Forum: Rule 18 and Room at the Mark

Tacking Inside the Zone at a Windward Mark

Rob Goddard
Nationality: United Kingdom of Great Britain and Northern Ireland
Two boats enter the zone in order to round the windward mark to port, 
Both boats are one design keel boats travelling up wind at 5.5 knots
Boat A sailing on port and boat B on starboard.
Boat A tacks closely ahead and inline of boat B.
Boat B states that she luffed above close hauled to avoid contact with Boat A.
Boat A states that boat B was clear astern after her tack and didn't need to luff.
How should the PC apply the "burden of proof" to decide this protest?
Created: 19-May-28 14:02

Comments

Warren Nethercote
Nationality: Canada
2
This is an 18.3 situation whereas the scenario suggests that A is defending her actions based on rule 13 obligations.  It is not apparent to me that either boat has a 'burden of proof,' rather, the PC might adopt the principles of case 50 (albeit a different scenario).  After having found that 18.3 conditions applied, did B luff above close hauled?  Did she have reasonable apprehension of contact?  If so A broke 18.3.
Created: 19-May-28 16:22
Harald Holmen Sørensen
Nationality: Norway
Certifications:
  • International Umpire
-2
It's worth mentioning that even if it's found as a fact that she "luffed above close hauled to avoid contact", it doesn't necessarily mean that 18.3 is broken.
If the boat instead could have bore away to avoid contact, then this rule is not broken.
Created: 19-May-28 17:33
Werner Esswein
Nationality: Germany
Certifications:
  • National Judge
  • National Umpire
  • National Race Officer
1
If B has to change course to keep clear, she can decide to luff. She has no obligation to avoid a situation being above close hauled. 
Created: 19-May-28 18:00
Alain Vranderick
Nationality: Canada
-4
I concur with Harald and Werner. I don't believe it's an 18.3 situation. Boat A completed her tack, it's then a rule 12 situation. If boat B wants to protest, she need to prove  that she had to avoid A while A was still tacking.
Created: 19-May-28 19:34
P
Michael Butterfield
Nationality: United Kingdom of Great Britain and Northern Ireland
Certifications:
  • International Judge
  • International Umpire
  • International Race Officer
1
I disagree with some of the comment. If the boat astern chose to bear away she would be entitled to mark room but may have been forced to miss the mark. She has a choice and to luff if she has to miss the now slower boat is an option. The boat may have tacked correctly but if the following boat had to luff above close-hauled then there was an 18.3 breach. World sailing want to discourage tacking in the zone and this is exactly the situation the rule speaks to. Burden of proof? Balance of probability, or like case 50 was there a reasonable apprehension of a collision causing the boat to actually necessarily luff above close-hauled
Created: 19-May-28 19:54
John Eilers
Nationality: United States of America
Certifications:
  • Club Race Officer
-1
Alan's comment above is incorrect; if the boat that did not tack had over stood the mark and could go up without sailing above close hauled, the tacking boat is ok. 
The burden of proof is always on the protesting boat to make her  case that she was fouled.  If the non-taking boat's  jib does not breakup she was not forced above close hauled.
Created: 19-May-28 21:01
Warren Nethercote
Nationality: Canada
3
John, there is no onus provision within rule 18.3, nor is there a specific burden of proof on the protestor as opposed to the protestee.  Once the protest is ruled valid it is up to the protest committee to determine fact and make a decision.  The OP asked us how the PC should do that. The original post had A tacking in the zone, and completing her tack on B's course axis.  The question for the PC will indeed be whether B sailed above close-hauled, and if so, did she need to do so to keep clear of A, but the PC should not apply any explicit or implicit onus on one party or the other.

Warren
Created: 19-May-28 21:42
John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
0
Rob Goddard said
Created: Today 14:02

Two boats enter the zone in order to round the windward mark to port, 
Both boats are one design keel boats travelling up wind at 5.5 knots
Boat A sailing on port and boat B on starboard.
Boat A tacks closely ahead and inline of boat B.
Boat B states that she luffed above close hauled to avoid contact with Boat A.
Boat A states that boat B was clear astern after her tack and didn't need to luff.
How should the PC apply the "burden of proof" to decide this protest?

As Warren correctly says, the rules do not impose a burden of proof on either party in a protest.  When Mike Butterfield refers to 'balance of probabilities' that is, properly called the standard of proof, not the burden of proof.

