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    Posted: 14 Jun 12 at 9:29am
As excellent as the cricket analogy is, its not really accurate. In cricket, getting your opponent removed is the purpose of the game, there is no rule breaking involved. In sailing, this is not the case. If the batsman thinks the bowler has tampered with the ball, he can raise this objection in a number of ways - he does not have to shout "Owzat" or "Protest" in a specific and timely manner.

It's good to hear there is some common sense applied to the validity of a protest.
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Posts: 350 		Post Options Post Options   Quote r2d2 Quote  Post ReplyReply Direct Link To This Post Posted: 14 Jun 12 at 9:33am
is there any standard amount of time that a protest should take to be ruled on - as I have one pending from a couple of weeks ago?
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Posts: 3011 		Post Options Post Options   Quote RS400atC Quote  Post ReplyReply Direct Link To This Post Posted: 14 Jun 12 at 10:15am
Originally posted by gordon

'we are a friendly club, we don't do protests',  translated in to plain English usually means "we don't really bother with the rules"

Sailing without rules and protests is the nautical equivalent of kick around in the park. Fun but not a race!


That's about it.
Of course many members do not want anything more than the equivalent of a kick around, and we should respect that, because without these people there would not be enough boats out, and we are happy enough to call on them for duties etc.
Where I see the problem is the better club sailors who seem to want some of the rules, when it suits them.
It makes it hard for people who want to learn to use the rules properly, and makes it quite daunting to be faced with 'the real thing' when you step up to a quality open meeting or nationals.
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Posts: 8956 		Post Options Post Options   Quote Rupert Quote  Post ReplyReply Direct Link To This Post Posted: 14 Jun 12 at 11:42am
I'm with Jim on this one - the word "protest IS taken as being confrontational - no point in saying "it doesn't have to be" when it plainly is at almost all clubs I've ever sailed at. Yes, it is necessary, but surely "I say, old bean, I think you clipped that mark with your boom end", as a first instance during a club handicap race is more in keeping with a Sunday morning sail? Yes, if I was racing a Finn at the Olympics and some French blighter clipped the mark, "Protest" would be the first word out of my mouth.
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I guess the other thing I'd add is that as was said the current phrasing dates way back to before the introduction of alternative penalties. Bearing in mind we are a self policing sport and there is a requirement to take a penalty if you have infringed the rules, it should not be necessary to hail Protest at all until it is evident that the party is not going to take a penalty. After all, as I think someone else said above, it is only then that the requirement for a protest arises.

Originally posted by gordon

Sailing without rules and protests is the nautical equivalent of kick around in the park.

Agreed, and this is *exactly* why it is a very bad thing that a protest is abandoned simply because of a procedural error by the protesting boat. At many clubs protests are only very rarely necessary, but when they are they are usually needed badly, and throwing them out on a technicality, which is what the notification thing really is, is foolish.

The rule needs changing to suit the alternative penalty era.
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Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 14 Jun 12 at 1:02pm
Jim,
 
One of the reasons that I developed and posted the long paper was that I have watched your posts on various forums on the hail and flag issue for some time, and thought it would be a good idea to organise my thoughts before trying to reply to some of them.
 
I have responded to some issues you have raised in recent posts, in the tenor in which they have been raised, but I wonder:
  • Are you real concerns that you have had some experiences where there have been genuinely good reasons why hail or flag have been delayed, and, in your view protest committees have unreasonably invalidated your protest?  or
  • Are you arguing some sort of hypothetical case for relaxing the hail and flag requirements?

I also got the impression from your various posts that it was the flag requirement that you were most concerned with, and you didn't see a problem with the hailing requirement?

Originally posted by JimC

I worry about the whole throwing out of protests thing. It does seem to contradict the desire for the sport to be self policing.
But wouldn't you agree that the system needs to be regulated by procedural rules to ensure that those who are enthusiastic self-policers don't become a gestapo?
 
I would suggest that a well-regulated, credible protest system is a necessary part of self-policing.
 
My basic proposition is that there have to be some brakes on the system and that the hail and flag requirements are by no means onerous or difficult.
 
In my experience, most protestees who have their protest declared invalid, particularly for want of a timely flag, offer the excuse that they do not have a flag or have difficulty finding it rather smugly, as if trying to assert some moral superiority in not being used to protesting.  Sailing is a serious competitive sport and deserves to be treated seriously.

As I posted in another topic:

People shouldn't be able to get away with rule breaches for legalistic reasons.
 
One person's 'legalistic reason' is another person's 'fundamental protection of fairness'.
 
