Rules and protest question

[Edith Bicknell]

Unless something has drastically changed, the guy at Allstate who said you are not covered while amatuer racing is very wrong. I've had Allstae claims on a couple of boats (including a big one) , and houses, and cars, over many years and they have always performed excellently. Haven't tested the life policy yet. I think you are in pretty good shape. (Despite the damage). I've also been on Protest Comm with an attorney in attendance representing the douchebag in the incident. We asked him why was he here and if he was on the boat. He said no. We said you can sit and listen but you may only speak in reply to our direct question to you. And it's very likely we will not ask you a direct question.

 

[allene222]

The question of attorneys is an interesting one. Mine was on the boat. He will likely be there but may not mention his status. Actually, there were two attorneys on the boat.

 

[StumbleNola]

Colregs apply, windward has to give way. You didn't do anything to fake out or confuse the other boat, so it's pretty simple, you win, he loses.

Sorry about the big hassle but it'd be much worse if you'd been the give-way vessel. Which he was, and failed to do, probably through inattentive lookout.

Colleges do not apply, both boats were racing and thus fall under the RRS. You absolutely do not want COLREGS to apply either, in that case both boats would be at fault for even being that close to each other.

 

[StumbleNola]

The question of attorneys is an interesting one. Mine was on the boat. He will likely be there but may not mention his status. Actually, there were two attorneys on the boat.

My reason for letting them know is that many insurance policies require notice of a claim as soon as possible, and certainly before a hearing on the matter so they can appear. Failing to do this can result in a denial of the claim.

 

[Dog Watch]

From OP

"I did not see them until I heard yelling from their deck to their skipper to fall off...."

"I never saw them so to whatever degree I was cutting in front of them, my intent was to race and nothing I was doing had anything to do with them....."

That said, I don't know what I would have done even if I had seem the boat that hit me as if I had changed course and we then had a collision, it would have been my fault. I guess had I seen them before I did, I could have fallen off and gone parallel until they passed. But it I had fallen off when I saw them, they would have sunk me. I almost passed to windward of them.

I talked to a friend who is familiar with the rules. When we first saw Seaward my crew says that they could have avoided us by going either to windward or to leeward. So at that point it was not clear that they would not keep clear. But because they are so much larger (17.5 beam) and faster (almost twice our speed), at that point there was no way for us to avoid them. Rule 14 says that I need not act until it is clear the other boat is not keeping clear. Therefore, I did not break rule 14 because it was not possible for me to avoid contact when I would have been required to under the rule.

I must say, I'm uncomfortable with this.

OPs story has changed from, "We didn't see them!" to "When we first saw them, we didn't know what they would do." These are two different testimonies. OPs testimony has changed, after talking to a rules savvy friend, and now conveneinetly defends rule 14.

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All boats must comply with Rule 14. As has already been mentioned, one way to 'avoid contact' is to post a proper lookout. Another method of 'taking action to avoid contat' is to hail. You would think both would come hand in hand. e.g. a lookout would hail something if there was an impending collision.

It sounds like OP did not make any hail. It leaves doubt then whether there was any proper lookout, or whether this was as straight forward a convergance as described.

I'd certainly say that rule 14 should be investigated carefully here.

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OP says that he was on his tack for about 1 minute. This seems quite a long time, but is it? Tacking into the blind spot of an 82' Classic is quite a gutsy move. Even more so if you didn't see her coming down on a broad reach before your tack. Do you clear your tack beforehand?

A PC should investigate rule 15 here as well.

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OP,

There are a couple of problems here...not in the least that by posting here, the other party has access to all your arguments and counter arguments offered in this thread.

In which case, I may not be helping your case.

Just ensure that you get your story straight truthful before you go into the room. If you really insist that you only saw them too late, then I would have ready a bloody good answer to, "Why did you only see an 82' schooner when she was only moments from collision with you?"

DW

 

[allene222]

Yea. Good points. There were multiple people on the boat and when I said it was not clear if they were going to keep clear I am relying on the written statement of my main trimmer. I personally didn't see them until a few seconds before the collision. I had all the crew write what they saw, including myself, immediately so our stories will be as written. I did not tell them what to write and we did not compare stories before writing them down. Sorry for the confusion.

The statement "I never saw them" was incorrect except in the context that I didn't intentionally cut them off. I saw them a few seconds before the collision. My main trimmer saw them before I did and when I said they could keep clear by going high or low at a point where it was impossible for us to avoid the collision, I am relying on his written statement.