A protest hearing should be viewed as a cooperative endeavour between both parties and the protest committee to ascertain the facts relevant to the incident and apply the rules.  Parties and witnesses should be presumed to be telling the truth to the best of their ability, unless there is evidence to the contrary.

So burden of proof will do little to decide the protest.

Assuming that it is agreed that A reached her close hauled course without B needing to take avoiding action, and thus that A did not break rule 13.

Given the OP fact that A tacks closely ahead and in line of B, what is necessary is for the protest committee to ascertain is how far ahead of B A was, that is to say, what was the distance between A's stern  and B's bow when A reached her close hauled course.

If A did not break rule 13, that distance must initially have been at least sufficient to not give rise to a reasonable apprehension of collision (Case 50).  Depending on the type of boats this might be in the order of at least half to one metre.

The protest committee is going to need to question the parties and the witnesses, and weigh up the testimony given.  The protest committee will need to consider:
  • The relative positions, sight lines and points of view of each witness, in particular, the helm of B, (supposing it is a 10m boat) will be 8-10m away from the gap, with their view obstructed by crew, sails and the bow of B, while the helm of A, at the stern of their boat will be only one or two metres away from the gap with an unobstructed view.
  • The relative speeds and changes in speeds of the boats:  from the protest committee's own knowledge, they will know that a boat that tacks will come out of that tack appreciably slower than a boat that is sailing close hauled on that tack without interruption

By the sound of the OP, if A reached her close hauled course 'closely ahead and in line of B', that makes A's assertion that B was clear astern superfluous:  the only issue is whether the gap was so small that B 'needed' to take action to avoid A, and, starting from 'closely astern', with a difference in speed, I would be inclined to conclude that B did need to take action to avoid.

Created: 19-May-28 22:24
Will Moore
Nationality: United States of America
Certifications:
  • Club Judge
0
I've got to disagree that the protesting boat has the burden of proof. In particular, check out the International Judges Manual Section K.19: Hearing Procedure: Finding the Facts.
The racing rules do not give the onus of proof to one boat or the
other. Port is not required to prove she kept clear of starboard. A protest
committee is required to consider all the evidence, consider who was in the best
position to determine what happened, determine which evidence is more
credible, then decide the facts of the incident.

And even if boat A had completed her tack, 18.3 might still apply. Ultimately:
  • Did A tack within the zone?
  • If yes, was there reasonable apprehension for Boat B to have altered course to avoid a possible collision?
  • If yes and B chose to luff, then was luffing above close hauled reasonable? Or would a luff just to close hauled been sufficient to remove the risk of collision?
Created: 19-May-28 22:28
Harald Holmen Sørensen
Nationality: Norway
Certifications:
  • International Umpire
0
Michael, there is no doubt that the intention of this rule is to prevent port tackers from creating chaotic and dangerous situations around the mark. And it successfully does so. In most 18.3 cases, the starboard boat doesn't have two options, she has to go up.

However in situations where she has a choice of either way, the wording of the rule does not open for different ruling depending on how much space the port tacker has left between her and the mark...

It's a poorly written rule imo. And it could have been clarified by a case, for example by stating that in situations where there is no room to pass the mark on the correct side with the inside option, 18.3 is broken if she has to sail above close-hauled with the outside option.

Without this, we are left to the literal interpretation. And even though you could argue that it could be interpreted either way literally, it's not an acceptable situation that the outcome of such protests are depending on the composition of the panel. For this reason the right thing to do is to give the accused the benefit of the doubt, i.e. she did not cause the other boat to sail above close-hauled because the other boat had a choice.
Created: 19-May-28 22:45
John Grace
Nationality: New Zealand
Certifications:
  • International Judge
  • National Umpire
0
I agree with the comments regarding the lack of a burden of proof. I would prefer to say that a protest committee needs to make decisions based on evidence. They can’t guess. If the evidence as a whole establishes that a rule was broken, then the protest committee will find the relevant facts and conclude that a rule was broken. 

It isn’t a matter of looking at the protestor’s evidence vs the protestee’s and then seeing who wins the debate with the onus on the protestor. 

If there was a burden of proof, the outcome of many protests would often come down to which party happened to lodge a protest. If one competitor lodged a protest and another counter-protested, you could get the result of the conclusions of each protest contradicting each other.

