This situation is similar to the situation described in Q&A 2010-003 at a windward mark.

In terms of getting the answer right, this is, IMO, a tough one even if Blue's identity is known. There are two issues here: (1) How much responsibility should the protest committee take in finding out who Blue is, or even in protesting Blue if they know who she is? (2) If Blue can't be found or isn't protested, should the PC exonerate Green under rule 64.1(a) even though they can't penalize Blue?

(1) I've generally come down on the side of protesting Blue if we can easily identify her and, if not, letting her go. However, several judges whom I respect say it's really not the PC's responsibility to protest third parties -- the protestor should know whom to protest. I think most judges are somewhere in the middle -- if the diagram on the protest form shows a third boat whose identity is known, who might well have compelled the other boats in the diagram to break rules, protest her at the outset so she can come to the hearing and present her case, but if that boat only comes up during the hearing, don't do so.

(2) If Blue can't be identified or isn't protested, I think the credibility of Green's claim that Blue did not give her sufficient room is in serious doubt. Of course, you'd have to hear the testimony first-hand to determine that, but "I was forced to fail to give Yellow room because of a mystery unidentified boat outside me who didn't give me room" reminds me of my daughter, when she was 3 or so, trying to persuade her mother and me that the milk glass had simply fallen off the table, presumably due to a temporary anomaly in the laws of gravity.

Apparently Green doesn't contest yellow's statement that there was contact between those two boats. I think Green's in trouble here.

For Green to claim that she was not given room by Blue, she would have to protest Blue at the time of the incident. Having hailed Protest, one would expect Green would make every effort to identify the boat it was protesting. Failure to protest Blue makes Green's testimony very weak.

John

Per the diagram, Yellow was the first boat to reach the zone and therefore is entitled to room at the mark. As Yellow contacted both the mark and Green, it is clear that she was not given room. Yellow's protest against Green should be upheld and she should be exonerated. If Green did not protest Blue she cannot be exonerated absent some extraordinary circumstance.

So let's change the facts a bit. Let's say Green does in fact properly protest Blue, but Blue doesn't show at the hearing. Same facts otherwise...

The relevant point is ; do we agree with Q&A 2010-003 ?
Question 3:
In the absence of any identification of the boat that may have caused boat A to break rule 31, is the protest committee entitled to exonerate boat A?
Answer 3:
Yes. Provided the protest committee concludes, based on its facts found, that an unidentified boat did break a rule and compelled boat A to break rule 31, it may exonerate Boat A for breaking rule 31 under rule 64.1(c)

I see no issue with exonerating Yellow under R 21 as Green breaks R 18.2.b.
The question is do we also exonerate Green?
I would say No - Green has to protest Blue successfully to be eligible for exoneration. But by failing to protest Blue at the time denies Blue the opportunity to take an R44 Penalty .
John

I don't think Q&A 2010-003 is still valid. I think it has expired long ago...

I think this decision turns of the precise wording of rule 64.1(a) and the facts found by the PC. Yellow would be entitled to exoneration because Green failed to give her mark room. Green would be entitled to exoneration under Rule 64.1(a) if the PC found as a fact that Blue had caused her breach of rule 18.2(b) in respect of Yellow. Rule 64.1(a) only says that a boat has to be breaking a rule and compel another boat to break a rule, there does not seem to be any requirement for a protest to be lodged as far as I can see. If on the evidence presented the PC is not satisfied that Blue broke a rule and compelled Green to break a rule then Green should not be exonerated.

I think Bill is right if for no other reason than we should be consistent. If we're going to allow redress based on a rule being broken by a boat that may not even be identified (see prior post), then we should allow exoneration on the same basis.

Identifying Blue may be academic if the RC kept good records - specifically, the mark roundings. If I were Green, and in danger of being disqualified, then I would file the protest against Blue (unidentified) and then request RC records to determine Blue's identity.

Absent Blue's presence in the hearing, Green has a very weak case.

As a note, decades ago I had proposed a change to rule 64.1(a) requiring a boat to protest the boat that compelled her to break a rule in order to get exoneration. That was following disqualifying the 10th boat out in a mark rounding, when the skipper had no clue that there was contact between the two farthest inside boats. Seemed grossly unfair!

