Monday, 3 August 2009

Sneekweek 2009 Monday

I'm currently chairing the protest committee for the Sneekweek 2009. A big event on inshore water for one of my local clubs the KWS (Koninklijke Watersportvereniging Sneek). We have 760 boats in 36 classes, who do one race per day.

The discussion in our daily meeting this morning focussed on two issues.

The first one:

How far does the PC have to investigate a rules infringement which is not mentioned in the original protest but does happen within the same incident?

As an example: A boat alleges that the outside boat has not given mark-room after a luffing dual close to the zone. The PC finds as fact that the leeward boat did not enter the zone before bearing away and did give mark room. But because of another boat, which already passed the mark there might be a rule infringement of rule 19. The outside boat should perhaps have given more room for the inside boat to also pass to windward.

Regardless of the outcome of this example: The basic question is: Should this be investigated by the PC when both parties (and of course specially the ROW-boat) have no issue with this?


A boat is being protested and during or shortly before the hearing it decides to retire from the race. Nevertheless the protesting party wants to go through with the hearing because there was damage and he wants something on paper to send to the insurance.

Should the decision be: Protest dismissed? Or should the decision be: Protest is upheld, but there's no penalty because boat X has retired?

Please leave your comments.

I've been away from the blog for a couple of weeks - just didn't have inspiration and took a short break. I'll try to get things going again.


  1. :-) Hi Jo,
    welcome back.... missed you and your expertise...please do not go missing again.....
    if any inspiration required i shall try to help you ;-)


  2. I expect the protest committee to consider the whole incident, not just the specific accusation of the protester. If the facts about a broken rule came to light, rule 64.1a seems to require a penalty.

    If the protested boat retires after finishing, the protestor is not required to withdraw the protest. If it is a valid protest the PC must hear it and decide on it.

  3. On the second one, all protests must be heard unless withdrawn (see last sentence of RRS 63.1). So, the hearing proceeds and if the boat that retired after finishing is found to have broken a rule, it can not be further penalized - see RRS 64.1(b) - since she has acted in accordance with RRS 44.1(b)EXCEPT if the PC finds that she has broken RRS 2.

    On the first issue, once a hearing is in process, everthing is fair game and should, if raised by any of the parties, should be investigated. If another boat is involved, the PC will have to decide whether it should be made a party to the hearing. If so, the hearing must be suspended and the additonal boat notified and given an opportunity to attend. See RRS 63.3(a).

  4. The secondly case happens occasionally at small boat regattas and frequently at big boats in particular.

    I usually refer to the guideline which is described in US sailing Judges Training Workshop presentation as follows;

    Approving Protest Withdrawal
    • Protestor decides no rule broken
    • Either party has taken a penalty (including retiring) for incident
    • When arbitration is used successfully
    • When obviously invalid

    Disapproving Protest Withdrawal
    • Contact, other than incidental
    • Significant advantage may have been gained
    • There is another protest for the same incident
    • Pressure may have been applied to protestor

    The secondly case is aplicable to "contact", then the PC must hear it and decide on it.

    sen yamaoka
    from terrible heat city Osaka, Japan, now over 35 degrees centigrade, humidity 40 percent.

  5. @ ‘A boat is being protested and during or shortly before the hearing it decides to retire from the race.’ You close the official hearing, but continue with what you were doing. At the end you do not give a decision, but a paper with the protest committee’s opinion about the case.

  6. A Paper? I am inclined not to agree with my colleague Mr. Pels unless he can show me the paper that directs the PC to do that.

    I had a protest where there was contact and an injury. Both boats protested the other boat.

    The sailing instructions had a SI that said “The Race Committee shall be notified, while on station at the finish line, of a yacht's intention to file a protest except, when the yacht intending to protest is unable to complete the race.”

    Both boats completed the race and were scored and neither boat notified the race committee of their intent to file a protest.

    The protest was declared invalid for not complying with the SI. The parties were very distraught since now neither would have a PC decision to show their insurance companies.

    In consideration of the SI we could not find a way to have a protest since it did not pass the validity teat. Is there something that could have done to get by that SI and proceed with a hearing that would not be nullified on appeal?

