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“That any Yacht having been disabled by foul sailing on the part of any other Yacht, or having valid cause of complaint may hoist the Club ensign in lieu of their distinguishing flag as a signal of protest, which signal shall be answered by the Commodore firing a gun.”
Sailing Regulation 16
Royal Thames Yacht Club
c. 1840
Hearings are required to decide:
· Protests.
· Requests for redress.
· Actions initiated under rule 69 (Allegations of Gross Misconduct).
Protest committees conduct several types of hearings. This chapter describes the procedures for a basic protest hearing. Chapter 7 of this manual discusses procedures for redress hearings and Chapter 8 discusses other procedures, including actions initiated under rule 69 (Allegations of Gross Misconduct).
As established in rule 60 (Right to Protest; Right to Request Redress or Rule 69 Action), a boat may protest another boat. If the incident involves a rule of Part 2 (When Boats Meet), she must have been involved in or witnessed the incident. A boat may not protest the RC, PC or OA, but she may request redress.
The RC may protest a boat (but not as a result of a report from an interested party or information in an invalid protest, or in a redress request, valid or not), request redress for a boat, or request action under rule 69.1(a). However, a protest by the RC or hearing is not required to penalize a boat under rules 30.2 (20% Penalty Rule), 30.3 (Black Flag Rule), or A5 (Scores Determined by the Race Committee). Chapter 8 describes further discussion of RC protests.
The PC may protest a boat, consider redress, or act under rule 69.1(a). The protest cannot be based on information from an interested party or an invalid protest, or in a redress request, valid or not. Rule 60.3(a)(2) allows a protest committee to protest a boat that was involved in an incident, but is not a party to a valid hearing. This protest is an attempt to make all involved boats a party to the hearing so that all issues can be addressed. Rule 60.3(a)(1) allows a PC to protest a boat involved in an incident that resulted in injury or serious damage. However, a hearing is not required to penalize a boat when rules 67 (Rule 42 and Hearing Requirement) or Appendix P (Immediate Penalties for Breaking Rule 42) are in effect. See section 8.2 for further discussion on protest committee initiated protests.
Except as noted above, a hearing is required in order to penalize a boat or competitor or to decide a request for redress.
Each member of the PC should have a copy of the NOR; the SIs, especially noting any changes to the RRS (Appeal 56 and Case 85); the current copy of the RRS, and an up-to-date copy of the US SAILING APPEALS and ISAF CASES. It would also be helpful to have class rules available. The PC chair should also have a set of model boats plus an appropriate grid and, when possible, to use them for describing and discussing the incidents. The PC chair also needs preprinted forms[1] to:
· Post the protest schedule with the hearing times and location.
· Submit a report to the scorer.
· Post reports of hearing results.
The PC chair should arrange for protests to be copied so that the members of the committee and the parties to the hearing may each have a copy. The PC chair should also make certain that the official notice board is properly located. The PC chair may assign these duties to members of the committee.
A PC shall hear all protests and requests for redress that have been received. However, rule 63.1 allows a protest to be withdrawn if approved by the PC. The PC should carefully consider any request to withdraw a protest. When considering the request, the PC may decide:
To approve the request to withdraw the protest when:
· The protestor has subsequently decided that no rule was broken.
· Either party has taken a penalty for the incident.
· Either party retires prior to the request for withdrawal.
· Arbitration or a similar process is being used that allows withdrawal of a protest.
· The protest is obviously invalid.
To disapprove the request to withdraw the protest when:
· There has been contact, other than incidental.
· A boat may have gained a significant advantage as a result of the incident.
· There is another protest relating to the same incident (counter protest), even if invalid.
· The protestor may have been be pressured to withdraw his protest. This might occur when a top-of-the-fleet competitor pressures a middle-of-the-fleet protestor to withdraw it, or when the host club pressures a competitor to withdraw a protest that might hold up the trophy presentation.
The PC may allow a single judge to approve the withdrawal of a protest. This may be a single judge working at the protest desk, or a judge conducting an arbitration hearing. Otherwise, a request to withdraw a protest should be carefully considered by the full PC.
A request to withdraw a protest should be recorded by fully completing all the spaces provided on the protest form.
The jury needs to engage in administrative duties and procedures prior to, during, and after all hearings.
These administrative duties may begin before any hearings actually begin. The PC Chair conducts and assigns much of the effort (or allows the jury secretary to perform many of these duties). Typically, these activities include:
· Posting a notice indicating the protest time limit (as prescribed in the Sis) on the official notice board. Depending on the event:
· Sometimes the RC will post this notice (in which case, the PC chair or a representative should verify that this has been posted, including a posting time).
· Other times, the RC will inform the PC of this time, allowing the PC chair or a representative to post this notice, adding the actual time of posting.
