Tuesday, 23 August 2011

Do you have a watch?

In rule RRS 61.2 the Protest Contents are described. Any PC or Jury has the obligation to make a judgement if these criteria are met. They have been listed under (a) trough (d):
61.2 Protest Contents
A protest shall be in writing and identify
  • (a) the protestor and protestee;
  • (b) the incident, including where and when it occurred;
  • (c) any rule the protestor believes was broken; and
  • (d) the name of the protestor’s representative.

    If the rule ended there, the PC/Jury would have an easy job. Just tick the boxes if a, b, c and d are described and Bob's your uncle. But the rule ends with some provisions:
    However, if requirement (b) is met, requirement (a) may be met at any time before the hearing, and requirements (c) and (d) may be met before or during the hearing.
    So we are left with one solid requirement which MUST be met, before end of protest time. Once the form has been handed in, there's no going back again. The incident, including where and when it occurred, must be on the form. If not, it is an invalid protest!

    I'll give you the following example and let you decide:

    There's an incident description of a situation five boat lengths from the windward mark on the form. Port - Starboard. The starboard tack boat has to bear away to avoid a port tack boat, crossing in front. With a drawing and the correct rule number (10). Protestor identified and protestee also.
    Everything as it should be.

    Just after the protest has been published on the board and after the protest time limit has expired, the protestor comes to the desk and states that he made a mistake in the race number. It wasn't race 7 like he described on the form. No, it was in race 8.

    The jury secretary tells him that he should bring this up in the hearing and does not give him the form to correct his mistake. The hearing is started, both parties are present and very soon it is established that the incident did not happen in race 7 but it happened in race 8. So, the "when" in (b) was not correct.
    The protestee declares to the members that therefore requirement (b) in rule 61.2 has not been met and that the protest should be declared invalid. The protestor declares that he made an honest mistake and that he tried to correct it before the hearing started, but was refused by the secretary.....

    How would you decide? Valid or not?
    Is there a fair solution that is permissible under the rules?

    One thing I can already tell any sailor who has to fill in a protest form: Put the time of the incident on the form.
    If there is a time, a mistake like the race number can easily be corrected, if there is no time, the 'when' has to be derived in another way.....

    I'll await your comments.


    1. The wording of the rule is not as clear as it might be. The last paragraph states conditions for meeting requirements a, c and d. It is silent on the matter of an error in in item b.

      My first thought is protest invalid. It might be argued, though, that the protest form does identify when the incident occurred, notwithstanding the error.

      The description of the incident, required in b, might be found to be inaccurate during the course of a hearing. That would not necessarily invalidate the protest.

      The protest committee is there to help the competitors. In that spirit, it should not delare a protest invalid unless it has to.


    2. Honest mistake or not - the protest is invalid. The rule is strict - the incident did not occur in the race stated and therefore 61.2(b) is not complied with. It is tough but it is not unfair (as a rules policy) to ask a protestor to accurately state which race it was.

      Can you allow someone to amend the form - the rule does not allow it so how can the secretary give the form back? Imagine the protestee's argument if she finds out that the protest should have been ruled invalid instead of her being DSQ!

      Once a protest has been delivered, it must be heard and I think the protestee can only add to it in the ways set out in 61.2.

      There is nothing stopping the protestor writing a note and asking it to be attached to the protest form - but no, you cannot allow the form to be amended if the rule does not permit it.


    3. I'm not sure that the protest committee should necessarily find that the protest is invalid. There is something of a chicken and egg situation here.

      The written protest does not contain an express statement of time of the incident, but the time can be readily inferred from the written protest as 'the time at which boats were five boat lengths from the windward mark in race 7’.

      The written protest thus effectively identifies the how, when and where of an alleged incident.

      If, (as unfortunately advised by the jury secretary) the protestor walked into the hearing and before anything else happened, announced that the incident occurred in race 8 and not in race 7 then the protest committee could well find that the written protest did not identify that incident, decide that he protest was invalid and close the hearing (rule 63.5).

      But, if nothing was said about the discrepancy between race 7 and race 8 in the preliminary part of the hearing, the protest committee could, quite appropriately, decide that all requirements have been met, that the protest is valid and that the hearing shall be continued (rule 63.5).

      Then, either the protestor, giving truthful evidence would tell that the incident occurred in race 7, not race 8, or the protestee would give evidence that no incident between the parties occurred near the windward mark in race 8, and the protest would be dismissed.