  7. @ Dick. The PC does not have to do that. But is it not allowed? It is a service, not a rules item. And insurance companies welcome a paper with the report/opinion of the PC.
    The practise will be, as the PC has to hear all protests, the PC will start a hearing, but a found fact shall be: protestee retired; conclusion: protestee took the required penalty, no need, c.q useless, to proceed; decision: the hearing is over, protest dismissed.
    When the protestor wants something on paper to send to the insurance company, it is not a rules item, but an insurance item. Is there something in the rules about insurance protests? An alleged breach of a rule shall be the item of a protest and what is the breach when a boat, in accordance with the rules, retires after the incident?

  8. Hi Jos, great to hear from you.

    Second part first.

    The PC must hear all valid protests (rule 63.1) and if it decides that a party has broken a rule shall penalise her unless some other penalty (including retirement) applies (rule 64.1). What the PC 'decides' is whether the party breaks a rule. If the PC decides that a boat broke a rule, it must, if requested provide the decision in writing (rule 65.2).

    First part.

    I think you have two 'incidents', or potential incidents: one failing to give mark-room, and the other failing to give room at the starboard tack obstruction.

    US Appeal 65 explains a method of deciding one or two incidents.

    APPEAL 65
    Flying Scot 80 vs. Flying Scot 112
    Rule 61.1(a), Protest Requirements: Informing the Protestee
    The test of whether two occurrences were one or two incidents is whether the second occurrence was the inevitable result of the first. A boat intending to protest another boat for two incidents during a race, no matter how close in time, must inform the protested boat that two protests will be lodged.

    Having learnt of the second incident in a valid protest the PC should give the protestee notice and allow her any additional time necessary to prepare to defend the new protest before proceeding.

    But I have to ask, if the protestor does not at any time allege that the protestee did not give room at the obstruction, how can the PC form an opinion that there was a second incident?

  9. Adrian,
    I have not been involved in an incident where there was damage that would lead to a claim being made to a insurance company so I cannot speak to how insurance companies consider the decisions or opinions of protest committees when they settle claims. If the insurance companies do accept PC decisions, or opinions without a protest hearing, are they accepting the PC as a kind of expert witness? And what if the loser of the opinion voices an objection to the opinion. how does he appeal an opinion?

    You said;
    “An alleged breach of a rule shall be the item of a protest and what is the breach when a boat, in accordance with the rules, retires after the incident?”

    In the USA we have a prescription to RRS 68 that says:
    (a) A boat that retires from a race or accepts a penalty does not, by that action alone, admit liability for damages.
    (b) A protest committee shall find facts and make decisions only in compliance with the rules. No protest committee or US SAILING appeal authority shall adjudicate any claim for damages. Such a claim is subject to the jurisdiction of the courts.
    (c) A basic purpose of the rules is to prevent contact between boats. By participating in an event governed by the rules, a boat agrees that responsibility for damages arising from any breach of the rules shall be based on fault as determined by application of the rules, and that she shall not be governed by the legal doctrine of ‘assumption of risk’ for monetary damages resulting from contact with other boats.

    I interpret this prescription to say that I must apply the rules, not opinions, and, that a boat that accepts a penalty of RAF, does not admit to breaking a rule or admit liability for damages.

    I think O’Hara, Elliot and Sen and got it right when they said proceed with a hearing, find facts, make conclusions and render a decision. Though the party may not be penalized further he still can be found to have broken a rule(s) in a hearing.

  10. @Dick. As you did not refer to a racing rule and as the national authority in the USA I presume, found it necessary to design a prescription to RRS 68, my opinion is supported that there is nothing in the ISAF rules about insurance protests. It makes things easier when you have, or have adopted in one way, this prescription, but when you have not you have to deal with the racing rules. And in my opinion when a boat during, or shortly before the hearing, decides to retire from the race, there is no protest anymore. Having in spite of that a hearing or going through with the hearing, is not respectful to the retired boat and the rule that makes retirement possible.
    Jos’ question already indicates that it was not in the first place the PC’s decision to proceed the hearing, she did so after the protesting party wanted to go through with the hearing (because there was damage and he wants something on paper to send to the insurance, not because of a rule technical matter).
    Discussing about what the PC should do when a rule is broken, is not possible as there is no hearing or a complete hearing, so the PC does not know whether a rule is broken or not.
    I must admit it is many years ago, but in my time a PC was (in Holland) indeed accepted as a kind of expert panel by insurance companies. Or the sailors expected that they would do. I remember an invalid protest, but on request of both parties we had an investigation and put our findings on paper.
    I did not say that the PC should give her opinion without a hearing; I said an official hearing (within the rules). There will be an unofficial hearing and of course the protestee will be invited to be there. And about an appeal: by retiring the protestee gave up the possibility to appeal, because there will be no hearing and no decision to appeal.

