but you said it was a valid protest

Mike F. (emphasis added) .. "A boat may take a Two-Turns Penalty ...".

The turns are simply an option to "take a penalty", it's not a requirement of the RRS and therefore can not be the basis of a protest. The determination that a boat did not properly take her penalty OTW simply opens them up to DSQ in the hearing for the underlying infraction.

Ang

The protest is invalid - the written protest has to "identify the incident" (RRS61.2) and it doesn't. The incident that has to be identified is the original breach of a rule that led the protestor to believe that a penalty needed to be taken.

A boat cannot break RRS44 since taking a penalty at the time of an incident is optional (RRS44.1); a boat that fails to correctly take a one-turn or two-turn penalty hasn't broken RRS44.2, she has simply not taken a penalty.

US Appeal 46 deals with a similar case.

The US Appeal Committee decided that the protest as valid, since there was an incident described, thus the failure of the protestee (boat A) to take a proper and timely Two-Turns Penalty in a right-of-way incident with boat B.
However, A’s failure to take a proper and timely Two-Turns Penalty broke no rule. It meant only that she failed to take a penalty, but her failure to take a penalty had no bearing on the protested incident.
Since the right-of-way incident was not the incident described in B’s protest, A could not be penalized for that incident.

US Sailing Appeal 60 also addresses a similar situation.

I sense ambiguity in the term ‘valid protest’. Often it is applied to a protest which complies with 61.1, so that it is heard. It might then bite the dust under 61.2.

Interesting responses and US Appeal's color. I had said ..

The turns are simply an option to "take a penalty", it's not a requirement of the RRS and therefore can not be the basis of a protest.

.. well according to US 46, my statement is incorrect. By US-46, a boat not doing their turns properly CAN be the basis of a valid protest, just not a successful one ... in that if 'not taking turns properly' is the only "incident" described, the protestor is not describing a incident which breaks a Rule.

Nice insight into "incident". - Ang

Our responses seem to be ignoring the possibility that the boat protested did take a penalty turn, but not at the correct time, she may have sailed half a leg first. Is taking a penalty incorrectly breaking a rule?
It could be that the boat being protested has acknowledged a breach by taking turns, but has not taken them as required under the rule so it is the manner of taking the turns which is itself being protested.
Does the underlying incident still have to be described if it has already been acknowledged by the taking of turns (incorrectly)?

I prefer the US Appeal 46 approach, that a protest alleging a failure to comply with rule 44 can be valid, albeit that there can be no breach of rule 44, to Graham Louth's conclusion that the protest is invalid.

It may well be that in a hearing, depending on timing of hail an flag, or statements made by the protestee, that the protest committee might conclude that the rule 44 non-compliance an an associated breach of a Part 2 rule were one incident, or that a protest by the protest committee was justified.

In answer to Paul Hanly's question, non-compliance with the optional provisions (may take a penalty) of rule 44 is not a breach of a rule: it merely denies the boat the benefit of protection from further penalisation in a protest hearing afforded by rule 64.1b.

In fleet racing there is no provision for a boat to 'acknowledge a breach', and a boat sailing in one or two circles cannot be inferred to be acknowledging a breach: boats often sail around in circles .

A protest hearing can only deal with the incident that has been protested (Case 80).

........ so if the Protest was deemed Valid (flag etc), my conclusion from the above discussion would be:

the facts found would be : the protestee took a 2 turns penalty at point X,
conclusion: no rules broken.
Protest Dismissed.

agreed?

Mike, yea I'd say that's fine but I think I might go even further in not reporting the facts of the turns or lack thereof or their timing as they are irrelevant to the conclusion. - Ang

Fact's Found: the incident described does not allege the breaking of a Rule (could be worded better I think).
Conclusion: No rules broken.
Protest Dismissed.

PS ... replace the description of the incident with "skipper wore a yellow hat during the leeward rounding". The incident is described, but does not allege the breaking of a Rule. Finding as Fact whether or not the skipper did indeed wear a yellow hat is irrelevant.

.....surely the Facts Found would have to describe the "incident". Can you draw a conclusion without facts?
I'm no expert, but I think your Facts Found are actually a conclusion?

