Tuesday, 17 January 2012

LTW Readers Q&A (58); New Facts?

From Andraz, already some time on my shelf, a new LTW Readers Q&A. I think he wrote it after this post: Do you have a watch?

Recently I have had two interesting cases on the hearings, more or less the same thing happened, but still it does not happen very often. Maybe your readers will give it a thought or two, since I noticed different opinions when deliberating the outcome of the hearings.

Boat A protested boat B for infringing rule 13/18.3(a) on the windward mark. Protest form identified the race as race no. 2, both protestor and protestee were identified, there was a witness, "Protest" was hailed immediately, no red flag necessary, other party heard the hail, no other requirements existed.

Jury found the protest valid, read the data written on the form to the parties and heard the stories of both parties and witness. From facts found the jury decided that boat B did break rule 13 and was to be DSQ in race 2.
At the moment the parties were called back in to the jury room, protestee says: "Sorry, everything we told you is true, but the incident happened in race 1."

How do you proceed?

Here are some questions that might help your readers through:
  1. Is such a protest valid?
  2. Can the protestee's comment at the end of a hearing actually change anything?
  3. If the protestor realises he made an error, what is the last time he can change the information on the protest form?
  4. If the jury decides for a penalty, which race will the boat B be disqualified in?
  5. Protestor initially didn't want to come to the hearing. Could he ask for reopening the next day (in less than 24 hours)?
  6. If the protestee didn't check the form prior to the hearing and jury didn't read the data to the parties, could this be an error or omission, ground for a redress?
I think this is a fine example of what can happen if a party does not inspect the protest form prior to the hearing or they are not given enough time to prepare.

Also the jury must take some time to scrutinise every detail of the protest...
Regards, Andraz=

Well Andraz, the only precedent we can use is written in Q&A 2011-021:
J 022 Q&A 2011-021
Published: 3 November 2011

Boat A delivers a protest form to the jury secretary, protesting boat B in race 7. Shortly after the form is delivered, the boat's representative returns and says it was race 8, not race 7 and wishes to amend the protest form.

Question 1
Should the jury secretary permit the competitor to amend the form?
Answer 1
Yes. However, the jury secretary should notify the protest committee of the details of any change to the protest form, the identity of the person who made the change, and the time when the change was made.
Question 2
Does it matter if the protest time limit has expired or not?
Answer 2
No. It is up the protest committee to decide on the validity of the protest.
In my opinion your questions should get these answers:
  1. Up to the panel to decide, but I would vote yes. It is as much the responsibility of the protestee to object and raise this point, as it is for the PC to check.
  2. Yes, it can. If both parties agree it was race 2, not race 1, the PC should amend that.
  3. According to Q&A 2011-021, anytime before the hearing, as long as it is recorded.
  4. Race 1.
  5. If she wouldn't come to the initial hearing, how can the PC decide if she is bringing a new fact that wasn't available at the original hearing? She can ask for re-opening, but I doubt it will be permitted.
  6. It is an error and grounds for redress. The redress should be scoring the sailed finish place in Race 2 instead of DSQ, and DSQ in Race 1.
What is your opinion?


  1. Interesting, 61.2 requires ((b) the incident, including where and when it occurred;) to be met and if it is met than other requirements need not be met until some point after the filling. even-though the hearing was heard, i would have to rule that the primary requirement of the protest was not met at the time of the hearing and before the time limit and therefore the protest was not valid.

  2. This happens more often the other way round - the parties are talking about race 1 of the day, which may be race 2 of the series. This usually becomes clear during the hearing and can be corrected.

    I would propose askng a few questions to establish how the error came about and was not then spotted.


  3. I disagree with your answer on part of this.
    I think I am with you to Opinion 6.

    I do not believe you could get redress, as if you did not read the form you would be to blame.
    Also a bit like the scoring problems. You can correct race 2 but you may well have another incident and not be able to penalise race 1.

    There would be a reopening with the Dsq in Race 1.

  4. The thing was, that the jury tried to consolidate all information during the initial phase of the hearing. Both races were sailed on the same day, namely race 1 and 2.
    And if the parties confirmed the information protestor provided, what else can a jury do to check? This one lies on the protestor.

    After the realisation of the error, jury decided to dismiss the protest as invalid, because it didn't identify the incident.

    Anonymous, which part of rules allows you to change the race number on the protest? 61.2(b) specifically demands such information to be exact. If the protest does not identify the incident, the other party cannot prepare for the incident and can also claim it didn't happen.

    You can correct the critical data (according to 61.2(b)) on the protest form before the protest time limit is over. It is analogue of filing another protest.

    1. The reason why the incident, including when and where, must be described in the protest, is that the protestee can identify the incident and prepare accordingly.
      If - like in this case - all that was accomplished, save for a clerical error in the race number, why is this an invalid protest? All parties had the opportunity to tell their side of the incident, could question each other, could argue and defend themselves. Nobody was short changed and the basic premise that parties must be discussing the same incident where both of them were involved, was fulfilled.
      The fact that they were wrong about in which race it happened, has in no way impeded the protestee or the protestor in the hearing.

  5. I must disagree with the recommendation that the incorrectly identified race number can be corrected later. RRS 61.2(b) requires the time and place of the incident be identified in the protest; other aspects maybe added or corrected later ("However ..."). Then 63.5 requires, if the protest is found invalid, that the hearing be closed.
    As pointed out, the Q&A doesn't really apply to this hypothetical case.
    I don't see any way around these requirements.
    Doug (CYA National judge)

  6. If the Q&A does not give a clear answer, it is always up to the members of the panel to decide.
    Like I stated in answer to the previous comment, I see no problem in declaring this a valid protest, because the underlying reason for insisting on an accurate description of the incident - both parties in the hearing are arguing the same incident - was not impeded.

  7. This Anonymous is Willii Gohl.
    Jos, the jury has not to decide if there is no Q&A, the jury has to follow the WRITTEN rules, and not that, what the jury thinks could be the meaning of a rule.
    Think of that what we have learned: which rule applies for your opinion?
    1. The jury ruled the protest valid, no way out!
    2. The jury learned after establishing facts, after their conclusion, and after their decision (before "publishing" the decision) that one of the main criterias on the written protest (where and when, which has to be met BEFORE the hearing) wasn´t met.
    3. So the jury may have made an error, in the light of new evidence.
    4. In my opinion the correct procedure is: 1. give the decision according to the "valid" protest!
    5. The jury should reopen the the hearing (RRS 66) and then rule the protest "invalid", because the requirement of RRS 61.2(b) was not met! Whatever a jury thinks or feel, whatever parties tell, feel, think or agree: Only the WRITTEN rule applies!

    1. Hello Willii, I principle I agree with you. But I see this more like this:
      The rule says you must show a red flag if you want to protest. What if a boat does not show a red flag, but a red towel. Is that towel recognizable for the other boat as a protest flag? Yes. Her rights are not diminished, Protest valid, despite that it was not a red flag.

      In this particular case NONE of the rights of the protestee were taken away. She knew which incident it was, she had time to prepare, she could defend herself, etc. etc.
      Only a clerical error in the race-number, that should and can be corrected.

  8. Hi Jos, the red towel is not the best example, because it is a flag in the meaning of the rules, see Case 72!!
    And about your 2nd pragraph, lets agree that we disagree. A jury will decide, perhaps 3 by 2, as a jury did in deciding the case mentioned in Q&A 2011-024.
    Best regards, Willii

    1. No worries, Willii. I understand what you mean. And yes, let the panel discuss this and vote on the outcome. Good enough for me.


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