Friday 20 March 2009

Fact Finding Friday | 004 - Georgetown Gertie v Islamabad Isabel and Jakarta Jane

From “the Room” by Brass

Introduction

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.

Hearing and Evidence

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.

You have comprehensively listed Facts Found and the protest committee members have agreed to endorse the attached diagram, helpfully provided by an IJ who was representing one of the boats at the hearing.

clip_image002

Legend: Blue Georgetown Gertie; Yellow Islamabad Isabel; Green Jakarta Jane; Grey Havana Hannah

Facts Found

  1. Islamabad Isabel and Jakarta Jane approached the windward mark to be rounded on port on port tack, 2 to 3 boat lengths to windward of the port tack layline, Islamabad Isabel to leeward of and overlapped with Jakarta Jane.
  2. Georgetown Gertie approached the windward mark on port tack about 4 boat lengths below the port tack layline, to leeward of Islamabad Isabel.
  3. Havana Hannah approached the windward mark, on starboard tack, one boat length to windward of the starboard tack layline and hailed 'starboard' to Georgetown Gertie.
  4. Georgetown Gertie tacked onto starboard in response to Havana Hannah’s hail.
  5. Georgetown Gertie completed her tack onto starboard clear ahead and directly in front of Havana Hannah, before reaching the zone.
  6. Georgetown Gertie entered the zone on Starboard Tack
  7. Georgetown Gertie, in tacking onto starboard, initially gave Islamabad Isabel room to keep clear.
  8. Georgetown Gertie sailed on starboard tack for 3 boat lengths before reaching the mark
  9. Georgetown Gertie, realising that a collision with Islamabad Isabel was imminent, luffed in an attempt to avoid a collision.
  10. Collision occurred, with both Islamabad Isabel and Jakarta Jane, both on port tack, striking Georgetown Gertie on the port side
  11. The bow of Jakarta Jane struck Georgetown Gertie port side, 5m forward of the stern
  12. The bow of Islamabad Isabel struck Georgetown Gertie port side, 1.7m forward of the stern
  13. Significant damage was sustained by Georgetown Gertie, and she was forced to retire.
  14. Neither Islamabad Isabel nor Jakarta Jane sustained significant damage
  15. Islamabad Isabel then passed astern of Georgetown Gertie, forcing Havana Hannah to luff sharply to avoid a collision
  16. There was no contact between Islamabad Isabel and Havana Hannah
  17. Jakarta Jane cleared herself from Georgetown Gertie, tacked onto starboard, rounded the mark and completed the course
  18. Islamabad Isabel tacked onto starboard, rounded the mark, executed a two turns penalty and completed the course

Problem

Write Conclusions and Rules Applicable, and the Decision for this protest. Given the Facts Found and a diagram, you should be able to polish your conclusions and decision off really quickly.

Bonus marks for identifying 'facts found' that are a) irrelevant and b) really conclusions.

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

15 comments:

  1. Facts found

    Blue approached the windward mark to be rounded on port, on starboard tack.

    Green and Yellow approached (overlapped) the mark on port tack.

    Blue realising that Yellow and Green were not going to keep clear, luffed to avoid a collision.

    Blue collided with Yellow and Green.

    Significant damage was sustained by Blue and she was forced to retire.

    Green and Yellow cleared themselves from Blue, tacked onto starboard, rounded the mark and completed the course.

    Yellow executed a two turns penalty after rounding.

    Note: The attached diagram is part of the facts.

    Conclusions

    Green and Yellow broke rule 10 (port-tack boat shall keep clear of a starboard boat).

    Green and Yellow broke also rule 44.1 (b) (they caused serious damage so the penalty is retire).

    Decision

    Green and Yellow disqualified.

    ReplyDelete
  2. Hey Brass,

    There is no protest shown. Who is protester and what is the protest?

    ReplyDelete
  3. Dick,

    I could give you an answer, which I think is obvious, but first: Second paragraph above says you have a valid protest; What difference does it make who the protestor is?

    ReplyDelete
  4. Only to the extent that if HH has not protested II since I consider that incident separate from the incident between II, JJ and GG. So HH will not be a party to the hearing.

    Now I am off to the hearing room.

