practical to be held in person can use ZOOM for timely hearings regardless of distance.
So No, I don’t think Time and/or distance should affect the hearing procedure.
When I said "significant" I simply meant far enough that it would be a PITA to be sent home only to be asked to return. For me, that's anything over 20 min driving time one-way. So, really we're talking about hearings that, for one reason or another .. or by design in the SI's .. are not heard on the same day as racing.
Here’s what I would suggest if I were on the Protest Committee (though keep in mind I’m a rather newbie here):
Maybe I could have said, more fully:
It's nobody's business by what intellectual process, in a hearing of a valid protest, a protest committee learns that a boat may have broken a rule.
A boat could certainly appeal your process if it was not in a valid hearing, but they would be very hard pressed to defeat your conclusion based on the 'may' condition.
Yup. fixed in my previous post.
2. Note the invalid hearings in 'Procedural Matters'.
3. Continue the hearing on the basis of a single valid hearing request. If, at any time it's found that the incidents were not in fact related, stop the hearing, excuse the non-related parties and continue.
4. Finish hearing. Go home.
The rules allow the hearings to be combined if they are of the same incident. In combining the protests, the PC is essentially locking in the parties as parties. Once this step is taken, it's done and fixed unless it turns out that there were multiple incidents.
"We have at least one valid protest about an incident in which any of you may have broken a rule. It's our job to resolve that. In fact, we could have held that valid protest while you wait outside, and then protested you under 60.4(c)(2) and brought you back in. We would then have had to restart the entire proceeding to ensure your 63.1(a)(4) rights. Instead (to save time), since you have already been given all the rights per 63.1(a)(1-3) and are in here now, we will combine all the protests into one hearing. You are each parties in the 'Grand Unified Hearing'. Stay in, and let's get it over with."
Look. If all the boats who were in that incident are already present at the hearing room, there is no point in inserting the steps of 60.4(c)(2) and 63.2(d), when they have already been afforded all their 63.1 rights. (60.4(c)(2) and 63.2(d) is there to ensure that a new boat, not a party, is given the 63.1 rights.) The fact 60.4(c)(2) is available to the PC is the reason why not to add it.
By all means 'start the hearing with all the parties',
Then, in accordance with RRS 63.4(a) first consider validity.
Then, in accordance with RRS 63.4(a)(1) the hearing shall be closed [if] a protest ... is invalid.
If the protests by A v B and B v A are invalid, the hearings of those protests must be closed.
Once those hearings are closed A and B are no longer parties to any hearing and in accordance with RRS 60.5(b)(1) shall not be penalized.
It's the business of protest committees to decide matters that are validly brought before it.
Validity is an important protection for protestees.
In the case of a protest & counter protest, with 1 invalid, would you apply your same logic?
Boats are parties to hearings, not protests. Also, you seem to be applying the 'validity check' before the combining. I think its the other way around. Or put it this way, 'combining' is an overall action which happens prior to the hearing procedure starting. (Hence, it's in 63.2 and not 63.4.)
To be honest, 70% of me thinks that once the protests are combined, the boats are parties to that hearing, whether or not they were named in a valid or invalid protest. A and B still meet the definition of 'party' to the protest hearing, since they were either a protestor or protestee in the hearing incident. They have been afforded all the rights due so far. So rip up the old forms and start a new form which says, A, B, C & D were all involved in an incident. Was this incident brought to us with any validity? Yes. So, let's find out who done it!
20% of me thinks its moot, since the outcome is the same as sending A and B out, and then bringing them back based on C's valid hearing later under 60.4(c)(2) and 63.2(d).
As you point out, "It's the business of protest committees to decide matters that are validly brought before it.". In this case, the matter (the incident) was validly brought to the room by C. That opens the door for its resolution and anyone involved can be in the firing line (whether by consolidation or joinder) - that would be in line with the Judges Manual's last sentence.
10% of me isn't sure and quite happy to be proven wrong!