Paul Zupan
said

I think Bill is right if for no other reason than we should be consistent. If we're going to allow redress based on a rule being broken by a boat that may not even be identified (see prior post), then we should allow exoneration on the same basis.

I think that's logical.

I note that it may well be that Y gives good strong evidence that the unidentified boat B was very close to leeward of B, and changing course, sufficient to easily persuade the protest committee.

If the PC found as facts that there was a blue boat and concludes blue compelled green to break a rule, which rule would allow us to not exonerate green?
I am with Bill and Paul on this, absolutely.

The Q&A does unfortunately not exist anymore, but just going by 21 and 64.1a by the letters I come to exactly the same conclusion.
If there is sufficient evidence, eg in yellows and greens testimony, to find as a fact that blue was there and did compel green by breaking a rule, then green is exonerated.
No need to protest blue - however, if blues identity can be found out during the hearing, I would also go with protesting her under 60.3 and make her a party..

After all, there is no protest requirement for a turns penalty under 44 - you can do that all by yourself if you think you may have broken a rule of part 2 (or 31).

My thinking is along the same lines as Paul's last one with the mystery gyber.

In this case we have 1 unidentified boat possibly fouling or precipitating a foul and 2 other boats at the hearing giving testimony. Therefore IMO it comes down to the strength of the testimony as far as Green's exoneration.

1. Does Yellow give strong testimony supporting Green's contention that Blue did not give her room and forced her into Yellow?

If so, I wonder on what basis a PC would ignore the testimony of 2 boats giving testimony that Blue also fouled Green?

Also, I'd think it important to understand why Green didn't protest Blue. We can assume that Yellow complied with her 61.1(a) obligations vs Green .. so Green knew she'd likely be facing the music and so as soon as "Yellow" yelled "Protest" .. why didn't she follow suit?

I would want to understand that and weigh that against their aligned testimony to Blue's actions.

Ang

Ang, I did not really understand what you mean with "ignore the testimony of 2 boats" - in the case you describe (strong testimony by both that blue was there and compelled green) the PC would only ignore those two boats if they penalized green instead of exonerating her.
Did you mean that?

Cheers
Thorsten

Thorsten ... yes .. what I meant to say is that I don't think a PC can find that Blue (unprotested, unidentified and not present) fouled Green forcing her into Yellow, and thus exonerate Green, only upon Green's word alone without any other evidence. I think she needs some support from Yellow by what she heard or saw at the time.

Likewise, I think if both Green and Yellow provide strong testimony that Blue forced Green into Yellow, I was asking how and under what circumstances could a PC ignore that testimony and not exonerate Green?

Ang

PS .. for instance .. let's say that the PC calculates that it's in Yellow's interest that Green not be penalized as it would move Yellow's standing up from 3rd to 2nd in the series. Could the PC use that fact alone to discount Yellow's testimony in support of Green's case?

The thing that bothers me is the lack of evidence (testimony) that Blue actually failed to give Green room. Did Green hail for room or otherwise alert Blue? Was it not Green's primary duty to stay clear of Yellow? If Green made contact with Blue rather than Yellow she would have a stronger case.

John

Was it not Green's primary duty to stay clear of Yellow?

That's a very interesting question and one that I've had to answer in real-time on the water a couple times now. Your question reworded:

When forced to choose between breaking 2 rules, how should a boat prioritize which rule to break?

IMO, the boat should choose to break the rule which is most likely to (in order):

1. avoid contact
2. result in the least injury
3. result in the least damage

I've been forced into a couple no-win, situations while racing where I've had to choose between t-boning one boat or strongly banging another boat at a glancing angle.

I'm not sure we can order the priority of the rules other than that.

If Blue did actually force Green, she may have determined that incidental contact with a boom against a shroud was likely to produce less damage/injury than banging hulls and maybe entangling rigs or hurting crew.

Ang

Angelo Guarino
said

Thorsten ... yes .. what I meant to say is that I don't think a PC can find that Blue (unprotested, unidentified and not present) fouled Green forcing her into Yellow, and thus exonerate Green, only upon Green's word alone without any other evidence. I think she needs some support from Yellow by what she heard or saw at the time.

