Forum: The Racing Rules of Sailing

Scoring Boats NSC

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John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
There has been quite extensive discussion about the requirements of race committees for scoring boats NSC in accordance with RRS 2021-24 rules A5.1 and A5.2 in thread Queries on "Finish" and DNF.

I have prepared a paper attempting to pull together the various views (obviously with a preference for my particular views).  I propose to post the various sections of the paper separately, a few days apart, to facilitate discussion.

Shown below is the first part:  Introduction.

Comments are invited.


Introduction


Introduction of NSC
The Racing Rules of Sailing 2021 – 24 introduces a new category of scoring, ‘NSC’, to be applied by the race committee without a hearing to boats that do not sail the course, by inserting ‘did not sail the course’ into the lists of categories to be scored by the race committee without a hearing in rules A5.1 and A5.2.

These changes were made according to Proposal 4 of Submission 139-18 considered at the 2018 and World Sailing Annual Conference which included 4 parts:

·         Part 1:  Insert a definition of ‘sail the course’ based on the string part of rule 28.2.
·         Part 2:  Delete the ‘string part’ of rule 28.2, and base rule 28.1 on the newly defined term ‘sail the course’
·         Part 3:  Insert a requirement that a boat must ‘sail the course’ into the definition of finish.
·         Part 4:  Amend rules A4.2 and A5 (new rules A5.1 and A5.2) to include a requirement to score a boat that did not sail the course [N]SC without a hearing.

The insertion, by Part 3, of ‘sail the course’ into the definition of finish was reversed by Submission 129-19.

Parts 1, 2 and 4 were implemented in the published version of the new rules.


Purpose and reasons
The purposes and reasons for Proposal 4 stated in Submission 139-18 were relevantly to Part 4 as shown below:

·         Purposes:
-       to clarify and simplify all rules that refer to a boat ‘sailing the course’
-       [to] reduce … the number of hearings that the protest committee must conduct.
·         Reasons
-       Under the current rules, if the race committee believes from its observations that a boat has made an error in sailing the course, it is required to score the boat in her finishing position and then protest her for breaking rule 28. If Proposal 4 is accepted, the committee will be permitted to score such a boat ‘[N]SC, thereby penalizing her without a hearing.
-       However, the rights of the boat are protected because she may request redress if she believes she did sail the course correctly. Because the facts in most such cases will be clear and not contested, there should be a net reduction in the number of hearings. 

Practical issues
The introduction of NSC raises some practical issues which are discussed below.

·         What are and are not the new obligations of race committees with respect to NSC,
·         How the race committee should perform its new obligations, and 
·         Protest committee considerations.




Created: 20-Oct-06 20:33

Comments

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John Porter
Nationality: United States of America
Certifications:
  • Club Race Officer
  • Judge In Training
0
It is my personal opinion that it would be good practice for the RC to post all NSC actions on the notice board upon their return to shore. This clearly isn't required by the rules, but would potentially make life easier on the Jury. You could easily write a rule in the NOR/SI that says that you have 30 minutes after protest time limit to request redress for RC actions posted within the protest time limit. You don't need to wait for the scorer, which could be a significant time savings. 
Created: 20-Oct-06 20:58
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John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
0
I don't think we need more rules.

There aren't many problems with other scores applied without a hearing, OCS, BFD, DNF etc etc, and I don't see why NSC should cause significantly more problems as long as race committees don't get a craze for using it.
Created: 20-Oct-06 21:46
Aslan Ozcakir
Nationality: Turkey
Certifications:
  • National Judge
  • National Race Officer
0

At first it looks like it will increase the burden on RC, but RC normally follows the boats along the course and if spots a boat that did not sail the course protests it.  

If a boat sees another boat not sailing the course properly she can protest it.  Now with the new rule, I bet the boats will come to RC telling that boat X did not sail the course properly and should be scored as NSC by the RC instead of protesting boat X. Why? because lodging a protest is a process and it takes time and effort and etc...

I agree to John Porter to display the NSCs after the race before the scorer publishes the provisional results. It would save time to the PC for planning and conducting the hearings. 

Aslan Ozcakir 

Created: 20-Oct-07 03:46
Ed Vincent
Nationality: Australia
Certifications:
  • National Race Officer
0
To Aslan, It would be a brave RC that NSC'ed a boat on hearsay from another competitor. A key to the NSC is the that the RC should decide based on its own observations.
If a competitor sees another boat not sailing the course, while the RC missed that, then it is still up to that competitor to protest.
Created: 20-Oct-07 04:01
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John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
0
One of the reasons I started this project was that people seem to be suggesting that it is necessary to make up new rules, about 'direct observation', and 'notices to competitors'.

My view is that the Racing Rules Submission 139-18 considered the risks and did NOT propose any such rules.

Here is my further proposed Section dealing with this.  Comments and developing reasoning are welcome.


How the race committee should perform its new obligations


Direct Observation
The reasons for the introduction of NSC in Submission 139-18 indicate that the primary intention was to expedite the scoring of boats that the race committee directly observed to have not sailed the course.  The race committee may, however, score boats NSC in any other circumstance where it has evidence that proves the matter.


Care and caution
Race committees should score a boat NSC only when there is clear evidence that proves that a boat has not sailed the course.

Race committees should beware of mistakes, and desirably obtain more than one source of evidence, for example, mark-rounding lists, significantly inconsistent finishing time or place, or incidental observations on the water by the race committee or judges, before scoring a boat NSC.

Race committees should not score a boat NSC on weak or speculative grounds and cast an onus on the boat to retrieve her position by requesting redress.


Standard of proof, evidence and weighing evidence
The standard of proof the race committee is required to apply is on the balance of probabilities, or preponderance of evidence.

There is no reason why race committees should not consider evidence in any form, provided that they consider the merits of the evidence, and the well known reservations about some forms of evidence.

Forms of evidence that may be considered include:

·         Observations and records of the race committee itself;
·         Reports from other race officials;
·         Reports from outside observers;
·         Reports by competitors, within the limitations of evidence given by interested parties;  and
·         Video or photographic evidence, within its limitations.


Notice to boats to be scored NSC and ‘hearings’ by the race committee
Race committees are not obliged to give any notice to or have any discussions with a competitor before scoring them NSC.  As discussed in Submission 139-18, any lack of procedural fairness or due process arising from not informing the competitor can be cured by the boat requesting redress, with the full formality of a redress hearing.

