Friday, 27 February 2009

Fact Finding Friday | 001 - Amsterdam Avenger v Berlin Bandit

From "The ROOM" by Brass


The aim of this series is to practice judges' skills in writing Facts Found, Conclusions and Rules Applicable, and Decisions as required by rule 65.1.
These are not intended to be 'difficult' rules problems: concentrate on the writing skills. You are not expected to 'discuss' the rules or the scenarios, or enter into 'what-if' considerations. I suggest you write against the clock, and include a note of your time taken when you post your answers on LTW, to compare with others.


You are the scribe for the protest committee of the LTW Yacht Club, which races in Port Liberty Roads. You have received the written protest as shown, decided it is valid, and have heard both parties and witnesses as shown. Write Facts Found, Conclusions and Rules Applicable, and the Decision for this protest.

Please post your effort on LTW, for us all to share and learn. Don't be shy.

Written Protest -
1234 Amsterdam Avenger v 5678 Berlin Bandit


The parties' descriptions of the starting point of the incident agreed with the protest form diagram. The parties agreed that they were both doing about 6.5 knots.

Amsterdam Avenger's Description of the Incident

When we were about 2 lengths from Berlin Bandit I hailed 'starboard'. Seeing no response, I hailed 'starboard' again.

When we were half a boat length from Berlin Bandit we were pointing at their midships. I assessed that Berlin Bandit was not keeping clear and called 'ease main', and bore away to pass Berlin Bandit's stern.

We passed about 1m astern of Berlin Bandit, hailed 'protest' flew our red flag and resumed our close hauled course.

Berlin Bandit's Questions to Amsterdam Avenger

Q: Don't you think you passed 5m or more astern of us because you're not a confident helmsman and wanted to give us a wide berth.

A: No, we were only 1m away because I felt my boat Amsterdam Avenger react to your stern wave.

Berlin Bandit's Description of the Incident

When we were about 2 lengths from Amsterdam Avenger I heard them hail 'starboard'. I assessed that we would pass ahead of Amsterdam Avenger and held my course.

I then heard a further hail and continued to hold my course.

Amsterdam Avenger then did a massive unnecessary bear away and passed at least 5m astern of me.

Amsterdam Avenger is a well known 'nervous nellie' and could have safely passed astern of me if he had held his course.

Amsterdam Avenger's Questions to Berlin Bandit

Q: Is it possible you are exaggerating when you say Amsterdam Avenger did a 'massive' bear-away?

A: Maybe.

Q: How do you maintain good boat speed when sailing to windward?

A: By concentrating on the headsail luff, inclination, and mast-mounted knot-meter (speed indicator).

Q: What is your steering position on Berlin Bandit?

A: Standing up behind the wheel.

Q: If you were standing up behind the wheel, concentrating on your headsail and speed indicator in front of you, how could you see how far behind you Amsterdam Avenger passed?

A: I just sort of felt it.

Amsterdam Avenger's witness evidence

I was trimming the mainsheet on Amsterdam Avenger, sitting on the windward deck beside the wheel.

I heard the skipper say 'Berlin Bandit is coming on port and is close'. I then heard the skipper hail 'starboard'. I could not then see Berlin Bandit because of the headsail.

I heard the skipper say, 'if we duck, we'll duck close, one trimmer down for the duck', then he hailed 'starboard' again.

I then saw Berlin Bandit's bow around the headsail, about half a boat length away.

Then the skipper called 'ease main', I eased the mainsheet, and we did a controlled fast bear-away passing about 1m behind Berlin Bandit's stern.

Berlin Bandit's Questions to Amsterdam Avenger's Witness

Q: What made you think we were at risk of collision?

A: When I first saw Berlin Bandit's bow around our headsail, half a boat length away, I realized that in the time it would take us to travel half a boat length, Berlin Bandit could not travel any more than half a boat length, and thus could not pass clear ahead of us.

Q: Isn't it true that you set up and began to bear away about two boat lengths away when your skipper hailed starboard the first time?

A: No.

Berlin Bandit's Witnesses

Berlin Bandit had no witnesses.