I think you've uncovered a inconsistency in the wording of the rules which could (has) caused some confusion.
Here is how I'd break it down. (emphasis added)
First .. 63.2(a) & (b)
It's the hearings that are combined .. not the protests. "Each protest" remains unique in a combined hearing of the individual protests.
Here we have some logic issue with the language.
63.2(b) allows us to combine the incidents into one hearing. Then 63.4(a) says that "the hearing" shall be closed if "a protest" is invalid.
Following that logic, after combining the incidents into one hearing, if any of the protests are invalid, the hearing "shall be closed".
This is obviously not what is intended with the language.
The language needs to clearly preserve the idea that the individual protests are being "heard" simultaneously (simultaneous hearings as one).. so that the hearing of any invalid protest can be closed and valid protests are protected and may proceed.
Maybe a better 63.4 (a) ???
"each protest or request" mirrors the language of 63.2(a). I think the above language fixes the issue.
In that hearing they were not the protestee so by definition they were not a party.
We often cheat and tell them they will be added later if they agree and they usually do.
This tough gives them the right to extra time to prepare as they may want to contact different witnesses.
Having done this, there cannot effectively be redress as they acknowledged, and unlikely to be upset on appeal, but do not let it come to this.
I have only had two in my lifetime and not lost.
I could have, more correctly said 'both are parties to the hearing of a valid protest'.
Not proposing to hear on validity before combining. Administratively we combine protests at the scheduling/notification stage before hearings begin.
In post 18988 I said, quoting from the JM paragraph you provided
And that means that you have to consider the validity of each protest that you have before you.
Once again being very delicate with language, I think you have to find (in the OP, ABCD case)
The protest A v B is invalid and the hearing with respect to that protest is closed.
The protest B v A is invalid and the hearing with respect to that protest is closed.
The protest D v C is valid and the hearing of that protest will continue.
We've talked above about various options for what you then do with A and B.
In my opinion, by necessary inference the definition of party needs to be qualified as
A party to a hearing is ,,, for a protest hearing of a valid protest: a protestor, a protestee;
You just can't continue to hear a protest against a boat that is invalid.
A party is a party to a hearing. A party is not defined as a 'party to an incident'. There can be boats involved in an incident that are not parties.
A boat is protested for breaking a rule, not 'being involved in an incident'.
And it's protests that have the characteristic of validity. There is no such thing as a valid or an invalid 'Incident'.
And an incident is not a 'matter'. It is the dispute or protest that is the matter.
You said
I agree with Mike B's most recent post. New protests by the protest committee are exactly what is required to get a hearing of valid protests against A and B.
Good chat.
However, the first guideline in the 2025 World Sailing Protest Committee Guidelines, says
Would this guideline apply to both "cheating" and "staring a new form" protests?
I've seen this situation (or potential situation depending on which protests are valid) more than once for sure.
If you read that statement in context heading and paragraphs around it, I have read that as in the context of OTW observations, and not 60.4(c) (2) protests by the PC.
My whole point is that 'combining' the hearings is essentially doing that, without the need for more forms. If we accept that when we combine, we are combining the parties at the same time. A & B become parties by virtue of the action of combining - which is an approved process.
Some disagree and think that combining doesn't combine parties.
That said, I think that Ang is correct. The Guidance is more about initiating a protest when OTW as opposed to our case.
Our case is about when multiple protests on the same incident are combined. Are the parties also combined?
World Sailing Judges Manual January 2025 also says:
Validity proceeds protest by protest. Then the hearing may proceed with the named parties [of the valid protest].
This is why i think my suggested wording change is important. The current RRS wording has a logic issue (as I showed) but also leads to confusion.
PS: If you read my linked comment closely, you will see that the current RRS says exactly the opposite as the Judges Manual .. if a single protest in the combined hearing is invalid, the entire hearing is to be closed, including the valid protests.
This is another logic-casualty of the rewrite when they reworded the 60's rules framing it as what is "invalid".
I'm not sure about this.
