Forum: Rule 18 and Room at the Mark
Tacking Inside the Zone at a Windward Mark
Rob Goddard
Nationality: United Kingdom
0
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?
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?
Comments
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If the boat instead could have bore away to avoid contact, then this rule is not broken.
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.
Warren
Created: Today 14:02
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:
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.
And even if boat A had completed her tack, 18.3 might still apply. Ultimately:
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.
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.
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.
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: Yesterday 16:22
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.
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?
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: Today 07:35
Agree that outside overlap is no part of rule 18.3.
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.
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.
I think this has been covered in several other posts.
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: Today 14:30
Interesting. I've not come across this before.
Created: Today 14:46
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
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.
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.