I would also be reluctant to invoke case 50 here because that was an entirely different situation. However, in the present scenario, the boat astern needs to avoid contact if reasonably possible and that doesn’t mean waiting until contact is inevitable before she luffs. I often see case 50 used to create an informal burden of proof, which contradicts what the case itself says.

So, how do you decide the protest? The first step in resolving any question is to understand it. Here, understanding the question would involve looking at the circumstances in which the protest arose and asking what precisely you need to determine, how differences in the relevant testimony may have arisen, and what opportunities exist to resolve the differences in testimony.

John Allan has referred to some of the general things to be considered. I notice that the boat ahead says that the other boat was clear astern after the tack, but what about in the time after that? Were the boat ahead’s witnesses concentrating on what was happening behind them or were they involved with the mark rounding? How much did the boat ahead slow down after the tack and was that enough for the boat astern to overlap her?   

Another thing that happens in these situations is that boats often sail to the windward mark above the layline, so that when they are in the zone they are actually well below close hauled. They may luff to avoid another boat and their sails may flap but they may not be above close hauled.

To properly resolve this protest, all the relevant information should be considered, which isn’t as hard and time consuming as it may sound. I’ve heard judges (including those on the World Sailing circuit) say “it’s all on the tacking boat” and just follow the evidence of the boat astern unless there are readily apparent reasons to disbelieve them. With respect, that is being lazy.

Created: 19-May-29 00:22
John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
0
I strongly disagree with Harald Holmen Sørensen and agree with Mike Butterfield.

There are a number of english words conveying different shades of meaning about causation.

The least demanding, or lowest level of these is the word 'cause' itself.

Stronger words also connoting causation are 'forced' and 'compelled'.

The word used in rule 18.3 is 'cause':  there is nothing in the rule to suggest compulsion or uniqueness of the action of sailing above close hauled.

A common (but not infallible) test of causation is the 'but for' test.

The but for test may be put as is it true that 'But for X, Y would not have happened?'

Applying it to a rule 18.3 scenario the question becomes:

'But for A being in the position that she was, B would not have sailed above close hauled'

This is evidently true, so A, being in the position that she was caused B to sail above close hauled.

The fact that B may also have sailed below her courses and avoided A, may imply that B was not forced or compelled to sail above close hauled, but those are not the words in the rule.

Perhaps John Grace can explain this more elegantly.
Created: 19-May-29 01:21
John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
0
OP (Rob Goddard)

I am aware that your orignial formulation of this question got 'tidied up' a bit.

I remember that it mentioned a dispute about overlap.

Could you tell us whether, at any stage, A claimed that B never became overlapped to windward of  A?
Created: 19-May-29 01:26
John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
0
Warren Nethercote said
Created: Yesterday 16:22

This is an 18.3 situation whereas the scenario suggests that A is defending her actions based on rule 13 obligations.

I've just realised that it is not correct to treat a scenario like this as either  rule 13  or  rule 18.3.

Back in the 2005-08 version of the rules, rule 18.3 began to apply when the tacking boat 'completed her tack' in the zone, that is, rule 18.3 began to apply at the same instant that rule 13 ceased to apply.

Conseqently we were in the habit of choosing either rule 13 or rule 18.3, or maybe rule 13 then rule 18.3.

Since the 2009 rewrite of the rules rule 18.3 begins to apply when the tacking boat changes tack or passes head to wind, that is rule 18.3 begins to apply at the time that rule 13 begins to apply.

So under the current rules rule 18.3 and rule 13 can both apply together (much like rule 18.2 an rule 11 can apply to a leeward inside overlapped boat at a mark).

So, I guess, if the non-tacking boat needs to sail above close hauled to avoid the tacking boat, rule 18.3 will work, without having to determine whether the tacking boat has reached her close hauled course.

If the non-tacking boat needs to change course to avoid, but does not sail above close hauled, then only rule 13 can apply, and it wil be necessary to determine whether the tacking boat has reached her close hauled course or not.
Created: 19-May-29 01:50
Rob Goddard
Nationality: United Kingdom of Great Britain and Northern Ireland
0
Reading rule 18.3 I believe that the overlap is not the issue, it is whether or not there was a reasonable apprehension of a collision.

It would be possible for the following boat B travelling faster to luff to windward in order to avoid a collision with the having just tacked slower lead boat A, however, that may or may not cause an overlap, particularly if the leading boat bears away simultaneously starting to round the mark. 

