At our annual sailing event in 2007 we had a very strange protest - a sailor came up to me on the fourth day claiming he was not aware that he had been involved in a protest and could I tell him why he was given a DSQ. This on itself is not very strange, as many protest are done under rule 63.3(b) After studying the papers I told him what the committee had found as fact and their decision. The sailor was very surprised because he wasn't involved in the hearing. On the protest form however his boat was represented by such and so. How was this possible?
After I asked the panel chairman to join us, we quickly came to the conclusion that someone else had pretended to represent his boat. Further investigation revealed that this person wasn't even a competitor but a total bystander. There was even a witness claiming to have sailed on the same boat!
After a lot of discussion in the jury morning meeting, we decided to
ask around if we could find the culprits. No luck.
We investigated the rest of the week without success.
What do you think?
If the presence of the true representative was not unavoidable and
there was no reason to reopen on those grounds, do you think the panel should?
Or should the committee find that they may have made a mistake (RRS 66) and reopen the protest on those grounds?
Give me your opinion. We asked our national Appeal Board for the answers. I'll publish them in a couple of days.
Continued in this post
Dear Jos,
ReplyDeleteA strange matter indeed. The first thought that popped up was that the PC should reopen the protest for reason of fareness. To be sure I grabbed the RRS and started reading through part 3 and the more i read, the more doubt i had about my initial response. Allow me to ellaborate.
The true representative had the opportunity to be present, assuming the PC followed the normal procedure and complied with RRS 63.2. According to RRS 64.3(b) the PC can decide in a protest when a party doesn't show up. This is the case. So, as you already stated, there is no reason, as far as RRS 63.3 goes, to reopen the protest.
However, RRS 63.3 says: "When a protest claims a breach of a rule of Part 2, 3 or 4, the representatives of boats shall have been on board at the time
of the incident, unless there is good resn for the protest committee to rule otherwise.". The claimed representative wasn't on board but the PC should have assumed he was.
Therefore I do think the PC has been mislead because they assumed the deposition of the false representative was very reliable, assuming he was on board while in fact he was not.
On that account i think the PC should reopen the protest.
Is the PC obligated to check the identity of the representative?
ReplyDeleteIf he/she states she was on board during the incident and there's no reason to assume otherwise - i.e. the PC believes what she's being told, should they check for instance, the competitor-entry list?
This incident was during a sail week with over 1500 competitors and more than 30 classes.
Should reopen or could reopen?
While writing my previous reply i written and deleted the sentence 'Is it the task of the PC to check if someone is, who he claims he is?' a lot. Beacause of practical reasons i don't think that's always possible and therefore should be regarded as a supplementary precaution.
ReplyDeleteThe PC assumed the deposition was from someone who claimed to be on the vessel, and therefore seemed very reliable. If i was on that PC i think i rated that deposition higher than a deposition from a bystander.
In the case you described the PC didn't have all the information they should have had, or at least had a distorted view at the information. As soon as the PC found this out they should reconsider if their decision could have been different if they had known the real identity of the representative. If there is _any_ doubt that the decision would have been different, i think it's fare to reopen the protest. So a very big could, leaning to a should in my opinion.
I'm curious: what's your view on the matter?
In the original discussion I was of the opinion that the PC should have checked the identity. At the very least against the competitors entry-list. Perhaps because I was disappointed that the Panel hadn't caught on to the deception. I'm chairman for the PC in that week and felt we had egg on our face...
ReplyDeleteLater I realised they had no reason to doubt the stories, and therefore had no reason to do so.
When the true representative showed up, two days later, he requested a re-opening. The panel opted for not granting this, on the grounds that he should (and could) have been at the original hearing.
That might be the case, but in my opinion, they should have re-opened because the may have made a significant error. (RRS66).
Still, the rule states clearly that the PC MAY re-open, there's no obligation.
We asked our appeal-board these questions too. I'm translating there findings and hope to post those in a couple of day's