Thursday, 4 February 2010

AC 33 Jury | 4

The AC 33 Jury has given their decision on the request(s) for redress from USA 17. The eight page published document gives us some insight in their thinking.
For those of you who want to read it first: Jury Decision AC33/001
The first issue is the validity. How can a request for redress be considered before a race has been sailed? Before there’s any score – let alone made significantly worse.
I wrote about this in an earlier post on LTW: Redress about amended AC33-NoR and SI?
The AC 33 Jury found a solution. Quoting:
9. The Jury determines that the words ‘possibility that a boat’s score’ used in RRS 62.1 permit the Jury to consider a Request for Redress before the race.
A nice clean solution.
Or is it?
In my opinion it does change rule RRS 62.1!
Instead of a score that “…has been made…” significantly worse, this now also is a score that … could be made … significantly worse.
This means that when a Notice of Race is published and/or the Sailing Instructions, boats now can request redress before any races and the Protest Committee/International Jury will have to conduct a hearing. There’s no issue with any time limit, a request for redress can be delivered within the protest time or two hours after the incident, whichever is later.
As long as it is in writing, the PC/IJ will have to look at it.
In my experience most Jury’s do not convene until just before the event and most PC’s are only formed after racing. The OA, the RC and the Jury/PC will all have to think about a different approach accordingly.
The AC 33 Jury considered five requests. I’ve copy-pasted the title and the decision from the document and then commented. If you want to read all reasons go back to: Jury Decision AC33/001
19. The Request is upheld. The OA/RC are directed to issue an amendment deleting NoR 1.2 and SI 1.2, and replacing them with ‘The Deed of Gift shall prevail over any other conflicting rule’.
This was the expected result. By removing the NoR and SI from the list the Jury made sure that in case of conflict they at least have a chance to find a solution that provides the fairest result for all boats affected. As is already written in the RRS.
25. Consequently, the Jury has allowed the request to be withdrawn (RRS 63.1).
OA and USA reached an agreement. There was no longer a need for the RfR and USA requested withdrawal, which the AC 33 Jury allowed.
38. The Request is denied.
Someone has to pick a time, otherwise there would not be a race. If parties can’t agree, that is the OA/ RC. To bad that in this particular series the Defender is also the OA.

52. Redress is granted. The OA is directed to issue an amendment deleting NoR 6.7.
53. The Jury recognizes that the RC has the obligation to comply with
appropriate safety and legal obligations when making a decision to start or continue a race.
This one is a little strange. I don’t understand why the AC 33 Jury used the word “granted” instead of upheld. As in 01-1, the OA is directed to change the NoR and there’s not any score awarded to any boat…

61. For the purpose of SI 24, ‘trash’ does not include substances released into the water from a boat that are not in breach of any laws or regulations.
62. SI 24 has not reinstated RRS 53 and therefore there is no improper action by the OA and the Request is therefore denied.
This issue would normally be handled by one of the parties asking a written question to the Jury and they then would answer with the decision as printed above. I.e. sentence 61. Not really a request for redress at all, in my opinion. But that can also be said about 01-2
This makes two request denied, two upheld and one withdrawn.
I’m sure the spin-doctors of the parties will count differently.


  1. Dear Jos, conc. the validity I agree with your statement "this changes RRS 62.1" The AC jury is not entitled to do so!. Therefore this decision about validity (in my opinion) is wrong! Full stop. Fortunately this AC jury decision is not a case and no other jury or PC is bound by this decision and hopefully will act according to the rules. Hamish Ross was right when he stated in the hearing, that a request for redress cannot be made for the future. The word "possibility" in the rule is chained to "has been" in the rule, and this is always in the past.
    No doubt, all members of the jury are highly respected and highly respected by me, too.
    But even highly respected friends can make a mistake.
    Best regards to all and the AC jury,
    Willii Gohl

  2. I agree, except in calling it a mistake. I think jury knowingly "bent" rule 62.1 in this case, thinking it better for the sport as a whole if these issues are resolved before these very public races.
    I notice they bent it only so far as to "permit the Jury to consider the request" and not require the Jury to hear an early request.

  3. Whilst I agree that the points raised by USA 17 should not have been treated as a request for redress under 62.1, I would suggest that there was a valid procedure to decide on the questions raised. Rule N2.3 requires a Jury to decide matters referred to it by the OA or the RC. It would seem that the Jury has been requested (with the consent of both competitors, one of whom is also the OA) to deal with a number of questions in order to avoid a recourse to the New York courts. In any case, a written request from the OA or RC asking the Jury to make a decision on the questions raised would have given the Jury full authority to do so.

    I would contend that the decisions could have been given under rule N2.3 rather than 62.1. In this way the principle of only requesting redress after a race has been sailed is maintained, but a Jury can sort out problems before racing and avoid predictable requests for redress.



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