Protest Committee's Assessment of the Evidence

Your fellow protest committee members agreed that Amsterdam Avenger's evidence, particularly where corroborated by Amsterdam Avenger's witness was preferable to Berlin Bandit's evidence.
They also agreed that Berlin Bandit's opinion, that Amsterdam Avenger's bear away was 'massive' and 'unnecessary' and that Amsterdam Avenger is an excessively conservative skipper, was not supported by the evidence and was of little worth.


  1. AA V BB
    Both boats were doing 6.5kts with AA on starboard and BB on port on a beat.
    When AA was 2 lengths from BB she hailed starboard, which was repeated.
    When AA was ½ a length away pointing at amidships of BB she altered course to pass astern of BB
    The boats passed with a separation of 1 metre.
    BB never altered course.
    (ISAF case 50)AA had a reasonable apprehension of a collision with BB and had to alter course.
    (RRS 10) BB failed to keep clear.
    BB is disqualified.

    Time: 5 minutes
    Mike B

  2. Facts Found:

    Incident takes place in open waters approximately half way up the windward leg.
    AA was close hauled on starboard tack.
    BB was close hauled on port tack.
    AA’s and BB’s boat speeds are each approximately 6.5 knots.
    Wind speed is approximately 10 knots.
    There is no current.
    AA hailed starboard twice.
    BB heard both of AA’s hails.
    BB did not alter course.
    AA altered course to pass astern of BB.
    The diagram of the incident submitted by BB is endorsed by the committee.


    AA and BB were on a collision course.
    AA bore away close astern of BB to avoid contact with BB.
    BB on port did not keep clear of AA on starboard. BB broke rule 10.


    BB is disqualified from race #1.

  3. Facts Found
    1. The protest committee found the protest was valid.

    2. Wind was 10 kts.

    3. Amsterdam Avenger, close hauled on port, was sailing on a converging course with Berlin Bandit on starboard.

    4. When she was half a boat length from Berlin Bandit, Amsterdam Avenger changed course to avoid contact with Berlin Bandit.

    5. Berlin Bandit did not change course.

    6. Amsterdam Avenger passed within 1 m of the stern of Berlin Bandit.

    7. If Amsterdam Avenger had not changed course there would have been contact.

    Berlin Bandit on port did not keep clear of Amsterdam Avenger on starboard. Berlin Bandit broke rule 10.

    Berlin Bandit is disqualified.

    Time Taken 11 minutes.

  4. Bras said under facts found.

    7. If Amsterdam Avenger had not changed course there would have been contact.

    What evidence is there to say this is a fact rather than a conclusion?


  5. Facts include facts that which you infer or deduce from the direct observation evidence. Inferences and deductions from facts are Facts Found, Conclusions are only what results form applying the rules to the facts.

    See Case 104 Answer 1.

    You have to draw the line between facts and conclusions somewhere. Drawing it between rules applications and other inferences reduces the amount of 'conclusions' and focuses on the rules application.

  6. Is "The protest committee found the protest was valid" a fact nowadays? My idea is that if the pc has knowledge of the other facts, this implies that the protest was valid. Only "The protest committee found the protest was not valid" can be a fact.

  7. Mike B,

    Congratulations on your superior speed. Maybe we'll have to give you a Yardstick Handicap.

    You found facts about hailing. What difference would it have made to your decision if you had not found these facts?

    You concluded that AA had a reasonable apprehension.

    Firstly, I can't see which particular facts underly this conclusion. I think that this is actually a fact about AA's state of mind, and, if we're going there, we need a fact that AA had an apprehension, then a fact or conclusion that the apprehension was reasonable.

    Secondly and more importantly, was the reason you made this conclusion because:

    a) you could not conclude that S needed to take avoiding action; or
    b) did you go straight to considering reasonable apprehension, so that you did not consider whether S actually needed to take avoiding action at all?

    Couldn't you have decided this without Case 50?

  8. Adriaan,

    That the PC reached a decision about validity and what the decision was are certainly facts.