· The RC should provide the PC with a report that contains a list of boats displaying protest flags at the finish and, if required by the SIs to do so, boats notifying the RC at the finish of their intent to protest.
· The RC should also list boats flying penalty flags and boats that have been scored other than in their finishing positions (BFD, DNC, DNF, DNS, OCS, RAF, SCP, ZFP). (See www.ussailing.com/judges/links.htm)
As the PC (jury secretary) receives any protest and redress forms (filings) or penalty acknowledgements, he or she should:
· Note the time, date, protest time limit and protest/redress number on the protest form. The protest number is given in the order of receipt and the numbering should be sequential throughout the regatta.
· Verify the race number shown on the protest form as the correct race of the regatta.
· Note on each form whether or not the RC observed a protest flag at the finish.
· Construct a preliminary hearing order, based on:
· When filing was received.
· Matching penalty reports and protests. For example, if an alternative penalty form must be completed, the forms should be compared with protests filed for possible resolution (always subject to limitations of rule 44.1).
· Combining multiple protests involving same incident in the same protest hearing (see Case 49).
· Construct and update a notice of hearings that includes:
· Posting the time and place of the hearing.
· Updating this information when receiving new protest or redress requests.
No protest submitted should be summarily refused; even a protest that is delivered after the protest time limit.
If possible, the jury secretary distributes copies of the protests to the parties before the hearing. Case 48 points out what the rights and responsibilities of a boat are in defending herself.
If the parties to a hearing agree, it is acceptable to convene the hearing before the end of protest time. The jury secretary should get the parties to a hearing with their witnesses ready as the hearing time approaches.
The period prior to hearings can be a period of high activity as competitors, the RC, and others converge on the jury office. Unless directed by the PC Chair, other members of the PC should curb the natural tendency to “try to help” and flocking around the jury desk or space. This usually unnecessarily adds to the number of people in the area and complicates the administrative situation.
A PC member should NEVER take any protests, hearing order, or other “paperwork” unless specifically instructed to do so by the PC Chair or jury secretary.
During this period, the PC chair may wish to assign duties to PC members that they will undertake prior to and during the hearing. For example:
· Although each member should take notes, a scribe may be assigned to write the facts found, decision, etc. at the end of the hearing.
· One member may be assigned to call parties to the hearing and witnesses to the hearing room.
· One member may be assigned to research appeals that may be applicable.
Any member of the PC, including non-certified judges, may be invited to conduct a hearing.
Before admitting the parties to the protest room, each member of the committee should take time to read the protest to get a general idea of the nature of the protest. The committee should quickly review any procedural issues that may arise based on the review of the written protest.
If a member of the committee realizes that he or she is an interested party, he or she should immediately notify the PC chair and withdraw from the committee for that hearing.
Unless an interpreter is required, only one representative from each boat is usually permitted into the protest room. The interpreter may translate what a PC member, party or witness says, but he may not coach or add words of his own to the translation. This restriction will be difficult to monitor if no one on the PC understands the language. The interpreter should sit behind the party or outside the parties. The interpreter should not physically come between the parties or between the witness and a party.
It is very important for the PC chair to follow and complete the top portion of page 2 of the US SAILING or ISAF protest form. When the procedures on the form are carefully followed, the committee is not likely to commit a procedural error that would invalidate the hearing.
The PC chair will convene the hearing. After the representatives are admitted, the chair should:
· Invite the parties to sit down in the seats provided.
· Verify the timeliness.
· Make sure that the protest identifies the protesting boat. If there is more than one protest being heard at the same time, such as multiple protests involving the same situation, the first protest to be considered could be the one delivered first or one could be picked at random. Case 49 addresses the reasons for hearing multiple protests involving the same incident at the same hearing in order to avoid repetition and to ensure that the evidence illuminates all aspects of the incident.
· Verify the incident. “This protest involves an incident between Buttercup and Tiger Lilly that occurred just before the first windward mark in the first race today. Is that correct? Are you each aware of this incident?” Ask any questions necessary to make sure this is the incident in which all boats present were involved. In the hearing for validity, the chair makes sure that the parties are in the hearing for the same incident and that there are no other protests involving this incident.
· Record the names of the representatives of the boats involved on the appropriate line of the protest form. “What boat are you representing? What is your name and position on that boat?”
· Make sure there is only one representative from each boat. “If you are a witness for Tiger Lilly, you will need to wait outside until called to give your testimony.”
· Introduce the members of the committee (Often the chair will introduce himself or herself first and then ask the other members to introduce themselves.)
· Ask if there is any objection to any committee member on grounds of interest. Responses are recorded on the protest form. If an objection is made, the committee will apply the rulebook definition of interested party. Judges should be familiar with the concept of Appeal 22, which states that a competitor who sails and finishes a race is an interested party by definition, because they stand to gain or lose by the decision.
