I was involved in writing-up a recent decision where based on the conflicting and inconclusive evidence presented, it was unclear if Boat A gained an inside overlap with Boat B (who was closer to the mark) prior to Boat B reaching the zone.
In our conclusions, we added the preferred language for 18(e):
- Since there was reasonable doubt that Boat A obtained the overlap with Boat B before Boat B reached the zone, in accordance with RRS 18.2(e) it is presumed that Boat A did not do so.
We had a bit of a discussion regarding the decision “style” of whether or not that conclusion should have a fact detailing that uncertainty, because such a “fact” by its nature reads like a conclusion itself.
In the end, we put in:
- It is unclear if Boat A established an inside overlap with Boat B prior to Boat B reaching the zone.
So, I’m curious how others handle facts to support 18.2(e) conclusions in the written decisions.
Maybe it’s better to list the conflicting/inconclusive evidence in the facts instead of just saying it was “unclear”?