Boat A will always claim that there was no need for boat B to luff and claim that there was no overlap, if not boat A would take a penalty, unfortunately, how does a jury decide when there is no 3rd party witness actually stationary by the mark watching the incident?
Created: 19-May-29 07:35
Graham Louth
Nationality: United Kingdom of Great Britain and Northern Ireland
Certifications:
  • International Judge
  • Umpire In Training
  • National Race Officer
1
Boat A will always claim that there was no need for boat B to luff and claim that there was no overlap, if not boat A would take a penalty, unfortunately, how does a jury decide when there is no 3rd party witness actually stationary by the mark watching the incident?

By listening to the parties and any witnesses, asking questions, deciding what they believe happened (on the balance of probabilities = 'finding facts'), and then making their decision on the basis of those 'facts found' (i.e. applying the rules).

Outsiders often seem to think that the hardest thing a Protest Committee has to do is decide how the rules apply, but in actual fact the hardest part in practice is often writing the 'facts found' - having heard conflicting evidence from the parties and potentially a number of witnesses, what does the PC think actually happened? As others have said (or implied), there is no presumption of guilt or innocence in all this. What a PC has to do is listen to the evidence, ask good questions, and then decide what it thinks actually happened (which may be something different from what either party says happened). Only then can it apply the rules and decide if anyone broke a rule.
Created: 19-May-29 10:52
John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
0
Rob Goddard said
Created: Today 07:35

Reading rule 18.3 I believe that the overlap is not the issue, it is whether or not there was a reasonable apprehension of a collision.

Agree that outside overlap is no part of rule 18.3.

It would be possible for the following boat B travelling faster to luff to windward in order to avoid a collision with the having just tacked slower lead boat A, however, that may or may not cause an overlap, particularly if the leading boat bears away simultaneously starting to round the mark. 

Sure, but if B does  become overlapped to windward, that is evidence that B was travelling faster, to a degree that if she had not changed course she would have hit A.

Boat A will always claim that there was no need for boat B to luff and claim that there was no overlap,

I'm not real keen on basing protest decisions or rules discussions on what a boat 'will always claim'.  As I said in an earlier post, I prefer to believe that witnesses and parties will usually tell the truth, and that is my experience.

If you think that a party and his or her witnesses can 'scrum down' and produce consistent false testimony (without making it obvious), then let me tell you, that is rarely the case.

 if not boat A would take a penalty, unfortunately, how does a jury decide when there is no 3rd party witness actually stationary by the mark watching the incident?

I think this has been covered in several other posts.
Created: 19-May-29 11:54
Rob Goddard
Nationality: United Kingdom of Great Britain and Northern Ireland
0
John Allan said 
                     If you think that a party and his or her witnesses can 'scrum down' and produce consistent false testimony (without making it obvious), then let me tell you, that is rarely the case.

I think that is generally true, however to avoid crew members giving conflicting information, boat policy in a lot of fleets is to have 1 crew representative only give evidence. the point that I was making is that some boats do not wish to be scored DSQ and unconsciously convince themselves that there was no infringement unless there was an actual collision, and they present their perception of the incident which is different to the other parties.

BTW I have been in protests where the Chairman has said that they would rather not have more than 1 person from a boat
Created: 19-May-29 14:30
Paul Zupan
Nationality: United States of America
Certifications:
  • International Judge
  • National Judge
  • Regional Umpire
0
Let me just add that when judges are on the water, I think a great part of their value is being at the pressure points on the course watching for rules violations.  It is possible that the judges can act as a witness in the majority of protests in any given regatta if they are positioned correctly on the water.  And I think that when there is testimony from a judge as a witness, the stories from the competitors tend to diverge a lot less.  So my assumption is that competitors tend to spin their story, whether consciously or not, to their own benefit, and it is up to the judges on the panel to balance the probabilities of each and make a decision.  As far as I know, there is no threshold burden of proof which would mean one party wins if the other doesn't meet the threshold. Only a decision by the panel of, on balance, which story is more probable.  There is a good discussion of the standard of proof in case 122.
Created: 19-May-29 14:46
John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
0
Rob Goddard said
Created: Today 14:30

...to avoid crew members giving conflicting information, boat policy in a lot of fleets is to have 1 crew representative only give evidence.