· Establish that the representatives were on board if the protest involves Parts 2, 3 or 4 of the RRS as required by rule 63.3(a) (Right to Be Present).
· Verify that the protestee has read the protest and has had time to prepare. The PC chair can ask, “Have you read the protest and have you had time to prepare and arrange any witnesses? Are you ready to proceed?” If anyone is not ready, they may be given additional time to prepare. If additional copies of the protest are not available and the representatives have not read the protest, the parties must be “allowed a reasonable time” to prepare. However, attention should be paid to Case 48, which states that if a boat is aware she is being protested, it is her duty to take measures to prepare a defense.
When considering an objection on grounds of interest, the PC chair should replace or excuse that member only if the reason given clearly meets the definition. A competitor sitting on the PC who was sailing in a different class of the same regatta might not qualify as an interested party.
Appeals 18 and 39 reinforce the notion that a member of the RC is not an interested party, even when hearing requests for redress involving RC actions. However, the US SAILING Judges Committee recommends against such an approach because of the potential appearance of self interest. Therefore, except when no other judge is available, a member of the on-the-water RC should not sit for a hearing involving RC conduct.
When a party does not attend a hearing, rule 63.3(b) (Right to Be Present) allows the PC to decide the protest without that party. However, it is far better to have all the parties present. Consequently, should there be a missing party, the PC chair may ask other parties present if they have seen this party. If practical, both the PC and the parties present should make an effort to find the missing parties. The PC chair may also wish to read rule 63.3(b) and explain to those present the possibility of having to restart the hearing should they show up.
Should a party “show up” while the hearing is underway, the PC should place the hearing “on hold” and determine the circumstances that delayed this party. If the circumstances appear reasonable, the PC would restart the entire hearing process. The PC should provide some latitude in determining this reasonableness – for example, some competitors may not keep their boats at the regatta venue and may have to travel to get to the PC hearing. Since this party did not hear earlier evidence, the PC will find itself in the position in asking the same questions again. The PC chair will need to focus on making sure all evidence provided in the initial hearing is repeated in this restarted hearing.
Should the PC decide not to re-start the hearing, the party still has a right to be present for the remainder of the hearing and so can not be excluded. In such cases, the PC may expect a request for redress or reopening to ensue (in which case, the last sentence in rule 63.3(b) describes the concept of “unavoidably absent”).
When a party wishes to attend a hearing but finds the time of the hearing inconvenient, the PC will have to decide to what extent it will accommodate the competitor. When no one attends the hearing, the PC may act as it sees fit and should prepare itself to address a request to reopen.
If the parties are inexperienced, the PC chair may wish to explain the hearing process to them. The chair can explain the entire hearing at once or break it into parts, discussing the validity section first and the remainder of the hearing before taking testimony.
Open hearings where observers are present during the hearing can be educational and enhance the respect for the hearing system. The use of open hearings is something that the PC should discuss. Where members of the committee are not comfortable with this procedure, it should not be used. It is more important to give a good service to the parties than to educate, impress, or entertain those who are not involved. Where the procedure is used, no person who is or might be a witness at the hearing may stay in the hearing room. When the PC discusses the evidence and makes its decision, observers can be present at the discretion of the committee. See section 8.4 for details on open hearings.
The PC must test the protest for validity when the hearing opens. The protest form in the back of the rulebook includes a section with check boxes for each obligation that is required in order to have a valid protest. The PC chair normally completes this section in the order listed. This must be done in such a manner that the protestor will not feel that they are on trial. The PC chair may wish to explain that the test is a procedure that must be followed in order to comply with rule 63.5 (Validity of the Protest or Request for Redress). The PC chair should always address questions concerning validity in the following order and record the results on the original protest form:
· Did the hail include the word “protest”?
· Was the hail made at the first reasonable opportunity? “First reasonable opportunity” means as soon as practicable, not as soon as convenient (Appeal 61). Extenuating circumstances might delay a hail if a boat capsizes or when safety is a factor. Otherwise, very little latitude should be given to the timeliness of the hail. The hail can also be omitted under rule 61.1(a)(3) if there is damage or injury that is obvious to the boats involved.
· Was the hail sufficient? The rule requires that a boat shall “inform” the other boat, so the hail must be sufficiently loud and clear. However, the PC will often be told that the crew on the other boat failed to hear the hail or the word “protest.” A statement by one party that he hailed “protest” is not necessarily in conflict with a statement by the other party that he did not hear a hail. The rule requires the protestor to take an additional step if the boats were not within hailing distance of each other. If the boats are not within hailing distance, the hail of “protest” is not required (rule 61.1(a)(1)), but the protestor must inform the protestee as soon as possible. This may be at the next mark rounding or when they get back to the dock. The PC must apply a test of reasonableness to each of these obligations. Was it reasonably possible for the protestor to hail “protest” and not be heard in the prevailing conditions? Was it reasonable that the first opportunity to inform the other boat was back at the clubhouse? In addition to the physical distance between the crew hailing and the closest opposing crew, other factors that affect sound include the wind speed and direction, the boats’ speeds and their courses, the sounds of sails and boats nearby, etc. Although there is nothing in the rules to support weighing different evidence, most PCs should give the benefit of doubt to the conclusion that the validity obligation was met.