  11. @Brass. The duty of the PC is "... find the facts and base the decision on them" (RR 63.6). In my view a decision can be "The protestee did retire so it was not possible to obey rule 64.1; protest dismissed." Who will challenge this decision? The result will most likely be the same when you have a hearing, judge the situation after which the protested boat retired, and practise RR 64.1. By the way, RR 64.1 does not say "... it shall penalise her ...", but "... it shall disqualify her ...". Will you have the possibility to disqualify a retired boat?

  12. Adriaan,

    How about ISAF Cases 99 and 107 I believe they confirm that a protest hearing can be held regardless if a boat has retired and accepted a penalty of RAF.

    Then in the US we have US Sailing Appeal 56 which very clearly has a protest hearing and a boat being found at fault, though not penalized further, when the protested boat retires.

  13. @Dick. Sorry, I do not see IYRU Cases 99 and 107 tell us that you 'have' to hear a protest although the protestee retired. In my view both cases indicate that it is useless tot protest a retired boat. For other readers who has not the appeals by hand a summary of both cases.
    Both cases refer to Section B - General Limitations, Rule 14, Avoiding Contact. Case 99 ends with: "When a boat's penalty under rule 44.1(b) is to retire, and she does so (whether because of choice or necessity), she cannot then be disqualified. And case 107: "When a boat's breach of a rule of Part 2 causes serious damage and she then retires, she has taken the applicable penalty and is not to be disqualified for that breach."
    I do not know US sailing appeal 56, as US Sailing do not let me download the appeal book, as I am not a member. But I think we must not take national appeals in consideration, they are for the locals in the first place and make worldwide discussions very complicated.

  14. After searching Cases 99 and 107 for more words to use to sway Adriaan I realized that neither of those cases refers to a party that voluntarily accepts a score of RAF after finishing the race but rather simply retired (left the race course) after an incident and were ultimately scored DNF.

    Leaving the race course (retiring) is different from a score of RAF, the situation Jos got us started with. But, probably no matter for our discussion.

    For reference US Sailing Appeal 56 says, in part:

    “If a boat retires in acknowledgment of breaking a rule, she thereby takes a penalty and the protest committee is prohibited by rule 64.1(b) from penalizing her further. However, the rules do not prohibit protesting a boat for an incident after which she retires in acknowledgment of breaking a rule. If valid, the protest must be decided, even though the protest committee is prohibited from imposing any additional penalty on the boat that retired, unless the penalty for a rule that she broke is a disqualification that is not excludable from her series score.”

    If I have not lost sight of the original question it is; “Can or should a race committee proceed with a hearing when the protestee accepts a score of RAF before or during a hearing?”

    I say the answer is the PC MUST proceed with a hearing and I cite Rule 61.3 that says the protest committee SHALL hear all protests that have been delivered to it unless it allows the protest to be withdrawn. So, if the protestor does not make a request to withdraw, or the request to withdraw is not granted, the protest, if valid, must be heard, regardless if the protestee has retired after finishing.Rule 61.3

  15. @Dick. I think our discussion have come to an end. US Sailing Appeal 56 is very clear indeed. But it also indicates that the ISAF rules apparently need such a guideline. Following it brings most of the time unnecessary work and can have some unforeseen effects, as disqualification of the protestor (RR 14) or in case he broke a rule and not the protestee, and may be the result is an appeal. While life can be so easy in my view. Do you know the reason for this unique publication (was the ISAF not interested?)? Anyhow, sorry for all the work I gave you

  16. Adriaan,

    I agree. the end with these words.

    I now also wonder why ISAF has not incorporated US Sailing Appeal 56 as a Case. Perhaps they believe that cases 99, and 107, and rule 61.3 is all the guidance a PC needs? Don’t know anything about Appeal 56 other than it is from an Appeal in 1987 abd is still in our Appeals book.

    No work at all. Every rules discussion I have teaches me more about the rules and Cases, especially the rules and Cases relevant to the discussion. For me any discussion is especially fruitful when I have to search for the rule or case that will support my interpretation. And, as were the Fact Finding Friday exercises, an opportunity to further develop my skill in crafting and writing arguments, opinions, facts, conclusions and decisions.


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