| Rules | ||
|---|---|---|
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| Manuals | ||
| World Sailing Judges Manual | December 2019 | |
best protest: sail a different boat.
(I don't know! - Just locking in my 'subscription' to this thread.)
However, under 69.2.b:
"When a protest committee, ...from information received from any source, believes a person may have broken rule 69.1(a), [Misconduct] it shall decide whether or not to call a hearing."
Your complaint to the protest committee is a source.
Misconduct is:
There are 3 other types of hearings (redress, support person, misconduct), but only a misconduct hearing may apply here.
So a boat may not protest herself.
I agree the best course would be to change boats (and protest breaches by the original boat.
If you think your skipper's conduct rises to the level of the misconduct you can file a Rule 69 report. But I wouldn't expect to be invited back.
However to me, that would be the 'nuclear' option.
It sounds like there are two issues here - your skipper does not want to follow the rules because the other boats are unwilling to enforce them. So I think you should not just seek another boat, but another club where the rules observance is more in line with your standards.
John
Knowingly breaking a rule and not taking an appropriate penalty breaks rule 2. Repeatedly doing the above is one of the examples of an act of misconduct. This implies being found by a PC to have knowingly not taken an appropriate penalty repeatedly.
That begs the question of how one would prove these repeated breaches of the rules and the knowledge without a protesting boat/committee?
Proceed in accordance with RRS 69.2.
Assuming the OP is talking about Part 2/31 rule breaches, a PC convened under 69 would have to find a boat actually broke those rules, actually was confident in their knowledge that they broke those rules, then knowingly did not take a penalty in multiple incidents ... where no precious record of protest, finding of facts of a PC exist.
Wouldn't a PC first need to (or be more proper to) protest this boat on each incident outside the 69 hearing process ... settle the findings of each alleged rule 2 incident and then if multiple rule 2's are decided, then take that into the 69 process?
This brings up a couple additional questions in the basis of possible PC protests.
I don't think so. In this scenario they might have a 'conflicted' conflict of interest.
But surely, if they have attempted to 'protest' a boat they have a close personal interest in a decision.
The owner or the person in charge?
I think it would be absurd to regard a crew member that was attempting to 'protest' his or her own boat as the boat's representative.
So the bottom line is that no committee can validly protest the boat, which is what leads to the RRS 69 considerations, which circumvent the validity requirements.
The question you asked was
I took that as a purely procedural question, and to expand on my brief response.
Ifa protest committee receives information alleging a breach of a rule that might be misconduct it may:
In a RRS 69 hearing, the protest committee may, and usually will, appoint a person to present the allegation (RRS 69.2(e)(1)). This person acts like the representative of the protestor in an ordinary protest hearing, introducing the case, summarizing facts, calling witnesses, and summing up.
Angelo Created: Today 11:10 went on to raise some more points that I think went somewhat beyond the question he originally asked
Not necessarily just Part 2/31: could be RRS 78, Class Rules, or any one of the Part 4 requirements.
Not sure what you mean by 'was confident in their knowledge'. It's RRS 69, so the protest committee has to be 'comfortably satisfied', and the protest committee has to be comfortably satisfied that the person the subject of the RRS 69 hearing knew, at the relevant time that the boat had broken the rule alleged (and was in a position of authority to direct the boat to promptly take a penalty).
I don't see how a person can 'knowingly not take a penalty'. Unless we're talking about a boat attempting to take a penalty and not doing so in compliance with RRS 44.
I'm not sure where you get 'did not take a penalty in multiple incidents' from.
Case 138 in its non exclusive examples of acts of misconduct lists
(7) Intentionally breaking a rule (which is not the same as knowingly breaking a rule), and
(9) Repeated breaches of a rule.
But RRS 69.1(b) itself says [any] breach of good sportsmanship is misconduct, and we're agreed that a boat that knowingly breaks a rule and is not exonerated and does not promptly take an appropriate penalty breaks RRS 2 and does not comply with the principles of sportsmanship.
I don't think repetition is a necessary element here.
