I do not like the title, you do not allow the competitor to break a rule. He breaks the rule all you do in not comply with the requirements to protest as may be considered an obligation under the Basic principals.
Looking at it this way, I do not think there has been a breach, a protest though would bring home the potential lack of sportsmanship.
As we generally do not penalise boats for not protesting (perhaps we should) I do not think rule 2 can be invoked. I think there may have been a lack of fair play but I could not say I could get over the "recognised principles test". Thus the protest fails because of the weakness of the competitors generally and not because of the rules.
As to Misconduct, you may have quoted the wrong references but we understand.
Is it a breach of "good sportsmanship" well I have to be consistent and say no as to protest is not expected.
If I was on a bad day I could find it proven but give a warning.
What though of the other boat who under the same procedure should have taken a penalty or retired, is he not a better target, under 2 or 69.
If they were so close the losing boat should have kept a proper lookout and protested herself, this is a self-policing sport.
I may not like boats that do not protest but it I like less boats that complain when they could have protested themselves.

Michael, I've changed the title to coincide with the language of the Misconduct Guide, borrowing from App F: 55.1.4 which I quoted above.

As to Misconduct, you may have quoted the wrong references but we understand.

What do you mean by that? What references that I quoted are wrong?

If they were so close the losing boat should have kept a proper lookout and protested herself, this is a self-policing sport.

That's not part of the scenario. Boat C wasn't in a position to see, didn't see or couldn't see the foul in all cases.

references to RRS 61 and 62 presumably RRS 69

Michael, those are reference/section numbers from the WS Misconduct Guide (which I refer to directly before siting them .."For consideration .. WS Misconduct Guide . From the guide, do any of these concepts apply?:")

Ang

How do you hear of the incident?

another boat who could have protested, or the aggrieved party who is an interested party so under 60.3 which is disallowed.
we are thus down to RRS 69 I have explained my position here.

I see in the Misconduct Guide, happens I have just been reading this for a case coming up.
I think the problem is that we do not penalise none protests so to not protest here is not in breach of the unwritten principles.
I do not like what boats are allowed to do to win an event in sailing boats back, this is minor to what World Sailing tolerate so we need to let it pass.
I do not like where we are and think stricter standards are required, as and IJ I have to go with the cases, so no penalties for me.

Michael, thanks for the replies.

I purposely didn't bring to the discussion an actual protest. What I'm trying to explore is whether or not the tactic and resulting behavior described is valid under the "principles of fair play and sportsmanship."

For instance, if I put out a scenario that on a distance night-race, Boat A hits a mark and nobody is around to see it and she just ignores it and tells no one. If I asked the forum if that's "OK" within the rules, I don't think anyone would be asking me "how did we hear about it?". I think we would all say that her inaction to take a penalty broke those principles, regardless if she got away without being protested or not.

In the same way, that's the level of thought and discussion I was trying to foster with my question. My apologies if how I framed it fell short of doing that .. but that's what I thought was worth exploring.

Ang

"A fundamental principle of sportsmanship is that when competitors BREAK a rule THEY will promptly take a penalty."
"A boat MAY protest another boat..."
Nothing in the Rules themselves says a boat SHALL protest.
"A boat may be penalized under [Fair Sailing] only if it is CLEARLY ESTABLISHED..."
It is unreasonable to expect that every competitor has read the minutiae of ivory tower conclusions listed in unknown guides and their appendices.
If even Judges need to debate it, how can the lowly competitor read more into the written rule than he sees?

Ang, I get it I think. You are having a philosophical discussion about what the rules say (and require or allow) not about the practicalities of enforcement.

Philip Hubbel - you seem to have missed BASIC PRINCIPLES
SPORTSMANSHIP AND THE RULES
Competitors in the sport of sailing are governed by a body of rules that they are expected to follow and enforce. A fundamental principle of sportsmanship is that when competitors break a rule they will promptly take a penalty, which may be to retire.

Any boat not protesting an incident that they believe is a breach of the rules is in breach of a Basic Principle of the sport.