      The protest committee could protest the protestee for the incident in race 8, but, in the absence of injury or serious damage, only if it received information about the incident from the protestee or some source other than the protestor or any other interested party. The protest committee cannot protest a boat as a result of information arising from a report from an interested party (rule 60.3(a). It would certainly be a sporting thing for the protestee to stick her hand up in the hearing and say ‘there was a port and starboard incident near the windward mark in race 7’, but she is under no obligation to do so.

    4. Going back to fair solutions permissible under the rules.

      If she had not been advised otherwise by the jury secretary, the protestor could have submitted a second protest identifying the correct race or time of the incident, some little time after the protest time limit. The protest committee would have been obliged to hear that protest (rule 63.1) and decide whether there was good reason to extend the time limit so that the protest would be valid (rule 61.3). The protest committee, in considering good reason to extend, might consider the following:
      • The cause of the problem was a ‘slip of the pen’;

      • The protestor detected the ‘slip’ while diligently preparing for the protest hearing;

      • The protestor attempted promptly to remedy the slip by submitting a second protest;

      • The second protest was submitted only a short time after the protest time limit;

      • Whether the second protest was available to the protestee at the same time as the first protest, and thus the protestee had the same reasonable time to prepare for both protests, or otherwise the protestee has conveniently been given or may be given reasonable time to prepare for hearing of the second protest;

      • Whether, in the light of the above, the protestee will suffer any disadvantage in responding to the second protest;

      In my opinion there would be good grounds for the protest committee to extend the protest time limit, decide that he second protest was valid and hear it on its merits.

      So much for the hypothetical scenario that the protestor submitted a second protest. What if she did not?

      The jury secretary gave advice that was not required to be given, and as we have seen, was unwise. Neither the jury secretary nor anyone else was obliged to give the protestor any advice about how to solve the problem of the wrong race number, but the advice of the jury secretary, once given, foreclosed the protestor from submitting a second protest. Once that advice is given, it is impossible to decide whether the protestor would have submitted a second protest if she had not received advice against it.

      As Wag has said it is the role of the protest committee to help competitors to get their rules disputes resolved fairly, not to find technical ways to avoid deciding protests. In this case, it is arguable that the unwise advice of the jury secretary was an improper action that might give rise to a later request for redress (not barred by rule 62.1(a), last part, because the advice by the jury secretary was not a protest committee decision).

      I think that in this case, where no second written protest was actually submitted, the protest committee cannot (unless, as discussed previously the protestee admits that there was an incident in race 8) make its own protest, or wink at the requirements of validity or the case for dismissing a protest for a breach in race 7. The protest committee might, however, tell the protestor that if it was satisfied that the protestor had tried, promptly and in good faith, to remedy the error in the first written protest, and had been prevented from doing so by the jury secretary, then, if the protestor now promptly submitted a written protest for the incident in race 8, the protest committee might be prepared to extend the protest time limit and hear that protest.

    5. I would deem the protest as valid and carry on. The incident is described so a defence can be prepared so we can proceed. In multiple day races often the form states in "race 2" when it is race 4 being on the second day all this is every event stuff.
      Once the "Incident" described the actual race is to be a fact found by the committee.

      Mike B

    6. Protest is clearly invalid because it does not identify the incident. Why is that necessary? Because the party (protestee) should be properly informed and given the opportunity to prepare for hearing. If he cannot relate to the incident described (wrong race number), well, there's not much he can do.

      That's why the jury should be strict. If you cannot have your facts and information correct, there should be no hearing.

      Regarding the amendment of the protest... I see no problem with that, as long as it is before the protest time limit. An amended protest is theoretically equal to a new protest+withdrawal of the original one. It is important to have the correct information on the protest form before the jury starts to inform the parties.

      Once the protest time limit is up, there are slim chances such a protest would be valid.

      Jury is a service to competitors but must abide by the rules in the first place. Jury does not give suggestions, Jury decides, so it cannot take sides. The responsibility is on the competitors to lodge a valid protest if they want to achieve something. There's no good faith in this case.

    7. Like I suspected the answer is under heavy debate. I cannot give you the solution. If this happens when you are on a panel, those three/five will have to decide what to do.....

    8. Q&A 2011-021 now replies to this problem.


      The Jury Secretary should have permitted the protestor to amend her protest.


    Related Posts Plugin for WordPress, Blogger...