Likewise, I think if both Green and Yellow provide strong testimony that Blue forced Green into Yellow, I was asking how and under what circumstances could a PC ignore that testimony and not exonerate Green?

Ang

PS .. for instance .. let's say that the PC calculates that it's in Yellow's interest that Green not be penalized as it would move Yellow's standing up from 3rd to 2nd in the series. Could the PC use that fact alone to discount Yellow's testimony in support of Green's case?

I've previously said that I think that it is a very bad idea for a protest committee to assume that representatives and witnesses are liars and cheats.

There is no rule or guidance that says that a protest committee must or should not believe straightforward testimony from a party without corroborration.

It would be a different matter if G gave evidence about the existence and conduct of B, but Y gave evidence that they never saw B at all.

It's also very bad practice for a protest committee to go analysing series pointscores in a protest hearing, and searching for motives for cheating..

That said, I think we're dealing with a somewhat improbable hypothetical situation here.

The most likely case would be that one or both of B and G would tell the protest committee that B was some boat from out of town that they didn't recognise and didn't have time to get the sail number. I would be inclined to find that believable.

John Thorne
said

The thing that bothers me is the lack of evidence (testimony) that Blue actually failed to give Green room.

This is a rules forum problem. We have a brief description of an incident provide by the poser of the problem. We have no idea what the testimony might have been. We have to work with what we've got, or make some stated assumptions.

We are told in OP "Green states Blue did not give her mark room ... ".

Parties and witnesses often make statements like this in protest hearings. It is not, strictly speaking evidence of any fact. It is an opinion about the application of a rule (rule 18.2), and a Definition (mark-room). Those are matters that a protest committee would express as conclusions. To support the opinion or conclusion, the protest committee would need answers to some questions about times, distances, and existing conditions.

Did Green hail for room or otherwise alert Blue?

Hailing has no effect on entitlement to room or mark-room, except hailing for room to tack under rule 20.

Was it not Green's primary duty to stay clear of Yellow?

Boats do not have 'primary' and 'other' duties. They just have an obligation to comply with the rules.

Green certainly did not have any obligation or duty to keep clear of Y. G was overlapped to leeward of Y; Y was required to keep clear of G (rule 11).

G's obligation to Y was to give her mark-room (rule 18.2 ( b )), and while Y was sailing within the mark-room to which she was entitled she was exonerated if she broke rule 11 (rule 21).

If Green made contact with Blue rather than Yellow she would have a stronger case.

We are told in OP "Green states Blue did not give her mark room and Yellow's boom hit her shrouds".

John A .. first thanks for all that input .. very much appreciated.

There is no rule or guidance that says that a protest committee must or should not believe straightforward testimony from a party without corroborration.

So are you saying that given our scenario (as improbable as it might be) that if Yellow has nothing to offer as far as Blue giving Green room that you'd exonerate Green just based on her word?

I guess my heartache is that we have no indication that Green even yelled "Protest" to Blue, there is no protest filed and no Blue-ID .. but .. we have a valid Yellow v Green protest. So the scenario to be believed is Yellow protests Green (fulfilling her OTW notice) putting Green in the hot-seat, but Green, being forced to foul, doesn't seem to protest Blue on the water to protect herself.

If we had Yellow say she heard Green protest Blue OTW .. then my heartache would lessen .. I'm just having a hard time without something more.

Ang

Had the contact with Yellow caused damage to Green, wouldn't we give her redress? I can't see the distinction here between giving redress vs exoneration...

Paul

Had the contact with Yellow caused damage to Green, wouldn't we give her redress? I can't see the distinction here between giving redress vs exoneration...

I'm struggling with verifying the Blue foul without Green meeting her on-the-water protest obligations against Blue and/or supporting testimony from Yellow. I don't see how damage to Green from Yellow is evidence of a Blue foul.

Now if there was evidence of contact between Green and Blue (blue scuff marks, scratches) .. that's something more.
If Yellow says she heard Green protest Blue .. or even testimony that Yellow heard Green yelling at Blue .. that's something more.
If there was serious damage between Green and Blue such that it would be obvious to Blue .. then Green's on-the-water obligations vs Blue are removed, but we'd have that damage evidence.