Practically speaking and in the largely social context of twilight sailing and club community membership this is honoured in the breach, not so much as for the basis of you owe me one, but on the basis that we all have to rub along together and can all make an error of judgement in judging a crossing or a lee bow, or in judging the distance for "keep clear" so we all follow the social requirement to rub along together, rather than the basic principle of protesting every (what we think was a) clear breach of the rules.

Those that are obnoxious, blatant, persistent or who bluff against the rights of others eventually get the message either by a quiet word from a committee member or well regarded old salt, or by repeated comments on the water from those offended against or by a protest lodged out of frustration with the behaviour by someone who is prepared to put in the time and effort to bring the offender to heel.

Paul Hanly
said

Philip Hubbel - you seem to have missed BASIC PRINCIPLES
SPORTSMANSHIP AND THE RULES
Competitors in the sport of sailing are governed by a body of rules that they are expected to follow and enforce. A fundamental principle of sportsmanship is that when competitors break a rule they will promptly take a penalty, which may be to retire.

Any boat not protesting an incident that they believe is a breach of the rules is in breach of a Basic Principle of the sport.

I disagree.

A boat in those circumstances may disappoint an expectation.

If it was intended that a boat, in some circumstances, was obliged or required to protest another boat we would find words of obligation in the rules, namely 'a boat ... shall ... protest'. We find no such words.

A boat breaks no rule by refraining from protesting.

Added later

LIkewise, Basic Principles - Sportsmanship and the Rules states just one 'principle'

A fundamental principle of sportsmanship is that when competitors break a rule they will promptly take a penalty, which may be to retire.

It it was intended that competitors enforcing the rules should be a principle (supporting a breach of rule 2), the drafters could readily have said so: they did not.

Failing to protest another boat is not a breach of a 'recognised principle' and a boat does not break rule 2 by not protesting.

John A.

I'm curious on your thoughts on the WS Misconduct language I quoted (since that's a new introduction to our discussion) and how/how-not it informs the scenario. Also the alt scenario's I put in there (sailing a shorter course and "I owed him one").

How does the 1st scenario escape "gamesmanship" with the uneven on-the-water protests and the 2nd ignoring the shorter course? (since we seemed to agree that this rule-ignoring behavior for ones benefit, could be classified as a tactic .. though disagreeing on validity) .....

• App F: 55.1.5 Gamesmanship, defined as behavior of questionable fairness but not strictly illegal tactics

.... and the 3rd "I owed him one" scenario not exposed to "collusion", given the effect on Boat C's placement?

• App F: 55.1.4 Collusion with another competitor to ignore rule breaches which may aggrieve or disadvantage other competitors

... also the "active duty" language regarding RRS 2's contents.

Ang

Paul, in a sport where we are pleading with competitors to actually FILE protests when wronged,
and at the level of the sport where winning comes down to not being the one who makes a mistake,
I am pleased to apply the Paul Elvstrom test rather than the St. Peter test.
If B takes his own penalty, I have respect for him. If C protests B, I have respect for him.
If A declines to protest B, I have not lost respect for him at this level of racing.
For the competitor this is a self enforcing sport, not a universal policing sport.

Philosophically
The rules published say it is a basic principle that "Competitors in the sport of sailing are governed by a body of rules that they are expected to follow and enforce." (my emphasis). What can that mean if it does not mean enforce against other competitors?
Is it fair (sailing) to not comply with a basic principle?
Is it fair (sailng) to not comply with a basic principle because complying will be to your disadvantage?
Is it fair (sailing) to only comply with a basic principle when it gains you an advantage and not when it might cause you disadvantage especially in the same race?
Should there be in addition to the general statement of the basic principle a specific rule that requires competitors to protest only in a fair and consistent manner against all competitors during any given race or series?

In every day racing
Or is the right to protest just another rule that is both a sword a sword and a shield.
Case 78 would seem to be a precedent for selective enforcement through protest by A as long as her goal is to seek advantage without collusion with any other competitor and not for any extraneous reason not directly connected with the outcome of this event for A, but it is distinguishable if an appeal were to be heard as 78 seems to be about on water sailing tactics of a boat not selective enforcement of the rules through protests.