    ReplyDelete
  5. Conclusions:

    1. II and JJ, both on port tack, failed to keep clear of GG who was on starboard: II and JJ broke rule 10.

    2. II on port tack failed to keep clear of HH who was on starboard: II broke rule 10.

    3. GG took reasonable steps to avoid contact with II and JJ.

    4. Both II and JJ both failed to avoid contact with GG when it was reasonably possible for them to do so, and the ensuing contact caused damage.

    5. Both II and JJ were required to retire from the race, pursuant to rule 44.1(b) but failed to do so.

    6. JJ breached the principles of sportsmanship and thereby breached rule 2.

    Decision:

    II shall be scored DSQ.

    JJ shall be scored DNE.


    Irrelevant facts are:
    - The facts concerning HH's hail;
    - Finding 7;
    - The facts concerning laylines;
    - The facts about entering the zone;
    - The places where GG was struck;

    Finding 7 is also a conclusion.

    Finally, in respect of Dick's comment about HH, its doesn't seem to me to matter whether HH is a party or not, unless HH is liable to be penalised.

    ReplyDelete
  6. I assumed there was a protest Blue versus Green en Yellow, so an official decision should start:

    In the protest (#00) Blue versus Green and Yellow in race 00 the protest committee found the following facts:

    And the decision should read:

    Protest upheld; Green and Yellow disqualified.

    Although it is, and never was maybe, not in the rules as far I know, I still have in my mind: one incident per protest.

    ReplyDelete
  7. Dick,

    Now that you have written your conclusions and decisions what difference would there have been if HH had lodged a protest or had not lodged a protest?

    ReplyDelete
  8. First I will call my committee together at the beginning of the protest time limit and we will review the protests as they are received and logged in by the Jury secretary.

    During our “pre-hearing” review and discussions of the protests, the PC will identify the rules they believe will be key to making it’s decision, including questions that will need to be answered during the hearing to enable it to find facts and make conclusions.

    We agree that we will strive to ask no leading question and to ask no question that has already been answered by the diagram of the incident or by the testimony and evidence given by the parties or their witnesses.

    Further we will ask our fellow jury member, the "Contessa Rosita De Verona” to be our scribe and to record all relevant testimony given during the hearing.

    We receive three protests and one request for redress.

    Protest 1. Georgetown Gertie protests Islamabad Isabel for breaking rules 10 and 14.
    Protest 2. Georgetown Gertie protests Jakarta Jane for breaking rules 10 and 14.
    Protest 3. Jakarta Jane protests Islamabad Isabel for breaking rules 18.2(b) and 19.2(b).
    Request for redress is by Georgetown Gertie requesting redress under rule 62.1(b).

    We decide the three protests and request for redress are the same incident and we will therefore combine them and hear them simultaneously.

    At the conclusion of our deliberations we review the Contessa’s notes and discover that the Contessa has not recorded the answers to two questions that were asked by the jury.

    The questions and answers were.

    Question. What was lateral separation between Islamabad Isabel and Jakarta Jane, at the mark? Answer. About 1-2m.
    Question. What was the lateral separation between Jakarta Jane and the mark, at the mark? Answer. About 1-2m.

    We also sort through the Contessa’s notes and find the following facts to be not relevant to the protests.

    Facts #’s. 2, 3, 4, 5, 7, 8, 11, 12, 15, 16, and 17.

    We further find that Facts #13 and #14 will be included in our Conclusions and not as facts.


    CONCLUSIONS:
    Islamabad Isabel on port did not keep clear of Georgetown Gertie on starboard. Islamabad Isabel broke rule 10.
    It was reasonably possible for Islamabad Isabel to avoid contact with Georgetown Gertie. Islamabad Isabel was not the right of way boat or entitled to room. Islamabad Isabel broke rule 14.

    Jakarta Jane on port did not keep clear of Georgetown Gertie on starboard. Jakarta Jane broke rule 10 and rule 14.

    It was reasonably possible for Jakarta Jane to avoid contact with Georgetown Gertie Jakarta Jane was not the right of way boat or entitled to room. Jakarta Jane broke rule 14.

    It was not reasonably possible for Georgetown Gertie to avoid contact with Islamabad Isabel and Jakarta Jane. Georgetown Gertie did not break rule 14.

    Significant damage was sustained by Georgetown Gertie, and she was forced to retire.

    Neither Islamabad Isabel nor Jakarta Jane sustained significant damage

    Islamabad Isabel, overlapped outside Jakarta Jane did not give Jakarta Jane room to pass between her and Georgetown Gertie, an obstruction. Islamabad Isabel broke rule 19.2(b).