Race committees may communicate with competitors who they are considering scoring NSC so if they wish.  In any discussions with competitors, care must be taken:

·         That the burden of proof is not placed on the competitor to prove that they did sail the course:  the race committee is seeking evidence that they did not sail the course;
·         There is no appearance of threats or bargaining, for example ‘if you do not do X you will be scored NSC’.

Race committees should not conduct ‘hearings’, they have no power to do so, and race committee members who are not also judges may lack the experience and expertise to do so.  If it is necessary to weigh conflicting evidence, race committees may choose to refer the matter to a protest committee by protesting the boat concerned.

Responding to complaints and enquiries from competitors
Sometimes race committees receive complaints or enquiries from competitors about boats not sailing the course.

Under the old rules, a proper response to such enquiries would have been to advise the enquirer that if they thought that a boat had broken a rule and should be penalised they should protest the boat.

Now that the race committee has the responsibility to score boats NSC, the race committee should respond more positively.  It should review its records and observations to identify any evidence, such as highly inconsistent or impossible performance, if that evidence proves that a boat has not sailed the course score her NSC accordingly.  Where the race committee cannot be satisfied that a boat has not sailed the course, it may protest the boat, or advise a complaining boat to do so, if they wish to do so.

A similar process should be applied to credible complaints and enquiries from persons who are not competitors.



Created: 20-Oct-07 11:07
Sue Reilly
Nationality: United States of America
Certifications:
  • Regional Umpire
  • Regional Judge
  • Regional Race Officer
1
Unfortunately, and I hope I am wrong, I can see this leading to competitors not protesting a boat for sailing the wrong course citing that it is now the RC's job to police that.  IMO sailing should stick to being a self policing sport.  Besides, depending on where and with who a Race Officer works, this could become a big challenge.  Sometimes it's hard enough to get the mark boat folks to record roundings, and get them all, and with the mark bot craze these days.  Again - I will state I hope I am wrong.  

Edit to add:  And with the current state of the world and Covid, most YCs are trying to minimize the amount of people on RC.  
Created: 20-Oct-07 14:30
Tim Hohmann
Nationality: United States of America
Certifications:
  • Club Judge
1
Sue, I definitely agree with you. If a boat (or her support person) believes a competitor failed to properly sail the course she should protest on rule 28, and if a PC finds that a boat did not sail the course her score would be DSQ, not NSC. I don't see any reason that a RC would score a boat NSC based on a competitor's report since there's a better route for that - RC's response to such a report should be to advise the boat to file a protest.

I think NSC should mainly be reserved for errors that are directly observed by the RC. RC should probably consider reports from uninterested third parties but I like the standards laid out by John Allan.

Created: 20-Oct-07 15:48
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John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
0
Sue,

I can see this leading to competitors not protesting a boat for sailing the wrong course citing that it is now the RC's job to police that.

Boats already do this.  Just last night I had three boats try it on at the finishing line.  The answer is Case 39.

Case 39

Sportsmanship and the RulesRule 60.2(a), Right to Protest; Right to Request Redress or Rule 69 Action
A race committee is not required to protest a boat. The primary responsibility for enforcing the rules lies with the competitors.

IMO sailing should stick to being a self policing sport. 

I couldn't agree more.

But, as discussed in my draft above, I think that when they receive a complaint or enquiry from a boat, the race committee should, under the 2021 RRS, 'take it to first base', that is, examine the information they already have.

If the race committee has, i its hands, proof that a boat has not sailed the course, they must score it NSC.

If the race committee is not in possession of the necessary proof, or sufficient evidence to justify the race committee in protesting, then its absolutely up to the boat to validly protest.
Created: 20-Oct-07 21:20
Sue Reilly
Nationality: United States of America
Certifications:
  • Regional Umpire
  • Regional Judge
  • Regional Race Officer
0
My first reaction is if I receive a complaint or inquiry from a boat I ask why they didn't protest them.  As a PRO my burden of proof is from my MR umpire side which is if I didn't see it it didn't happen.  So I like the fall back of being able to take it to the room and at least get to hear both sides of the story.  If it gets that far there is more than just myself making the decision which I would hope that if the facts are clear cut the boat that is the offender would retire from the race.   



EDIT-ADDED
Any know off the top of their head why this was changed in the new rules?  I'll go look to see if I can find an answer
Created: 20-Oct-07 22:06
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John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
0
Sue

These changes were made according to Proposal 4 of Submission 139-18 considered at the 2018 and World Sailing Annual Conference which included 4 parts:

·         Part 1:  Insert a definition of ‘sail the course’ based on the string part of rule 28.2.
·         Part 2:  Delete the ‘string part’ of rule 28.2, and base rule 28.1 on the newly defined term ‘sail the course’
·         Part 3:  Insert a requirement that a boat must ‘sail the course’ into the definition of finish.
·         Part 4:  Amend rules A4.2 and A5 (new rules A5.1 and A5.2) to include a requirement to score a boat that did not sail the course [N]SC without a hearing.

The insertion, by Part 3, of ‘sail the course’ into the definition of finish was reversed by Submission 129-19.

Parts 1, 2 and 4 were implemented in the published version of the new rules.
Created: 20-Oct-07 22:31
Sue Reilly
Nationality: United States of America
Certifications:
  • Regional Umpire
  • Regional Judge
  • Regional Race Officer
0
I guess I don't have to like it, I just have to live with it.  Just wondering if there are that many protests for boats not sailing the course properly.  I have been doing RC since '85 and can count on 1 hand the amount of protests I have seen for this that have been originated by the RC, and the offending boats retired from the race.  Only once has it gone to the room.   
Created: 20-Oct-07 22:46
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Peter van Muyden
Nationality: Canada
Certifications:
  • International Race Officer
0
Unlike for OCS, BFD, UFD penalties there is nothing in the 2021-2024 RRS that the RC must score a boat NSC for not sailing the course.   Our sport is a self policing sport, and the boats should protest NSC infractions.  In the past and in some cases, I have protested boats for not sailing the course.  Now and in similar circumstances I will score these boats NSC 

I would never accept the information from a competitor that a boat did not sail the course.   The competitor should have protested the boat if it had time to talk to me.