That would mean that a two boat protest/counter-protest could not continue even if one was valid.
Your logic gets this from the wording in 63.4 - Hearing Procedure. Whereas, the combination rule is found in 63.2 - Hearings.
You can notice that 63.2 (plural) is a general non-specific regulation while 63.4 (singular) is the specific instructions for handling a single protest.
A bit like John before, you have added conditions to suit your interpretation. The judges manual does not specify 'of a valid protest'.
Yes .,, like I said, it's obviously not what they intended .. but there is a logic error in the new quad. (much like the logic error that made 3rd party protests invalid)
.. and yes I added the inferred words and showed them in "[ ]" to be clear I was doing that.
I can see that I'm not going to be able to convince people to change their interpretation of 'Combine'.
So I'll change tack myself and propose some alternative rule wording as seems to be the trend these days.
Here:
-------------------------
63.2(b) The protest committee may combine hearings which arise from the same or very closely connected incidents into one hearing. [When hearings are combined, the parties of the original hearings become parties of the combined hearing irrespective of the validity of the original hearings.]
However, a hearing under rule 69 shall not be combined with any other type of hearing.
63.4(a) The protest committee shall first consider validity. The hearing shall be closed if
(1) a protest or request is invalid [or in the case of a hearings combined per 63.2(b) if all the original protests or requests are invalid], or
-------------------------
Now... what could go wrong?
I think the result we want, after combining protests for convenience and efficiency, is to preserve the "essence" of the individual protests (took me a while to find the word I was looking for).
In the new quad, RRS 60.3(a) and the def: protest tells us what the essence of a protest is:
[added: Therefore the essence of a delivered protest that is to be heard has 4 components ..
Then the PC shall hear each protest
an incident, whereThat is the need to keep their essence, such that the protestor and protestees (and allegations) can be surgically removed (closed) from the hearing if the protestor/ees are unique to a protest and that protest is found invalid.
Otherwise, it seems to me, that one is in effect rewriting and changing the protester and protestees of the remaining valid protests.
That being said - I'd tweak your proposed addition to:
[When hearings related to the same incident are combined, the parties of the original hearings become parties of the combined hearing
irrespective of the validityif at least one of the original hearing requests is found to be valid.]But why?
Invalid for what reason? 60.2. Who cares? The rules don't. PC can bring a boat in anyway even without 60.2. Rules don't care if a boat didn't hear the hail or sae the flag.
60.3? That's mostly administrative. Boxes ticked by C (and A & B's invalid protests.) 63.1 all covered. No panic. More importantly, no technicality-shield.
A rule has been broken by A, B, C or D.
Fundamental principal is that one or more should be penalised...not someone should get off on a technicality!
Even so, we know the PC will probably protest them anyway. So why keep the right to surgically remove them. It's just an extra step.
What is the point of 'preserving the essemce'?
I'm obviously leaning into the importance of "each" here. ["each" implies/requires separate/separable entities]
Note that this Appeal states that this error is "not correctable" and thus the "hearing is invalid"
That appeal is a very American piece of legalism.
Under Commonwealth law, a protest hearing is an administrative process and anything that is done improperly in the hearing may be able to be remedied without the hearing being 'invalidated'.
I agree with John. I suspect the US appeal writers had just finished an episode of LA law when they wrote that.
If there is an error in procedure there can be redress. This depends on the facts.
New hearing
Confirm old decision.
Would it ever be the correct redress to deny the protestor a remedy when he was not at fault?
This is not in US62 .. so this is just my thoughts ..
Maybe what they are saying is that since 63.4(e) has been broken (exclusion of witnesses when not giving testimony), 63.4(b) can no longer be provided (the ability of parties to call witnesses).
.. that you can't unbite the 63.4(e) apple after the witnesses are tainted?
How can it be made invalid thereafter and just not subject to redress
To me a bit like in the UK you have to complain of conflicr flags protest etc at the beginning or it not being considered features in " no fault" so no change of decision.
