Standard of Proof?

(a) A boat intending to protest shall inform the other boat at the first reasonable opportunity. When her protest concerns an incident in the racing area that she is involved in or sees, she shall hail ‘Protest’ and conspicuously display a red flag at the first reasonable opportunity for each. She shall display the flag until she is no longer racing. However,

(1)   if the other boat is beyond hailing distance, the protesting boat need not hail but she shall inform the other boat at the first reasonable opportunity;

(2)   if the hull length of the protesting boat is less than 6 metres, she need not display a red flag;

(3)   if the incident results in damage or injury that is obvious to the boats involved and one of them intends to protest, the requirements of this rule do not apply to her, but she shall attempt to inform the other boat within the time limit of rule 61.3.

Basic Question

People ask 'why do we have such detailed and prescriptive requirements for informing the protestee in rule 61.1(a)?'

Underlying Principles of justice and fairness

Better ten guilty men walk free than one innocent man goes to the gallows.

Following this principle, all sorts of rights and procedural protections are extended to accused parties, starting with the presumption of innocence, the right to silence, and strict procedural requirements, such as grand-jury or committal, and strict formulation of indictment or charging requirements, which can pre-emptively invalidate a trial, no matter how serious the offence might be.  A similar approach applies to protest hearings in sailing.

Functions of the rule 61.1(a) requirements

Why is it necessary for the protesting boat to inform the protestee at all?  Couldn't the Race Office just do that after the written protest has been lodged?

The functions of requirements for informing the protestee generally are:

·         so that the protested boat knows that she is being protested and has the opportunity to take a rule 44 penalty if she wishes;

·         so that the protestee knows to look at the notice board to find out if the protest has been followed through and she is required to attend a hearing;

·         so that the protestee has time before the protest meeting to line up witnesses etc;

·         to let every other competitor and the race committee know that the protesting boat is 'racing under protest' and is likely to deliver a formal protest after the race; and

Why are such strict requirements for hail and flag necessary?

This seems to be the issue which causes the most worry.  The functions of the requirements for hail and flag at the first reasonable opportunity are:

·         proximity of hail and flag to the alleged incident materially helps the protestee to identify the incident and make an informed decision about taking a rule 44 penalty, or later to prepare her defence for a protest hearing

·         It's the 'other side of the coin' to the protesee's obligation to take a rule 44 penalty as soon after the incident as possible:  to do this, it is necessary that the protestee be informed of the intention to protest as soon as reasonably possible, which is, at the first reasonable opportunity.

·         importantly, to prevent competitors (or more worrisome still, the coaches and parents of junior competitors) 'cooking up' protests off the water, long after the on-water incident has happened, or picking and choosing among several incidents, which one the wish to pursue a formal protest on.

The game has rules - Different rules apply for serious cases

At a perhaps superficial level, the reason for strict informing the protestee requirement is, it's only a game and you must play the game according to the rules, whether you like them or not.  As long as it's 'just a game', why should anyone be worried about the rationality and functionality of the rules?  Lots of games have rules that aren't really rational, consider the off-side rule in football.

In respect of the hail and flag requirement, rule 61.1(a)(3), specifically provides for what happens when it ceases to be 'just a game' because there is damage or injury.

In respect of 'blatant' rule-breaking, there is another way in which the hail and flag requirements, as well as all the other formal protest requirements are switched off and that is, in the event of a 'gross' breach of the rules, a rule 69 hearing.

Because, to operate effectively and consistently, rules need some distinct limits:

·         The limit of the rule 61.1(a)(3) exception is that the injury or damage must be 'obvious to the boats involved';  and

·         The limit for rule 69 is that the breach of the rules must be 'gross'

As far as 'blatant' rule-breaking, as long as it stops short of 'gross', the rules don't distinguish 'blatant' from 'non-blatant' rule-breaking.  The rules don't support any sort of moral crusading against 'blatent' rule-breaking, just as they don't provide for different penalties for 'just a little' breach.  A breach is a breach is a breach.  There may also be an underlying concern about objective determination of what is or is not 'blatant'.  It would almost inevitably lead to considerations of intentionality or other mental state issues, which, the rules, being based as nearly as possible on observable conduct only, are not well-adapted to deal with.  And it would not be a good thing to move the rules towards the many and varied species of 'thought-crime':  it is hard enough for protest committees to resolve disputes based on observable conduct as it is, without adding an additional, inevitably moralistic, dimension.

It can be argued that two wrongs don't make a right.  By failing to hail and flag, a boat intending to protest breaks rule 61.1(a).  The rights of the boat to protest and the rights of the protested boat to know she has been protested are equal.  It is not unreasonable that a boat that wishes to protest but which breaks rule 61.1(a), should suffer the detriment of losing her entitlement to have a protest decided.

In the absence of hail and flag following an incident, a potential protestee (or anyone else) is justified in inferring that no nearby boat intends to protes.

Prompt hail and flag actions on the water facilitate the taking of rule 44 penalties. It might be said that strict application of hail and flag requirements in protest procedures will thus encourage the proper use of rule 44 penalties.

More detailed questions

Why is it necessary to require that just one word 'Protest' is the only word that may be used?

Effective receipt or Understanding of a communication is difficult to prove, and all too easy for a protestee to deny.  Hail of 'protest' and red flag are actions not reliant on any 'receipt' or 'understanding' by the protestee, which under the rules are together taken to be sufficient communication of the intention to protest, without further investigation.

Hail of the specified word 'protest' increases the likelihood that the intention signified will be unambiguously understood.

Because, given that there is always an option for a boat not to protest, there needs to be a conventional, unambiguous signification of the intention to protest.

Why is it necessary for there to be a flag as well as a hail?

The requirement for the hail of 'Protest' to be accompanied by the conspicuous display of a red flag to confirm it, significantly increases the likelihood that the intention so signified will be noticed and understood by the protestee.

Why is so much emphasis given to the promptness or immediacy of both hail and flag?

The importance of a boat signifying her intention to protest has changed over time.  Now that the taking of on-water penalties is the normal, expected consequence of breaking a rule on the water, it is critically important that a protestee knows what she is being protested for, so that she can decide whether or not she wishes to take a penalty for the incident.  If she knows exactly when she did whatever it is that is alleged to have broken a rule, she has a good chance of inferring what or how she may have broken a rule, and thus make a reasonable decision about whether or not to take an on-water penalty.

For this reason, an unambiguous hail and flag signal, at the first reasonable opportunity will significantly assist the protestee in identifying the incident being protested, as 'what she was doing immediately prior to the hail and flag'.

This is all the more relevant when there may be two or more possible incidents, say in a crowded start or a mark-rounding, which she may need to consider.  Prompt hail and flag will assist in identifying the relevant incident.

Why is it necessary to keep the protest flag displayed continuously from the time of the incident until the boat is no longer racing?

The functions of flying the protest flag will be discharged if the protesting boat displays the flag to the protestee and the protestee sees it, about the time of the incident, and the race committee sees it as she finishes. The only useful purpose 'keeping the flag flying between the time of the incident and finishing is to avoid confusion, and to increase the probability that the protestee will see it if she did not see it at the time of the incident.

One needs to bear in mind that these rules cannot be expected to produce an iron-clad guaranteed result.  The best they can do is to maximise the likelihood that the desired outcome will be achieved.

There is a history and a legacy in the wording of any particular rule.  Rules were not necessarily designed rationally and instrumentally for the present purpose in the first place, and have been incrementally amended (read 'tinkered with by well-meaning, but not necessarily skilled drafters') over the years.  The basic flag and hail requirements as they stand, have been in the rules since the Vanderbilt rules of 1935, at least.