Forum: Protest Hearing Procedures

Writing a fact to establish “reasonable doubt” for an 18.2(e) conclusion?

P
Angelo Guarino
Nationality: United States
Certifications:
  • Regional Judge
  • Fleet Measurer
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):

CONCLUSION:

  • 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:

FACTS FOUND:

  • 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”?
Created: 22-Jun-11 13:51

Comments

Tribhuwan Jaiswal
Nationality: India
Certifications:
  • National Judge
  • National Race Officer
0
This fact found is based on the conflicting or the inconclusive statements. So in my opinion what you have put down as fact found  looks correct.
Created: 22-Jun-11 16:08
Tom Sollas
Nationality: United States
Certifications:
  • National Judge
1
Your facts should simply state that A did not have an overlap at the zone. You should also have supporting facts (e.g.  A was not overlapped at 3 lengths to the zone, no overlap at 1, etc). Your conclusion is then A is not entitled to room. 

You can note in your conclusion that per 18.2e A was not presumed to have an overlap. But that’s a conclusion, not a fact. Just make sure your facts back that up.
Created: 22-Jun-11 16:18
Ewan McEwan
Nationality: United Kingdom
Certifications:
  • Regional Race Officer
  • International Judge
  • International Umpire
0
Your ‘fact’ is a conclusion. Better to relate to facts like the relative position of the boats at the prior mark rounding, and ‘….. at 10 boats to the mark the boats were clear.’ 

Hope this helps.
Created: 22-Jun-11 16:23
Ant Davey
Nationality: United Kingdom
Certifications:
  • National Judge
  • International Judge
  • Umpire In Training
1
Play the story backwards until you come to the 'last point of certainty' that there was, or was not, an overlap. That is your fact under 18.2(e).
Created: 22-Jun-11 17:04
P
Angelo Guarino
Nationality: United States
Certifications:
  • Regional Judge
  • Fleet Measurer
0
Roger all.  Thanks.

 We do have a last point of certainty fact of no overlap prior to my “unclear” fact above  … so your points taken together are that 18.2(e) does not necessarily need a fact that directly “supports” it … rather just state the last point of certainty and then let the 18.2(e) conclusion stand on its own relative to that last point. 
Created: 22-Jun-11 17:13
P
Angelo Guarino
Nationality: United States
Certifications:
  • Regional Judge
  • Fleet Measurer
0
Tom re: “You can note in your conclusion that per 18.2e A was not presumed to have an overlap. But that’s a conclusion, not a fact. Just make sure your facts back that up.”

That’s at the heart of my question really … what do facts that back-up “reasonable doubt” look and read like?
Created: 22-Jun-11 17:58
Mark Townsend
Nationality: United States
Certifications:
  • International Race Officer
  • International Umpire
  • International Judge
1
In my experience you usually have two facts indicating that the overlap was obtained or broken, between a point outside the zone and inside the zone. For example, you would have the following two facts and conclusion. 
1) Y was clear ahead at 4 hull lengths from the mark.
2) X had an inside overlap with Y at 2 hull lengths from the mark.
3) the parties could not agree if an overlap existed when the first boat reached the zone. 

CONCLUSION
Since there was reasonable doubt that X obtained the overlap before Y reached the zone, in accordance with RRS 18.2(e) it is presumed that she did not do so.  
Created: 22-Jun-11 18:10
Ant Davey
Nationality: United Kingdom
Certifications:
  • National Judge
  • International Judge
  • Umpire In Training
0
The rule guides you as to what to do if there is reasonable doubt that an overlap had been established. If there is reasonable doubt that the overlap was established before the first boat (Y) entered the zone, then the fact that you have to find is that 'At the zone Y was clear ahead of X.'  If an overlap was established after that then it would be a fact that the overlap was established inside the zone.  I wouldn't write 'reasonable doubt' anywhere in my facts or conclusion.
Created: 22-Jun-11 18:46
Tom Sollas
Nationality: United States
Certifications:
  • National Judge
0
Exactly that Angelo, you list facts that show there was no overlap prior to reaching the zone. Ideally when questioning the competitors, you want to get them to agree at a couple of positions how much space there was between them. From that, you have a couple of facts you can write that show no overlap.
Created: 22-Jun-11 20:26
P
Michael Butterfield
Nationality: United Kingdom
Certifications:
  • International Judge
  • International Umpire
  • International Race Officer
1
I think the wording is in the standard ws wording included in rrs
Created: 22-Jun-11 20:46
Philip Hubbell
Nationality: United States
Certifications:
  • Club Race Officer
  • Judge In Training
0
Fact found: Boats A and B disagreed regarding the establishment of an overlap.
Created: 22-Jun-11 21:27
P
Angelo Guarino
Nationality: United States
Certifications:
  • Regional Judge
  • Fleet Measurer
0
Mark I like your approach and thanks to all for the ideas from everyone. 

What’s driving this inquiry is thinking about an Appeal.  I always try to write my decisions assuming that they will be appealed, and try to read my decisions from an Appeals Comm POV. 

As we all know, conclusions and decisions can be appealed, but facts can not. 

Following Mark’s lead, we have 2 facts … let’s settle on no-overlap at 4 BL and overlap at 2BL from the mark.  Those can not be appealed.

Now we add a conclusion that states there was reasonable doubt and then the follow-on conclusions based on that.  All these can be appealed. 

It would seem that using 18.2(e) in the conclusions could really open decisions up to appeal, as there is no fact which directly substantiates it .. and it will often be the lynch pin which  drives what follows. 
Created: 22-Jun-12 14:22
Mark Townsend
Nationality: United States
Certifications:
  • International Race Officer
  • International Umpire
  • International Judge
0
You could add a third fact. 

