2021 Sydney to Hobart

Recidivist

Super Anarchist
Plain English.

Changing "shall" to "must" is pretty straightforward, but there are cases where switching to plain language can introduce ambiguity so not everyone has jumped on board.
Sorry atnan, but wrong on both points.  When tidying up or amending older statutes, often simply deleting "shall" and inserting "must" will change the meaning of the provision.  This is a good indicator that "shall" can be ambiguous.

"Plain English" will never introduce ambiguity - that only comes from poor drafting, or possibly when the chance of ambiguity has not been addressed in the drafting instructions and the drafter doesn't pick it for himself/herself.

I don't know why I saw Random's post, but he certainly raises a valid point.  The more arcane the language used, the more the person using the language becomes a gatekeeper of knowledge, and the more they can get away with charging.

The 3 most important elements are certainty, clarity and consistency - in that order.

A provision must be certain - it can ONLY mean ONE thing.  With complex subject matter, to achieve this it may be necessary to sacrifice some clarity - the drafting is complex because the subject matter is complex.

Ideally, however, the provision should be clear - the man in the street can understand what it is laying down.

And consistency, using the same word to mean the same thing, assists in clarity, but sometimes the "thing" is a little different to elsewhere and so a different word must be used.

Wordsmithing isn't easy ...

 
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atnan

Member
138
67
Alameda, CA
Wordsmithing isn't easy ...
True that. To be clear, I'm not advocating use of traditional drafting over plain language...personally I think plain language is better and would make documents like the RRS and typical SIs/NOR more accessible which should be a goal for the sport.

I'll concede that ""Plain English" will never introduce ambiguity" is technically true, however it seems a bit pedantic when you consider what you said about not being able to simply swap out "shall" for "must". This is why you get new versions of RRS or NORs/SIs drafted in traditional language - it's not that plain language wouldn't be better, it's that it takes time/effort and there's a risk if you accidentally introduce sources of doubt (see statutory interpretation). Or the PRO simply copy-pasted from templates provided by World Sailing and didn't think about it.

Perhaps I should keep my mouth shut - it would be fun to see someone get up in front of a protest committee and argue that they thought "shall" meant "may"  :D

 

Steveromagnino

Super Anarchist
I understand it to be "I shall" and "you will". It depends on the pronoun.

But English is only my first language.
sorry to say that in law this is not how these words are used in my limited legal knowledge.  Shall Will May Must all are used quite specifically and often poorly in legal contracts especially when there are if then statements, so a lot of it is contextual - probably best no one ever uses shall actually because it is used wrongly so often. 

Will create a promise to do something (in future)

Shall correctly used creates an obligation or duty to do something if possible to do so (in future)

e.g. If X happens, the vessel will retire from the race  (a promise to retire implied immediately if X happens)
e.g. If X happens, the vessel shall retire from the race  (an agreed duty or obligation to take action retire from the race if that is possible at the first available opportunity at which that action can be taken which might not be at the same time as using the word "will")

End result might be the same (vessel retires) but timeline of when it happens might be different, and thus might impact other boats around them etc etc blah blah blah. 

Having written several sets of plain english contracts over the years, I can say it is frigging difficult, the precision to acheive the same result as the normal wordy legal wordings is challenging; simple thinking like Trump or Packer with their idea that the legal profession makes things unnecessarily complex with the expectation you can just 'never have more laws just add one take one away' sounds amazing...but fails to account that the world is getting increasingly more complex and we learn more and more ways to get around things; it would be fine if we could just say like that American DofI We hold these truths to be self-evident, but of course legally, what you find self evident I most certainly might not, and so either we go through a massive case law precedent process where we solve things on the fly case by case...or we spell out every possibility in the 'rules' up front where precision really, really matters.  Doing that in a way a person with sh*te english can understand (most of us) often lacks the nuances that the rules require.  What should be dead simple "measure a sail so we can issue you a rating" ends up needing pages and pages of how to measure the sail, what's allowed, what's not allowed etc etc.  For a f*cking sail, to plow around a course for PHRF or IRC to win zero and just race some douchebags in a f*cking boat.  FFS.  So obviously when something is important like a contract or where the consequence is sending someone to jail or giving them a fine, or paying or not paying out on insurance...the language matters. 

For what it is worth, I don't know what it is about MA and his team, but I've seen Asian regattas where competitors basically tried to gang up on the boat both on the water and the in protest room - he never did anything to me, never saw anything outside of extremely well prepped planning, skilled crew and highly optimised ways to set the boat up - was always fun to race him and he was always polite, and his crew were a bunch of great guys and gals.    