· Was a red flag, if required, displayed in a timely manner? The display of a red flag only applies to boats with hull lengths greater than 6 meters long (19.685 feet). The flag must be displayed at the first reasonable opportunity. Appeal 67 interprets the meaning of first reasonable opportunity: “First reasonable opportunity” means as soon as practicable, not as soon as convenient. The flag must be displayed until the boat is no longer racing. The flag can be omitted under rule 61.1(a)(3) if there is damage or injury that is obvious to the boats involved.
· Was the protest flag properly displayed? The flag must be red, a reasonable size and displayed so that it is easily seen by other competitors and the RC. A 3”x 6” red flag that is adequate for an Optimist Dinghy would not be conspicuous on a 54’ boat. The flag must be recognized as a flag. Appeal 66 and Case 72 address protest flags.
· Did the protestor fly the flag until she was no longer racing? Since an RC may not notice a protest flag on a boat and may, therefore, not include the protestor on its RC report, the PC may get additional evidence from the RC or other witnesses.
· Is the nature of the incident identified in the protest? The protestor and protestee(s) can be corrected before the hearing and most other details can be corrected during the hearing. Rule 61.2 (Protest Contents) makes it clear that the incident must be identified and the protest must be in writing.
· Was the protest filed within the time limit? If the protest was delivered after the end of the protest time limit, it is invalid unless there is good reason to extend the time. The PC might consider extending the time for:
· An injury that needed attention.
· An onboard emergency such as a sinking boat.
· Logistics such as traffic problems or a remote race course.
· An unreasonable protest time limit in the sailing instructions.
The PC shall extend the filing time if there is good reason to do so. Note the word “shall” in rule 61.3 (Protest Time Limit).
If the answer to any of the above items was “no,” it is advisable to ask the parties to leave the room for a committee discussion of the validity. If the committee concludes that the protest is invalid, the parties are recalled, the protest is declared invalid and the hearing is closed, unless rule 60.3(a)(1) applies where there is injury or serious damage.
If the protest appears to be valid, the PC chair may ask, in the presence of the parties, if the members of the committee agree that the protest is valid and should proceed. If all are in agreement, the PC chair announces that the hearing will proceed. There should be no further discussion on validity, unless other significant evidence is presented to the contrary.
Protests by the RC and by the PC and requests for redress must also be tested for validity. This is discussed more fully in Chapters 7 and 8 of this manual.
Evidence consists of testimony of the parties and witnesses, records such as RC reports, documents such as the NOR and SIs and any physical evidence presented such as viewing damage to a boat. As noted in the preamble to Appendix M (Recommendations for Protest Committees), the PC should weigh all testimony with equal care, and should recognize that honest testimony can vary, even be in conflict, as a result of different observations and recollections. If the parties were in total agreement, there would probably not be a protest.
A general approach when obtaining evidence is to look for the “Key Fact” (or facts) relevant to the issue(s) associated with the hearing. This “Key Fact” approach recognizes that the vast majority of protest and redress hearings are assumed to be between parties with honest disagreements or misunderstandings. The hearing result will hinge on one or more “Key Facts” where the parties’ evidence and testimony may diverge or differ. In applying this approach, when listening to testimony, the PC should be aware of when a point of divergence occurs. Focus on the testimony and evidence that will allow resolution or determination of the Key Fact(s) – and attempt to minimize any non pertinent facts.
The protest process must be conducted under the principles of fairness and sportsmanship. Each participant is to be treated with dignity and respect. The PC should ensure that the parties maintain a proper demeanor and attitude towards each other. Neither party should be allowed to intimidate or otherwise unreasonably influence the other party. The PC may also initiate a rule 69 (Allegations of Gross Misconduct) hearing against a party in a valid protest who demonstrates a serious disregard for the principles of fairness and sportsmanship such as a serious breach of a rule or ill-mannered behavior (see Chapter 10).
The PC chair should get the parties to agree on some basic information known about the incident. This basic agreement may help establish a more constructive atmosphere during the hearing. The PC chair should be able to get consensus on:
· The size and type of the boats, if needed.
· The representatives’ positions and duties on their boat at the time of the incident.
· The time of the incident and the location on the race course.
· Wind speed and direction.
· Current speed and direction and whether either party considers it a factor.
· The sea state at the time of the incident.
