From "The Room" by Brass
Introduction
The aim of this series is to practice judge's 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.
Problem
You are the scribe for the protest committee of the LTW Yacht Club, which races in the Liberty River. You have received the written protest as shown, decided it is valid, and have heard both parties and witnesses, and have recorded the Facts Found as shown.
You realize that you do not have sufficient Facts Found to decide the protest. What questions do you need to ask parties and witnesses to discover the necessary missing facts? You might like to refresh your memory about questions by re-reading Judges Manual 9.18.
Suppose you receive consistent replies to your questions to enable you to decide the protest. Write the additional 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.
Protest Form Section 7 – Description of Incident
- Approaching the bend in the river bank Dublin Delight gybed from Starboard onto Port clear ahead of Copenhagen Charmer, who then also gybed onto Port.
- Copenhagen Charmer sailed into the gap between Dublin Delight and the shore and hailed for room to pass the obstruction.
- Dublin Delight luffed Copenhagen Charmer into the river bank so that there was contact and both became stuck in the mud.
Partial Facts Found
- Dublin Delight and Copenhagen Charmer were running towards a bend in the river bank on port tack with Copenhagen Charmer clear astern of Dublin Delight.
- After her gybe Dublin Delight leaves a gab between her stern and the shore.
- Copenhagen Charmer becomes overlapped between Dublin Delight and the shore and calls for room to pass.
- Dublin Delight responds by luffing and there is contact between the boats which results in damage.
- Both boats hit the shore and get stuck.
You must write two additional facts before you can get to a conclusion. Decide those facts one way or another, and write your protest
As an additional exercise you can think about the questions you need to ask the parties to get to those two missing facts.
Brass will comment after a few days.
The Questions:
ReplyDeleteWhat were boat speeds?
Was there any current?
And, using my “Table Top Course Diagram” and 2-inch plastic boats I would ask the parties to place the boats on the diagram to show the position the boats were in when:
1. Copenhagen Charmer (CC) gained the overlap on Dublin Delight (DD).
2. When DD began to luff CC.
3. When contact was made.
4. When they went aground.
Hopefully both parties would agree on the same position of the boats.
If not, then during the deliberations the PC must construct a diagram that they think is the most probable position of the boats before during and after the incident.
Based on the diagram, and current if any, the PC can find additional facts that:
1. CC did, or did not, have room to pass between DD and the shore at the moment CC became overlapped.
2. DD did, or did not, give CC room to keep clear when he luffed CC?
Additional Facts Found:
CC a boat clear astern and required to keep clear of DD became overlapped to windward of DD between DD and a continuing obstruction.
When CC and DD became overlapped there was not room for CC to pass between DD and the continuing obstruction.
CC was not the right-of-way boat or entitled to room.
DD was not required to give CC room to pass between her and the continuing obstruction.
DD did not give CC room to keep clear when CC luffed.
Conclusions:
While CC remained overlapped with DD, when there was no room, and did not keep clear of DD, CC broke rule 19.2(c).
When DD, the right-of-way boat, changed course she did not give CC room to keep clear. DD broke rule 16.1.
It was reasonably possible for DD to avoid contact with CC. The contact caused damage. DD broke rule 14.
CC could not avoid DD and did not break rule 14.
CC to windward did not keep clear of DD to leeward. CC broke rule 11.
Decision.
CC is exonerated for breaking rule 11 under rule 64.1(c).
CC is DSQ’ed for breaking rule 19.2(c).
DD is DSQ’ed for breaking rules 14 and 16.1.
Time approximately 1.5-2 hours. When I went to the bar to announce the PC had made a decision everybody had gone home.
Fact Finding Friday, 3/6/09
ReplyDeleteQuestions:
How much room was there between DD and the shore when the overlap was established?
What course was each boat on when the overlap was established?
Did either boat change course after the overlap was established?
Additional Facts Found:
There were one and a half boat widths between DD and the shore when the overlap was established.
CC’s course was parallel to DD’s when the overlap began.
CC did respond and luffed when DD luffed.
Conclusions
There was room for CC to pass between DD and the continuation obstruction.
DD’s luff caused contact with CC.
Rules that Apply
DD, overlapped outside CC did not give CC room to pass between her and an obstruction. DD broke rule 19.2(b).
Contact caused damage or injury so DD broke rule 14.
CC to windward did not keep clear of DD to leeward.
CC broke rule 11, but is exonerated by 64.1 (c).
Decision
DD is DSQ and CC is exonerated.
