"Good afternoon" the chairman said: "Please have seat"
"You are here for protest number 7?" He continued.
"Yes" said the tall guy in the red shirt pulling back a chair opposite me.
"Yea" was the response of the other.
"Can I have your names and sail numbers, please?" the chairman said, while his pen was already scribbling on the back of the protest form.
"I'm Peter from 678211" Red said. He looked at the other guy.
"My name is Boris, I sail Star 688297" spoke the other, slouching his also lanky frame in a chair.
"Right, thank you" the chairman leaned over the table; "Let me introduce the members of this panel"
"On my right is Jos from Netherlands and on my left is Ynte from Finland. My name is Bat from Great Britain" He pointed: "Behind you is Xant, who's here as an observer."
"Do either of you have any objections to members of this panel?"
He's certainly not wasting much time, I thought.
The guy in red - Peter - shook his head. Boris looked up: "What do you mean?"
"I asked if you had any objections that we three in this panel, hear this protest, do you think we are an interested party?" Bat answered.
"No?" Boris sounded hesitant.
"Have you ever been in a protest hearing before?" asked the chairman
"Yes"
"You can object to members of the panel, if you think they can't be impartial, because of a conflict of interest. Have you ever met any of us before?
"No, I don't know you" Boris answered. "If you don't know Peter, I don't have any objections"
The chairman shook his head and looked at me.
"I haven't met Peter nor Boris before" I answered.
"Neither have I" said Ynte
"Ok, thank you" the chairman looked at the protest form.
He continued: "Before we go into what happened on the water, we need to go over the validity of the protest. Peter, your boat has been protested by Boris, do you have any problems with the validity?"
I sat up straight, this was something new.
"No" Peter said.
"Boris?" continued the chairman.
"No" Boris answered.
"Then let's go over what happened. I have a couple of model boats, you are the blue boat, Boris and Peter's boat is the red one.... Boris will you tell us ...."
I looked at my watch. Three minutes!. From entering the room to the situation in three minutes! Hello! This is the fastest I've ever gotten to this part.
What happened?
___________________________________________________
In this scenario you - the reader - are the observer. After the hearing the chairman talks to you and asks you your opinion of whether the introductory proceedings were adequate. Is this a proper way to start a hearing?
I've made this post in collaboration with Brass who's been commenting on my posts frequently. Thanks, Brass!
I think the chairman is doing OK. I have two issues, however: Firstly, he should make sure that the protestee has received a copy of the protest and has had time to prepare for the hearing. Secondly, he's taking some liberty in his explanation of "interested party". The fact that a PC member doesn't know any of the parties (and vice versa) does not insure against a conflict of interest. And conversely, knowing a party to a protest doesn't mean you're an interested party.
ReplyDeleteWell, yes and no!!
ReplyDeleteTo me Yes but then I am British, but no if you go over the rule book.
The Rule book in 63.5 says it is for the jury to decide on the validity of the protest and as such you could say you need to ask additional questions such as those set out in Appendix M.
To this extent the procedure is incorrect.
At a level where you have a Jury they should know the position regarding Validity so perhaps what was said is OK.
In the UK we have an Appeal RYA/2981/5 which says "A protest committee may confer in private for the purpose of reaching a decision on a procedural point. A boat that waives an opportunity to object to the validity of the protest against her cannot later introduce that objection as the grounds of her appeal"
Thus we in the UK accept that what the chairman did is quite acceptable, and on that basis you can move forward.
Enjoy the evidence.
Mike B
Firstly, as Mike B has observed, this is an International Jury, so some different assumptions about competitors levels of understanding and experience can be made to what would apply in a club protest committee.
ReplyDeleteSecondly, the Jury/PC should do its homework before opening the hearing.
The chairman should run through the protest or request for redress with the other members of the jury before the parties are invited in, so that the jury has a general idea of the problem. (Judges Manual pp67-68)
Interested Parties
There are responsibilities on Judges to deal with conflict of interest and Interested Parties which are independent of a party's right to object.
* Rule 63.4 starts off "A member of a protest committee who is an interested party shall not take any further part in the hearing ...". This is a rule applying to the members. Each member is responsible for complying with it regardless of anything the parties might say.