The PC chair should first ask the protestor to describe the incident, using the boat models if appropriate. The PC chair should explain to the parties (and later the witnesses if any) that they are to tell what they saw and heard, not what someone else saw or heard. This is hearsay evidence and it should not be permitted. The boat models used for the hearing should, if possible,
correspond to the actual boats (e.g., monohull, multihull, 49er type, etc.). There should be no interruptions unless a member of the PC wishes to ask a question to clarify something, e.g. confusion about the color of models being used. The protestee is then asked to describe the incident. Following the protestee’s presentation, the protestor is permitted to question the protestee, if he wishes, and vice versa. The PC chair should try to limit editorial statements and restrict the questioning to pertinent questions and answers.
The PC members may then ask questions about conflicting statements or actions. For instance, the representatives may have placed the same boat on opposite tacks. Substantive questions should be held until all testimony is received.
If the parties disagree on distances, times or boat speeds, the PC chair may demonstrate the use of speed and distance calculations. For example, describing how 6 knots of boat speed equates to 10 feet per second and relating this to distance. APPENDIX D of this judges’ manual provides some useful tables of information relating hull length, boat speed, time and other variables.
When the committee has the facts as alleged by each party, the PC chair should ask whether the protestor wishes to call any witnesses. The decision to call a party’s witness is left to that party. Rule 63.6 (Taking Evidence and Finding Facts) mandates that the PC shall take evidence from the parties and their witnesses. First the protestor, then each protestee calls witnesses, one at a time[2]. In addition, the PC may wish to call its own witnesses.
For each witness called, the PC chair should:
· Get the name of the witness and have a member of the committee summon the witness (do not permit the party to summon his own witness).
· Scramble the positions of any model boats being used.
· Seat the witness between the two parties.
· Ask the witness for his or her name and position on the boat.
· State who called the witness and identify the incident in question.
· Tell the witness which color model represents which boat, and ask the witness to tell what he or she knows about the incident.
· Invite questioning first by the other party and then by the party who called the witness. Each party should be cautioned to avoid asking leading questions of the witness. The PC chair should also remind the questioning party to ask questions and not make additional statements. The chair may interrupt the testimony to maintain proper questions and answers.
· Invite the committee to question the witness.
· Dismiss the witness when his or her testimony is complete.
The parties may call as many witnesses (one at a time) as they wish. The PC chair may suggest that the parties call only witnesses that will add to or clarify the testimony, but the PC must not deny the opportunity to call witnesses. Any such suggestion is best made in the form of a question: “will this witness tell us anything new that we have not already heard from other witnesses?”
Occasionally, one or more PC members observe an incident on the water that results in a protest and will be witnesses in a protest hearing. Since rule 63.3(a) entitles all parties to be present to hear the evidence presented by witnesses, the PC witnesses must be careful that they do not discuss what they saw with other members of the committee before the hearing or during the deliberation and decision phase of the hearing. Members of a PC must notify the PC chair as soon as they are aware of a protest of an incident they have witnessed. At the outset of the hearing, or as soon as association is known, the chair should:
· Inform the parties that one or more PC members witnessed the incident.
· Explain that the PC member has not discussed the incident with any other committee members.
· Describe the protest procedure regarding a PC member as witness.
How the PC should subsequently handle the PC witness depends in part on whether or not the PC itself initiated the protest. When the PC is the protestor:
· The PC should strive to act as a single team throughout the protest process.
· The PC should take extra precautions to be seen as an independent body intent on fairness in the competition as a whole, not as a group of individuals intent on protesting or witnessing against individual competitors, and therefore appearing to have a personal interest in the outcome of the protest.
· If one or more members of the PC are witnesses, then the PC chair is encouraged to keep the PC witnesses on the PC panel and PC witnesses will generally remain in their seats as part of the PC.
· If not all of the PC witnessed the event, it may be best if someone other than the PC chair serves as a witness.
Any time there are going to be PC witnesses, the PC chair should:
· Call the PC witness after all other witnesses have been heard.
· When the PC has not initiated the protest, the PC witness may move to the customary witness seat between the parties while giving testimony.
· Remind the PC witness to tell everything they know about the incident.
· Invite all parties and the protest committee to question the witness.
After giving testimony and answering all questions, if the PC witness remains as a member of the PC, he or she would return to their seat as a member of the protest committee. If the PC witness steps off the panel, he or she would leave the protest hearing room after testifying.
When a member of the PC is a witness, the PC chair must decide whether the PC witness should remain on the PC or step aside after giving evidence. The PC witness is not an interested party, and may remain on the PC under the rules, even if a party objects to the PC witness remaining on the panel. Other considerations may influence the PC chair’s decision. Considerations in favor of keeping the PC witness on the panel include:
· As discussed above, when the PC initiated the protest.
· When the effectiveness of the PC would be impaired without the PC witness (such as when there is a small panel, or when the witness is either the PC chair or one of the most experienced members).