Without your decided emphasis, Paul, that line can imply the expectation of enforcement of penalties upon oneself.
You are putting SHALL into 60.1, when the writers, in their amazing wisdom and foresight, put MAY.
You are putting REQUIREMENT to protest into 60 where the writers chose to put RIGHT to protest. [That's two.]
61 is chock full of IF (competitor, RC, or PC) INTENDS to protest or DECIDES to protest. Again it could have, but does not, say SHALL protest. [Three, four, and five.]
.
Now what happens when each competitor applies the Elvstrom criteria to the judges and the rules themselves, and abandon respect for them?
Over-reaching judgments will be counterproductive. They will lead, in the best case, to eschewal of protests. And in the worst case, suicide for the rules and the sport.
Elvstrom's is an attainable goal for yacht racers and yacht racing. St. Peter's is not.

Philip, thanks for the time and effort you have put into consideration of my comments. As a matter of interpretation I would not expect drafters to draft in a way that would have the meat of the meaning in a basic principle in some person's implicit restriction of what would otherwise be the meaning. The words "and enforce" have a clear general all encompassing meaning. It would in my view be a mistake in the general application of principles of statutory interpretation to seek to restrict them to only applying to enforcement against oneself. It would also make the "and enforce" serve no practical purpose or result (ie be otiose) as in plain language if you follow the rules you have already enforced them against yourself. If an interpretation based on an implied limitation renders the words "and enforce" otiose, that supports that the implied limitation is not correct. "When a statute is clear, however, it is given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used." The plain meaning is a general obligation to enforce.

Having said that, I can understand why no rule making any single failure to enforce a breach by hailing protest and putting up the red flag exists - it is impractical and would be honoured in the breach for a multitude of social, practical and personal reasons. Having said that in my view some failures of enforcement or selective enforcement could come within the ambit of being a breach of RRS 2, particularly in elite competitions of mature, highly experienced sailors. I appreciate that what was generally regarded as not fair a generation ago might be seen as smart or skillful or displaying extremely detailed knowledge of the rules today. Burdens of proof and perhaps other practicalities would however make such a finding unexpected except in the most blatant and egregious examples.

Enjoy the Easter break.

Angelo Guarino
said

In a multi-race regatta (non-team), the last race is a 4 leg distance race. Boat A will win 1st place if Boat A finishes ahead of Boat B, and Boat B finishes ahead of Boat C. Boat C will win 2nd place if she places ahead of Boat B, and vise versa.

During the 3rd leg, Boats A and C are ahead of Boat B, Boat C fouls Boat A without contact. Boat A calls "protest", Boat C completes a 2-turn penalty thus falling behind Boats A and B.

All discussion that follows assumes, which I strongly dispute, that there is ever a path of judicial reasoning that permits a right (to protest) to be transformed into a duty (to protest), bearing in mind that the common law or statutory offence of misprision of a felony applies only to serious crimes, not to things like protesting.

C has taken an applicable penalty, and if she had been found to have broken a rule in a protest hearing she shall not be further penalised in accordance with rule 64.1( b )

During the last leg of the last race, Boat B fouls Boat A in the exact same way as Boat C did earlier. Boat C is close-enough behind that

Boat A figures Boat B's 2-turn penalty will allow Boat C to finish ahead of Boat B and thus take Boat A out of 1st place.

One wonders how a protest committee could get relevant evidence to find this as a fact.

This scenario does not show any connection whatsoever between what A 'figures' (regardless of whether that can be proved or not) and A refraining from protesting.

Boat A does not call protest and Boat B does not do a 2-turn penalty and the Boats finish A, B, C and place 1st, 2nd, 3rd in the regatta respectively.

Maybe A just wanted to get to the bar early and celebrate her regatta win.

It may very well have been that even though A hailed 'protest' to B, A might have reconsidered her intention to protest, and not delivered a written protest had B not taken a penalty.

A might quite reasonably have contemplated only delivering a written protest if B or C had beaten her in the race.

Question:
Is Boat A's ignoring Boat B's break of a rule (unpenalized/unprotested) because it will benefit her score or standing

Clearly not.

... is that close enough to sailing your boat tactically to benefit your score or standing (.. as outlined in Case 78 ..)

So, Case 78 circumstance ( a ) is disposed of.