But, the headnote to Case 138 says
Generally, an action by a competitor that directly affects the fairness of the competition or failing to take an appropriate penalty when the competitor is aware of breaking a rule, should be considered under rule 2. Any action, including a serious breach of rule 2 or any other rule, that the committee considers may be an act of misconduct should be considered under rule 69.
So, seemingly, unless it is a 'serious breach' of RRS 2, a protest committee should not go to RRS 69.
But RRS 2 requires a valid protest which, in this case, is not possible, and Case 138 Answer 1 tells us that 'acts of misconduct, and may range from a very minor misdemeanour to very significant acts ...'
I think there's a sort of no-mans-land between:
Bearing in mind that in deciding whether or not to call a RRS 69 hearing the protest committee will consider the likelihood that misconduct including all mental elements can be proved to the requisite standard. It may very well be that in the OP scenario the protest committee will be very much influenced by this factor.
I can't see any suggestion in the RRS that this is necessary.
A RRS 69 hearing is highly formal, and except for protest validity has all the characteristics of a protest hearing.
EDIT
RRS 69.2(e) expressly requires that a RRS 69 hearing complies with the requirements for a protest hearing stated in RRS 63, with some few exceptions, the outstanding one being the complete omission of RRS 62.5 Validity.
Case 138, Answer 2 says
A protest committee may protest a boat for a breach of rule 2, but it may decide that action under rule 69 is more appropriate, or in some circumstances action under both.
Which brings me back full circle.
Is it an appropriate process for a PC convened under 69 to find facts, make conclusions and decisions about OTW Part 2/31 incidents that were never adjudicated in a protest hearings based on valid protests?
Anyone else wanna chime on that question?
In other words, do examples 8 and 9 from Case 138 assume that the unexonerated rule breaches mentioned were decided in a protest hearing?
It not complicated. I'm talking about rule 2 and Basic Principles.
A boat may take a penalty when she may have broken a rule.
A boat will take a penalty when she has broken a rule is a BP of rule 2. A boat that does not take a penalty when she is aware that she broke a rule and is not exonerated breaks rule 2.
I think "knowingly not taking a penalty" is sufficiently consistent with the OP.
I can't see the faintest suggestion in the RRS or the Cases that it is not.
Under the pre 2017 version of RRS 69, which changed RRS 69 from Gross Misconduct to merely any sort of misconduct, however minor, I think it was pretty clear that the absence of protest validity requirements for a RRS 69 hearing meant, and were expected to mean that validity could be switched off by a protest committee by using RRS 66 if the misconduct was gross: that is sufficiently serious to justify disregarding validity.
From a statutory construction approach, I don't think the RRS, Cases or JM take away any of the protest commitee's discretion to go the RRS 69 route. I don't think there's any natural justice or due process impediment to using RRS 69 this way.
Anyone else? I'm just asking the questions to spur the discussion.
How can you not know that you haven't taken a penalty>
Knowingly ... purposely ... intentionally .. they all get to the sense of the OP.
The claim in the OP is that the skipper is in full knowledge that they broke a rule (unexonerated), that a penalty is appropriate and they decide they are not going to take one.
But I wouldn't be happy, in a hearing for RRS 2, considering 'recognised principles' and 'clearly established', to be cutting anybody any slack about the mental elements of guilty knowledge. I'd be wanting clear proof, without making any assumptions, of:
A. No! The rules don't provide that a crew can 'protest' another crew. (The point is, you're a crew / a team! Work it out between yourselves.)
This question and answer was simply asked and simply answered.
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The ensuing discussion after the first few responses here became rather open-ended and that's the reason why so tough to resolve.
My 2 cents.
R69 is misconduct. That is a different kettle of fish to simply 'rule breach' which may be a simple mistake. R69 should not/cannot be used to circumvent protest hearing validity. It should be used for only for misconduct.
Not all rule breaches are misconduct. Some are mistakes.
If there is possibly misconduct, then R69 is available to the crew. Any source can report possible misconduct of an individual. If there is no misconduct there is no recourse for the unhappy crew member (see above answer). Probably, talking to the skipper first is the best chance of success. Other non-RRS actions like public naming and shaming, changing boats or even clubs might offer some peace of mind.
So to channel the discussion on R69, I offer the following scenarios.
Here's my answers.