Words that get used are 'legalistic', technicality' and 'procedural'
 
'Legalistic' connotes extreme, technical and difficult legalism.  While my explanation of the reasons justifying the hail and flag requirements may have been, in part, legalistic, it really cannot be said that the requirement to 'hail 'Protest' and consipcuously display a red flag' is anything other than quite straight forward and simple.  I think use of the word 'legalistic' is just an attempt to arouse irratioal emotional support.
 
'Technicality', likewise, is not really a rational criticism of the hail and flag requirements.  I suggest that they are simple, and not at all technical.  The rules are full of things that are much more technical than hail and flag.  Rule 50 gives some examples of highly tecnhical rules.
 
'Procedural' is a word I'm quite happy with:  it's readily possible to categorise rules into 'procedural' and 'substantive'
 
However, all rules, whether substantive or procedural are equal.  If all rules were not trated as being equal, we could have a competitor saying 'the Port and Starboard rule is more important than the giving room to keep clear rules, so I will obey the Port and Starbord rule, but not the room to keep clear rules'. 
 
In the fundamental rule it says that a boat that breaks a rule is required to take a penalty: it doesn't say that they should only take a penalty if another craft protests.

BASIC PRINCIPLE

SPORTSMANSHIP AND THE RULES

Competitors in the sport of sailing are governed by a body of rules that they are expected to follow and enforce. A fundamental principle of sportsmanship is that when competitors break a rule they will promptly take a penalty, which may be to retire.

If one seeks to apply this rule, then it must be qualified to some extent.
 
Obviously, if a competitor does not know that she has broken a rule, she cannot possibly take a penalty for breaking that rule.
 
So, for a start the principle has to be qualified as:
 
... when competitors break a rule they will promptly take a penalty, if they know they have broken a rule ...
I absolutely agree with this, and if you look at my varous posts you will see I have said so repeatedly.
 
What there does need to be, if there is no swift flag or hail and the other competitor is genuinely unaware there was a rule breach or protest hail, is some kind of alternative penalty to DSQ available to the PC: something to put the penalised boat in the same sort of position they would have been in if they had seen the flag or heard the hail and taken an alternative penalty.
 
Doesn't the RYA Exoneration Penalty, which can be accepted without any hearing at all or after an Advisory Hearing, which does not have any protest validity requirements, do exactly this?
 
Originally posted by JimC

 ... if a protest is thrown out for procedural reasons then that's a number of people who'll be thinking "why bother" and not protest next time...
 
I really don't follow the connection, but there will also be a number of other people who will understand that they have only themselves to blame for not complying with the validity requirement rules, and will do it properly next time.
 
Originally posted by JimC

I'm sorry, whilst that is the rules at the moment, I don't think the logic stands up.
Is it the premises and assertions, such as presumption of innocence, or concept of invalidation, or is it the logical connections and arguments that trouble you?  I'm only too happy to get feedback and discussion.
 
If the current flag and hail requirements are so objectionable, there is nothing to stop Clubs, Organising Authorities or Race Committees from deleting the requirements for the red flag, (or hail, or both) by means of their Sailing Instructions.  It can't be that bad, because I have never seen a SI that takes out the red flag.

1) Bearing in mind the fundamental rule, why is it in any way unfair that a boat that has broken a rule, and thus is required to take a penalty, should be able to evade the consequences of her action by a procedural error on the part of the opposition.
 
Firstly, except in the case where a boat herself knows that she has broken a rule you are begging the question:  you are assuming that the boat has actually broken a rule, when this can only be proved by a protest hearing.l
 
Secondly, the sacrifice of the occasional invalid protest, which could readily have been made valid by the undemanding flag and hail requirements, is a small price to pay for the protection of a boat that has not broken a rule but may be accused of doing so in a stitch-up. 

2) The argument about notification and alternative penalties should logically be about what penalty is opposed, not about whether a hearing is held at all.
 
I don't think logic dictates one approach or the other.
 
I personally think the hail and flag validity requirements work OK, and dislike discretionary variable penalties because I think they become inconsistent.

But as I said above the RYA Exoneration Penalty can be accepted at 20% if the protest is invalid.

And a couple of questions:
1) Do you think the tendency to throw out protests for minor procedural errors such as having left the flag in a locker instead of hanging it on the backstay increases or decreases the quality of rule observance?
 
First, RYA Appeal 1999/1 goes to a lot of trouble to say you can keep your protest flag where you llike:

A protest committee should expect a competitor to have a protest flag close at hand. Where it is kept is not important, but if its location delays its display significantly, as it is likely to do if kept below, and there was some other more quickly accessible place where it could have been kept, then it will not have been displayed at the first reasonable opportunity.