* Judges are required to "declare any conflict of interest before accepting a jury invitation. (See section 3.2 and ISAF Regulation 50.)" (Judges Manual, sect 3.1).
Judges Manual (pp 67-68) goes on:
"When there is time, the members of the jury should be introduced by name to the parties to the protest. If a party objects to any member, the chairman should ask the reason, and if the objection meets the definition of interested party, replace the member, although they may still participate as a witness. If not valid, the objection should be overruled."
"It is very rare for there to be a legitimate reason for objecting to a member of an international jury; nationality in itself is never a legitimate reason."
I disagree with Bam when he suggests that the interested party bit is a bit shaky. The Chair has said ""You can object to members of the panel, if you think they can't be impartial, because of a conflict of interest. " which clearly gets to the nub of the issue. The rest of the example about personal acquaintance is additional to that.
Not also that rule 63.4 second sentence makes parties who are concerned about conflict of interest to object as soon as possible, that is, where possible, before the hearing.
Once the Jury has taken care of its responsibilities, it is only necessary to ask the parties "any objections?". (rule M2 "Ask the parties whether they object to any member").
Bam's comments about the nature of interested parties are, however, useful reminders.
Validity
I agree with Bam that this looks to me like a fairly proper, and efficient
way to get through to M3.1, validity.
I believe that before the hearing begins, the Jury should carefully go through the validity issues from the top of the Protest Form page 2 down to FACTS FOUND, and identify whether or not it is likely that there will be any dispute about protest validity.
Evidence to help this will include:
* race results with finishing times
* Sailing Instructions with any changes to rule 61.3 Protest Time Limit, and, for a high level event
* the Race Committee Daily Report http://www.sailing.org/10607.php
We have a "Protest Committee Member's Handbook" written by Graeme Owens (an IJ),which while not officially endorsed by our MNA, provides some useful practical guidance.
On M3.1, our handbook says
"After completing the top section of page 2 of the Protest Form, inform that parties that the protest appears to be valid (or invalid and why). Ask for any comment. If none, advise the protest hearing will now proceed"
Key issue is that, as in your scenario, if no-one objects, rely on the facts asserted in the protest form to get quickly to the Valid Protest decision.
In a court trial, the court will look at two sorts of facts:
* facts that are 'in issue', that is are disputed between the parties, and
* other facts which are proved or known, and are not disputed, and may be taken to be agreed between the parties.
This is a good concept to bear in mind. It is helpful for a Jury to identify what facts are likely to be in dispute, and possibly to actually ask the parties which assertions made in the Protest Form or later are agreed or disagreed.
I have a problem with the RYA case cited by Mike B
"In the UK we have an Appeal RYA/2981/5 which says "A protest committee may confer in private for the purpose of reaching a decision on a procedural point. A boat that waives an opportunity to object to the validity of the protest against her cannot later introduce that objection as the grounds of her appeal"
The underlying notion is OK, but the words smack of legal mumbo-jumbo. Rhetorically, I ask "what does 'waive' mean?" "Does it not require clear express words?".
More to the point about protest validity is, as Graeme Owen says:
"A protest committee should avoid being over-pedantic to find a protest as invalid. All present have come together to have some disagreement sorted out and for this objective to be attained there should never be any emphasis on finding some 'borderline' reason to declare a protest to be invalid'
Brass
Presumeably, the protest form will show the factual basis for validity, so if the protested party has seen the form, he should know if the factual criterion have been met. On the interested person issue, I usually ask the jury if any member "has a business, family, or personal relationship with any party or listed witness", since that information may not be known to the parties or other members of the jury.
ReplyDeleteThank you all for contributing in this discussion.
ReplyDeleteAs to the original post, my intention was to show that it is as much the responsibility of the sailors to raise issues about objections and validity, as it is the PCs. I agree that this varies depending on the level of event, but basically the principle of self-policing should also apply in the room.
The system of protest hearing with a predetermined structure is to find a solution which could not be decided on the water and somehow resolve it. The outcome should depend on the parties, not on the skill of the PS-members.