In irons

Originally posted by Rupert He probably should have put in a protest at the time.

Originally posted by Rupert  Be hard to prove anything now.

Not really any more difficult than proving the case in a protest hearing.

Collecting and presenting evidence, witnesses etc may now be a little more inconvenient and costly, and the liklihood of an insurer or magistrate correctly applying the RRS may be a little diminished, but without a written protest decision following a valid protest, that's a problem P has brought upon himself.

Originally posted by Rupert  I know we have had a thread recenty which said that the outcome of a protest doesn't mean admitting liability,

We need to be very careful here.

The RYA Prescription to rule 67 says

2. A boat that takes a penalty or retires does not thereby admit liability for damages or that she has broken a rule.

This does not cover a boat that neither takes a penalty nor retires, but is penalised in a protest hearing.

A protest committee in a protest hearing may make a finding of fault, namely that a boat broke one or more of the RRS, and, within the bounds of the results of a race or series award a penalty as provided by the RRS, but the RRS do not facilitate any determination of liability to pay money damages, and our MNA prescriptions tell us that a protest committee should not attempt to do so.

So a protest decision is a step along the way to deciding liability to pay damages,  but it does not, itself, decide liability.

Originally posted by Rupert  but I'm pretty sure insurance companies look at it.

Yes, you would normally expect that.

Originally posted by Rupert   What it looks like you have now is "it was your fault" "no it wasn't" situation.

Well, those would be opinions about the facts and the application of the RRS to those facts.

What is now needed, in advancing a claim either to an insurer or directly against the other boat is to:

1. assert and prove relevant facts (including what tack each boat was on, whether S ever passed head to wind, whether S ever moved astern by backing a sail, distances between boats at relevant times, action taken by P to keep clear and avoid contact, whether S changed course and so on);  and
2. explain that the RRS apply and how they apply to the facts.

Some of those things will be disputed between the parties ('did not/did so'), and some will, either expressly or by default, be agreed.

Originally posted by Rupert   Not sure that the word of other people who were out there would be of much use now,

Evidence of eyewitnesses will usually help to decide facts in contention.  That evidence could be presented to an insurer in the form of a written statement, or in a court by a witness attending and giving testimony.

Originally posted by Rupert   either, unless it somehow went to court, which sounds like a very bad idea.

Probably, but AIUI, the Small Claims jurisdiction is designed to enable parties to present their case without legal assistance and costs.

Edited by Brass - 10 Mar 15 at 3:53am

Originally posted by jeffers Originally posted by Rupert Seems about right, as the going astern rule involves backing sails, not drifting. You could argue that if they were in #in irons' and being blown backwards they were not drifiting. Either way I suspect the boat on port would have been exonerated as the RoW boat effectively changed course so the port boat could no longer keep clear (and should have taken a 2 turn penalty).

22.3 A boat moving astern through the water by backing a sail shall keep clear of one that is not.

23 CAPSIZED, ANCHORED OR AGROUND; RESCUING

If possible, a boat shall avoid a boat that is capsized or has not regained control after capsizing, is anchored or aground, or is trying to help a person or vessel in danger. A boat is capsized when her masthead is in the water.

13 WHILE TACKING

After a boat passes head to wind, she shall keep clear of other boats until she is on a close-hauled course. During that time rules 10, 11 and 12 do not apply. If two boats are subject to this rule at the same time, the one on the other’s port side or the one astern shall keep clear.

ELSE S has not passed head to wind

Rule 22.3 applies and S is required to keep clear

22.3 A boat moving astern through the water by backing a sail shall keep clear of one that is not.

ELSE 

Rule 10 applies

IF S does not change course (not the case in this example)

Rule 10 applies without limitation and P is required to keep clear.

ELSE S changes course (a boat that was moving ahead, then moves astern, changes course by 180 degrees)

S is required to give P room to keep clear under rule 16, and specifically rule 16.2 applies

16 CHANGING COURSE

16.1 When a right-of-way boat changes course, she shall give the other boat room to keep clear.

16.2 In addition, when after the starting signal a port-tack boat is keeping clear by sailing to pass astern of a starboard-tack boat, the starboard-tack boat shall not change course if as a result the port-tack boat would immediately need to change course to continue keeping clear.

IF there was no contact

S would normally be taken to have given P room to keep clear and P kept clear:  no rule was broken.

ELSE there was contact

IF P did all she could in a seamanlike way to keep clear (or, in this case, needed to further change course immediately after S began changing course by moving astern)

S did not give P room to keep clear, and S broke rule 16.

Notwithstanding S breaking rule 16, P also broke rule 10, but because S did not give P room to keep clear, she compelled P to break rule 10, and P is exonerated for breaking rule 10 in accordance with rule 64.1( a )

(a) when as a consequence of breaking a rule a boat has compelled another boat to break a rule, the other boat shall be exonerated.

Rule 14 (avoiding contact) is also relevant.

Agreed. If there's damage you should protest. That's a convenient way of getting facts and witnesses together at the time. However as that opportunity is gone he's now got the job of trying to round up witnesses and evidence for the insurance company. Not really any different from a car accident where the police didn't attend though.

If he doesn't want to involve insurance companies though it could be rather awkward, might end up with small claims court or something. Trouble is if you involve lawyers, even for opinions, you soon spend more than a repair will cost you, which might be what the other party is depending on.

The other thing might be to talk to the club officers. I don't know about this stuff, but ultimately might refusing to negotiate/communicate about damage/insurance end up with RRS 69 as an ultimate sanction? I don't know, just offering up the possibility.

Edited by JimC - 09 Mar 15 at 5:04pm

He probably should have put in a protest at the time. Be hard to prove anything now. I know we have had a thread recenty which said that the outcome of a protest doesn't mean admitting liability, but I'm pretty sure insurance companies look at it.

What it looks like you have now is "it was your fault" "no it wasn't" situation. Not sure that the word of other people who were out there would be of much use now, either, unless it somehow went to court, which sounds like a very bad idea.

I'm sure there are people more wise on here than me about these things, though.

Originally posted by Rupert Seems about right, as the going astern rule involves backing sails, not drifting.