Hopefully, we can now discuss around these more closed scenarios.
Rule 69 covers all acts of misconduct, and may range from a very minor misdemeanour to a very significant act of bad sportsmanship or bringing the sport into disrepute.
But Case 138 Answer 3 tells us:
... A misjudgment such as [a boat unintentionally breaking a Part 2 rule) is common during a race and is not unfair sailing or an act of misconduct. In order for it to be unfair sailing or an act of misconduct, there must be evidence that the boat knew or should have known that she would not make the cross and attempted to do so anyway.
However, when the port-tack boat realizes that she has failed to keep clear, she has knowingly broken a rule and must take the appropriate penalty. Otherwise she has broken a recognized principle of sportsmanship (see the first Basic Principle, Sportsmanship and the Rules).
So, in the absence of aggravating circumstances, such as intentionality or repetition (See Case 138 Answer 1), a simple rules breach cannot be subject to RRS 69. except for RRS 2, which is specifically roped in by RRS 69.1(b)(1), and an example of failing to take a penalty when aware of breaking a rule is given in Case 138.
Ben said
I think this proposition should be treated with caution. It's generally true but there are exceptions, namely:
Ben's answer:
1. Not R69 - Its a sportsmanship breach but not R69. There is no provision for that crew to follow up. See original answer.
I disagree. It absolutely is misconduct: it's a breach of good sportsmanship under RRS 2, and RRS 69.1(b) defines misconduct to include a breach of good sportsmanship.
This is exactly the conduct described in Case 138 Headnote first sentence and Answer 3.
As Case 138 Answer 2 describes, the protest committee may decide that action under RRS 69 is appropriate.
In deciding whether or not to call a RRS 69 hearing the protest committee would need to consider:
Just note: The assertion that 'the skipper knows he hit the mark' doesn't reflect the OP scenario: the scenario is that the crew member thinks that the skipper knew he or she had broken the rule: whether that is a fact remains to be proved.
The protest committee may very well consider that it is unlikely to be comfortably satisfied as to this element, and decide not to waste it's time calling a hearing.
Ben's answer:
2. Yes possible R69 - It is repeated breach of R2.
See comments above, but the protest committee now needs to consider whether it is likely to get proof to the requisite standard of:
Ben's answer
3. Not R69 - The skipper is the ultimate authority on the vessel.
I don't know about 'ultimate authority' but RRS 69 imposes obligations on natural persons, usually, 'competitors', and we may presume that any RRS 69 action will be against the skipper and it's the skipper's state of knowingness that will be in question. Evidence is that the skipper did not believe the opinion of the crew, so the skipper has not come to a state of knowing that he or she has broken a rule and the breach of good sportsmanship is not going to fly.
Again, just note that unlike RRS 69 which addresses 'competitors', RRS 2 imposes obligations on 'a boat and her owner'. If the 'skipper' was other than the owner of the boat, then RRS 2's obligation lies on the boat, that is the 'crew on board' in some sort of corporate way. It think the test of knowingness if it came to a valid RRS 2 protest would apply to the person in charge.
Ben's Answer
4. Not R69 - Skipper does not believe he broke the rule. That's not misconduct.
Agree. Nor is it RRS 2. We have specific evidence that contradicts the essential condition of knowingness. And there is doubt about whether there was any underlying breach of a Part 2 rule.
Ben's answer
5. Yes possible R69 - It is repeated and deliberately breaking a rule. (Evidence needed to prove when the skipper became aware of the issues.)
I don't know what 'declaring it' has to do with the matter, and I don't think intention about future races is relevant.
What we do have is
That's plenty for RRS 69.
But note that if there is a valid protest for the last race completed, subject to the necessary factual proofs of the underlying breach, and the rule also being broken in earlier races in the same event, the protest committee may impose a penalty for all such races in accordance with RRS 64.4(c). A protest committee might consider that sufficient penalty rather than proceeding under RRS 69. It would depend on the protest committee's concerns about the level of willful cheating.
Happy with your responses to my scenarios. Here and there still some room for discussion, but on the whole you either concur or have better explained your side then me.
