NJOS had tacked briefly into the fairway of Southampton Water. She tacked back, but not before the captain of Red Eagle, an approaching car ferry, realising there to be a risk of collision, decided to go full astern, and reported the matter to the club. An independent enquiry (that was not a protest) followed, and based on its findings, the race committee disqualified NJOS without a hearing, acting under a sailing instruction that stated:

The decision was upheld by a hearing (that too was not a protest) requested as provided in the sailing instructions by NJOS, before a protest committee. Neither the enquiry nor the subsequent hearing found as a fact whether it was NJOS or Red Eagle which had right of way, noting that Red Eagle’s draft was found on investigation to be sufficiently shallow to allow her to sail outside the fairway, even though her operational practice was to stay within the fairway.

NJOS was scored DNE by the race committee, and appealed.

The RYA decided that the question of which vessel held right of way was material to whether NJOS had been properly penalized. The power of the race committee under the sailing instructions to disqualify without a hearing applied only when a boat had failed to ‘keep clear of commercial shipping as required by the Colregs and by-laws.’ A power-driven vessel such as Red Eagle was normally required by IRPCAS Rule 18 (a)(iv) to keep out of the way of a sailing vessel, in which case IRPCAS Rule 17(a)(i) required NJOS, as the stand-on vessel, to keep her course and speed. NJOS would have failed to comply with this when she had tacked out into the channel.

However, if Red Eagle was a vessel to whom the narrow channel or fairway provisions of the IRPCAS or the local Byelaws applied, then NJOS was required not to obstruct or impede her, which was tantamount to requiring NJOS to ‘keep clear’ of Red Eagle, and so the DNE without a hearing and its endorsement by the jury would have been proper.

The RYA referred this question back to the protest committee, deciding as follows once an answer was provided.

NJOS’s appeal is dismissed.

NJOS was required by the preamble to Part 2 of the Racing Rules of Sailing to accord Red Eagle her rights under the International Regulations for the Prevention of Collisions at Sea (the IRPCAS —also known as the ‘Colregs’).

However, Red Eagle might be considered to have right of way over NJOS. IRPCAS rule 9(b) says that a sailing vessel shall not impede the passage of a vessel which can safely navigate only within a narrow passage or fairway, and regulation 10(1) of the Southampton Harbour Byelaws 2003 which applied to the area of the incident requires a small vessel such as NJOS, not being confined to the fairway, not to make use of the fairway so as to obstruct other vessels which can navigate only within the fairway. If Red Eagle was restricted to the fairway, then in effect she had right of way, and NJOS had impeded or obstructed her.

However, if the narrow channel or fairway provisions of the IRPCAS or the Byelaws did not apply to Red Eagle, then it was the powered Red Eagle that was required to keep clear of the sailing vessel NJOS. (The term ‘keep clear’ is not to be found in the IRPCAS, where the term ‘keep out of the way of’ is used instead, in this case in IRPCAS rule 18(a)(iv). The RYA judges these terms to be synonymous.) If Red Eagle was the vessel required to keep clear, then NJOS was not, and so the provisions of the sailing instruction were not applicable to her.

While NJOS may indeed have broken IRPCAS rule 17(a)(i) by failing, as a right-of-way vessel, to hold her course and speed, she could be penalized for that only as a result of a protest, and there was never any protest complying with Rule 61.1(b), 61.2 and 61.3 against her. Even if she had been protested, the penalty (assuming that rule 2 was not also infringed) could only be DSQ, and not DNE if the sailing instruction did not apply.

In its reply to the question from the RYA, the protest committee pointed out that a vessel restricted to a narrow channel was not required to display any signal to this effect, and that it followed that a sailing vessel 112 crossing a channel was required to make her own assessment of a powered vessel’s capability in order to determine which rules of IRPCAS apply.

While finding this to be unsatisfactory, the protest committee, on reflection, believed that as Red Eagle was a large vessel that was operating in a narrow channel, NJOS should assume that Red Eagle was restricted to that channel. The protest committee concluded that Red Eagle was therefore to be regarded as a vessel restricted to a narrow channel or fairway.

The RYA accepts this finding. The right of way is to be decided according to the most obvious interpretation of the facts of the situation at the time of the incident, given that safety is the principal objective of the IRPCAS and byelaws. NJOS was therefore required neither to obstruct nor impede the passage of Red Eagle, and so was obliged in effect to keep clear of her. There was clearly a sudden risk of possible collision, and the action of Red Eagle’s captain was necessary and appropriate.

NJOS therefore broke IRPCAS rule 9(b) and Southampton Harbour byelaw 10(1) by failing in effect to keep clear, and the race committee was entitled to disqualify her without a hearing.