To be honest, I think I would struggle getting past the fact that Green didn't protest Blue on the water given she was protested. I think I'd have to understand why to help me over that hump to exoneration.

Ang

Angelo Guarino
said

John A .. first thanks for all that input .. very much appreciated.

There is no rule or guidance that says that a protest committee must or should not believe straightforward testimony from a party without corroborration.

So are you saying that given our scenario (as improbable as it might be) that if Yellow has nothing to offer as far as Blue giving Green room that you'd exonerate Green just based on her word?

I guess my heartache is that we have no indication that Green even yelled "Protest" to Blue, there is no protest filed and no Blue-ID .. but .. we have a valid Yellow v Green protest. So the scenario to be believed is Yellow protests Green (fulfilling her OTW notice) putting Green in the hot-seat, but Green, being forced to foul, doesn't seem to protest Blue on the water to protect herself.

If we had Yellow say she heard Green protest Blue OTW .. then my heartache would lessen .. I'm just having a hard time without something more.

What I'm saying is that we should treat the evidence of parties in a protest hearing on its merits, without assuming that parties are likely to lie to advance their own interests. My preference is to assume that people, including parties to protests are telling the truth unless there is evidence to the contrary.

Of course the protest committee is going to evaluate the testimony given, on it's rationality, level of circumstantial detail, angles of sight, internal consistency etc etc etc.

Angelo Guarino
said

I'm struggling with verifying the Blue foul without Green meeting her on-the-water protest obligations against Blue and/or supporting testimony from Yellow. I don't see how damage to Green from Yellow is evidence of a Blue foul.

This is the sort of thing that I mean with respect to unjustified prejudice against a party.

Green has NO 'on-the-water protest obligation'. No boat EVER has an obligation to protest: a boat may protest (rule 60.1) but there is no racing rule that requires X to protest Y (Case 142).

If you approach Green's testimony from the point of view that she has already breached some 'obligation', then this is completely unfair to Green.

To be honest, I think I would struggle getting past the fact that Green didn't protest Blue on the water given she was protested. I think I'd have to understand why to help me over that hump to exoneration.

As I said before, realsitically, I'd expect G and/or Y to to volunteer some information, like 'B was an out of town boat and we didn't get her sail number'.

If they didn't, the protest committee might well ask Green why she didn't protest B. If G answered 'I didn't get her sail number and I didn't think protesting her was worth while', I can't see why the protest committee should take that any further.

Very often we will hear testimony about B as follows:
G: can give timing, distances and manoeuvres from B, but in the heat of the moment had no time to identify B, especially in windy or crowded situations
Y: can give information about the situation between Y and G, but did not pay attention to outside boats. Will confirm there might have been another boat close, but not sure about manoeuvres or distances.

I think we should assume parties give honest testimony unless we have the serious suspicion of the contrary. If we have evidence for a lie in a hearing, we are in a different proceeding.

But we should always bear in mind that testimony, also honest testimony, is always based on memory - and memory is completely subjective and unreliable. The same situation will always be remembered differently by different people. Hence, in most cases the stories of the parties will not match completely.

Angelo Guarino
said

What I've said all along (in several different ways) is 'I'd have a "hard time" exonerating without SOME addition info'.

I'm not saying that a boat can breeze into a protest hearing and say 'The devil, in the form of a Blue boat that nobody else saw, and I can't identify, made me do it.'

As Thorsten and I have said previously it is highly unrealistic to suppose that there is no evidence of the existence or conduct of B other than evidence given by the representative of G, and that further, that evidence did not contain at least some explanation of why G was unable to identify B and did not protest them.

I would expect, if there was nothing said about these issues, for the protest committee to:

• ask Y 'what can you tell us about B?'
• ask G 'how is it that you cannot identify B?'
• ask G 'please describe B?'
• ask G 'why did you not protest B?'

But this would be on the understanding that G was under no obligation to protest G, and there are a myriad of quite proper answers to the question.

What I mean by that is that after testimony and questions, when in the huddle with the other jurors, I would ask the others what they think of all this within the private deliberation. We would discuss it and if the other 2 felt the testimony and facts found supported it, I'd imagine I'd follow suit.