Created: 20-Oct-07 22:49
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John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
0
Peter,

I beg to differ.

New Rule A5.1 states

A boat that did not ,,, sail the course  ... shall be scored accordingly by the race committee without a hearing.

This RRS absolutely says that the race committee must score a boat NSC if it has not sailed the course.
Created: 20-Oct-07 23:14
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Peter van Muyden
Nationality: Canada
Certifications:
  • International Race Officer
0
Hi John,

I stand corrected.  There will be more unhappy parents. ;-) 

Peter
Created: 20-Oct-07 23:40
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John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
0
Thanks everybody for feedback so far on the Section How the race committee should perform its new obligations.

That was the second main section, which I posted out of order because people seemed to want to discuss those issues.

Here now is the first Section Obligations of the Race Committee.

Please let us all know what you think of the ideas.


New obligations of the race committee


Obligation to score boats NSC
New rules A5.1 and A5.2 create a new duty for race committees to score boats that do not sail the course NSC, without a hearing.

This duty will come into play when the race committee comes into possession of evidence that proves that a boat has not sailed the course.


No obligation to monitor
It has been suggested that NSC puts an onus on the race committee to monitor each boat to check if it sails the course.

These words in italics are quoted from Submission 129-19.  These words do not refer to the introduction of NSC by means of the amendments to rules A5.1 and A5.2 as finally approved.

Rather they refer to the previous amendment of the definition of finish, proposed by Part 3 of Submission 139-18, which added a requirement to have ‘sailed the course’ into the definition of Finish.  That is what would have created the unachievable onus on the race committee to monitor boats sailing the course.
 
Submission 129-19 removed the requirement that boats must sail the course to comply with the definition of finish.  This removed the ‘unachievable’ onus to monitor all boats and all marks.
 
There is no new onus or obligation on race committees to monitor boats or marks arising from the introduction of NSC and changes to rules 5.1 and 5.2.

Obligation to consider records and observations
I suggest that where the race committee has already accepted responsibility to monitor boats or marks, by, for example observing and recording mark roundings, it is then obliged to pay attention to those observations and records to identify boats that have not sailed the course and score them NSC.

Likewise, where the race committee’s finishing records show that a boat could not possibly have sailed the course in the time recorded the race committee should score her NSC.

Created: 20-Oct-09 21:47
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John Mooney
Nationality: United States of America
Certifications:
  • National Judge
  • Regional Umpire
  • Regional Race Officer
0
I’d respectfully suggest a slight reworking of the language around the RC’s “accepted responsibility” to record mark roundings, only because I don’t know that RCs often formally do that. Maybe better to refer to circumstances in which reliable rounding records exist and note the obligation of RCs to consider them where they do? I say “reliable” because without taking issue with your basic premise that a new duty is created for the RC, I’m a little worried that a flawed rounding list in a big fleet could, by itself, be the cause of an NSC finish.
Created: 20-Oct-10 11:04
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John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
0
John Mooney
said Created: Yesterday 11:04
Maybe better to refer to circumstances in which reliable rounding records exist and note the obligation of RCs to consider them where they do? I say “reliable” because without taking issue with your basic premise that a new duty is created for the RC, I’m a little worried that a flawed rounding list in a big fleet could, by itself, be the cause of an NSC finish.

I had thought about that, and I tried to cover it in the paragraph under Care and Caution in the previously posted section How Race Committees Should Perform ...

Race committees should beware of mistakes, and desirably obtain more than one source of evidence, for example, mark-rounding lists, significantly inconsistent finishing time or place, or incidental observations on the water by the race committee or judges, before scoring a boat NSC.

Do you think this needs improvement?
Created: 20-Oct-11 04:21
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John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
0
John Mooney
said Created: Yesterday 11:04
I’d respectfully suggest a slight reworking of the language around the RC’s “accepted responsibility” to record mark roundings, only because I don’t know that RCs often formally do that. Maybe better to refer to circumstances in which reliable rounding records exist and note the obligation of RCs to consider them where they do?.

John, Thanks for the feedback.

While I quite like 'accepted responsibility' notion, I'm not wedded to it, and your alternative suggestions are useful.

What did you mean by 'that' in  'I don’t know that RCs often formally do that'?
  • That race committees don't often formally station mark-boats and record mark-roundings?  or
  • That they don't understand that by doing so they are accepting a responsibility?

Created: 20-Oct-11 04:26
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Kim Kymlicka
Nationality: United States of America
Certifications:
  • National Judge
  • National Umpire
0
2021-2024 Rules A 5.1.,  A 5.2

Since the new (2021 – 2024) rules A5.1 and A 5.2 allow the RC to score a boat NSC without a hearing, it would be prudent to ask under what conditions will the RC score a boat NSC?

We know from the new definition of Sail the Course the requirements that a boat has to satisfy the definition in order not to be scored NSC. “A boat sails the course provided that a string………

(a) passes each mark of the course for the race on the required side and in
the correct order,
(b) touches each mark designated in the sailing instructions to be a rounding
mark, and
(c) passes between the marks of a gate from the direction of the course from
the previous mark.

For RC to score a boat NSC, it has to have information/evidence that contradicts any one of the above requirements. How it collects such information/evidence is the domain of the RC and must be clearly demonstrable to a boat scored NSC contesting the NSC score.

After all, the Submission 139-18 tells us that:

…..Because the facts in most such cases will be clear and not contested, there should be a net reduction in the number of hearings

This requires the RC to produce such clear and uncontested facts. Anything short of that, it will be contested. Will that lead to increase in the number of hearings, the opposite to the desired outcome? There is a chance that it may.

Kim 

Created: 20-Oct-11 06:35
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John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
0
Kim,

You asked

 it would be prudent to ask under what conditions will the RC score a boat NSC?

I'm not sure what you are driving at, but do these answers advance the discussion?

A race committee will score a boat NSC when:
  • The race committee has sufficient evidence to prove that the boat has not sailed the course.
  • The race committee lacks sufficient evidence and is on a crusade to punish 'rule-breakers'.
  • The race committee lacks sufficient evidence and succumbs to pressure (from OA, competitors, elsewhere).
  • The race committee makes a mistake about the nature or quality, or interpretation of the evidence that it has.


