For the past 100-plus years, whenever a protest committee penalized a competitor, the penalty was almost invariably a disqualification. It used to be that if you broke a right-of-way rule, you were simply expected to retire promptly from the race. In 1973, however, the 720-degree penalty turn was introduced as an alternative penalty that a boat could take instead of retiring. From 1973 until 1996, the 720 could only be taken when the sailing instructions stated that it applied. In 1997, the 720 became the default, meaning that it applied unless the sailing instructions stated that it did not. The 720 was changed to the Two-Turns Penalty in 2005. Today, you may take a Two-Turns Penalty whenever you think you may have broken a rule of Part 2. However, if your breach results in injury, or serious damage, or in a significant advantage for you in the race or series, your on-the-water penalty is to retire (see Rule 44.1).
The intent of Rule 44.1 is to make an on-the-water penalty fit the crime and, generally, to keep boats racing. The Two-Turns Penalty, and its cousin—the One-Turn Penalty for touching a mark—have been widely accepted and applauded. There is even a movement afoot in several classes to lessen the on-the-water penalty further by requiring only a One-Turn Penalty unless the incident occurs in the zone around a mark. US Sailing is encouraging all classes to experiment with this reduced penalty and report the results of the experiment to the Racing Rules Committee.
We’ve developed a fair system of on-the-water penalties but, for reasons unknown, the powers that be in our sport have never seriously addressed the obvious next question: When a boat is found by the protest committee to have broken a rule and no exoneration is available to her, is a DSQ always the penalty that fits the crime?
It seems obvious to me that the penalty when a windward boat’s mainsheet brushes the arm of the leeward boat’s crew one minute before the start should be less than the penalty given when a port-tack boat collides with and disables a starboard-tack boat. Perhaps it would be a good idea to give the protest committee discretion to use its best judgment to give an appropriate penalty, which could be less than a DSQ.
Rule 64.1(a) is the rule that specifies DSQ as the penalty that the protest committee is to use. However, that rule is a rule that can be changed by the sailing instructions (see Rule 86.1(b)). Moreover, Rule 64.1(a) contains wording that practically invites experimentation with different penalties—it states that the penalty is a DSQ “unless some other penalty applies.” Therefore, event organizers can, if they wish, freely experiment with lesser penalties than DSQ.
In our current rules, there are two rather rare rule infractions for which the protest committee is already authorized to use its discretion to penalize a boat less than a DSQ. If you break Rule 77 because your sail numbers, class insignia or, when required, your national letters are not up to snuff, the protest committee may, in lieu of disqualifying you, simply give you a warning or some other penalty less than disqualification (see Rule G4). The protest committee has the same options if you break Rule 80 by displaying advertising that is not permitted under the ISAF Advertising Code (see ISAF Regulation 20.9.2 in that code). Sailing instructions are rules and have the same status as rules in the rulebook (see the Definition Rule). The Sailing Instruction Guide in Appendix L suggests allowing penalties less than disqualification for breaches of certain sailing instructions (see Instruction 16.6 in Appendix L). Such penalties are called “discretionary penalties” and when one is given, the scoring abbreviation “DPI” is used. Instruction 16.6 suggests allowing discretionary penalties for the infractions listed in the table.
Discretionary penalties are also frequently used for offshore races, such as the Transpac or the Chicago YC’s Race to Mackinac. In these races, the sailing instructions include safety and procedural rules, including rules for inspections, for reporting to the race committee at regular intervals during the race, and for carrying required safety equipment. The organizers of these races have for many years allowed the protest committee to give penalties less than DSQ for violations of those rules. In general, a discretionary penalty is a number of points, which may range from zero points (effectively a warning) up to the points for disqualification. However, when a handicap or rating system is used, the discretionary penalty for a boat may be either a number of points or a time penalty added to the boat’s corrected time.
When a discretionary penalty may be given, the protest committee has two new problems. It must decide just how big a penalty to give. In addition, if its judgment is to be perceived as fair, the penalties it gives must be consistent with one another and perceived by competitors and observers to accurately reflect the seriousness of the offence. To assist protest committees in deciding how big a penalty to give, ISAF’s International Judges have developed the following set of guidelines for the protest committee to follow when discretionary penalties are allowed:
Matters to be considered when deciding on the appropriate penalty include:
• Did the breach compromise the safety of competitors or race organizers?
• Did the boat gain a competitive advantage through her breach?
• Could the breach bring the sport or the organizing authority into disrepute?
• Did the breach result in injury or damage?
• Was there a good reason for the breach?
• Was anybody inconvenienced?
• Was there any attempt to conceal the breach?
• Was the breach a careless or cavalier disregard of the rules?
Any penalty must exceed any possible gain and repeated breaches should normally increase the penalty. A penalty less than DSQ shall not normally be given when the protest committee is satisfied that the breach was deliberate. In such cases the protest committee may also consider action under Rule 2, Fair Sailing, or Rule 69, Gross Misconduct.
If discretionary penalties are to be perceived as fair, the penalty given for a particular infraction must be consistent from one protest hearing to another, from race to race, and from year to year. One way to accomplish this would be to publish on the Internet a database containing reports of discretionary penalties given. For each hearing resulting in a discretionary penalty, the database could contain the rule broken, the facts found, the number of boats in the race, and the penalty given. A protest committee could then consult the database in order to select a penalty for an offence that was consistent with the past history of penalties given for similar offences. It would probably be helpful to divide the database into two sections: one for round-the-buoys races, where most discretionary penalties are a number of points, and the other for major offshore races, where discretionary penalties are usually time penalties.
Should we have a system of applying certain penalties for specific rules violations? Join the discussion.
Appendix L suggests discretionary penalties for:
• Sailing in the starting area during the starting sequence for a class starting before your class.
• Failing to follow a sailing instruction requiring you to check in at the race committee boat before a race or ashore after a race, or to check out when leaving the beach or harbor.
• Failing to notify the race committee when you retire from a race.
• Your coach boat or support boat motoring through the racing area during a race.
• Putting trash in the water.
• Hauling out between races during a regatta when such a haul out is prohibited.
• Using a prohibited means of cleaning your boat’s bottom.
• Making a prohibited radio or phone communication.