Yes, I agree, "on the water obligation" was a poor choice of words .. I agree Green is not obligated to protest Blue, but the conundrum still stands Green is protested, does not take turns, which she is under no obligation to do, and does not protest the boat she says fouled her which she is under no obligation to do .. a foul whose existence her potential exoneration will rely upon.

Neither G's taking penalty turns nor protesting B are matters relevant to whether or not B existed or broke any rules. By considering those matters you would be taking into account matters not relevant to the issue being determined, which is, to use USA speak, a breach of due process (or to anybody else, natural justice).

Are you saying this apparent incongruity from Green

I just don't understand what it the 'conundrum', or 'incongruity'.

is an inappropriate topic of discussion within the privacy of the juror's deliberation

What is inappropriate, is for judges to be considering matters like taking turns and protesting, which a boat is under no obligation to do, as somehow indicating that her evidence lacks credibility.

or an inappropriate line of questions in the search for understanding? (very sincere question on my part as I'm really trying to understand the lines in the point you are making).

No, in the unlikely event that the parties did not proffer the information, there are some obvious questions, which I have indicated above.

What concerns me, and I may be misunderstanding you, is the apparent attitude of mind that by not doing some things, it is indicated that a party to a protest is lying to the protest committee.

Thanks for putting Case 142 in there.

In the "examples of evidence" at the end, "X claims that Y fouled her by breaking a rule of Part 2" is not one of them.
This is understandably absent, as it's the obvious case since X has filed the redress making that claim. If that was all that was needed, we potentially create a self-satisfying standard.

Well, a 'claim' is not evidence. To find that B did not give G mark-room, the protest committee is going to be asking all the usual questions: How far, How long, what existing conditions, How fast, etc etc.

Seems to me that if we take the position that X's claim is sufficient, then that would mean that X's redress filing is sufficient, for in that filing is the claim.

If we go that route, how does that not lead to the position that any claim is sufficient unless we take evidence to the contrary?

See above: to conclude that B broke a rule (and compelled G to break a rule, or entitled G to redres) the protest committee is going to have to find all the facts it would find in any ordinary protest against B, except for the identity of B.

John, I really do appreciate you taking the time to spell out your thoughts on this issue in such detail.

What concerns me, and I may be misunderstanding you, is the apparent attitude of mind that by not doing some things, it is indicated that a party to a protest is lying to the protest committee.

Yes, you are misunderstanding my position.

I'm not saying that we should assume Green is lying. What I'm suggesting is that, given the (improbable) scenario presented, Green's testimony alone may be insufficient (again, to my "having a hard time" standard).

What I've been trying to say (and my apologies if I have not been clear or consistent) is that, absent a protest or at least steps in an attempted protest (let alone an ID for Blue and thus Blue's opportunity to be present at the hearing), that Green's likelihood to succeed (in exoneration or redress as in Case 142) she should have some 3rd party corroboration and/or some indication that Blue thought she might have fouled Green.

When I read Case 142, it seems to support the position that I've been trying to take. If we agree that C142 informs our discussion, let's leave our Yellow, Green, Blue scenario and jump to the X and Y in Case 142 for a moment.

First, in C142, we have injury and/or physical damage that X can point to and that can be independently corroborated (pics of damage, doc bills, testimony of the injured)
Second, in addition in C142, both examples (a) and (b) involve 2 elements which seem key or at least important (since they are present in both examples) ...

1. Both examples involve testimony or information from a 3rd party
   1. in (a) it's testimony from crew on Boat Y
   2. in (b) it's testimony from a race official
2. Both examples involve testimony that Y took actions consistent with Y fouling X in some way
   1. in (a) Y's crew testifies that Y took a penalty
   2. in (b) a race official testifies that Y's representative acknowledged the infringement in some official way or took a penalty

So, in both examples we have a 3rd party AND we have something which shows Y taking actions consistent with Y acknowledging fouling X.

C142 does not offer as an example "X provides uncontroverted testimony consistent with the redress filing that Y fouled X". Seems to me that if that was meant to be sufficient, that would be example #1 as it would likely be the lowest threshold.

Back to our Yellow, Green, Blue scenario ..

