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.”
The diagram at left shows a common leeward mark situation in which the judges would be called upon to interpret Rule 64.1(c). Ajay and Brittany were running on port tack as they approached a leeward mark to be left to starboard. Ajay reached the zone clear ahead of Brittany. Just afer position 2 Ajay jibed onto starboard tack to round the mark. Brittany luffed in an effort to avoid Ajay, but there was contact between the boats just after position 3, with no damage. Each boat protested the other.
During the hearing, Ajay claims that Brittany broke two rules—Rule 18.2(b), by failing to give him room to sail his proper course while at the mark, and Rule 10 by failing to keep clear at position 3. Ajay acknowledges that he broke Rules 15 and 16.1 when he jibed, but he asserts that he is entitled to exoneration under Rule 18.5(b). Brittany acknowledges that she broke Rules 18.2(b) and 10 at position 3. However, she claims that if Ajay had not broken Rule 16.1 by luffing abruptly into her path she could have continued to give him mark-room under Rule 18.2(b) and kept clear of him as required by Rule 10.
Brittany claims that she should be exonerated under Rule 64.1(c) because, when Ajay broke Rule 16.1 by turning sharply into her path, he compelled her to break Rules 18.2(b) and 10. Ajay was asked what his proper course was, and he replied, “It was to sail wide of the mark initially so that as I finished my rounding I would be close to the mark and thereby minimize the effect of backwind from boats that had rounded fairly close ahead of me.”
Here’s how I would apply the rules to this incident. Brittany was required to keep clear of Ajay throughout the incident, first under Rule 12 as a clear astern boat and later under Rule 10 as a port-tack boat. In addition, under Rule 18.2(b) Brittany was required to give Ajay mark-room. Between positions 2 and 3, Ajay was sailing his proper course at the mark and Brittany was not giving him mark-room, as evidenced by the contact between the boats just after position 3. Brittany’s obligation under Rule 18.2(b) required her to anticipate that Ajay would turn when he did. She could have and should have sailed a course that would have enabled her to give Ajay mark-room.
After position 1 nothing compelled or forced Brittany to sail the track she ultimately sailed. She had the option to luff astern of Ajay and then to approach the mark either behind Ajay or on a track outside of Ajay’s track, but she did not avail herself of that option. Had she done so, she would not have broken either Rule 10 or Rule 18.2(b). Therefore, Brittany was not “compelled” or “forced” to break Rules 18.2(b) and 10.
My decision would be to disqualify Brittany for breaking Rules 18.2(b) and 10. Brittany is not exonerated under Rule 64.1(c) because she was not compelled to break those rules. Note that, while rounding the mark on his proper course between positions 2 and 3, Ajay broke Rules 15 and 16.1, but was exonerated for breaking them under Rule 18.5(b).