You also said

For RC to score a boat NSC, it has to have information/evidence that contradicts any one of the above requirements. How it collects such information/evidence is the domain of the RC and must be clearly demonstrable to a boat scored NSC contesting the NSC score.

Firstly, I strongly agree with you that whether and how a race committee collects evidence about boats sailing the course is a matter for them.

Secondly, I would agree that the evidence and conclusion of NSC needs to be demonstrable, otherwise the race committee is riding for a fall.

But while it is no doubt good race management practice to show competitors evidence of NSC (and other race committee scoring decisions, DNS, OCS, ZFP, DNF), if the race committee is approached by the competitor, I can't see any obligation in the rules to do so, 

You went on to say

This requires the RC to produce such clear and uncontested facts. Anything short of that, it will be contested.

Firstly, as I said above, there is no obligation under the rules on the race committee to 'produce' anything, until it comes before a protest committee.

Secondly, there  is no requirement for each fact to be 'uncontested'.  The race committee, like an eventual protest committee, may rely on the balance of probabilities.

A competitor may, in a Scoring Review Request discussion convince the race committee that it was mistaken, in which case it can correct the score, otherwise, the competiror's remedy is to request redress.

And lastly you said

 Will that lead to increase in the number of hearings, the opposite to the desired outcome? There is a chance that it may.

While we hear various stories, and see various rules discussions in forums about NSC situations, I suggest that these are not the 'tip of the icebert', they represent the whole of the iceberg:  I don't think NSC situations are all that problematic.

In my experience, as a judge, I reckon I see or hear of about one rule 28 protest a season, most of which result in a boat being penalised.  As a race officer, I can think of a couple of occasions in the last five years when I have taken action (by discussing with competitors) about rule 28:  in one of these, the competitor promptly retired, in the other, I had it wrong.

If race committees use the power prudently, mainly in accordance with conditions foreseen in the submission, I see no reason why the aim of the submission to reduce hearings won't be achieved.

As long as the rules compliance crusaders don't start to talk up the use of NSC, I see no reason why it's use should cause more hearings, rather than less.


Created: 20-Oct-11 07:53
P
John Mooney
Nationality: United States of America
Certifications:
  • National Judge
  • Regional Umpire
  • Regional Race Officer
0
Hi John -

I think your Care & Caution lines in the RC performance section are fine. At the same time, I think there's value in reiterating that not all such information is necessarily reliable (partly for reasons expressed below). I freely admit that this may be an overabundance of caution.

What did you mean by 'that' in  'I don’t know that RCs often formally do that'?
  • That race committees don't often formally station mark-boats and record mark-roundings?  or
  • That they don't understand that by doing so they are accepting a responsibility?

I meant both, really. In most of the racing I've served, either as a judge or a race officer, it has been common (where the personnel are available) to ask mark boats to take rounding information, and I certainly recognize it as best practice for a host of reasons, but I've always understood that request to be on a "best efforts" basis, and I think I've rarely if ever seen it be formalized, or be considered as a responsibility or obligation of the RC. I suspect the reason is that mark boats are sometimes otherwise engaged, and in some fleets, particularly at earlier marks, the boats round at such a pace that missing one or two isn't all that uncommon.

Is it your view that I've missed an RC obligation, and if so, why?
Created: 20-Oct-11 11:07
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John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
0
John,

What I'm trying to get across is that (in my opinion, that I'd like to persuade people to accept), between the Obligation to Consider and the Care and Caution about Mistakes, if a race committee collects information about mark-roundings, they now must consider that information, with due consideration to its reliability, to determine whether to score any boats NSC:  they can't just file it for reference.

If a race committee has in its possession (that is, in the possession of any person forming part of the race committee (See Definitions that Aren't Definitions, RRS, Introduction, Terminology, Race  Committee) that proves that a boat has not sailed the course and does not score the boat NSC, that is an improper omission of the race committee.

Maybe put it this way (although I wouldn't like to put it thus 'oppositionally' in the paper):  they have no obligation to collect, but once they collect they have an obligation to use.

This may be a new obligation, arising from the obligation to score boats NSC.
Created: 20-Oct-11 13:00
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John Mooney
Nationality: United States of America
Certifications:
  • National Judge
  • Regional Umpire
  • Regional Race Officer
0
John, I fully agree with your reading of the RC’s newly conferred duty to score a boat they become convinced hasn’t sailed the course as NSC. I remain somewhat cautious about how RCs will come by such a conviction, and I want RCs to share that sense of caution. I suppose I’m still engaged with you about this because I’m still anxious that your document doesn’t promote that caution enough, and that the frustration and ill will that would flow from competitors’ having to go through a redress request for a mistaken NSC score would be destructive, whether that request was successful or not (obviously worse if not). Also, many OAs struggle with finding enough people to run an event now, so I’m reticent about promulgating guidance that’s not strictly in the rules that implies RCs have new obligations that may require more people to meet. So;

  • Some instances will be easy (eg., a race officer watched a boat cut a corner, round a wrong mark, inadvertently unwind the string around a mark, etc., and fail to correct their error).
  • I share with Sue and others, though, the belief that a report from a competitor (or even more than one) is more appropriately the subject of a protest (with witnesses) if it’s not well supported by other evidence already in the RC’s possession. I submit that it’s good not to require a hearing for something the RC is sure of, but it’s not good to persuade the fleet that it can ignore whether or not everyone has sailed the course because that enforcement is exclusively the RC’s problem. Appendix P is frequently necessary, but it dilutes the competitor enforcement that I value in sailing, so one Appendix P - style requirement is enough, in my view.
  • It seems to me that unless the confidence of those taking rounding information is absolute that their information is accurate (and we should be very mindful of our ability to make clerical mistakes), a boat’s absence from a rounding list shouldn’t be enough to “prove” an NSC breach on its own. Cause to begin a further investigation? Certainly - verifying unexplained changes in position or timing (if timing is recorded) after the mark in question, asking the competitors who rounded other marks near the missing boat if they remember that boat at the mark in question, etc., but I’d want more proof than just a gap in a rounding list in many circumstances.

Again, I understand that your guidelines recognize much of this, and I may be being unreasonably picky, but it’s a matter of emphasis to me. Thanks for indulging my anxiety. 😬😄
Created: 20-Oct-11 15:57
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John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
0
John,

Thanks for your ongoing feedback.