1. We have no physical evidence that Blue fouled Green
2. We have no 3rd party testimony that Blue fouled Green
3. We have no evidence that Blue took actions consistent with Blue acknowledging fouling Green
4. We have no Blue (we don't even know who Blue is)

So it's not that Green is lying but that her testimony alone, given the improbable scenario, may not be sufficient.

That's where I'm struggling wrapping my head around all this .. and if we think Case 142 is applicable .. it seems to suggest the same higher threshold.

Ang

PS .. do you know of any other references which expand on Case 142? They might prove informative.

There are two relevant background documents to Case 142

Submission 161-17 for Case 142

http://www.sailing.org/tools/documents/16117RacingRulesofSailingNewCase-[23120].pdf

RRC Committee Minutes 2017 Amending Text of Case 142, which was finally approved by Council

http://www.sailing.org/tools/documents/MINRR112017-[23559].pdf

There is also an (outdated, but I think, nevertheless persuasive) Q&A 2010-003 Compelled to break a rule by an unidentified boat breaking a rule.which discussed this very issue.

http://websites.sportstg.com/get_file.cgi?id=2727008

Q&A 2010-003: Can a boat be exonerated because she was compelled to break a rule by an unidentified boat?

(the protest was by the RC for a mark-touch, but it could equally well have been by another boat, either third party observing, or a three-boat incident.}

In itself, the lack of a protest by boat X and the lack of identification of the unknown boat, does not make it impossible to exonerate boat X.

…normally the protest committee will need to consider more than just boat X’s testimony. Without any further testimony as basis for facts found and conclusions, the likelihood of exoneration is not big.

… testimony from [another witness], makes it more likely that the protest committee can find sufficient facts

The Q&A takes the view that if it is not possible for a boat seeking exoneration to identify the compelling boat, it is not reasonable to expect her to protest, where that protest will necessarily be invalid. (and furthermore, by implication, that it is not reasonable for her to make a ‘pro-forma’ protest, in the hope of being able to identify the compelling boat later)

Case 142 Does a boat requesting redress because of damage caused by another boat breaking a rule need to protest the other boat to support her request for redress?

No, but a protest may help her case.

there is no racing rule that requires X to protest Y in order to be eligible for redress

Examples given in the Case focus on situations where the rule-breaking boat is identified and, indeed, provides evidence in one way or another, but the Case, however, concludes

… examples of evidence that would lead a protest committee to [conclude that a boat not protested broke a rule of Part 2 include … [a]ny … evidence that leads the protest committee to conclude that [a boat not protested] broke a rule of Part 2 in the incident with [the boat requesting redress].

This, clearly enough, covers the case where the rule-breaking boat is not identified.

The Submission for Case 142, in Option 1 (Protest Required) canvasses the proposition that it is necessary for the allegation of a boat breaking a rule to be tested by the adversarial process of the alleged rule-breaking boat confronting and cross-questioning the boat alleging the breach in a protest hearing and the RRC, in deciding on which Option to adopt, rejected that proposition in favour of the express interpretation that no protest is required.

I don't agree that Case 142 suggests any high threshold. The third dot-point example in Case 142 refers to "Any other evidence that leads the protest committee to conclude that Y broke a rule of Part 2 in the incident with X". This plainly encompasses testimony from a party that may not be corroborated.


I

John, thanks for that additional info.

From your first reference (emphasis added) ..

"Some judges think that there is a need of a protest and others state that knowing during the redress hearing that a boat has infringed a rule of Part 2 is enough. The purpose of this case is to clarify the issue."

Then later...

"Boat X when requesting redress only needs to provide evidence that another boat was breaking a rule of Part 2. This evidence may be an acknowledgement of infringement from boat Y, e.g. by Submission: 161-17 Cont’d bringing boat Y to the redress hearing as witness or by having boat Y acknowledging the infringement by other means, such as signing an acknowledgment of infringement form."

I don't agree that Case 142 suggests any high threshold. The third dot-point example in Case 142 refers to "Any other evidence that leads the protest committee to conclude that Y broke a rule of Part 2 in the incident with X". This plainly encompasses testimony from a party that may not be corroborated.

I agree that the 3rd dot-point opens the door to a much lower threshold than do the first 2 and than what is suggested in the links you provided for case 142 submissions and outdated Q&A's.

Ang