unusual boat contact

Originally posted by JimC Normal has some shades of meaning... CASE 91 A boat required to keep clear must keep clear of another boat’s equipment out of its normal position when the equipment has been out of its normal position long enough for the equipment to have been seen and avoided

Indeed Jim,
'to have been SEEN and avoided' is the conundrum posed in the OP.

Background info:
Due to lots of floating weed at our lake, some boats have taken to sailing with their rudders not fully down, so weed doesent accumulate on the leading edge so so easily.

The scenario
On a dead run in light wind, i was gaining ground on a boat in front, both on starboard tack, and ended up very close to his transom, whilst I decided which side to pass him. At this point I realised his rudder was not fully down, and was therefore extending his boat length by about a foot !! I didnt touch his `extended rudder`, but it must have been very close.

The question:
If I had touched his rudder, would I have been in the wrong ?, as his rudder was not in the `normal` sailing position.