I, and I think just about everybody else, on first seeing the NSC provision, thought:  we know there are stories and cases about race committees getting rule 28 decisions wrong, and this looks like an opportunity for them to make more mistakes and make them more formally.

Looking at the Submission, and thinking carefully about it, I think that the anecdotes and cases are not the 'tip of the iceberg', they represent the whole of the iceberg:  I don't think NSC situations are all that problematic or frequent.

Misuse of the NSC provisions will only become a problem if some ‘boosters’ or crusaders start telling race officers to over-use NSC.

I agree that race committees should be cautious about using the NSC power.  That’s why I included a section on Care and Caution, and a specific reference to mistakes in the paper.

I really don’t see the need to go any further than that.

I think that emphasising caution any more runs the risk of making race committees hyper-cautious, which will defeat the purpose of the NSC provisions.

The proof of the pudding will emerge if we start to see well-founded requests for redress against bad race committee decisions. 
Created: 20-Oct-11 21:51
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John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
0
Thanks John and Kym for the feedback on the Obligations section.

Further comments on the Obligations or the How the Race Committee should Perform sections are still welcome.

Below, for comments, is the last section of the paper.


Responding to complaints and enquiries from competitors
Sometimes race committees receive complaints or enquiries from competitors about boats not sailing the course.

Under the old rules, a proper response to such enquiries would have been to advise the enquirer that if they thought that a boat had broken a rule and should be penalised they should protest the boat.

Now that the race committee has the responsibility to score boats NSC, the race committee should respond more positively.  It should review its records and observations to identify any evidence, such as highly inconsistent or impossible performance, if that evidence proves that a boat has not sailed the course score her NSC accordingly.  Where the race committee cannot be satisfied that a boat has not sailed the course, it may protest the boat, or advise a complaining boat to do so, if they wish to do so.

A similar process should be applied to credible complaints and enquires from persons who are not competitors.

Protest committee considerations


Boat can be penalised by being scored NSC without a valid protest
NSC is now a penalty that can be imposed on a boat without a hearing under rule A5.1, and is specifically exempted from the requirements of rule 63.1 for a valid protest hearing.

A protest committee may decide that a boat is to be scored NSC in a redress hearing.


Natural justice – boat needs to be represented in hearing
The usual way a NSC scoring issue will come before a protest committee is as a result of a request for redress by a boat that has been scored NSC by the race committee.  Otherwise some other boat may request redress for an improper action or omission of the race committee in not scoring a boat NSC.

Where a protest committee considers a request for redress not initiated by the boat alleged not to have sailed the course, natural justice or due process demands that, unless the redress is promptly denied, the boat alleged not to have sailed the course must be afforded the rights of a party to hear all evidence, question witnesses and make submissions to the protest committee.  If the protest committee is concerned about this it may use the mechanism of calling a hearing under rule 60.3(b) to consider redress for that boat, and combining that hearing into the hearing of other request.

Created: 20-Oct-12 09:42
P
John Mooney
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I have two thoughts about this section. First, FWIW, it will be changed in the USA by US Sailing’s prescriptions to RRS 63.2, which set extra notice requirements for redress hearings and provide that any other competitor who makes a written request to do so must be made a party to any redress hearing.

Second, this may strike you as a discussion of the number of angels that fit on a pinhead, but while I understand the rationale for your observation that a redress request may be brought by a competitor who thinks the RC should have scored another boat NSC, I submit that such a request would torture the intent of the rule, and that as soon as the RC in question says they weren’t sufficiently convinced by whatever evidence they have in hand, the PC should deny redress. Failing to score a boat NSC when the RC is convinced she breached 28.1 (“Yes, we knew they didn’t sail the course, but scored her as having done so anyway.”) would be an improper omission of the RC, but failing to be convinced would not.

I say that because it seems to me that the rule is written to make the RC’s duty to score someone NSC flow from their conviction that the boat has failed to sail the course. If a competitor believes the RC should have been convinced but weren’t, that competitor’s proper remedy is to protest the boat they think has broken RRS 28.1 under that rule, not request redress because the RC hasn’t scored her NSC without a hearing. If they think the RC will have light to shed on the matter, they are certainly free to call its members as witnesses.
Created: 20-Oct-12 12:26
Sue Reilly
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My opinion is that is I 'think' someone didn't sail the course versus if if I 'know' they didn't sail the course.  The only way I 'know' something is if I have witnessed it myself. In the future I might in a number of circumstances tell my mark boat folks NOT to take roundings.  Roundings I have always regarded as something a mark boat does if they have nothing else to do.  The most frustrating thing is when you start to get some unusual shifts at the bottom of the course and are told to wait on a wind check from the top mark boat because they are taking roundings.  Roundings to me are always the lowest priority and personally I leave it up to them to decide if they want to record them or no.   I wouldn't take them as irrefutable proof of someone sailing the course.     

With that being said I am not including high level events, i.e. Nationals, Regional or World Championships.  
Created: 20-Oct-12 15:51
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Kim Kymlicka
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The short(er) version:
 John,
When I said: … it would be prudent to ask under what conditions will the RC score a boat NSC?

You asked: I'm not sure what you are driving at, but do these answers advance the discussion?
A race committee will score a boat NSC when:
  • The race committee has sufficient evidence to prove that the boat has not sailed the course. 
  • The race committee lacks sufficient evidence and is on a crusade to punish 'rule-breakers'.
  • The race committee lacks sufficient evidence and succumbs to pressure (from OA, competitors, elsewhere).
  • The race committee makes a mistake about the nature or quality, or interpretation of the evidence that it has.
The new rules (2021-2024) give a Definition when a boat sails the course. The Definition does not list the ‘conditions’ just as you suggested. (That is not to say they are not good points).

If a boat satisfies the Definition that boat cannot be scored NSC.  

Conversely, it tells us that any absence of compliance with any one of those listed in the Definition, the RC could/should score a boat NSC. 

With the new NSC score that permits the RC to score a boat without a hearing, one would expect the RC to have clear and not contested evidence available. 

Q; What will such evidence consist of?
A: Violation of the Definition including:
(a) passes each mark of the course for the race on the required side and in the correct order,
(b) touches each mark designated in the sailing instructions to be a rounding mark, and
(c) passes between the marks of a gate from the direction of the course from the previous mark.