Just a note: I think OPs assertions can be read a number of ways including 'think' / 'knows', single occurrence of multiple rules broken or repeated rule breaches, etc.
All good. Cheers.
This is what I was trying to describe and focus on (apparently unsuccessfully communicated) Agree the first time this happens seems squarely in R2.
The question I was attempting to ask is, when the repeated rule breaches are Part 2/31, is it appropriate for a PC to roll-up and process those alleged rule breaches into a a 69 hearing? Or is it more appropriate to have protest hearings for each incident to determine if rules were broken that were not exonerated AND the level of awareness of the person in charge first, outside of a 69 process?
John seems to be making the case that there is not an avenue for crew to provide reports of the breaches in a way that the PC can then initiate a valid protest, thus the 69 is the only avenue to get there and thus this validates doing it all in a 69 process.
What are your thoughts on that question?
I did see this discussion and almost commented in my previous post.
One of the requirement in a R69 process is, if the PC decides to hold a hearing it should follow the normal procedures of hearings and decision making. (see 69.2e).
If the allegation is 'repeated rule breaches' it does not make sense to close one (R69) hearing, only to commence 'repeated' other hearings using essentially the same hearing process to establish the 'history of rule breaches' and thus the repetition of breaches.
So, while I agree with John in that there isn't a process to deal with crew mutiny (unless its misconduct as well), I think pure logic guides us to the same answer. The job of the R69 hearing is to gather evidence so that there is a comfortable satisfaction that R69 was breached. Thus if that means looking into multiple instances of breaches of other rules one-by-one then R69 provides for that. In short, a standalone R69 hearing can look into 'multiple' breaches if necessary for a decision on 'repeated breaches allegation'.
Of course, evidence can be from previous hearings and 'repeated rule breaches' may be discerned from previous hearing decisions - - although, remember, those hearings met only the standard of 'balance of probabilities'. The R69 hearing may have to firm up confidence in those decisions first, before ruling the 'repeated breaches'.
Just my quick thoughts.
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Only once did I ever receive a protest from a crew member against their skipper. I was surprised and gobsmacked until I heard the story. The youth crew had been thrown together at last minute by the coach and they weren't great friends to start with. Not great in a double handed class. The pair didn't get along and a school yard spat ensued on the water resulting in the protest form. On interview, we found one side had veered into misconduct territory, so the protest was considered a 'report' and handled by R69.
I certainly stick to my opinion that the crew of a boat has a conflict of interest with respect to a potential protest against that boat, so can't be the source of information on which a committee can base a valid protest.
In the case of repeated breaches, the essence of the misconduct is the repetition, and a rolled up hearing of allegations, fully particularised, of all of the breaches is proper under RRS 69 if those previous breaches have not been found in previous hearings.
But as the long, sorry saga of past wrongdoing unfolds, I would expect the protest committee to be becoming more and more uncomfortably dissatisfied with the likely sufficiency of reliable evidence.
On the other hand, if there was a track record of past protest hearing decisions, the protest committee (given sufficient evidence of them, like actually seeing the protest decisions), could rely on that.
Yes - Rule 63.1 states "The protest committee shall hear all protests and requests for redress that have been delivered to the race office unless it allows a protest or request to be withdrawn." If the crew member files a protest against the skipper of their boat the protest committee shall hear the protest. You get your day in court... However, it might not be a very long day in court for all the reason stated previously!
Protest invalid as a boat is NOT protesting another boat.
However, in a season long beer can race series it might be possible. The skipper of boat A can't find a crew for the evening and sails on boat B that night. After the race they file a protest as boat A against boat B.
If a protest committee holds a rule 69 hearing and decides that RRS 69.1 has been broken, RRS 69.2(h) requires that it must then take one or more of the following actions
(1) issue a warning;
(2) change their boat’s score in one or more races, including disqualification(s) that may or may not be excluded from her series score;
(3) exclude the person from the event or venue or remove any privileges or benefits; and
(4) take any other action within its jurisdiction as provided by the rules.
It can't just take no action.
But the protest committee, in accordance with RRS 69.2(b), decide not to call a hearing in the first place.
A protest committee has no power to 'admonish' a competitor. The power is to give a warning.
---------------------
Mark's comment reminds me of my childhood!
