Last month we talked about filing a protest. This month we will talk about what happens after you file it. First, you should determine whether there are any arbitration processes in place and when the protest/arbitration will be heard. Arbitration is becoming more and more common but I will assume for this month that it is not being used. I recommend helping the committee to find the boat that you are protesting. The protest may be heard sooner that way.
The next thing that you should do if you haven’t done it already is look for witnesses. Find out which other boats saw the incident. If they did see it, get them to describe to you what they saw. Make sure that their description lines up with what you think happened. If it doesn’t, you may want to think carefully about whether things happened the way you think they did.
You should also think critically about your own story, particularly the relationship between speed, time and distance, because a good protest committee will examine this closely.
In this example from a case presented here earlier, the boats are 24 feet long and they are initially travelling at about 5 knots. The table located at the back of the CYA rule book tells you that at 5 knots, boats travel at 8.44 feet per second or 24/8.44=2.8 seconds per boat length – in this case, giving us a timeline of about 3 seconds per position – so position 6 is about 15 seconds after position 1. It’s common for people to speak casually, even carelessly, about short periods of time, but if you say, “Oh, we were overlapped at the “zone” 5 seconds before the collision,” the committee will work backward through those five seconds and figure out that the overlap occurred somewhere near position 3 – well inside the zone – and your story is in ruins. Work out how to tell your story in a few simple steps, and make sure the timeline works.
Look at your rule book. Work out which rules apply and the key points you will have to establish to show how they were broken.
Eventually you will be called into a hearing. If you are the protestor you will have already seen the protest that you filed. If you are the protestee, you should be given a copy ahead of the protest to have a chance to review and prepare. If both boats protested about the same incident then the protest should be heard together. Even if only one protest is filed, either boat can be disqualified.
The procedure for the protest committee is shown in M2 and M3 of Appendix M of the CYA rule book. This appendix is only a recommendation. The committee does not have to follow it exactly but is well advised to do so. The rules they actually have to follow are in Section B of Part 5 of the rule book (rule 63, 64 and 65).
Both boats have the right to have a representative in the hearing. (rule 63.3) First, the protest committee will introduce themselves and determine whether there are any interested parties (rule 63.4). If you feel that any of the protest committee members are interested parties, you should object to them at this time.
61 PROTEST REQUIREMENTS
61.1 Informing the Protestee
(a) A boat intending to protest shall inform the other boat at the first reasonable opportunity. When her protest concerns an incident in the racing area that she is involved in or sees, she shall hail ‘Protest’ and conspicuously display a red flag at the first reasonable opportunity for each. She shall display the flag until she is no longer racing. However,
(1) if the other boat is beyond hailing distance, the protesting boat need not hail but she shall inform the other boat at the first reasonable opportunity;
(2) if the hull length of the protesting boat is less than 6 metres, she need not display a red flag;
(3) if the incident results in damage or injury that is obvious to the boats involved and one of them intends to protest, the requirements of this rule do not apply to her, but she shall attempt to inform the other boat within the time limit of rule 61.3.
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.
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.
61.3 Protest Time Limit
A protest by a boat, or by the race committee or protest committee about an incident the committee observes in the racing area, shall be delivered to the race office within the time limit stated in the sailing instructions. If none is stated, the time limit is two hours after the last boat in the race finishes. Other race committee or protest committee protests shall be delivered to the race office no later than two hours after the committee receives the relevant information. The protest committee shall extend the time if there is good reason to do so.
63 HEARINGS
63.3 Right to Be Present
(a) The parties to the hearing, or a representative of each, have the right to be present throughout the hearing of all the evidence. When a protest claims a breach of a rule of Part 2, 3 or 4, the representatives of boats shall have been on board at the time of the incident, unless there is good reason for the protest committee to rule otherwise. Any witness, other than a member of the protest committee, shall be excluded except when giving evidence.
(b) If a party to the hearing of a protest or request for redress does not come to the hearing, the protest committee may nevertheless decide the protest or request. If the party was unavoidably absent, the committee may reopen the hearing.
63.4 Interested Party
A member of a protest committee who is an interested party shall not take any further part in the hearing but may appear as a witness. Protest committee members must declare any possible self-interest as soon as they are aware of it. A party to the hearing who believes a member of the protest committee is an interested party shall object as soon as possible.
63.5 Validity of the Protest or Request for Redress
At the beginning of the hearing the protest committee shall take any evidence it considers necessary to decide whether all requirements for the protest or request for redress have been met. If they have been met, the protest or request is valid and the hearing shall be continued. If not, the committee shall declare the protest or request invalid and close the hearing. If the protest has been made under rule 60.3(a)(1), the committee shall also determine whether or not injury or serious damage resulted from the incident in question. If not, the hearing shall be closed.
Interested Party A person who may gain or lose as a result of a protest committee’s decision, or who has a close personal interest in the decision.
The protest committee will then determine whether the protest is valid (rule 63.5). If there are concerns about the hail of protest, whether the protest flag is required (rule 61.1(a)) whether the protest has all of the required information (rule 61.2) or whether it was filed in time (rule 61.3), these will be dealt with now. If there were two or more protests filed about the incident, only one needs to be valid for the protest to be heard; once one is found valid they won’t check the validity of the other.
Next, the protest committee will ask each party in turn to describe the incident as they saw it. Don’t be surprised if your opponent saw things differently. You saw the incident from different perspectives so it is natural. You will get a chance to ask your opponent questions. When presenting your story and when asking questions, concentrate on the key points that are needed to establish your case. Don’t get distracted by differences that don’t matter.
Each party will have a chance to bring in witnesses. Be economical. Unless they will establish a key point that you can’t establish on your own, I recommend that you not call witnesses from your own boat. Unnecessary witnesses, from your boat or another, may introduce discrepancies that weaken your case. You will get a chance to question the other boat’s witnesses. Along the way the protest committee will ask questions as well.
When all of the witnesses and questions are done, you will each be given a chance to summarize your case. You will then be excused while the committee works out their decision. Good luck.
© Copyright 2011 Andrew Alberti