    Islamabad Isabel, outside overlapped at the zone did not give Jakarta Jane mark- room to sail her proper course, to tack at the mark. Islamabad Isabel broke rule 18.2(b).

    Islamabad Isabel did not take a Two Turns Penalty correctly in accordance with rule 44.2.

    Georgetown Gertie’s score was, through no fault of her own, made significantly worse by physical damage because of the action of a boat that was breaking a rule of Part 2.


    DECISION:
    Islamabad Isabel caused serious damage. Her penalty is to retire.
    Jakarta Jane caused serious damage. Her penalty is to retire.

    If Islamabad Isabel or Jakarta Jane do not retire the PC will DSQ them as follows.
    Islamabad Isabel is DSQ rules 10, 14, 18.2(b), and 19.2(b).
    Jakarta Jane is DSQ rules 10, and 14.

    Georgetown Gertie is awarded redress under 62.1(b) and is to be scored points for race 1 in accordance with A10(c).

    The hearing is closed.

    Now I must join the “Contessa Rosita di Verona” at the bar where we will find a quite corner and share a bottle of Bere Tuscan Red Viticcio.

    Time to discuss the testimony and identify the relevant facts from the Contessa’s notes.... 33 minutes
    Time to write the conclusions... 16 minutes
    Time to read the decision.....4 minutes.

    ReplyDelete
  9. If HH had filed a protest againt II it would have been a separate incident and a separate protest and therefore any facts found related to that protest would not be relevant to GG's protests against II and JJ or JJ's protest against II.

    ReplyDelete
  10. I join Dick assuming that there must be more than one protest. Which you can combine for the hearing. But the decisions must be separate. I wonder how all the evidence can come on the table in one protest, as Brass said, and which he thinks is obvious, well not for me. I hope Brass will give the details of that protest. I have the idea he did not give us a real protest but a bird’s-eye view of a situation with the question who is right and who is wrong and why.
    As I said, I chose one protest: Blue versus Green and Yellow.
    Dick, time to discuss the testimony, identify the relevant facts, write the conclusions, read the decision 53 minutes? Plus the actual hearing (and your ‘pre-hearing’) this protest kept you busy for possibly one and a half hour (Let’s hope no jury member has prostate problems). When you have ten protests that day, not unthinkable, you will never have a drink and a meal and a sleep at all.

    ReplyDelete
  11. Ah yes Adriaan, but I will be with the Contessa.

    I seem to recall hearing conflicting opinions from some judges as to whether a diagram of an incident, when endorsed by the Jury, is a fact found. I am not certain of US Sailing’s position on this.

    Someone said a picture is worth a 1000 words. Can the diagram of an incident be worth a 1000 facts founds?

    For example, in the diagram of the incident between GG, II, and JJ there are many facts to be found. And most if not all of these probable relevant facts were recorded by the Jury and included in their written facts founds.

    My question is; When facts can be derived from an endorsed diagram of an incident is it necessary to include those as written facts in the facts found section of the protest form? In our scenario it seems that facts # 1, 2, 3, 5, 6, 7, 8, and 9 are easily determined by the diagram. Could a PC write a few facts, ones not obvious from the diagram, and then say; “see endorsed diagram of the incident for further facts found”, when they have endorsed the diagram?

    I get the sense that US Sailing Appeals Committees are free to find additional facts from an endorsed diagram of an incident when deciding an appeal. How do other member nations or the ISAF treat the diagram of the incident?

    ReplyDelete
  12. Diagrams do comprise facts found when they are part of the IU exam! Mike B