After finishing dinner and wanting to go and play (aged about 7 years old) I'd ask, "Can I leave the table?"
Grandmother's standard reply was, "Well, you can't take it with you!, can you?"
Lot's of laughter at my expense and me thinking the equivalent of 'FFS' for a 7 year old.
I'd try again. "OK, MAY I leave the table, please?"
OPs question, "Can I protest my own skipper?", can correctly be interpreted as 'Is it possible to...?" E.g. Can I submit a form...?' This is where Mark is going with it. He makes a good point - anyone may submit a form, and the PC must hear the case, and evaluate validity at the hearing. The answer is 'Yes'.
OPs question probably intended to mean, "Can I validly protest my own skipper?". To this question the answer would presumably be a clear 'No'. Most of us of course answered to this intended meaning, rather than the literal meaning.
=============
Both examples above show how loose use of terminology or questioning can lead to a myriad of meanings which need to be resolved before we arrive at the intended answers.
Interesting stuff.
Those who have used ChatGPT will know this full well? This is what I find is the main challenge with this new-fangled AI. Asking the right question and using the right terminology is the only way to get the right answer. Douglas Adams was so far ahead of times, wasn't he?
"The great computer kindly pointed out that what the problem really was that no-one knew the question."
Hitch Hikers Guide To the Galaxy, Douglas Adams 1978ish
I think so. The conflict of interest problem we've discussed only applies to information given to a committee on which the committee might base a protest. A boat protesting will always have a close personal interest in the decision and hence a conflict of interest, but her protest can still be valid
Boat A might have difficulty finding a representative to attend the protest hearing.
RRS 63.3 requires that in a hearing:
the representatives of boats shall have been on board at the time of the incident, unless there is good reason for the protest committee to rule otherwise
I think this means that the representative of Boat A, the protesting boat, must be on board Boat A at the time of the incident. The skipper of Boat A was not on board Boat A at the time of the incident, he or she was on board Boat B. I think to say that it sufficies for the representative of Boat A to be on board any boat or vessel is stretching the friendship way too far.
The protest committee might need to consider good reasons for the representative of Boat A not being on board Boat A.
One reason why the skpper of Boat A was not on board Boat A was that he or she was on board Boat B.
Another reason is that Boat A was not competing in the race.
I've got to say that I think that this business of a crew protesting the boat they were sailing on (except for some sort of serious misconduct) is, itself, a big breach of good faith and good manners, and, except for serious misconduct, on a protest committee I'd reluctant to facilitate it.
I've just caught on to what this is asking - sorry, I'm not so sure.
I often sail a series on different boats. When I sail on Boat X, I am a representative of Boat X. When I sail on Boat Y, I'm a representative of Boat Y.
I don't think in Mark's question, the Skipper of Boat A can say he was still a representative of his boat A while he was on Boat B. At least not from an RRS perspective. That would be absurd irrespective of all the regulatory reasons why not (on board, conflict of interest etc. etc).
From a papertrail point of view, I think the 'Introduction' to RRS gives some guidance, in the 'Meaning' of 'boat'.
Thus, I don't think when a person sails on X boat, they are still part of another 'boat', particularly as the word is used in Rule 60. Even if it is just a temporary switch.
Crew mutinies just aren't covered in RRS, and rightly so.
I wholly concur with John's last line, but I don't think the rules allow us to handle mutinies.
On one hand I want to agree with you, and of course noone loves a snitch. On the other hand we are expected to enforce the rules, and such behaviour could also be characterised as whistle blowing.
It seems to me as said above, a boat protests. Boat As skipper, on boat B, is limited by 60.1a in what boat A can protest. If an eligible boat does protest, however, he can certainly be a witness. He is also free to make a report to a RC /PC, but the obvious conflict of interest may restrict whether a hearing can be held.
Skipper A, aboard Boat B, can't make a valid protest against Boat B on behalf of Boat A, at least for an incident in the racing area, because RRS 61.1(a) requires Boat A (that is the crew on board Boat A) to hail 'Protest' and display a red flag at the first reasonable opportunity.