To meif the protestee did not raise it before the evidence was given, the he breaches no fault so no redress the hearing stands.
I still believe what I see as the UK position is correct, if it not raised at the time they you cannot rely on it at appeal.
Why should the faultless protestor be denied?
What should come next in your opinion as a direction from the appeals committee? .. or how would you suggest this case be handled going forward (if you prefer that framing of the question)?
Here again is the link to Appeal 62 for your convenience.
To me the protestee was aware of the error as he was sitting there.
To let him ignore the error, allow himself the possibility of winning the protest, and later on loosing the protest to appeal and have it found invalid is unconscionable.
Contrast this with the protestor, he did nothing wrong, and has had his protest declared invalid. He has been given no opportunity of justice, and had has his rrs rights stripped from him.
Rrs 60.4 now tells us when a protest is invalid, and this result is not specified there.
Whilst appeals committees have wide powers, I think now it is incorrect to say the protest is invalid.
To me it is incumbent on the protestee to complain at the time, before any damage is done so there is not a breach that cannot be remedied. No early complaint, no change of decision.
For historical reasons there cannot be redress given to a party, 61.4(b)(1) but i do not see why similar principles should not apply, so by my test the boat could not get out of the no fault of her own, and this, as explained above would not get an appeal ruling in their favour.
Here is a link to download the RYA Case Book
I'm very hesitant to tell the US Appeals Committee how to write their Appeals, in the light of US law and tradition.
I would make a couple of points:
Yes, that is the simple straightforward solution.
Yes, why would you not? RRS 63.4 requires the protest committee to 'take the evidence of the parties present [and] their witnesses ...'. If a party brings a person as a witness, the protest committee must hear that witness' evidence.
Yes, once again RRS 63.4.
There is nothing, and in particular no RRS, that says that a party may not discuss an incident with a witness that they intend to bring to a hearing, and that may include discussing evidence given in a previous hearing that is being reopened.
Lying in a protest hearing is RRS 69 misconduct and likewise inducing a witness to lie in a protest hearing would be misconduct, but short of that a party is at liberty to talk to their fellow sailors as they wish.
I'm not sure that I can apply RYA1981/5 to US Appeal 62, and say that the Protestee missed their chance to object to the set up..
It is quite possible that the party is not versed in the fundamental principals of fair process, to know to object there. 1981/5 relates to objecting to validity of the protest, not pureness of hearing procedure.
US Appeal 62 will surely result in the MNA sending it back, perhaps with a new committee. They should simply do as John says. e.g.
Hear the hearing normally, but adjust the 'weight' given to testimonies in the knowledge of what happened before. Get it right this time. (Use waiting room?)
If you read the Appeal, you see that is not the result. They nullified the result of the hearing (by invalidating it) without "sending it back".
Here is the decision including the closing decision-statement.
PS: It wasn't my intent to open US 62 to debate .. just that it pertained to the issue that John A and I brought up regarding excusing invalid-protest-parties because they might be future witnesses.
That said .. you all have brought up a good discussion and maybe with the door opened with the hearsay evidence rule introduced in the 2021 quad.. that maybe this might be updated in the future with your comments in mind.
We have on the ballance of probability, a lesser standard. As said we accept heresy evidence, we do arbitration and the arbitrator sits on the panel.
We can exclude evidence or decide on its weifgting.
We have the tools to do the right thing, this appeal negates our tools, and denies the protestor who is blameless.
The breach by the PC should not be visited on the protestor, just because you cannot protest the PC. The remedy normally is redress, but the rules ban a party from receiving it...as I said its principals can still apply.
We have had to be saved from us provisions like this before. I believe there used to be a case where it said because of a potential conflict of interest a parent could not sit on a PC. So a gold fleet hearing could not have an emerald fleet parent sitting on the PC. Where did the appeals committee expect us to get committees from?
Fortunately seeing the situation ws passed the new 63.3 to allow sense to prevail, and so the us appeal hit the dust.