    ReplyDelete
  13. Facts Found
    1. Islamabad Isabel and Jakarta Jane approached the windward mark to be rounded on port on port tack, 2 to 3 boat lengths to windward of the port tack layline, Islamabad Isabel to leeward of and overlapped with Jakarta Jane.
    2. Georgetown Gertie approached the windward mark on port tack about 4 boat lengths below the port tack layline, to leeward of Islamabad Isabel.
    3. Havana Hannah approached the windward mark, on starboard tack, one boat length to windward of the starboard tack layline and hailed 'starboard' to Georgetown Gertie.
    4. Georgetown Gertie tacked onto starboard in response to Havana Hannah’s hail.
    5. Georgetown Gertie completed her tack onto starboard clear ahead and directly in front of Havana Hannah, before reaching the zone.
    6. Georgetown Gertie entered the zone on Starboard Tack
    7. Georgetown Gertie, in tacking onto starboard, initially gave Islamabad Isabel room to keep clear.
    8. Georgetown Gertie sailed on starboard tack for 3 boat lengths before reaching the mark
    9. Georgetown Gertie, realising that a collision with Islamabad Isabel was imminent, luffed in an attempt to avoid a collision.
    10. Collision occurred, with both Islamabad Isabel and Jakarta Jane, both on port tack, striking Georgetown Gertie on the port side
    11. The bow of Jakarta Jane struck Georgetown Gertie port side, 5m forward of the stern
    12. The bow of Islamabad Isabel struck Georgetown Gertie port side, 1.7m forward of the stern
    13. Significant damage was sustained by Georgetown Gertie, and she was forced to retire.
    14. Neither Islamabad Isabel nor Jakarta Jane sustained significant damage
    15. Islamabad Isabel then passed astern of Georgetown Gertie, forcing Havana Hannah to luff sharply to avoid a collision
    16. There was no contact between Islamabad Isabel and Havana Hannah
    17. Jakarta Jane cleared herself from Georgetown Gertie, tacked onto starboard, rounded the mark and completed the course
    18. Islamabad Isabel tacked onto starboard, rounded the mark, executed a two turns penalty and completed the course

    2, 3, 4, 5, 7, 8, 11, 12, 14 16 & 17 are unneeded facts.

    Conclusions
    10. JJ failed to keep clear of GG
    14. JJ failed to avoid a collision when she could have done so.
    10. II failed to keep clear of GG
    14. II failed to avoid a collision when she could have done so.
    10. II failed to keep clear of HH but exonerated herself under 44.2
    19.2.b II failed to give room to JJ.
    64.1.c JJ is unable to be exonerated as she was not compelled to break a rule.
    Decision : JJ and II are disqualified.

    PC could consider redress for GG.

    ReplyDelete
  14. Dalliance with the nobility

    Dick, this problem was intended to give you the opportunity to improve your speed with writing conclusions, not your speed with good looking Countessas. As Adriaan has pointed out, you need to 'Speed up Gentlemen, Speed up'.

    My advice to anyone doing written problems is stick to the facts given and keep it brief.

    My advice to protest committees is: never invent facts.

    One incident or two?

    On one view, two port tackers carving through a starboard tack line-up at a windward mark can very sensibly be regarded as a single incident, albeit with numerous rule breaches. Alternatively it can be argued that there are two incidents.

    I think Adriaan is right. There were two incidents: one with Georgetown Gertie and a separate one with Havana Hannah. Jos discussed 'different incidents, different protests' here:

    Three Protest in the VOR 2008-2009 |3

    http://rrsstudy.blogspot.com/2009/01/three-protest-in-vor-2008-2009-3.html

    If there had been separate protests from Georgetown Gertie and Havana Hannah then the protest committee would have been sensible to combine them. This problem was based very closely on a live protest, and there was never any protest lodged by the outside starboard tacker.

    The 'separateness' issue is all about making sure that the protestee knows what she is accused of, and given proper time to prepare.

    If the protest committee wanted to penalise Islamabad Isabel for not keeping clear of Havana Hannah, in a perfect world, they should have given notice and time to prepare in respect of the Havana Hannah incident to Islamabad Isabel. This could be given face to face in the hearing, and it would be reasonably expected that little or no additional time would be necessary.

    But, given that there is an open and shut case against Islamabad Isabel with Georgetown Gertie, if the protest committee did not do so, Islamabad Isabel is disqualified in any case.

    Thanks Mike B for coming up with the inventive solution that Islamabad Isabel's two turns exonerated her for the Havana Hannah breach, which left her outstanding for Georgetown Gertie, but I think that's a bit too subtle. I bet if you had asked Islamabad Isabel what the turns were for she would have claimed for Georgetown Gertie and completely overlooked the Havana Hannah breach. But the protest committee never asked.

    Bottom line is two careless thoughtless boats that blatantly broke rule 10 deservedly got disqualified.