 
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atnan

Member
138
67
Alameda, CA
random. said:
Saw that, then you conflated Shall and May, my point.
I was simply using (not justifying) the words you'd see in the RRS and typical NOR/SIs, not conflating them. Hopefully we can agree that this statement is inaccurate:

"the word SHALL is advisory, and MUST is compulsory"

And that this statement is more accurate in the context of sailing rules:

"the word MAY is advisory, and SHALL is compulsory"

 

shanghaisailor

Super Anarchist
3,116
1,267
Shanghai, China
I was simply using (not justifying) the words you'd see in the RRS and typical NOR/SIs, not conflating them. Hopefully we can agree that this statement is inaccurate:

"the word SHALL is advisory, and MUST is compulsory"

And that this statement is more accurate in the context of sailing rules:

"the word MAY is advisory, and SHALL is compulsory"
and that from someone who habitually mis-spells aluminium, colour, harbour etc

The Intro to the RRS states "Other words and terms are used in the sense ordinarily understood in nautical or general use."

So one has to ask oneself, what do ordinary people generally mean when they say "shall"- not the lawyers or the contract authors but people in general. Any other argument is spurious. 

 
and that from someone who habitually mis-spells aluminium, colour, harbour etc

The Intro to the RRS states "Other words and terms are used in the sense ordinarily understood in nautical or general use."

So one has to ask oneself, what do ordinary people generally mean when they say "shall"- not the lawyers or the contract authors but people in general. Any other argument is spurious. 
The IJ course teaches that the word ‘shall’ is obligatory as used in the RRS.

 

Recidivist

Super Anarchist
The Intro to the RRS states "Other words and terms are used in the sense ordinarily understood in nautical or general use."

So one has to ask oneself, what do ordinary people generally mean when they say "shall"- not the lawyers or the contract authors but people in general. Any other argument is spurious. 
Ordinary people don't use "shall" - it is an affectation these days.  And you wouldn't last long in front of the Australian High Court with that argument.

 

Recidivist

Super Anarchist
The IJ course teaches that the word ‘shall’ is obligatory as used in the RRS.
Correct.  That is how hopelessly outdated they are - but entire countries are no better so it becomes an issue of using words unnaturally, or differently from their understood meaning, which is a no-no in plain English.  In a legal sense, you simply define the word, and that's what it means - for that document.  The fact that it ordinarily means something different means the drafter has failed or the drafting style is obsolete (from the plain English POV).

 

paps49

Super Anarchist
8,932
309
Adelaide Australia
Correct.  That is how hopelessly outdated they are - but entire countries are no better so it becomes an issue of using words unnaturally, or differently from their understood meaning, which is a no-no in plain English.  In a legal sense, you simply define the word, and that's what it means - for that document.  The fact that it ordinarily means something different means the drafter has failed or the drafting style is obsolete (from the plain English POV).
And with that I Shall bid you adieu until next year, good hunting.

 

DtM

Super Anarchist
3,973
514
Out of the Office
INTERPRETATION ACT 1987 - SECT 9


Meaning of may and shall


9 Meaning of may and shall





(1) In any Act or instrument, the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion.





(2) In any Act or instrument, the word "shall", if used to impose a duty, indicates that the duty must be performed.

 

shanghaisailor

Super Anarchist
3,116
1,267
Shanghai, China
INTERPRETATION ACT 1987 - SECT 9


Meaning of may and shall


9 Meaning of may and shall







(1) In any Act or instrument, the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion.





(2) In any Act or instrument, the word "shall", if used to impose a duty, indicates that the duty must be performed.
Well, with that DtM, what more is there to say! 

 

shanghaisailor

Super Anarchist
3,116
1,267
Shanghai, China
The IJ course teaches that the word ‘shall’ is obligatory as used in the RRS.
And in the World Sailing Judges manual every single example of the word "shall" or "shall not" is a definitive - and there are 55 examples in context in that manual and it is quite clear in each and every case they are a definitive.

Those are the rules we play under and remember we are also governed by RRS and agree that we are "bound by the rules (RRS 3.2) not the interpretation of a word by some lawyer (RRS3.3(c).

If you don't like it - go play tiddlywinks

 

Wess

Super Anarchist
The legend lives on from the Laser sailers on down
Of the big lake that they call an ocean
The lake sailors it is said, would rather give head

Than sail on salt water in motion ​

At the first sign of rain, they take down the main,​

And then they frighten their crew and give their boners a chew,​

Bass strait would make them come early.​
LOL well done.

Good grief the sport of sailboat racing has been turned into such a joke.  At least here we can have a good laugh over its downfall.

 




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