How will the RC collect these facts? There may be a challenge here, but we are assured by the Proposal 4 that:

…..Because the facts in most such cases will be clear and not contested, there should be a net reduction in the number of hearings.

Can we start a list of facts that will be clear and not contested and how does the RC go about obtaining them? All in the stated goal of reducing the number of hearings.

See you in the room.

Kim
____________________________________
The Long(er) version:

 John,

When I said: … it would be prudent to ask under what conditions will the RC score a boat NSC?

You asked: I'm not sure what you are driving at, but do these answers advance the discussion?
A race committee will score a boat NSC when:
  • The race committee has sufficient evidence to prove that the boat has not sailed the course. 
  • The race committee lacks sufficient evidence and is on a crusade to punish 'rule-breakers'.
  • The race committee lacks sufficient evidence and succumbs to pressure (from OA, competitors, elsewhere).
  • The race committee makes a mistake about the nature or quality, or interpretation of the evidence that it has.
The new rules (2021-2024) give a Definition when a boat sails the course. The Definition does not list the ‘conditions’ just as you suggested. (That is not to say they are not good points).

If a boat satisfies the Definition that boat cannot be scored NSC.  

Conversely, it tells us that any absence of compliance with any one of those listed in the Definition, the RC could/should score a boat NSC. 

Under the current rules, if the race committee believes from its observations that a boat has made an error in sailing the course, it is required to score the boat in her finishing position and then protest her for breaking rule 28.

In the ‘Reasons’ in support of the submission from the Chairman of the Racing Rules Committee we are reminded in Proposal 4 that the Proposal 4 does makes two changes in current race committee practice:… the committee will be permitted to score such a boat ‘ESC’, thereby penalizing her without a hearing. ESC got changed to NSC. 

The next sentence is a reassurance of the obvious: However, the rights of the boat are protected because she may request redress if she believes she did sail the course correctly.

Here, the RC must produce evidence, just like in the OCS, ZFP, DNS, DNF, that a boat failed the condition(s) in the Definition. 

As we know from our own experiences, most of today’s requests for redress are the contested scores by the RC (OCS, ZFP, DNS, DNF). OCS ranks on the top of the list.

There is nothing inherently wrong with any of OCS, ZFP, DNS, DNF scores and we know how the RC collects evidence that it can present at a hearing.  All are collected principally by RC boat that is or has been stationary in one position (starting or finishing line) and by personal on that RC boat utilizing various means of recording the evidence.

With the new NSC score that permits the RC to score a boat without a hearing, one would expect the RC to have clear and not contested evidence available. 

Q; What will such evidence consist of?
A: Violation of the Definition including:
(a) passes each mark of the course for the race on the required side and in the correct order,
(b) touches each mark designated in the sailing instructions to be a rounding mark, and
(c) passes between the marks of a gate from the direction of the course from the previous mark.

How will the RC collect these facts? There may be a challenge here, but we are assured by the Proposal 4 that:

…..Because the facts in most such cases will be clear and not contested, there should be a net reduction in the number of hearings.

Can we start a list of facts that will be clear and not contested and how does the RC go about obtaining them? All in the stated goal of reducing the number of hearings.  

Kim

Created: 20-Oct-13 07:00
P
John Allan
Nationality: Australia
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Sue, John B, and Kim,

John,

Thanks for your ongoing feedback.

I, and I think just about everybody else, on first seeing the NSC provision, thought:  we know there are stories and cases about race committees getting rule 28 decisions wrong, and this looks like an opportunity for them to make more mistakes and make them more formally.

Looking at the Submission, and thinking carefully about it, I think that the anecdotes and cases are not the 'tip of the iceberg', they represent the whole of the iceberg:  I don't think NSC situations are all that problematic or frequent.

Misuse of the NSC provisions will only become a problem if some ‘boosters’ or crusaders start telling race officers to over-use NSC.

I agree that race committees should be cautious about using the NSC power.  That’s why I included a section on Care and Caution, and a specific reference to mistakes in the paper.

I really don’t see the need to go any further than that.

I think that emphasising caution any more runs the risk of making race committees hyper-cautious, which will defeat the purpose of the NSC provisions.

The proof of the pudding will emerge if we start to see well-founded requests for redress against bad race committee decisions.

but I think all the issues you are raising are covered in the paper and I’m reluctant to change the tone and emphasis of the paper to encourage timidity by race committees in using NSC.
Created: 20-Oct-20 03:59
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John Allan
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Here now is the completed paper.
Scoring Boats NSC

Introduction


Introduction of NSC
The Racing Rules of Sailing 2021 – 24 introduces a new category of scoring, ‘NSC’, to be applied by the race committee without a hearing to boats that do not sail the course, by inserting ‘did not sail the course’ into the lists of categories to be scored by the race committee without a hearing in rules A5.1 and A5.2.

These changes were made according to Proposal 4 of Submission 139-18 considered at the 2018 and World Sailing Annual Conference which included 4 parts:

·         Part 1:  Insert a definition of ‘sail the course’ based on the string part of rule 28.2.
·         Part 2:  Delete the ‘string part’ of rule 28.2, and base rule 28.1 on the newly defined term ‘sail the course’
·         Part 3:  Insert a requirement that a boat must ‘sail the course’ into the definition of finish.
·         Part 4:  Amend rules A4.2 and A5 (new rules A5.1 and A5.2) to include a requirement to score a boat that did not sail the course [N]SC without a hearing.

The insertion, by Part 3, of ‘sail the course’ into the definition of finish was reversed by Submission 129-19.

Parts 1, 2 and 4 were implemented in the published version of the new rules.


Purpose and reasons
The purposes and reasons for Proposal 4 stated in Submission 139-18 were relevantly to Part 4 as shown below:

·         Purposes:
-       to clarify and simplify all rules that refer to a boat ‘sailing the course’
-       [to] reduce … the number of hearings that the protest committee must conduct.
·         Reasons
-       Under the current rules, if the race committee believes from its observations that a boat has made an error in sailing the course, it is required to score the boat in her finishing position and then protest her for breaking rule 28. If Proposal 4 is accepted, the committee will be permitted to score such a boat ‘[N]SC, thereby penalizing her without a hearing.
-       However, the rights of the boat are protected because she may request redress if she believes she did sail the course correctly. Because the facts in most such cases will be clear and not contested, there should be a net reduction in the number of hearings. 