It's your RYA that issued that interpretation:  if you don't like it, do what you have to do to get the RYA to change it.

To answer your question, I don't think the game is improved by giving 'charity free kicks' to amateurish competitors who may be too lazy or uninformed about the rules to comply with a couple of very simple and easy requirements.

2) if the requirement were changed so that the hail/flag had to be made within say half a leg of the incident or 5 minutes, how do you think that would increase or reduce the quality of rule observance?

I think that would decrease rules observance.  5 minutes or half a leg is way too long/far.

The point is that hail and flag together, both as close as possible to the incident is the best way to go, because:
  • hail and flag immediatly after the incident assist the protestee to know which particular incident the protest relates to;  and
  • flag following hail closely in time is worth more than flag and hail separated by a considerable time and apparently unrelated. 
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Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 14 Jun 12 at 3:07pm
Originally posted by sargesail

Brass,  I was about to reply to your first post here, and only saw the second late....I'm glad I did since you appear to recognise the thrust of our argument in the second.
 
I don't want to be pissy, but who is this 'our' that is supposed to have advanced some sort of an argument?
 
But I suppose that you are talking about whether or not a protest for breach of rule 2 sportsmanship should be considered valid without a timely hail and flag.
 
I don't agree, in any sort of general way that a protest for a breach of rule 2 which happens in the racing area, by a boat that was involved or saw the incident is excused from the rule 61.1(a) hail and flag requirements.
 
What I do agree is:
 
In the case of a protest alleging a breach of rule 2, in that the protestee deceived the protesting boat by saying that she would take a turns (or scoring) penalty for some incident, and then did not do so;
If, by the time it was possible for the protesting boat to have observed that the protestee had not taken the penalty, the boats were beyond hailing distance (which would be quite likely), then
  • the requirement to hail 'Protest' would be turned off by rule 61.1(a)(1), and the requirement would become to inform the protestee at the first reasonable oportunity (which might be ashore, but also might be at some time during the race when the boats passed one another);  and
  • if and only if the protesting boat was under 6m, the red flag requirement would be turned off by rule 61.1(a)(2).

So, for dinghies, we might arrive at the same requirement:  that the requirement for a valid protest might be reduced to informing the protestee at the first reasonable oportunity, but, in my view the following have to be proved to the protest hearing:

  1. the protest alleges that protestee deceived the protesting boat by saying that she would take a turns (or scoring) penalty for some incident, and then did not do so;  and
  2. boats were beyond hailing distance by the time it could have been observed that the protestee had not taken her penalty;

And I hope you will accept, given the softening of your stance, that some additional case law here might help.

Well, I certainly had to reason closely to justify the position, but I wouldn't want to encourage competitors to try to use rule 2 as a back-door to a protest hearing when they had failed to meet the requirements for a valid protest on the original Part 2 incident.
 
I think the existing RYA Appeals on hail and flag are just fine.
 
But I also recognise that on the narrowest interpretation 1981/7 means that to establish an infringement of 44.2, you must first establish a breach of a rule of Part 2 with a valid protest.
 
RYA Appeal 1981/7 does not refer to 'establishing a breach of rule 44.2'.
 
A boat cannot break or 'infringe' (why do you use that silly word?) rule 44.2.  RYA Appeal 1981/7 makes this clear:

C was correct to base her protest on a breach of a right-of-way rule, and not on failure to comply with rule 44.2, since the latter is relevant only once the former has been upheld.

And obviously, a protest on a breach of a right of way rule can only be 'upheld' if the protest is valid, which requires that the protesting boat 'hail 'Protest' at the first reasonable opportunity'.
 
An RYA Appeal is itself an 'interpretation':  it doesn't require 'interpretation', narrow or otherwise.  All you need to do is to apply the Appeal to the facts found.  And the application of RYA Appeal 1981/7 is straightforward.
 
For me I can see that 61.1 (a)'s "incident" (not a defined term), covers things that happen when boats meet.  I struggle with the fact that failure to comply with the requirements of 44 is an "incident", and that therefore her obligation is to comply with the first sentence of 61.1 (a) and inform the other boat asap.
 
RYA Appeal 1981/7 tells you that there has to be a valid protest for the right of way incident.  That means that there had to have been a hail and flag at the first reasonable opportunity after the right of way incident.
 
RYA Appeal 1981/7 tells you that a there can't be a protest for a 'breach of rule 44.2', so whether you can identify the 'incident' comprised of failure to comply with rule 44.2 is irrelevant.
 