Interesting. I've not come across this before.

the point that I was making is that some boats do not wish to be scored DSQ and unconsciously convince themselves that there was no infringement unless there was an actual collision, and they present their perception of the incident which is different to the other parties.

Paul Zupan said
Created: Today 14:46

So my assumption is that competitors tend to spin their story, whether consciously or not, to their own benefit, and it is up to the judges on the panel to balance the probabilities of each and make a decision.

I agree with these observations.  Eyewitnesses tend to perceive things as they expect to see them, or in ways that fit in with what 'makes sense' to them, and further recollect and recount what they saw selectively on a similar basis.

So witnesses can often give different testimony without lying.

Different crew members on the same boat often have different perceptions (as every skipper who has called a crew witness without proving them first knows), and on a protest committee I find these different points of view valuable in getting to the facts found.

Rob Goddard said
Created: Today 14:30

BTW I have been in protests where the Chairman has said that they would rather not have more than 1 person from a boat

I think that's going a bridge too far

Rule M3.2 says

Allow anyone, including a boat’s crew, to give evidence. It is the party who normally decides which witnesses to call, although the protest committee may also call witnesses (rule 63.6). The question asked by a party ‘Would you like to hear N?’ is best answered by ‘It is your choice.’

I think that saying 'I only want to hear from one witness per boat' can imply that the protest chair is starting from an assumption that witnesses will collude, which I think is a bit too rude.
Created: 19-May-29 23:17
Stephen Chessor
Nationality: Canada
0
Dave Perry takes almost three pages and a diagram to discuss this scenario; and does a great job of it in my opinion.   I've got the last version of his Understanding the Racing Rules of Sailing (through 2016), but I don't think the changes in 2017 would effect this scenario so it's likely that it is in the current version too. He discusses another three scenarios and the rule in general in another seven pages with six diagrams.  
Created: 19-May-30 03:14
Luigi Bertini
Nationality: Italy
Certifications:
  • National Judge
  • International Judge
  • National Umpire
  • International Umpire
  • National Race Officer
0
This is a typical situation when we don't need a burden of proof but a simply balance of probabilities
Created: 19-May-30 09:30
John Grace
Nationality: New Zealand
Certifications:
  • International Judge
  • National Umpire
0
Just reading through the comments, it seems that this topic has largely been dealt with. However, there is one view, expressed by Paul and implied by some others, that deserves a response. 

That is the approach of just deciding protests on the basis of whose story is, on balance, more probable. Doing so isn’t contrary to the rules, but it is very superficial. It amounts to treating a protest as a debating contest. It is not what is normally referred to by the expressions “standard of proof” or “burden of proof”, which are legal terms.  

I would suggest that a better approach is given in the comments by Warren, John Allan and Graham and Appendix M. It is a matter of listening to all the evidence, asking questions, possibly the protest committee calling its own witnesses and then making a decision based on the evidence as a whole. If uncertain, the protest committee can call back witnesses and ask more questions if that will help. If still uncertain, then one applies the balance of probability. 

Therefore, one applies the balance of probability only after making a proper investigation. It doesn’t replace the need to investigate. It is a way of resolving a dilemma, not a shortcut. 

To resolve differences in testimony it is often useful to try to understand the cause of those differences. In most boat on boat protests the evidence concerns things like distances and speed which weren’t measured. The evidence are all estimates and interpretations, which are in turn affected by memory, articulation, discussions after the incident and the natural desire to be in the right. One witness may say the boats were 20 meters apart while another 50 meters apart. Both are estimations. In reality it could have been 20 meters, 30 meters, 40 meters or 50 meters. 

Most of us have been involved in protests (or other investigations outside sailing) were a witnesses’ story sounds completely improbable, but is subsequently found to be correct after further investigation. The Australian judge Bill Bell tells the story of a collision at the top mark. One boat approached from the port direction and the other from starboard, so it sounded like a straight forward port-starboard incident. The boat who came from the port direction was adamant that she was on starboard tack, but couldn’t explain how. They adjourned and after further investigation found that there had been a 90 degree wind shift. The boat coming from the port direction was actually on starboard tack and was entitled to mark room.

I would be careful about reading too much into case 122. The purpose of the case is to explain what is meant by “comfortable satisfaction” in misconduct cases. However, even it that case it is noted that the ‘balance of probabilities’ standard is whether it is more likely than not that an allegation or claim has been established, rather than whose testimony is more probable. 

Created: 19-May-30 23:38
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