· When the diversity of the PC would be diminished in an event where the diversity is important.
· If the proper composition of an International Jury under rule N1 (Composition, Appointment, and Organization) would be compromised.
· If the PC witness’ testimony is on its own inconclusive or the testimony corroborates other testimony and it is non-controversial.
Considerations in favor of having the PC witness step off the panel for that hearing include:
· When, as a result of witnessing the incident, the PC witness has a strong opinion about whether or not a party broke a rule.
· If the appearance of objectivity of the PC would be diminished if the PC witness remained on the panel.
· If the PC has enough experienced members that its effectiveness would not be impaired by the loss of the PC witness.
When an event is large enough to field two or more separate PCs, the PC chair may try to assign judges to PCs such that the panel for each hearing does not include any PC witnesses except for protests initiated by the PC. Then a judge who was a witness to an incident would be a witness called by the PC without otherwise being a member of that PC.
Written testimony from a witness or party who is not present may be accepted, but only if all parties to the hearing agree to do so, because the parties generally cannot question the author at the hearing. Either they must voluntarily forego their right under rule 63.6 (Taking Evidence and Finding Facts) to question that witness or accept some means set up to allow their questions to be addressed. For example, two possibilities may include:
· The author could be questioned via conference call during the hearing.
· The parties can review the written evidence prior to the hearing, when the author is available to respond to questions.
In any case, the PC has no obligation to facilitate or otherwise organize such approaches and PC are cautioned not to allow such approaches negatively impact or disrupt the hearing process.
Provided the parties are satisfied that they have not been denied their right to question the witness, the PC can accept the evidence and then decide for themselves what weight to be given this evidence.
Photographs and video can sometimes provide useful evidence, but PCs should recognize their limitations and note the following points (also described in Appendix M, rule M7):
· The party producing the photographic or video evidence is responsible for arranging the viewing. The images or screen should be of sufficient size so that the PC and parties can view the material as a group.
· View the video several times to extract all the information from it.
· The depth perception of any single-lens camera is very poor; with a telephoto lens it is non-existent. When the camera views two overlapped boats at right angles to their course, it is impossible to assess the distance between them. When the camera views them head on, it is impossible to see whether an overlap exists unless it is substantial.
The PC should also ask the following questions:
· Where was the camera in relation to the boats?
· Was the camera’s platform moving? If so, in what direction and how fast?
· Is the angle changing as the boats approach the critical point? Fast panning causes radical change.
· Did the camera have an unrestricted view throughout?
When allowed by class rules, Global System Positioning (GPS) devices have become increasingly popular as on-board equipment during racing. The GPS units may be owned by a party or made available to a fleet during a regatta by the OA or outside entities.
Parties might wish to present information from these devices to the protest committee during a hearing. Usually the party wishes to use these devices as evidence that might depict:
· Location on race course (e.g., during an OCS hearing)
· Position relative to other boats or a mark.
· Indication of course changes or penalty turns.
Typically, parties seek to introduce information from these devices AFTER an initial hearing, claiming that it meets the standard of “significant new evidence” as required under rule 66 (Reopening).
The PC should consider the following questions:
· Where was the location of the device on the boat (and vis-à-vis other boats – especially if supplied by an outside entity?
· How was the device secured?
· Is the information represent the original acquired data or was there some form of processing or interpolation?
· How were locations of marks and other objects determined?
Just as they would with photographic and video evidence, the PC should consider and use evidence from GPS devices with caution. Generally, GPS evidence:
· Is rarely accurate enough to confirm boat-to-boat (or boat to starting line) distances.
· Is usually not good enough to overturn the judgment of a race officer deciding whether a boat is OCS at the starting signal. However, it may be useful in an OCS redress when a boat maintains, for example, that they restarted (perhaps by taking a turn around the pin end of the line), but the race committee did not record that restart.
· Can be useful when the devices are on all boats to develop a “big picture” about how an incident unfolded (but once again, not “precise” locations of those boats).
· Can help determine the timeliness and validity of either a one- or two-turns penalty.
· Can be useful in the case of mistaken or missing identity.
When the committee has all the evidence obtainable, the PC chair invites the protestor first, then the protestee, to give a final statement. The representatives are instructed that the final statement should be limited to relevant rules and appeals that apply and key facts for the committee to consider. The PC chair should restrict a party to a summary only and stop any party repeating evidence already heard. The parties should then be excused while the committee deliberates.
The PC must establish the facts from all the testimony and evidence presented. Initially, the committee will find points about the incident on which the parties agree, such as the wind speed, the tack each boat was on or that there was or was not contact. When there is significant disagreement in the testimony, the PC might begin with the last point before the incident and the first point after the incident where the parties agree on the positions of the boats. From there, they can review the evidence presented by each boat during testimony, and accept as facts the points on which the boats agree. When there are points of disagreement, the PC can set them aside and return to them later.