Note, circumstances ( b ) and ( c ) are on their way out in a rewrite of the case, but they are irrelevant here.

that ignoring the rule breach of a competitor (without protest/penalty) is covered by Case 78?

As I've said before, I think Case 78 provides a useful starting point, particularly the remaining circumstances ( d ) and ( e ), where the Case says that there IS a breach of rule 2.

Does the effect on Boat C's final standing factor in?

Case 78 circumstance ( d ) requires not only that C would benefit, but that A and C had agreed about tactics.

In the scenario described, there is no evidence of any collusion or agreement: Case 78 circumstance ( d ) does not apply to support a conclusion that rule 2 was broken.

Case 78 circumstance ( e ) requires a finding that A was attempting to worsen B’s race or series score for reasons unconnected with sport. An example would be personal spite or animosity between A and B.

Note that this provision requires a positive finding by a protest committee about reasons unconnected with sport. It is insufficient that a protest committee failed to find reasons that were connected with sport.

In the scenario described there is no evidence:

• that A was attempting to worsen B's score, notwithstanding that as a result of A not protesting B's score actually was made worse;
• of any reasons, whether or not connected with sport, for A not protesting B.

Case 78 circumstance ( e ) does not support a conclusion that rule 2 was broken.

If "yes" to the Case 78 question, would it make a difference if the foul Boat A is aware of was:

• Boat B's foul was "not sailing the course" (Boat B missed a mark and thus sailed a shorter course than all other competitors)?

That would be a 'rule 28 error' which B could correct at any time up to finishing (rule 28.2) In that case A was not required to take any action to inform B of her intention to protest until after B finishes (rule 61.1( a )(3)), at which time, A would be in a position to know whether or not protesting would affect her placing.

• Boat B didn't protest Boat A earlier in the regatta and so Boat A was just "paying Boat B back" because she "owed her one"?

Mere evidence that B didn't protest A some time earlier in the regatta would not be sufficient to found an inference that A was 'paying her back'.

See Case 78 circumstance ( d ): the protest committee would need sufficient evidence to conclude that A had reached an agreement with B.

For consideration .. WS Misconduct Guide . From the guide, do any of these concepts apply?:

• 61.1 Rule 2 is one of the seven fundamental racing rules. It places an active duty on a boat to compete in accordance with the principles of fair play and sportsmanship. (comment AG - Does "active duty" inform the question?)
• 62.1 With one exception, the rules deliberately do not define these principles. It is necessary to take each situation in context. Nevertheless, the principles in Appendix F (which are examples and not a definitive list) are generally accepted as unsportsmanlike.

I have some doubts that the rules and Cases, properly construed, support the assertion about 'active duty' and a number of the listed examples. You just can't turn a right into a duty without clear words stating the obligation..

• App F: 55.1.4 Collusion with another competitor to ignore rule breaches which may aggrieve or disadvantage other competitors

See the discussion about agreements above. Collusion at the very least requires proof of communication and collusive content.

• App F: 55.1.5 Gamesmanship, defined as behavior of questionable fairness but not strictly illegal tactics

I think that the definition of ‘gamesmanship is problematic. It is a circularity It is saying that a breach of sportsmanship is gamesmanship with is a breach of sportsmanship.

If you consider the common examples of gamesmanship, they are wildly different from the refrain from protesting conduct.

Thanks John for your detailed reply .. though I think you switched between talking about Boats A,B,C in Case 78 and my Boats A,B,C which may be confusing as in Case 78, Boat C was being advantaged by Boat A,B's actions and in my instance Boat C is disadvantaged.

Boat C's being disadvantaged is key to my problem with Boat A's "tactic" abiding with the BP's.

We already went back and forth on details and that's not necessary here again. I think it's good to have your well stated POV out there in contrast to mine. I think we've given anyone interested in the topic, morsels of food for thought.

That said, I think some of your responses went to not accepting my premise of Boat A knowledge and intent behind her actions and questions of how a PC may have discovered this intent, which goes more to arguing the premise rather than the question (i.e. my response to Michael earlier).

As far as "new territory" though, I'm interested in your last comments regarding your reaction to the WS Misconduct Guide .. as it seems that you are chomping-at-that-bit ... a bit :-) ... and finding some of its inferences "problematic".

