Assume a scenario with 4 boats overlapped at a leeward rounding A -> D with A inside and D outside. A touches the mark. There is various bumper-boat contacts for all boats.
All 4 boats deliver protests to the Race Office. The PC, seeing that the protests are likely from the same incident, combines the protests into a single hearing. Representatives for all 4 boats are at the hearing.
- A protests B, C & D;
- B protests A & C, and
- C protests only D
Starting with A's protest, since it names all parties, the PC takes evidence that A's protest might be invalid. Next they look at B's and again they take evidence that B's might be invalid as well. When they get to C's, it seems solid and likely valid, but her protest only identifies D.
The PC excuses the parties to discuss validity and finds that only C's protest of D is valid.
Understanding that it is likely that during C's hearing the PC will receive evidence that shows A and B were involved in this incident and may have broken a rule, how do you proceed after you bring the parties back for your validity decision? Does your approach change if this hearing was scheduled days after the race and A and B drove a significant distance to be there?
Then continue.
During the validity part of A and B's .. the information gained cannot be used because those were invalid. During C's validity the only thing learned was that C hailed "protest" and flew the red flag timely.
Do you excuse A and B .. start C v D, start taking evidence and then follow 60.4(c)(2) and 63.2(d) and start over?
The protest committee may also protest if, during the hearing of a valid protest, it learns that another boat (not a party to the original protest) was involved in the incident and may have broken a rule.
In practice, this means that if a protest committee is involved in a hearing (or otherwise informed), and discovers another boat was implicated in the situation, it can close the original hearing, lodge its own protest, and then hear the cases together under Rule 63.2(d).
The boats are all parties then can hear all evidence and ask questions and of course later as a party be disqualified.
.. or ..
Might a PC, seeing this coming, gather some evidence during C's validity .. enough to justify 63.2(d) for efficiency?
Under RRS 61.2(c), a protest “shall identify the incident.” That incident may involve one or more boats. So, a single protest form can validly include multiple boats, provided they were all part of the same incident (e.g., a three-boat mark-room pile-up).
Huh .. sounds interesting .. but in which protest was that evidence gathered if that evidence is gathered prior to validity?
I think the protest committee should advise or request A and B to remain nearby.
There is no way to get around the requirements of RRS 63.4(a)(1).
The protest committee should then hear C's protest against d up until the protest committee 'learns that A and B may have broken a rule'.
The protest committee should then close the hearing of C's protest and protest A and B (including writing protests, informing A and B of the intention to protest, providing them with the protests, and informing them of the time and place of the hearing (which will be about 5 minutes after putting the protests into their hands)).
The protest committee then opens a new hearing to hear PC v A, PC v B, and C v D together.
As long as A and B don't leave (or advised not to leave) the protest hearing venue after initially having their protests declared invalid, there should be no problem
PS: Precisely the dialog i was hoping with this scenario. "Being forewarned is being forearmed" :-)
Then am I right, there is some change in the order you hear evidence due to the invalid protests as compared to if they were valid?
Really happy to see you working through this in your head Niko. That was exactly my hope .. especially for JIT's like yourself.
When looking a combined hearings, 99% of the time I will start validity at the protest that names all the parties directly (if one exists). The reason being that if that protest is clearly valid, there is really no need to spend a lot of time checking validity of the remaining protests.
The other thing I was hoping people would consider is under what umbrella evidence is gathered. 60.4(c)(2) requires the evidence be found in a valid protest. Therefore, logically, I think that evidence can only come after validity has been established or during the validity evidence-gathering for that particular valid protest.
The other thing is that hearing procedures require that witnesses be excused when not giving evidence. So, as John A nicely laid out, being prudent about who is in the room and when is important, in the possible event that the dismissed boats become PC witnesses instead of parties to a PC protest.
1. If the PC doesn't protest A, they aren't a party, and thus can't be penalized in the new hearing. However, they are not privy to the other parties' testimony, nor are they able to question the other parties during the hearing, but can be called as a witness against B, C & D by the PC.
2. It seems redundant for the PC to protest C as well as B since C is already a party and can be penalized by their original valid protest.
3. If during the new hearing one of the parties brings up A hitting the mark or the bumper boat contact - the PC isn't required to make A a party by 60.1, 60.4(c)(2) and 63.2(d) again because the PC is implicitly agreeing that A was exonerated by 43.1.
As witnesses, until they become parties to a valid protest they have to stay out of the protest room.
Actually, I wouldn't mind telling them 'It may be that as a result of the hearing of C's protest the protest committee will proceed to hear the allegations made in your protests'.
Check for cases to be held together
Invalid cases exposed on the papers.
Cases with insufficient parties where witnesses may beed to be parties.
We then in advance protest some extra sailors to ensure a swift resolution of hearings.
A protest committee cannot validity protest a boat based on information from a person with a conflict of interest.
A protestor is a person with a conflict of interest, so a protest committee cannot validly protest a boat based on a written protest
UNTIL
it learns, in a valid hearing that a boat may have broken a rule.
OK .. I hear you Graham. What do people think about this direct approach?
Sometimes it's smart to hear from the party with the biggest story to tell, or the protests against the most boats first.
Sometimes you can start with the party whose evidence you expect to be least contentious, so as to build up some uncontested facts that everyone can work from.
You can protest as a committee who you want, they lie on the file until possibly invalid.
When you hear the valid protest your protests validated. The parties have notice and you can continue without delay on what will be a difficult matter.
While, arguably it's nobody's business how a protest committee learns that a boat may have broken a rule, Personally, I'd be wanting to hear at least one description of incident from a party to a valid protest saying how A and B may have broken a rule, before I delivered a protest committee protest.
I, being subject to appeal, and often serving on PC panels with the members of my local appeals comm, I'd rather not endure those, "Ang, what the $%#! were you thinking" looks (more than I already get!). :-)
Isn't it the business of the boats protested by the PC? On appeal, those boats can argue improper action by the PC and have the protest invalidated if the evidence was gathered outside of a valid protest.
Whenever I've chaired a PC that protested another boat, and I restart the hearing combining the protests, I go though the validity all over again including the validity of the PC protest. During that time, I have re-established the validity of the hearing the evidence was taken in and summarized what/when the PC "learned" leading to the PC protest.
I want to address the last question the OP asked about distance and time. If the participants are traveling significant distances, I would think protest hearings would be scheduled when daily racing is complete. Waiting days after poses risks of failing memory and scheduling conflicts. In the current technological environment, hearings, if not practical to be held in person can use ZOOM for timely hearings regardless of distance.
So No, I don’t think Time and/or distance should affect the hearing procedure.
When I said "significant" I simply meant far enough that it would be a PITA to be sent home only to be asked to return. For me, that's anything over 20 min driving time one-way. So, really we're talking about hearings that, for one reason or another .. or by design in the SI's .. are not heard on the same day as racing.
Here’s what I would suggest if I were on the Protest Committee (though keep in mind I’m a rather newbie here):