An interesting part of this exercise is I noted 18 and 20 both include specific Exoneration rules, 18.5 and 20.2, but 19 does not have such a clause. So in this exercise I cited 64.1 (c) to exonerate CC. Because Part A rules are no longer turned off by Part C, I feel you should note when Part A rules are broken.
Thanks Dick and DW.
ReplyDeleteYou both identified the missing information, particularly whether or not there was room for CC to pass inside DD.
The point about the questions to be asked is important. You cannot just turn the rule or conclusion around to make a question. You can't ask witnesses 'was there room for CC to pass between DD and the shore?' The answer to that question is a conclusion, not a fact. The fact you are looking for is 'How far was it between DD and the shore?'.
Dick,
The last three paragraphs before your Conclusions heading are really conclusions: any proposition that relies on a word defined in the rules, or an obligation established by a rule is a conclusion.
Since you found that there was no room for CC to pass, then rule 19.2(c) applied, and rules 10 and 11 did not. CC broke rule 19.2(c), NOT rule 11.
DW,
If you wish to use a separate heading for Rules that Apply, then I suggest that you just list the rules by rule number. The complete sentances are Conclusions.
My preference is to follow each conclusion about breaking a rule with "X broke rule R", rather than list the rule numbers later. I think this focuses the PC's mind on what rules were broken by what actions.
Both Contributors,
Thanks for your effort. BTW, it took me 45 minutes to write my solutions to both cases. This was quite a complex problem.
Maybe next week's will be a little more straightforward.
Let's hope some more people give the next problem a try.
Brass said.
ReplyDeleteThe last three paragraphs before your Conclusions heading are really conclusions: any proposition that relies on a word defined in the rules, or an obligation established by a rule is a conclusion.
I assume you mean the last three items, 3, 4, and 5 of my Facts Found.
Also in my fact found #5 it should have said when DD luffed, not CC. A typo on my part.
I can now see how my fact found #5 is a conclusion and not a fact but...............
Case 104 in Answer 1 it says a fact is a condition the PC “finds” existed.
If from the diagram showing the position of the boats the PC finds that there was overlap between CC and DD, while on the same tack, and that DD was to leeward of CC, then can the PC say (as it seems Case 104 suggests) that it is a fact that DD was the ROW boat or conversely that CC wasn’t the ROW boat? And if my fact found #2 is a fact does it not follow that my fact found #4 is also a fact per Case 104? Is this a case where my facts found #3 and #4 are both facts and conclusions?
Then Brass said.
Since you found that there was no room for CC to pass, then rule 19.2(c) applied, and rules 10 and 11 did not. CC broke rule 19.2(c), NOT rule 11.
I find no rule that says that when rule 19 applies rule 10 or 11 do not. Yes CC broke 19.2(b)but shouldn’t it be correct that CC broke rule 11 also but is exonerated for rule 11 because DD broke 16.1? Perhaps a moot point but still she broke rule 11, so shouldn’t the PC includes this finding in the decision even if she is exonerated and it is a moot point?
Wait a minute Brass. You can forget the second half of my post. After all that profound thought I just`read the last sentence of 19.2(c) and see where it does say that rules 10 and 11 do not apply. The last sentences of the rules trip me up when I fail to finish reading the whole rule.
ReplyDeleteSO I guess the rules say that 19.2(c) is like a Section A rule because it requires a boat to keep clear?
As far the rules go; rule 19.2(c) is now the only rule which "overrules" the standard right of way rules. Have look at http://members.home.nl/jmspijkerman/PRESENTATIONS/Section presentation Nov08.pdf on page 19.
ReplyDeleteCase 104 says conclusions can be facts, mixtures of fact and judgement or purely non-factual.
ReplyDeletePhilosophically a fact can be a conclusion, a conclusion can be a fact.
Practically we are trying to establish a style convention about what goes where in a written document with boxes for 'Facts Found' and 'Conclusions'. We need to get a little arbitrary.
My suggested criterion for what goes under the Conclusion heading is 'anything that requires the application of the rules (or a complex definition like keep clear or room) to simple facts'. Anything else goes in Facts Found.
Another approach is to use the Protest Conclusion Wordings tool. Choose the rule and the Conclusion wordings that apply and put those in Conclusions: everything else goes in Facts Found.
If a party doesn't like it, they can always try to use Case 104 to persuade the Appeals Committee that what you have put in Facts Found isn't a fact and is appealable. Good luck to them.