Situations When Judgment Is Required
Situations When Judgment Is Required
When the rules are not clear-cut, judgment is required. "Rules" from our October 2009 issue.
Do you ever wonder why we call members of the protest committee “judges”? One reason we do so is because there are quite a few situations in the protest room where the judges must apply their judgment of what the rules mean—or what is fair—to arrive at their decision.
I recently received a question about one such issue. In an e-mail, a reader enquired about Rule 44.1 (Taking a Penalty). Generally, when you are racing and you break a Part 2 rule or touch a mark, you can take a One-Turn or a Two-Turns Penalty and continue in the race. However, if you “caused injury or serious damage or gained a significant advantage in the race or series,” then those penalties are not available to you. In such a case, as Rule 44.1(b) states, your “penalty shall be to retire.”
The reader asked what exactly constitutes a “significant advantage.” Is it one place, five places, 10 percent of the fleet? Have you gained a significant advantage if, afer you’ve spun, you are ahead of the boat you fouled?
In the e-mail, the reader correctly points out that no cases or appeals address this issue. There may be a good reason for this: Almost every time a boat takes a turns penalty, the distance she loses while getting clear of other boats, and then making the required turns, usually puts her well behind the boat she fouled. That means, probably 95 percent of the time, it is simply obvious that the boat that has completed its turn(s) penalty has lost ground and not gained any advantage by its foul, let alone a significant advantage. Further, the reader asked, in the 5 percent of incidents where the boat that fouled gained an advantage, what would constitute a “significant advantage”?
To answer this question we need to know the meaning of “significant” as it’s used in Rule 44.1(b). The word is not in italics, and it is not used in a nautical sense. Therefore, we won’t find its meaning in the definitions at the back of the rulebook. In my dictionary, “significant” has several meanings, but the one that fits the context of Rule 44.1(b) is “important” or “consequential.”
So what is an “important advantage” or a “consequential advantage” in the race or a series? Here are some examples where, if I were the judge, I’d say that a competitor did gain such an advantage in a race:
• As a result of a foul, the boat that is fouled either capsizes or broaches, and the offending competitor ends up well ahead of her afer completing a Two-Turns Penalty.
• As a result of a foul, multiple boats are so entangled that the offender ends up ahead of them afer taking a Two-Turns Penalty.
Here are some other common examples where I’d say a competitor did gain a significant advantage in a series as a result of a foul:
• Henry breaks a Part 2 rule and causes injury or physical damage to Jen. Under Rule 62.1(b), Jen is granted redress—her average race score calculated as described in Rule A10(a). If there had been no foul and Jen had maintained the place she was in at the time of the foul, she would have just beaten Henry for first place in the series. However, with the redress given to her, Jen ends up losing first place in the series to Henry.
• In the last race of a series, in very strong adverse current, Roger and Carla are nearly even as they approach the final windward mark. Both are barely able to make positive progress over the ground against the current, and both are barely fetching the mark. Roger manages to round the mark without tacking but, as he rounds, he hits it and it rolls down his leeward side. He takes a One-Turn Penalty while being swept towards the next mark by the current. Carla tacks twice to avoid touching the mark. After she finally rounds, Roger is well ahead of her and he goes on to win the series by one point over Carla.
“Significantly” is used in Rule 62.1, and “significant” is used in Rule 42.3(h) and twice in Rule 66. In each of these instances the word is used in the same sense that it is used in Rule 44.1(b).
There are a lot of other words used without italics in the rules that require the same sort of careful judgment by the judges. Scanning the Part 2 and Part 5 rules and the definitions, I easily came up with a list of more than 30 such words. One that requires particularly careful consideration is “compelled” in Rule 64.1(c). [When as a consequence of breaking a rule a boat has compelled another boat to break a rule, rule 64.1(a) does not apply to the other boat and she shall be exonerated.] If you check your dictionary, you’ll find that in the context of Rule 64.1(c) the meaning of “compelled” is “forced.”