When writing facts, the PC must be careful that each is a fact and not a conclusion or an interpretation. If a “fact” has words such as “ample” and “adequate” in it, it probably is not a fact but a conclusion. “Ample time” should be replaced with an exact time if the statement is to become a fact. If an exact time or distance is not known, a fact may use “at approximately one boat length” and still qualify as a fact. In the context of rule 63.6 and other rules using the term, a “fact” is an action or condition that a PC “finds” occurred or existed. A “conclusion” is derived by reasoning from something else, and can be purely factual. For further discussion on facts versus conclusions, see Case 104.
Some experienced PC members may be able to write basic facts about the incident in a chronological order while the evidence is presented. Those facts might include the points on which there is agreement, evidence presented by one party and not refuted by the other, and what may seem to the writer as facts. Points on which there is conflicting evidence is left for the consensus of the PC.
There are several approaches used in keeping well-organized hearing notes. We will provide two typical approaches. Generally, with increased experience, each judge tends to develop their own particular note taking style.
Protestor (Bow 11)
Rules
1. Bow 11 & 44 sailing DW leg on starboard gybe
11, 17?
Q: how O/L created?
2. Approach mark, Bow 11 windward, inside & O/L
11, keep clear, overlapped
3. Bow 44 leeward, outside
11, 16, 17
4. Bow 11 still O/L at zone
18, mark-room
Protestee (Bow 44)
1. Bow 44 approaching DW mark with much more speed than Bow 11
Q: what speeds?
2. Bow 44 C/A before zone
18.2(b)
One approach uses the left side of the paper to write down the testimony and evidence presented by parties and witnesses in a sequential, narrative order. (This might take several sheets.)
The right side of the paper is used to jot down potential rules that might apply, relevant questions that occur to the Judge to ask when it becomes their turn, and to highlight any diverging areas or any Key Facts that become apparent.
Approach B
1. Both boats sailing DW leg on starboard
Agree
2. Bow 11 inside
3. Bow 44 outside
4. Bow 11 had O/L at zone
Disagree
The notes are entered into the columns in a more or less chronological order, including the incident.
The Judge lines up the areas where the testimony is the same. Just as importantly, the Judges notes where the testimony differs or diverges or where there is missing testimony or evidence.
After writing the facts, the PC must consider these issues:
· What rules are applicable? Rule 14 (Avoiding Contact) should be considered whenever there is contact. It applies to all parties and should be noted in a protest involving contact, whether or not it was broken or resulted in a penalty.
· Did either party break one or more rules?
· Should exoneration under rule 64.1(b) (Penalties and Exoneration) be considered?
· Rule 64.1(c) and Case 51 instruct a PC that it must exonerate a boat when it is compelled to break a rule.
· Rule 18.5 also contains provisions for exonerating a boat that broke a rule while entitled to mark-room or while rounding a mark on her proper course.
The PC should use the models and notes to re-enact the incident to scale. As the PC goes through the incident, they determine which rules are in play and follows through each boat’s rights and obligations as they change. After listing the facts, the PC chair should ask what conclusions could be reached. The PC should examine relevant Cases and Appeals and should carefully review applicable rules. One member (often referred to as the ‘scribe’) records the decision collectively crafted by the PC.
If the committee is unable to reach a decision, it is possible that there is insufficient evidence. It may be necessary to recall the parties for further questioning. In that case, the committee should know beforehand what information is needed and get it quickly. All parties must be given an opportunity to be present during the introduction of any new evidence.
Under most circumstances, the decision that results from a hearing is whether the protest is upheld or denied, or whether the request for redress is granted or denied. However, when rendering a decision as required under rule 65.1 (Informing the Parties and Others), a PC must include sufficient facts to justify its conclusion and its decision along with any scoring adjustments that result from the decision. Therefore, the written decision will be comprised of:
· The facts found.
· A PC-generated drawing or PC-endorsed drawing, if applicable.
· The conclusion with all applicable rules.
· A decision as to whether any boat broke a rule.
· Any penalties imposed or redress given.
The facts found shall be read to the parties. If there are other protests to be heard, it is satisfactory to leave the facts, conclusion and decision written in draft form. The facts that are read from the draft copy are the ones that will appear when transferred to the protest form later. The parties are recalled when the committee is satisfied with its decision.
The conclusion includes any relevant right-of-way/keep-clear relationships between the boats, the applicable rules considered and the rules that were broken. The conclusion should also report that a boat was compelled to break a rule and whether that boat is exonerated. When the facts include contact between boats, rule 14 (Avoiding Contact) applies and the conclusion should contain the relevant findings as discussed above in Section 6.10 (Deliberations).