 And that therefore a Protest on the Rule of Part 2 and therefore to complete turns in respect of it, should be allowed.
 
Que?

The thrust of my post above was unhinged by my bad typing - I meant to say that we had a Breach of a Rule of Part 2 (a condition of RYA 1999/1), and not that we had a breach of Part 2.  The evidence presented, including As that A had accepted they were in the wrong on the startline P/S incident, meant that the conditions of 1981/7 are fulfilled and the PC can then look at the question of whether the turns were completed.  Ie if A accepts the Breach of a rule of Part 2 then the PC can go on to look at the turns. 
 
OK, so now we are talking about the protest ohFFSale described.
 
That was a protest, alleging breach of rule 2 sportsmanship in that the protestee deceived the protesting boat by saying that she would take a turns penalty for a Port/Starboard incident, and then did not do so.
 
The gravamen of this protest is the deception, which consists of the representation and the non-performance.
 
Whether or not the protestee broke rule 10 beforehand is irrelevant to the protest.
 
That means that the PC then has the option to consider a Rule Breach against a lower standard of proof than Rule 2/Rule 69, either directly or through application of 60.3.
 
I repeat:  only rule 69 has the beyond reasonable doubt standard of proof:  all other rules including rule 2 are balance of probabilities (+/- 'comfortable satisfaction' for those that recognise that phrase).
 
Problem with rule 2 is not the standard, but the difficulty and complexity of the proofs, including proof of a mental element of intent to decieve and/or benefit by deception.
 
Difference between rule 2 and rule 10, apart from complexity of rule 2 is that rule 2 carries DNE, not DSQ, and rule 10 only carries DSQ.
 
Dealing with the admission by A that she broke rule 10 might be a little problematic.  There's been a deal of faffing around on this issue:  admission, agreement, what.
 
If A, without questioning or prompting just came right out with the admission, then I think the protest committee would be ok taking the 'direct' route:  find a fact that A said she, on port, did not keep clear of B on starboard;  conclude that A broke rule 10, and decide, as required by rule 64.1(a) that A is DSQ.  That would be additional to whatever they decide about the rule 2 allegation.
 
You are correct:  in this case the protest committee could create a separate protest against A under rule 60.3, but I don't think it is necessary.
 
Where it becomes problematic is where made the admission in response to questioning.
 
Why was anyone questioning A about a right of way incident, when the incident being protested was a deception incident?
 
Case 80 says:

A fundamental principle of protest committee procedure is that a hearing must be limited to the particular ‘incident’ alleged in a protest (see rule 61.2(b)) 

[if the protest committee considered an] incident was not the incident alleged in the redress for request, the committee acted improperly.

Americans would probably say the admission was a fruit of a tainted tree, and throw the whole thing away.  I don't think that is necessary, but the protest committee might like to dress it up a bit by formally creating a new protest under rule 60.3.
Once we're in that space it does indeed become a simple case of what evidence is available as to whether A did turns.  I agree that evidence from the Safety Boat is unlikely to have a bearing on Rule 2, but it could be new evidence in terms of a breach of Rule 44.
 
No:  whether A completed a penalty in accordance with rule 44 is an issue for both the rule 2 deception allegation, and in dealing with the rule 10 admission.
 
Whatever evidence the Safety Boat had to give about turns would apply equally to the rule 2 or the rule 10 allegation and was there to be given at the first hearing, if only B had called the evidence:  B didn't:  stiff cheese for B:  she can't have a reopening for that (but if the protest committee protested and held a hearing to consider the rule 10 breach, than the Safety Boat could come in then. 
 
Whew, that was a long hard slog.
 
Hope it is helpful.
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Posts: 641 		Post Options Post Options   Quote Presuming Ed Quote  Post ReplyReply Direct Link To This Post Posted: 14 Jun 12 at 5:00pm
Originally posted by gordon

They seem to set the bar for using rule 69 very high. 

I believe that the standard of proof required under 69 is changing, from "beyond reasonable doubt" to "comfortably persuaded". 
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Posts: 1037 		Post Options Post Options   Quote gordon Quote  Post ReplyReply Direct Link To This Post Posted: 14 Jun 12 at 5:31pm
Ed,

The standard of proof required does not affect, directly, the level at which misconduct is considered gross enough to be dealt with by rule 69. It would seem that for many AUS judges that level is far highter than that accepted by European judges.
Gordon
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Posts: 1037 		Post Options Post Options   Quote gordon Quote  Post ReplyReply Direct Link To This Post Posted: 14 Jun 12 at 5:32pm
Point 2 - for rule 69 standard of proof is "beyond reasonable doubt"
Gordon
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