    I cannot fault your very clever logic that once a PC takes evidence, publishes facts found etc, this would normally imply that they had found the protest valid. But, I have beeen in protests (and more particularly redress hearings), where validity has been forgotten, and I have seen appeals that start with the proposition that because the PC did not say that it was valid, the protest must have been invalid and the whole hearing wrongly decided.

    Here, we are accustomed to word processing PC's decisions, and printing them on paper separately from the Protest Form. I think it's useful to plainly state the validity decision on the published document.

    Arguably it's a conclusion or a decision, but I prefer to 'misplace' it at the start of Facts Found, so that it doesn't clutter up the Conclusions and Decisions.

    Of course if the protest was invalid, then there would be facts about that, an appropriate conclusion about invalidity and a decision hearing closed.

    Anyone else got any thoughts about this?

  9. Dear Brass,

    Beware of these appeal committees! When there are clear indications that you are a man, but you do not tell them, you will be noted as a woman.

  10. Adriaan,

    It was the appeal submitted by the party, not the decision.

    I'm quite happy with my appeals record at the moment: I've just had a protest invalid decision where the protest was submitted five days after the protest time limit upheld on appeal.

  11. Dear Brass,
    You said: “It was the appeal submitted by the party, not the decision.” I do not understand these words. Do you mean it was an appeal not followed by a decision? If so, in my opinion useless as an argument/example/foundation etcetera.

    To remember, you said “… and I have seen appeals that start with the proposition that because the PC did not say that it was valid, the protest must have been invalid and the whole hearing wrongly decided.” As I understood now, this were no appeals followed by hearings en upheld decisions. My conclusion: the value of this information is zero.

    You also said: “That the PC reached a decision about validity and what the decision was are certainly facts.” But no explanation, RRS-article, no case or what so ever.

    Dear Brass, in politics, sports, management, science, yacht racing rules, etcetera authorities does not exist anymore these days; if one wants his statements to be taken seriously, one has to provide – controllable – burden of proof.

    And, besides this, it is your duty to do so to show you take the comments seriously.

    Another remark: Mike B and Dick were the only two who react to the issue. That is not much. I think rules professors do not like to answer questions in world wide public. They are afraid to blunder and loose prestige. The use of pseudonyms is already a clear sign of uncertainty.

  12. Adriaan,

    When I said 'I have seen appeals ...' I was using 'appeals' in the sense that it is used in rule 70.3, meaning the piece of paper sent to the MNA, that is, what the appealing party said. I was not referring to the appeal decision.

    Case 104 Answer 1, to which I referred above discusses facts and conclusions.

    To try and make it clearer:

    Facts are not just physical facts.

    'Boat P was on port tack' is a fact.

    'The skipper of Boat P believed that Boat P was on starboard tack' is, if proved, a fact, even if it is not true that Boat P was on starboard tack. The fact is the state of mind of the skipper.

  13. Brasws said.

    "The skipper of Boat P believed that Boat P was on starboard tack' is, if proved, a fact, even if it is not true that Boat P was on starboard tack. The fact is the state of mind of the skipper."

    I would have thought that the state of mind of a party or witness to a hearing was more on the line of being testimony or an allegation the party or witness thinks is true. Unless you are saying that a a parties testimony and allegations and a state of mind are one and the same?

  14. Just to make concrete why state of mind can be important, think of the 'reasonable apprehension requirement' in Case 50, and the 'deliberately hails "Starboard" when she knows she is on port tack' requirement in Case 47.

    Testimony is what a witness says. The witness's state of mind is intangible and can only be inferred from what is said, done and seen.

    Testimony can be evidence of state of mind, for example, that a certain time, a person held a certain opinion (whether or not that opinion was right, wrong, or arguable).

    That the person held the opinion is a fact.

    What the opinion was might be a fact or remain merely an opinion.

    Try this.

    A protest committee's conclusions and decision are opinions about how the rules apply to the facts found.

    But once the protest committee announces its decision:

    1) it is a fact that the protest committee has made a decision; and

    2) it is a fact that the decision consists of what was announced.

    The existence of these two facts says nothing about whether the decision was correct, and they would still be facts if the decision was wrong.


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