The decision describes the result of the hearing and whether the protest is upheld or denied. One or more boats may be disqualified or given some other applicable penalty under rule 64.1 (Penalties and Exoneration). This rule (Penalties and Exoneration) requires a PC to consider all applicable rules that may have been broken by a boat that is a party to the hearing. A PC will often find that a boat broke more than one rule, and must cite all applicable rules that were broken in the decision. Well-written decisions mention each rule that each boat is obligated to meet, and then state whether or not the boat fulfilled that obligation. The reader, and maybe the appeals committee, will be interested to know if the committee considered all the applicable rules. Rules 14 and 16 (Changing Course) often apply to an incident, and a PC will appropriately include its finding in the decision. Case 25 is a good example of a nicely worded decision in which the appeals committee concluded that OL gave IW room to keep clear and did not break rule 16. Only a boat that is a party to a protest hearing may be penalized. A boat whose crew is called as a witness by one of the parties may not be penalized at that protest hearing even if she broke a rule.
After the decision is read, the PC chair should thank the parties and excuse them. If either party requests a copy of the decision, rule 65.2 (Informing the Parties and Others) states that the request must be made in writing within 7 days and the committee must respond promptly. As with any time-sensitive requirement, the PC should log the date and time of the request and the PC’s response. Since the request for a written decision could come after the PC has left the venue, the PC should prepare or endorse a diagram and complete the last page of the protest form before they adjourn. The scorer must be informed and the decision posted. The completed protest form may be kept by the PC chair or given to the OA chair for the regatta records.
Whenever contact has occurred between boats, rule 14 applies. If any or all of the boats broke rule 14, it must be included in the decision. While there is no rule that requires a PC to state that a boat did not break a rule, it is good practice, and there is very good reason to do so with rule 14. Such a finding is essential if the parties to the protest need an insurance underwriter or court to further adjudicate a claim for damages.
PCs are asked within the rules to determine whether damage resulted from an incident, and in some cases the extent of the damage or injury. Rule 14 may be broken by a right-of-way boat, or a boat entitled to room, but she will not be penalized unless there was damage or injury. A request for redress may require the committee to determine whether damage or injury occurred as a result of an incident. Case 19 establishes that there is no special meaning for the word “damage” in the racing rules, but offers a dictionary definition and some questions to ask when deciding whether an incident resulted in damage or injury.
The terms “injury” and “serious damage,” which are used in rule 44.1 (Taking a Penalty), are also undefined in the rules. There are clear cases of serious damage and clear cases where damage is not serious, but the gray area between them is very wide. The determination of whether there is no damage, damage, or serious damage will always be a conclusion by the PC, and therefore, subject to appeal.
It is particularly important in a case involving damage for a PC to detail the relevant facts and clearly delineate its conclusion. Descriptions of the damage and of its effect on the boat’s speed and maneuverability are essential. There may be occasions that, as part of the evidence gathering portion of the hearing, the PC may wish to inspect the damage itself. This may potentially include photographing the damaged areas of the boat(s).
“Damages” is a legal term, the estimated monetary equivalent of the detriment or injury sustained. Since laws vary from country to country, rule 68 (Damages) appropriately passes the question of damages on to each national authority. Part (a) of the US SAILING prescription to rule 68 makes it clear that even when a boat retires or accepts a penalty, she does not, by that action alone, admit liability for damages.
The US SAILING prescription to rule 68 does not directly address the question of who is financially responsible for damages, but part (b) of the prescription prohibits PCs and appeals committees from adjudicating any claim for damages. Any decision by a PC must be made in compliance with the rules and must be limited to finding facts and determining whether or not a rule was broken. Rule 63.5 (Validity of the Protest or Request for Redress) specifically prohibits a PC from hearing an invalid protest. Judges should be careful not to give an opinion on a hypothetical case that may have a connection to an invalid protest. Judges must keep in mind that an invalid protest that is overturned on appeal is likely to be returned to the PC. A judge giving an opinion on such a protest runs the risk of being put in the position of having decided the protest before the hearing.
In section (c) of the rule 68 prescription, competitors are advised that, by participating in an event governed by the rules, a boat agrees that the responsibility for damages shall be based on fault as determined by application of the rules. This section of the prescription to rule 68 attempts to remove the legal doctrine of “assumption of risk” from the sport. The responsibility for fault should be determined by applying the RRS, not simply by showing up on the racecourse.
After delivering a decision, competitors often ask a judge or PC to rule on which boat or boats should pay for damages. Refer the competitor to the US SAILING prescription to rule 68, particularly section (c). Payment for damage is a matter between the boats and their respective insurance companies, and, if necessary, is adjudicated by the courts.
[1] See www.ussailing.org/judges/links.htm
[2] As an alternative, a PC may choose to call in the protestor’s first witness, then the protestee’s first witness, alternating back and forth until all parties’ witnesses have been called.