3) the parties could not agree if an overlap existed when the first boat reached the zone. 
Created: 22-Jun-12 15:40
Philip Hubbell
Nationality: United States
Certifications:
  • Club Race Officer
  • Judge In Training
0
Facts:
1) Y was clear ahead at 4 hull lengths from the mark.
2) X had an inside overlap with Y at 2 hull lengths from the mark.
3) The parties disagree whether an overlap existed at the zone.
4) No other evidence was presented to settle the matter.
5) Reasonable doubt exists whether an overlap was established at the zone.
6) 18.2(e) COMPELLS the assumption that no overlap was established.
.
No conclusion is necessary in the facts thus far.
Nothing in the presented case indicates that a rule was violated.
Establishing or not establishing an overlap at the zone does not violate any rule.
.
If contact or failure to keep clear ensued, then only that is due a conclusion and a decision.

Created: 22-Jun-12 19:54
P
Angelo Guarino
Nationality: United States
Certifications:
  • Regional Judge
  • Fleet Measurer
1
Thanks Philip, I guess the heart of the question is whether or not an Appeals Comm would consider your 5 and 6 conclusions or facts (they can recategorize them). 

That said, I think Mark’s 3 and something like your 4 should fly as facts and close the 18.2(e) appeal-hole. 
Created: 22-Jun-13 12:03
Philip Hubbell
Nationality: United States
Certifications:
  • Club Race Officer
  • Judge In Training
0
Skip 5 (doubt) and go straight to 6 (the rule).
Those are all facts.
Then, on to whatever the violation was - or was not - for conclusions and decisions.
Created: 22-Jun-14 23:54
P
Benjamin Harding
Nationality: Hong Kong
Certifications:
  • International Judge
0
^^^^ It looks wrong.
In testimony:
X and Y said, " X was clear astern at 4 hull lengths from the mark."
Y said, "X
did not have an inside overlap with Y at 2 hull lengths from the mark."
X said, "X had an inside overlap with Y at 2 hull lengths from the mark."


What was the last point of certainty?  Facts Found: No overlap at 4 hull lengths. Y was sailing a course to round the mark one boat width from the mark.

The reasonable doubt comes at the zone.  Therefore, per 18.2e the next fact is ""X did not have an inside overlap with Y at 2 hull lengths from the mark," followed by the facts which establish a rule breach perhaps...."X sailed between the mark and Y.  Y was forced to round the one hull length from the mark."

Then the conclusion and decision.  No need to justify use of 18.2e, or explain the disagreement.    That is not a fact upon which a decision of 18.2(b) relies. Perhaps, you could list it in the 'Rules that apply', but nothing more.

The fact that X was overlapped inside at 2 hull lengths is also irrelevant to deciding whether R18.2b was broken.  If appealed, the appeal committee would presumably ask, "where is your fact about the state of overlap when the first reached the zone?"

That's how I see it.

-------------------------------------------------------
All up it would look something like this.

Facts Found

Boats approaching a downwind mark...
1.  Y was clear ahead at 4 hull lengths from the mark.
2.  Y was sailing a course to round the mark one boat width from the mark.
3.  X did not have an inside overlap with Y at 2 hull lengths from the mark
4.  X sailed between the mark and Y.
5.  Y was forced to round the one hull length from the mark..

Conclusion
Rules that apply: 18.2(b), 18.2(e)

X, clear astern at the time Y reached the zone, failed to give Y mark-room, as required by RRS 18.2(b)

Decision
X is DSQ
Created: Sat 06:39
P
Angelo Guarino
Nationality: United States
Certifications:
  • Regional Judge
  • Fleet Measurer
0
Ben, thanks for that explanation and example.  When you look at WS’s preferred language for decisions, under “CONCLUSIONS FOR PROTESTSit includes the 18.2(e) entry I referenced in my OP. 

The above implied to me that WS is guiding us to include it when 18.2(e) is used.

Even if it isn’t necessarily “guiding us to include” this 18.2(e) Conclusion, it’s listing certainly seems likes it is, at minimum, appropriate to do so in certain circumstances. So, the OP question is if one does use the “preferred” 18.2(e) conclusion, what form do the FF’s take to support it?

Your post and example make a good argument that maybe the preferred 18.2(e) conclusion is unnecessary. 
Created: Sat 14:09
P
Benjamin Harding
Nationality: Hong Kong
Certifications:
  • International Judge
1
Yes - - you're right.  The WS Standard Wording does include wording for 18.2(e).  I have used it myself in the past.  Now, while I don't totally agree that it's necessary, I do concede that it is mostly harmless as a conclusion.

Ok -  I think we all agree that use of 18.2(e) certainly shouldn't be mentioned as a fact.

My problem is that this conclusion is effectively a disclosure of the deliberation process, and a justification of the 'facts'.  Neither of these are a normal part of the hearing process.  When we make a hearing decision on any other regular rule, we are not required to declare how we arrived at the facts we found.  I'm not sure that the use of 18.2(e) to create the 'Fact' needs to be 'supported' by additional facts, or that reasonable doubt needs to be 'established' (as mentioned in OP).

Rule 63 says we must find the facts, and 18.2(e) tells us how to do it in the case of overlap.

"It is an unalterable responsibility of the protest committee to establish the “facts”
that the decision will be based upon, even when the parties present widely differing
testimony." (Judges Manual)


18.2(e) simply instructs that if the committee is not confident 'beyond a reasonable doubt' then they should make a presumption in order to establish the fact they are missing.  Nothing says they have to declare its use.

Look at it this way. If 18.2(e) was not mentioned in the conclusion, no one else would have any clue that the jury did not find the overlap state established to the necessary standard.

In other words, the Hearing Decision stands up without such a conclusion.  Begs the question whether it is necessary.

Created: Sat 15:24
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