Practical issues
The introduction of NSC raises some practical issues which are discussed below.

·         What are and are not the new obligations of race committees with respect to NSC;
·         How the race committee should perform its new obligations; and 
·         Protest committee considerations.

New obligations of the race committee


Obligation to score boats NSC
New rules A5.1 and A5.2 create a new duty for race committees to score boats that do not sail the course NSC, without a hearing.

This duty will come into play when the race committee comes into possession of evidence that proves that a boat has not sailed the course.


No obligation to monitor
It has been suggested that NSC puts an onus on the race committee to monitor each boat to check if it sails the course.

These words in italics are quoted from Submission 129-19.  These words do not refer to the introduction of NSC by means of the amendments to rules A5.1 and A5.2 as finally approved.

Rather they refer to the previous amendment of the definition of finish, proposed by Part 3 of Submission 139-18, which added a requirement to have ‘sailed the course’ into the definition of Finish.  That is what would have created the unachievable onus on the race committee to monitor boats sailing the course.
 
Submission 129-19 removed the requirement that boats must sail the course to comply with the definition of finish.  This removed the ‘unachievable’ onus to monitor all boats and all marks.
 
There is no new onus or obligation on race committees to monitor boats or marks arising from the introduction of NSC and changes to rules 5.1 and 5.2.

Obligation to consider records and observations
I suggest that where the race committee is already taking responsibility to monitor boats or marks, by, for example observing and recording mark roundings, it is then obliged to pay attention to those observations and records to identify boats that have not sailed the course and score them NSC.

Likewise, where the race committee’s finishing records show that a boat could not possibly have sailed the course in the time recorded the race committee should score her NSC.

How the race committee should perform its new obligations


Direct Observation
The reasons for the introduction of NSC in Submission 139-18 indicate that the primary intention was to expedite the scoring of boats that the race committee directly observed to have not sailed the course.  The race committee may, however, score boats NSC in any other circumstance where it has evidence that proves the matter.


Care and caution
Race committees should score a boat NSC only when there is clear evidence that proves that a boat has not sailed the course.

Race committees should beware of mistakes, and desirably obtain more than one source of evidence, for example, mark-rounding lists, significantly inconsistent finishing time or place, or incidental observations on the water by the race committee or judges, before scoring a boat NSC.

Race committees should not score a boat NSC on weak or speculative grounds and cast an onus on the boat to retrieve her position by requesting redress.


Standard of proof, evidence and weighing evidence
The standard of proof the race committee is required to apply is on the balance of probabilities, or preponderance of evidence.

There is no reason why race committees should not consider evidence in any form, provided that they consider the merits of the evidence, and the well known reservations about some forms of evidence.

Forms of evidence that may be considered include:

·         Observations and records of the race committee itself;
·         Reports from other race officials;
·         Reports from outside observers;
·         Reports by competitors, within the limitations of evidence given by interested parties;  and
·         Video or photographic evidence, within its limitations.


Notice to boats to be scored NSC and ‘hearings’ by the race committee
Race committees are not obliged to give any notice to or have any discussions with a competitor before scoring them NSC.  As discussed in Submission 139-18, any lack of procedural fairness or due process arising from not informing the competitor can be cured by the boat requesting redress, with the full formality of a redress hearing.

Race committees may communicate with competitors who they are considering scoring NSC so if they wish.  In any discussions with competitors, care must be taken:

·         That the burden of proof is not placed on the competitor to prove that they did sail the course:  the race committee is seeking evidence that they did not sail the course.
·         There is no appearance of threats or bargaining, for example ‘if you do not do X you will be scored NSC’.

Race committees should not conduct ‘hearings’:  they have no power to do so, and race committee members who are not also judges may lack the experience and expertise to do so.  If it is necessary to weigh conflicting evidence, race committees may choose to refer the matter to a protest committee by protesting the boat concerned.


Responding to complaints and enquiries from competitors
Sometimes race committees receive complaints or enquiries from competitors about boats not sailing the course.

Under the old rules, a proper response to such enquiries would have been to advise the enquirer that if they thought that a boat had broken a rule and should be penalised they should protest the boat.

Now that the race committee has the responsibility to score boats NSC, the race committee should respond more positively.  It should review its records and observations to identify any evidence, such as highly inconsistent or impossible performance, and if that evidence proves that a boat has not sailed the course, score her NSC accordingly.  Where the race committee cannot be satisfied that a boat has not sailed the course, it may protest the boat, or advise a complaining boat to protest, if they wish to do so.

A similar process should be applied to credible complaints and enquires from persons who are not competitors.

Protest committee considerations


Boat can be penalised by being scored NSC without a valid protest
NSC is now a penalty that can be imposed on a boat without a hearing under rule A5.1, and is specifically exempted from the requirements of rule 63.1 for a valid protest hearing.

A protest committee may decide that a boat is to be scored NSC in a redress hearing.


Natural justice – boat needs to be represented in hearing
The usual way a NSC scoring issue will come before a protest committee is as a result of a request for redress by a boat that has been scored NSC by the race committee.  Otherwise some other boat may request redress for an improper action or omission of the race committee in not scoring a boat NSC.

Where a protest committee considers a request for redress not initiated by the boat alleged not to have sailed the course, natural justice or due process demands that, unless the redress is promptly denied, the boat alleged not to have sailed the course must be afforded the rights of a party to hear all evidence, question witnesses and make submissions to the protest committee.  If the protest committee is concerned about this it may use the mechanism of calling a hearing under rule 60.3(b) to consider redress for that boat, and combining that hearing into the hearing of other request.

Created: 20-Oct-20 04:12
Philip Hubbell
Nationality: United States of America
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TLDR
Created: 20-Oct-20 19:15
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Angelo Guarino
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John, as you know, I disagree with the "outside evidence" approach above.  [added: I'm not saying that you are incorrect in your reading of the rules, but rather that since the rules are silent on it, it comes down to RC guidance, as your document intends.]

For the purpose of discussion, I offer what follows ..