At the first reasonable opportunity, Skipper A is not on board Boat A so RRS 61.1(a) can't be complied with and any protest by Boat A will be invalid.
We can help set the tone - nothing to stop a PC briefing a regatta on the standards they expect, that they’ll be around the club for informal discussions and advice and commentary on non-protest issues if people want it, or that they’ll be happy to go over protest decisions when asked - all this provides openness and transparency and greater respect for the rules. What we shouldn’t do is try to pick and choose what is presented to the PC.
In regards to Marks wrinkle ... I think Ben's got it spot on (and John's later analysis too).
A person doesn't get to be a 'representative' of a boat by being on board that boat. A person becomes a representative of that boat by being appointed or authorised by the owner or person in charge of the boat to represent the boat.
In the RRS, 'representative' only has meaning with respect to interactions on behalf of a boat with a protest or other committee.
When I was talking about RRS 63.3 I didn't say that Skipper A, having been sailing on Boat B was not or could not be a representative of Boat A. What I said was that Skipper A, as a representative of Boat A, could not exercise the rights of a representative of a boat in a protest hearing (without the special approval of the protest committee for good reason). And I noted that this restriction only applied to protests for breaches of Parts 2, 3, or 4, so not for breaches of RRS 78 or Class Rules.
In general terms, I disagree. I see no reason why Skipper A, for example, having received information about a breach of class rules by Boat B on which he or she had been sailing, after a race cannot protest Boat B on behalf of Boat A, and represent Boat A in the protest hearing.
Evidence of persistent CR breaches such as disallowed permanently installed equipment or worse out of spec hull and foil mods is a different kettle of fish.
The above would be "on going" breaches in most cases, where either a protest directly or a report to the Fleet/Class Measurer will be involved followed by inspections. The on-going nature of this category would seem to clearly allow people to switch hats from "crew" onboard to another "boat" in that class with standing to file a protest.
Boat A may protest if eligible, and subject to the usual requirements. The location of the boat owner or regular skipper at the time is not relevant.
Skipper A may represent Boat A at a hearing, since there is no requirement for the representative to be a crew member at the time of the incident.
If Boat A was not racing in the race in question there will be very few circumstances in which she will be eligible to make a valid protest.
The idea of a crew member pulling out a red flag and yelling protest at his skipper is entertaining. However, it seems to satisfy 60.1(a) (involved or saw the incident) and 61.1 Informing the Protestee (timely hail and flag) no matter how absurd.
A more likely scenario would be the skipper of boat A, while crewing on boat B, noticing a class rules violation. Can the skipper of boat A file a protest against boat B when they get ashore?
Assuming we are talking about Part 2/R31 ..
I would argue that the owner/otherwise-skipper of Boat A, while crewing on Boat B, is no longer a component of Boat A .. and a boat can't protest itself .. only another boat.
I don't agree that that is sufficient.
RRS 61.1(a) requires that the protesting boat hail protest and display a red flag.
That is to say a member of the crew on board the protesting boat must make the hail and display the flag, because the boat itself, plainly can't perform those actions.
So Skipper A, not being on board Boat A, the protesting boat, will not comply with the reqirement of RRS 61.1 to inform the protestee.
With respect to involvement.
RRS RRS 60.1 says a boat is not entitled to protest another boat for an alleged breach of Part 2 or rule 31 unless she was involved in or saw the incident. Again, 'boat' is defined as a sailboat and the crew on board. At least with respect to an incident on the water, a person who may be a member of the crew of a boat does not form part of the boat unless they are on board the boat. Thus while Skipper A, on board Boat B and not on board Boat A, does not form part of Boat A, and therefore, whild Skipper A may be involved in or have seen the incident, Skipper A was not part of Boat A at that time, so it cannot be said that Boat A was involved in or saw the incident, and Boat A is not eligible to protest Boat B.
With respect to a protest for a breach of a class rule that was not a 'while racing' requirement, the following do NOT apply:
RRS 61.2 and RRS 61.3 are written in the passive voice: they don't specify who shall write the protest form, or who shall deliver it, nor does RRS 61.2 require that the protest form be signed, or bear any other form of authorisation from the protesting boat. Any representtive of Boat A can write and deliver a protest against Boat B.