    Exoneration under rule 44

    We agree that the penalty for Jakarta Jane and Islamabad Isabel was to retire, not a turns penalty because damage was caused. rule 44.1(b) relies on 'serious' damage. The fact found mentioned 'significant' damage, but went on to say that Georgetown Gertie was 'forced to retire'. I'm certainly satisfied that 'significant damage' that forces a boat to retire is 'serious.' It would have been better if the Fact Found had used the word 'serious'. Use the words in the rules where possible.

    Rule 2

    John G,

    Rule 2 is thought-crime terriotory.

    On what Fact Found do you base your conclusion that Islamabad Isabel broke rule 2?

    Rule 2 itself and Judges Manual 12.1 remind us that 'A boat may only be penalised when it is clearly established that this rule has been broken.' What 'principle' do you say is broken?

    If Islamabad Isabel submitted a request for reopening and stated:

    'At the time, my understanding of the racing rules, which I now admit to be incorrect, was that I was an inside boat entitled to mark-room from Georgetown Gertie.'

    What would you say?

    Are you suggesting that a genuine misunderstanding of the rules is somehow a breach of sportsmanship? If so, I would strongly disagree with you.

    Redress Issue

    Thanks Dick and Mike B for identifying the issue of Georgetown Gertie's entitlement to redress. Facts Found were a bit inadequate on this, but Georgetown Gertie certainly deserved redress.

    Conclusion stated as a fact

    Fact 7 that Georgetown Gertie gave Islamabad Isabel room to keep clear is a conclusion. The supporting facts would have been: 'When Georgetown Gertie completed her tack she was x metres from Islamabad Isabel.'

    Relevant and irrelevant facts

    The difference between 'irrelevant' and 'superflous' facts is important.

    In my opinion, the only facts that are irrelevant are Fact 3 about hailing, and fact 14 about lack of damage to Islamabad Isabel and Jakarta Jane.

    The other facts that many identified (2, 3, 4, 5, 8, 11, and 12) are, given that there is a detailed endorsed diagram, superfluous, but they are not irrelevant. If the diagram had not been provided all of these facts would have been very necessary.

    Nearly everyone suggested that the details of where contact occurred were irrelevant. Given that it was necessary to decide whether or not it was reasonably possible for Georgetown Gertie to avoid contact, the protest committee needed some facts to make this conclusion, and, I would suggest, where the contact occurred was relevant and essential to this conclusion.

    A word about diagrams. Once a diagram is accepted or endorsed by a protest committee, it contains Facts Found. See Bryan Willis article

    Evidence and the facts

    http://rrsstudy.blogspot.com/2008/02/evidence-and-facts.html

    But diagrams can be deceptive, particularly about distances and dimensions. A diagram is only a sketch. It will only reliably show distances that the drawer has obtained evidence of. Before relying on any distance at a particular point in a diagram, a protest committee is well advised to ask specific 'how far' questions and rely on specific answers.

    Additional Protest rule 19

    Dick suggested that Islamabad Isabel broke rule 19, by not giving Jakarta Jane room to pass astern of Georgetown Gertie, a starboard tack boat and thus an obstruction. I think that is a bit of a stretch. Up to the time of the contact, neither Islamabad Isabel nor Jakarta Jane were 'passing' the obstruction constituted by Georgetown Gertie: they were heading right for her. Thus Islamabad Isabel was not outside boat and rule 19.2(b) did not apply. As Islamabad Isabel and Jakarta Jane struggled free of the tangled ruin, there is no evidence that Islamabad Isabel failed to give Jakarta Jane room to sail on around Georgetown Gertie's stern.

    Expression of protest committee's decisions

    In deciding a protest a protest committee:

    • Closes a hearing for invalidity (rule 63.5)

    • Disqualifies or penalises a boat that has broken a rule (rule 64.1(a)

    • Exonerates a boat for breaking a rule (rule 18.5 or 64.1(c)), otherwise

    • Dismisses the protest (Protest Form).

    Only in granting redress, may a protest committee decide the score of a boat, otherwise that is the function of the race committee.

    A protest committee does not 'uphold' a protest. That is the function of an appeals committee which may 'uphold' a decision of a protest committee under rule 71.2. Use the words in the rules.

    Conclusion

    Thanks everyone for taking an interest in this problem, and thanks Dick for spicing things up with the Countessa.

    ReplyDelete
  15. Dear Brass,
    I googled “protest upheld” and the result was 2100 hits. The wording is used in all kind of sports, including sailing and even the ISAF was there with “… the protest was upheld by the jury …”. How can?

    ReplyDelete

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