IMO, competitors believe and rely-upon that RC scoring actions occurring within A5.1 and A5.2 are based upon an RC's own records and observations.  As you point out, "Race committees are not obliged to give any notice to or have any discussions with a competitor before scoring them NSC."  Additionally, I would add that the RC is also not obliged to disclose any info to the competitor after either.   Therefore an RC has no obligation to inform a competitor whatsoever that an RC's scoring action is based or reliant-upon outside evidence. 

When RC's come into possession of outside-evidence to score a boat NSC, IMO RC's should be guided to protest the boat and present the outside-evidence to the parties and the PC for consideration.  This gives the competitor notice that the evidence comes from outside of the RC, and gives the competitor an opportunity to refute/challenge the evidence or the appropriateness of its source.  For instance, an RC might not be aware that the information source violates 60.2(a)'s limitations, but in a hearing, those conflicts might be raised by the protested boat/party.

It seems to me that guiding RC's to limit applying A5.1/5.2 scoring actions to those instances which they can substantiate based upon their "own records and observations" is both sensible and fair and the only casualty would be the occasional "inconvenience" of a protest hearing.  

Therefore, since the only downside of the approach I outline is the VERY occasional extra protest hearing, I'd propose that guidance on the reliance on outside-evidence be more conservatively handled.
Created: Tue 13:42
P
John Allan
Nationality: Australia
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Angelo,

I can only rehearse the arguments I made in the paper:
  • Penalties by the race committee without a hearing have been around for a very long time.  While there are some cases about rule A5 (including cases about not sailing the course), none of these addresses the processes of the race committee.
  • Nothing in the rules requires the limited and prescriptive approach you advocate.
  • The stated intent of the rule change was to reduce the procedural requirements, not to increase them.
  • The drafters and approvers of the rule change considered the risk of wrong decisions, and were satisfied that access to the redress process was a sufficient guard against this risk.
  • Experienced race officers already successfully use the Scoring Review Request process, including statements from other competitors to review rule A5 scores.

I expect that any further guidance that WS considers necessary will be included in the Race Management Manual.

I suggest that until such time as we begin to see protests and appeals about NSC, we should not attempt to add to the procedural requirements of race committees.
Created: Tue 21:21
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Angelo Guarino
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I suggest that until such time as we begin to see protests and appeals about NSC, we should not attempt to add to the procedural requirements of race committees.

I don’t see what I’m suggesting adding any procedural requirements. 60.2(a) hasn’t gone away.   Even if RC’s were guided to divert the smalll subset of NSC calls that are based on outside-info into the protest-hearing-process, the addition of NSC will still undoubtedly represent an increase in efficiency in reducing trips to the protest room. 

Also, I would add that when one reads the Submission that lead to the change, a predicate of the need-basis is “... if the race committee believes from its observations...”. 

I agree that limitation did not make it into the rules and again make no argument that your guidance-doc is outside of the rules as written ... it’s actually very fine work John.  - Ang
Created: Tue 21:58
Tim Hohmann
Nationality: United States of America
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This is where NSC differs in kind, I think, from the other instances where A5 allows the RC to assign a score without a hearing. OCS, UFD, ZFD or BFD take place at the starting line where the RC would always be able to observe a breach. In effect, the RC is an irrefutable witness to those breaches. 

RC would be able to directly observe NSC if it occurred at the start or finish line but may or may not directly observe a breach elsewhere on the course. So I agree that the RC should only assign NSC if they directly witness the breach, otherwise it should be the subject of a protest hearing. 
Created: Yesterday 03:37
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John Allan
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Definitely agree with Tim that NSC is different from other rule A5 scores by race committee in the way he describes.

However, I'm sure that the rules drafters and approvers were aware of this and could easily have included the restrictions he discusses in the rule rewrite.  They didn't.

As I've said before, unless and until we see some protests, appeals and cases about NSC we should not be making up new, restrictive rules that are not in the RRS.
Created: Yesterday 05:28
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Kim Kymlicka
Nationality: United States of America
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John,
I enjoyed reading your report. Well done.

From the start of this discussion, ‘my challenge’ is based on the ‘confident prediction’ the rule writers expressed:

…. Because the facts in most such cases will be clear and not contested, there should be a net reduction in the number of hearings.

We will find out how this prediction turns out as soon as we get back to regular racing in the 2021.

Kim

 

Created: Yesterday 05:48
P
Angelo Guarino
Nationality: United States of America
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John, I think my concern can be best made with the following questions. 

Under the rules, may an RC base a NSC call on outside information that would be otherwise disallowed under 60.2(a)?

If “yes” above, in a redress hearing where the NSC’d boat challenges the acceptability of the evidence and shows that the evidence would be disallowed as the basis of an RC protest under 60.2(a), is there a basis in the rules for a PC to “disallow” that evidence and, lacking any further evidence from the RC’s own observations and records, reverse the call?
Created: Yesterday 12:56
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John Allan
Nationality: Australia
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I think the strict rules answer is Yes, a race committee can score a boat NSC on the basis of evidence provided by a person with a conflict of interest [such as a competitor or a support person] if they consider that evidence proves that the boat has not sailed the course.

The RRS are an open rules set:  that which is not forbidden is permitted.

In a redress hearing about  that NSC decision, there is no question of 'acceptability' of the evidence of persons with conflicts of interests.

This is different from the gateway in rules 60.2, 3 and 4 subparagraph (a) about initiating protests.

Protest committees are not bound by the rules of evidence and should rarely concern themselves with the admissibility of evidence.  Rule 63.6 requires the protest committee to take [all] the evidence of the parties and their witnesses.  It is then required to weigh that evidence on its merits.  The protest committee may well give diminished weight to evidence of a self-interested competitor.

Direct evidence of a competitor about a breach will not be either irrelevant or unduly repetitive and should not be excluded by a protest committee.

Of course, if the race committee, as a party to the redress hearing, doesn't bring in the reporting boat to give evidence and just presents their hearsay of the 'report', then that might get a 'double discount' from the protest committee.
Created: Yesterday 13:41
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Angelo Guarino
Nationality: United States of America
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This is different from the gateway in rules 60.2, 3 and 4 subparagraph (a) about initiating protests.

It is this "different gateway", creating a backdoor for information which would be otherwise disallowed as an RC-protest-basis, which is at the heart of my concern.

Thanks John for helping me thrash this out.  I think the points have been well made.

Ang
Created: Yesterday 13:53
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