(pillow)Case of the Week (12) - 104

(This is an instalment in a series of blogposts about the ISAF Call book 2009-2012 with amendments for 2010. All calls are official interpretations by the ISAF committees on how the Racing Rules of Sailing should be used or interpreted. The calls are copied from the Call book, only the comments are written by me.)

“Have you done your homework? Better go to bed 15 minutes earlier then, –otherwise you’ll run behind” said the schoolmarm wiggling her finger in my face.

Case 104

Rule 63.6, Hearings: Taking Evidence and Finding Facts
Rule 70.1, Appeals and Requests to a National Authority
Rule F5, Inadequate Facts; Reopening

Attempting to distinguish between facts and conclusions in a protest committee's findings is sometimes unsatisfactory because findings may be based partially on fact and partially on a conclusion. A national authority can change a protest committee’s decision and any other findings that involve reasoning or judgment, but not its findings of fact. A national authority may derive additional facts by logical deduction. Neither written facts nor diagrammed facts take precedence over the other. Protest committees must resolve conflicts between facts when so required by a national authority.

Question 1
What criteria determine whether a finding in a protest committee's decision is subject to change on appeal? Are the criteria based on whether the finding is a ‘fact’ or a ‘conclusion’, whether it incorporates an interpretation of a rule, or something else?




Answer 1 The distinction between ‘fact’ and ‘conclusion’ does not provide a satisfactory criterion because the two concepts can overlap. In the context of rule 63.6 and other rules using the term, a ‘fact’ is an action or condition that a protest committee ‘finds’ occurred or existed. A ‘conclusion’ is derived by reasoning from something else, and can be purely factual. For example, if the facts are that there were three classes in a race and five boats in each class, it is both a conclusion and a fact that there were 15 boats in the race. A conclusion can also be partially non-factual, as when a judgment is made that includes non-factual elements. An example is the statement ‘Boat A displayed her flag at the first reasonable opportunity after the incident’, which is based on a combination of the facts about an incident and an interpretation of the phrase ‘first reasonable opportunity’ in rule 61.1(a).
A finding that is an interpretation of a rule is clearly subject to change by a national authority, but other findings that involve reasoning or judgment are equally subject to change. For example, a protest committee might state that ‘The wind velocity of 15 knots was too high for the boats to be able to race in safety’. This statement is an opinion or judgment but not an interpretation of the rules.
The criterion for determining whether a protest committee's finding is subject to change on appeal is therefore only that the finding is not exclusively factual in nature. Rule 70.1 permits the appeal of a protest committee's ‘decision or its procedures, but not the facts found.’ However, it does not prohibit the appeal of other findings or judgments made by the protest committee. Similarly, rule F5 requires a national authority to accept a protest committee's findings of fact, but does not require the acceptance of other findings. The effect of both rules is that a national authority can change any finding by a protest committee except a finding of fact
.
Question 2 May a national authority derive additional facts by drawing conclusions from the protest committee's written facts or its diagram?
Answer 2 Yes. The national authority may apply logic to derive additional facts from either source.

Question 3 What is the status of a diagram prepared or endorsed by a protest committee as required by rule F2.2(b)?
Answer 3 Both the diagram and the written facts are facts found by the protest committee. Neither takes precedence over the other.

Question 4 When facts conflict with each other, such as a conflict between the diagram and the written facts, is a national authority required to accept all of them? How are conflicts to be resolved?
Answer 4 The national authority cannot logically accept conflicting facts. Rule F5 gives a national authority the authority to require the protest committee to provide revised or additional facts that resolve the conflict.


USSA 2003/85



This Q&A answers the questions very neatly. But it also opens the door to some misinterpretations. You need to read it thrice and then read it again.

I’ve had the privilege to be an observer to our National Appeals committee for a year and participated in five or six Appeals. Without going into details I can clearly state that the writing ‘facts found’ is the hardest part in the protest hearing. Many PC have a lot of trouble putting those to paper.

Although this Q&A helps, and allows some conclusions into the ‘facts found’ it is also a dangerous road to travel. To many conclusions and the whole house of logic comes tumbling down with a wrong conclusion.
Much better to stick to the facts and try to write only those.

A way to practice, is to take copies of protest home with you and look at them again after some time. Go back to what was written as facts found and try to draw a diagram with that information and only that. If you can accurately reproduce the diagram with only those words, the facts have been recorded correctly. But you’ll soon notice a appalling lack of information. How many meters was the distance between the boats in position 2? Did the change of course happen quickly or not? Was there contact? Did any boat change tack and when exactly? After a while you can much better write the facts because you know what is needed to ‘reproduce’ the film of what has happened.

“Finding the facts is one thing, putting them to paper another and that also takes some practice” said the schoolmaster to his pupils.
“Here ended the lesson”

Yeah, STFU already. This post has been going on long enough.