June 2014 - Protest Committees IV

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June 2014 - Protest Committees IV

Three months ago, I started a series on how to handle a protest from the protest committee’s side of the table. At the end of the third article, we had heard all the evidence from the parties and their witnesses and they had left the room.

63.6 Taking Evidence and Finding Facts
The protest committee shall take the evidence of the parties present at the hearing and of their witnesses and other evidence it considers necessary. A member of the protest committee who saw the incident shall, while the parties are present, state that fact and may give evidence. A party present at the hearing may question any person who gives evidence. The committee shall then find the facts and base its decision on them.

64 DECISIONS

64.1 Penalties and Exoneration

When the protest committee decides that a boat that is a party to a protest hearing has broken a rule and is not exonerated, it shall disqualify her unless some other penalty applies. A penalty shall be imposed whether or not the applicable rule was mentioned in the protest. If a boat has broken a rule when not racing, her penalty shall apply to the race sailed nearest in time to that of the incident.

However,
(a) when as a consequence of breaking a rule a boat has compelled another boat to break a rule, the other boat shall be exonerated.
(b) if a boat has taken an applicable penalty, she shall not be further penalized under this rule unless the penalty for a rule she broke is a disqualification that is not excludable from her series score.
(c) if the race is restarted or resailed, rule 36 applies.

APPENDIX M

RECOMMENDATIONS FOR PROTEST COMMITTEES

This appendix is advisory only; in some circumstances changing these procedures may be advisable. It is addressed primarily to protest committee chairmen but may also help judges, protest committee secretaries, race committees and others connected with protest and redress hearings.

M3.3 Find the facts (rule 63.6).
  • Write down the facts; resolve doubts one way or the other.
  • Call back parties for more questions if necessary.
  • When appropriate, draw a diagram of the incident using the facts you have found.
Extract from ISAF Case 122
The racing rules do not state which standard of proof a protest committee should use in a hearing to decide a protest or a request for redress. However, in most such hearings, the protest committee uses the ‘balance of probabilities’ standard, which is whether it is more likely than not that an allegation or claim has been established.

The committee must first determine the facts contained in the evidence. Last month I pointed out the suggestion in Appendix M that the chair should, “Ask one member of the committee to note down evidence, particularly times, distances, speeds, etc.” These notes are the start of finding the facts. Start by laying out the context including the conditions (wind, waves, etc.) and the part of the race (first weather leg, first weather mark, etc.). Then describe how the boats approached the incident. Some facts will be clear and undisputed. Other “facts” may be disputed but there are ways of sorting wheat from chaff.

If you compare time, distance and speed, you will sometimes find errors and inconsistencies even within a single person’s testimony. There is a very useful table comparing speed and distance in Understanding the Racing Rules of Sailing by Dave Perry. A similar table was in the CYA Rule Book 2009-2012. These show that moving at five knots, a boat travels 8.44 feet per second. A 25-foot boat travels a boatlength in three seconds. A 34-foot boat travels a boatlength in four seconds. I have heard people claim 30 seconds between entering the 3-boat length zone and arriving at the mark. For a 34-footer that’s possible – at two knots – but not at the five-knot boatspeed the witness is also claiming. Which is it? Other evidence will make this clear.

Finding facts from disputed testimony is probably the biggest challenge for any protest committee. Since this process feels like a court of law to some people (not to most lawyers), they think that they should be applying the “beyond a reasonable doubt” standard. This is not a court and that is not an appropriate standard, as it will lead to very few facts being decided.. The rule book does not lay out a standard but a recent ISAF case, while talking about something else, says, “in most such hearings, the protest committee uses the ‘balance of probabilities’ standard, which is whether it is more likely than not that an allegation or claim has been established.”

Our facts might be, “On the first upwind in ten knots of wind, boat A and boat B, both 30 feet long, approached each other with boat A on port tack and boat B on starboard tack. Boat B bore off to avoid boat A. They passed within two feet of each other.”

Having decided the facts, we have to decide how the rules apply to the facts. With a rule book in front of you (this is an open-book test), this is usually more straightforward. The decision about which rule applies may depend on a disputed fact, so it is important to make sure that there is a clear decision on that fact. In the case outlined above, the rule that applies is rule 10 (port tack keeps clear of starboard tack).

We then have to draw conclusions about how the rule applies and make a final decision. Rule 64 says that if the protest committee finds that one of the boats has broken a rule and she is not exonerated (rule 64.1 (a)), then she shall be penalized. In almost all cases, the penalty is disqualification. In this case, we might conclude that Boat A failed to keep clear of Boat B and therefore Boat A is disqualified.

If there is a collision, then a rule has been broken. When there has been contact, we cannot conclude a protest without finding that a boat has broken a rule. If there has been damage or injury, the protest committee must also consider whether the right-of-way boat or the boat entitled to room or mark-room could have avoided the collision after it was clear that the other boat was not keeping clear. The right-of-way boat may have broken rule 14 and may be penalized along with (not instead of) the keep-clear boat.

Once this has all been decided, the protest committee should write their facts and conclusion, then invite the parties back into the room to read the decision.

If you have a chance to sit on a protest committee, I hope this will help.

© Copyright 2014 Andrew Alberti
Posted: 6/1/2014 10:50:44 AM by Andrew Alberti


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This page provides links to a set of articles original published in Kwasind magazine. The versions here include animated diagrams. The original articles can be found within the original magazines which are available online back to January 2007. 

Articles before December 2016 are based on the Racing Rules of Sailing 2009-12 or 2013-2016 and have not been updated to reflect the changes that apply as of January 2017 with the publication of the Racing Rules of Sailing 2017-20. A copy of the new rules can be found on sailing.org.
ABOUT ANDREW ALBERTI
Andrew Alberti has been writing these monthly articles in the Kwasind since early 1997.  They explain the Racing Rules of Sailing. Andrew is a National Judge and National Umpire. He is a member of the Sail Canada Rules and Appeals Committees. The interpretation of the rules contained in the articles is Andrew's and not that of the RCYC or any of the committees he sits on. 

QUESTIONS & ANSWERS
Send your questions to Andrew at kyrules@alberti.ca.

 

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