W and L were approaching the starting line to pass inside a small starting mark for a reaching start. They converged and there was contact between them, resulting in damage to both of them. L protested W. The protest committee disqualified both of them, W for not keeping clear, as the mark was surrounded by navigable water she could have luffed into, and so she was not entitled to room because of the preamble to Section C; and L for breaking rule 14. L appealed on the grounds that, given she was not required to give room to W, she was not required to take avoiding action under rule 14 until it was clear that W was not keeping clear, and that when that moment arrived, there was then nothing she could do to avoid contact.

L’s appeal dismissed.

The RYA is satisfied that, at a point of time before the starting signal, W was not keeping clear; that it was or should have been clear to L that W was not keeping clear; that it was reasonably possible for L to avoid contact at that time; that she did not act to avoid contact; and that contact resulting in damage resulted.

To clarify the interaction of rules 11 and 14, L was right-of-way boat under rule 11, and W was required to keep clear of her. A windward boat on a converging course with a leeward boat has failed to keep clear if the leeward boat cannot sail her course because avoiding action is needed. A right-of-way boat is not required to anticipate that the other boat will not keep clear, but the moment when the other boat has failed to keep clear is the moment when contact is predictable if neither boat takes evasive action, a risk that must be immediately obvious to a right-of-way boat keeping a good look-out.

If the right-of-way boat does not then act to avoid contact, she risks penalization if there is then contact that results in damage.

The same principles would apply as between boats converging on opposite tacks.

Bailington v Skeena, Thornbury SC