OK .. see my PS above about the yellow hat .. but yea .. I think my FF's could be worded better. My point is that whether or not turns were done or not does not inform the conclusion.

Maybe ..

FF: The incident described only alleged breaking of RRS 44.1.
Conclusion: No Rule Broken

PS: My point that I'm trying to make is that you could describe any number of turns, any timing of the turns or the lack of any turns and the conclusion doesn't change. If you can put any facts in there and not change the conclusion, then those aren't facts that are informing the conclusion. IMO, the important fact is that the incident described in the Protest only alleged an RRS 44.1 breach. Once that fact is found, then no other detail is necessary.

Assuming that the protest committee did NOT conclude:

• that the hail an flag were made as soon as reasonably possible after a breach of a Part 2 rule, and
• the protestee does not state or imply in the hearing that she broke a Part 2 rule (rule 60.3a)
• the protesting boat describes the alleged breach of a Part 2 rule in the hearing.

Validity
The protest describes an incident, namely the failure of the protestee to take turns in accordance with rule 44.2.

Facts Found

1. The protesting boat observed what she believed to be a breach of a rule of Part 2.
2. The protesting boat did not hail 'protest' [and display a red flag[ at the first red flag at the first reasonable opportunity after that incident.
3. The protestsing boat observed the protestee for some condiderable time after the alleged breach an did not observe the protestee to take a penalty in accordance with rule 44.
4. The protesting boat then hailed 'protest' [and displayed a red flag].

Conclusions
A. The protest alleging a breach of rule 44 is valid.
B. There is no valid protest in respect of any breach of a Part 2 rule
C. The protestee's failure to take a proper and timely Two-Turns Penalty broke no rule. It meant only that she failed to take a penalty. Since the right-of-way incident was not the incident described in the protest, the protestee could not be penalized for that incident (US Appeal 46).

Decision
Protest dismissed.

Mike

Your OP doesn't make clear whether the protestee never took turns or took turns late, or took turns somehow othewise not in compliance with ruel 44.2.

You can't find that a boat took a penalty until you find that 'she may have broken a rule' (rule 44.1).

I agree with you: Angelo's fact is a conclusion:

• Facts are what you can see, hear see, smell, taste, touch, otherwise Who, What, Where, When, How, Why, and that which can reasonably be inferred from these things.
• Conclusions arise from the appliction of the rules to the facts

See also Case 104.

Angelo

The protest DOES allege a breach of a rule, namely rule 44: it is just incorrect.

John, first I don't have an issue at all with what you wrote above. I think it's comprehensive and tells the complete story. That said, you and I did go through a redlining exercise a while back in another thread ... removing and pruning FF's that though might add to completeness of the story, were not strictly needed. I've got a devilish leprechaun sitting on my shoulder whispering in my ear saying that FF's 1 and 2 are talking about a separate incident not described in the protest as presented by the OP.

In that spirit, taking what you wrote and based on OP's initial conditions, could this fly?

Facts Found

1. The protesting boat observed what she believed to be a breach of a rule of Part 2.
2. The protesting boat did not hail 'protest' [and display a red flag[ at the first red flag at the first reasonable opportunity after that incident.
3. The protestsing boat observed the protestee for some condiderable time after the alleged breach an did not observed the protestee to take a penalty, but not in accordance with rule 44.
4. The protesting boat then hailed 'protest' [and displayed a red flag]. (Note: This will already be indicated in the validity section, so this is redundant).

Conclusions
A. The protest alleging a breach of rule 44 is valid. (Note: This also will already be indicated in the validity section, so this is also redundant).
B. There is no valid protest in respect of any breach of a Part 2 rule
C. The protestee's failure to take a proper and timely Two-Turns Penalty broke no rule. It meant only that she failed to take a penalty. Since the a No right-of-way incident was not the incident described in the protest, therefore the protestee could not be penalized for any other incident (US Appeal 46).

Clean Version (close to where Mike was heading) ,,,,

FF:
1) The protestsing boat observed the protestee take a penalty, but not in accordance with rule 44.

Conclusion:
A) The protestee's failure to take a proper and timely Two-Turns Penalty broke no rule. It meant only that she failed to take a penalty. No right-of-way incident was described in the protest, therefore the protestee could not be penalized for any other incident (US Appeal 46).