As far as "Active Duty" is concerned, I could argue the following...

I offer you use of my beach house with the conditions that you will be expected to keep the place clean, picked-up and tidy, locked and secured when you are away from the house and ensure that nobody smokes inside the house .. and you accept the BH invitation .. then that imposes an "active duty" upon you to do those things that I said I expected of you. It's a quid pro quo.

So in that same way, accepting access to something (the sport of sailboat racing) which sets out expected actions as a precondition of participation (expected to follow and enforce the RRS), established an active duty to do so, if you voluntarily accept the invitation to participate.

Also, your comments about "collusion" and "gamemanship" both reference language and ideas that I'd like more info about.

Collusion at the very least requires proof of communication and collusive content.
If you consider the common examples of gamesmanship, they are wildly different from the refrain from protesting conduct.

Are these your opinions and personal interpretations, or are there other WS examples, language or resources you are referencing? If it's stuff from WS .. can you provide the references?

Thanks - Ang

I see that you have edited your beach house contract from an "understanding" to an expressed condition.
Your original beach house scenario indicated that watering the plants was "understood," not stated.
Apparently, by your edit, you agree with me that the watering obligation was understood only by you. Whereas I, noting the glorious condition of your gardens, concluded that your beach house was maintained by a professional landscape firm. And that further, that any irrigation I might undertake could be detrimental to some of the plants. (Ask my wife.)
So there was no clear contract, much doubt, and no sacred duty for me to do what you imagined, other than not to trample the daisies.
A watering guide or even a spoken request would establish the duty upon acceptance of the invitation.
The written Rules establish our contract and our duties.
Judgmental interpretations of undefined elements are clear to only one party.

Philip .. no doubt if I lent you my beach house, the understandings would be clearly expressed and expectations clearly understood by both parties. That is the reason for the edits, to make the analogy better fit the scenario.

Expectations clearly stated before proceeding.- Ang

PS ... "Active Duty" is WS's wording, not mine, though it jives with my understanding.
PS PS .. Maybe we could call them the Beach House Rules of Lending! :-P

when I was a younger sailor before winning my first yearly series or national championship, I used to protest boats that I thought infringed the rules.
I had protest committees arriving with out of date rue books, and attitudes set by old legacy rules.

I won 11 yearly titles and 2 national championships by improving my scores, but not losing protests and I did this by not bringing them in the first place.

I believe the GBR team were told rely on your skills do not risk strangers in "The Room".
The reality is you cannot guarantee to win any protest.
I am an umpire and I am sure we penalise 40% + of the boats initiating the protest.
As the rule makers have tried to make the rules "fairer" they have become more uncertain.
So look at luffing, before "Luff as you please" if you have a collision you know who is to blame, the windward boat, if you are to leeward you can protest without fear.
Boats knew to Keep Clear.
Now you must give 16.1 room, so you are never guaranteed a win, and really have a 50/50 chance, After this hurdle, if there was contact you are on the defence again if there was damage (which may be a scratch).
No, not protesting is a sensible move, and especially under Rule 2 because there are so few protests it is not an established principle you should protest.

Mike

In a practical sense this seems a circular argument to me. The only way a PC would be aware of these facts would be if someone lodged a protest and the whole premise of the question falls away - A could easily argue that she didn't lodge a protest because someone else had and it wasn't necessary. If no protest is lodged then the PC would not be aware of the facts and it would just be one of the dozens of incidents that occur in a large fleet race that never end up in front of the PC.

Bill .. admittedly (and in an upfront way) I was attempting to engage in a philosophical argument (akin to the 'tree in the forest')... on the nature of intent in relation to the rules as well as what if any responsibility being "expected to follow and enforce" the rules puts upon us.

Though I've been arguing one side, I'll easily admit that there isn't a clear answer especially when the rubber meets the road in front of a PC.

That said, if I got people thinking through it and sharing their well-reasoned thoughts .. well .. I know at least I've benefited from considering the thoughts offered .. and thanks to all.

"
A fallen tree in a forest

"If a tree falls in a forest and no one is around to hear it, does it make a sound?"

Ang