I will add that we did not tack in front of the 82 foot boat. When we tacked I don't really know where they were. We saw Alma and were confident we would be clear of them. I would estimate that the schooner was a couple of football fields away when we tacked. I don't even know if they had rounded their mark at that point. They were sailing away from us for all I know. That might even be likely. But saying it was a gutsy move is incorrect.

I certainly could have done things differently to avoid the collision. I could have not been 10 seconds late at the start. I could have had a different strategy of when to tack. I could have fallen off well before I got anywhere near them. I could have just stayed home. I wish I had done any of these. But they ran me down from clear astern and they could have avoided it at a point where I could not have. They were faster and bigger.

 

[NoStrings]

Colregs apply, windward has to give way. You didn't do anything to fake out or confuse the other boat, so it's pretty simple, you win, he loses.

Sorry about the big hassle but it'd be much worse if you'd been the give-way vessel. Which he was, and failed to do, probably through inattentive lookout.

Colleges do not apply, both boats were racing and thus fall under the RRS. You absolutely do not want COLREGS to apply either, in that case both boats would be at fault for even being that close to each other.

i
If the COLREGS applied, you'd be toast for not keeping an adequate watch AND not sounding a collision alarm of five blasts. I know someone that was t-boned on the city front (neither vessel racing), and they were both found at fault. The lack of a sound alarm turned out to be a big deal.

 

[NoStrings]

Yea. Good points. There were multiple people on the boat and when I said it was not clear if they were going to keep clear I am relying on the written statement of my main trimmer. I personally didn't see them until a few seconds before the collision. I had all the crew write what they saw, including myself, immediately so our stories will be as written. I did not tell them what to write and we did not compare stories before writing them down. Sorry for the confusion.

The statement "I never saw them" was incorrect except in the context that I didn't intentionally cut them off. I saw them a few seconds before the collision. My main trimmer saw them before I did and when I said they could keep clear by going high or low at a point where it was impossible for us to avoid the collision, I am relying on his written statement.

I will add that we did not tack in front of the 82 foot boat. When we tacked I don't really know where they were. We saw Alma and were confident we would be clear of them. I would estimate that the schooner was a couple of football fields away when we tacked. I don't even know if they had rounded their mark at that point. They were sailing away from us for all I know. That might even be likely. But saying it was a gutsy move is incorrect.

I certainly could have done things differently to avoid the collision. I could have not been 10 seconds late at the start. I could have had a different strategy of when to tack. I could have fallen off well before I got anywhere near them. I could have just stayed home. I wish I had done any of these. But they ran me down from clear astern and they could have avoided it at a point where I could not have. They were faster and bigger.

So, when your main trimmer noticed Seaward might be a problem, did he or she happen to bring it up?
Also, your own statement above is inconsistent. You either know where they were (a couple of football fields away) or sailing away from you "for all you know".

At the risk of pissing you off, your own situation awareness was lacking, and your own crew resource management needs work. NO ONE should be surprised by an 82' schooner, stand on vessel or not. Hell, you didn't even know they were there until the collision was unavoidable, so how could you say that you were the stand on vessel? That's an argument of convenience made after the fact.

That last paragraph is what you'll be facing in the room. You better be ready for it.

 

[nolatom]

I stand corrected on the colregs issue. On first reading I thought they were in separate races and RRS's

 

[Dog Watch]

They were faster and bigger.

Allen,

It seems certain from your description that the schooner takes much blame here. Astern boat. Simple rule 12. Your track doesn't show any significant course change, so no rule 16. Plenty of time after your tack so no rule 15.

However, you will be going into a room, with people who (having read this thread) will be asking, not about the schooner, but about you and 'why did this happen'? "They were faster and bigger," isn't really an argument.

Time to take emotion out of this, since it might be blurring your thinking.

The 'right of way' does not negate the obligation to act to avoid contact. Nor does size. You need to be able to answer to the question,"What did you do to avoid contact. If nothing, why?"

We've said that keeping a proper lookout is 'acting'. Hailing is also 'acting to avoid contact. Changing course could be another. You did none of these. Why?

What you need to do is look honestly inward and work out why a boat jumped from 2 football fields to suddenly imminent collision, and only your main sheet trimmer saw that, and he didn't say anything.

I can think of many reasonable reasons why. Other traffic, visibility, gusts / lulls (boat speed changes), other boat's course changing, you thought they'd seen you, ..etc...etc...

A good protest committee (made of sailors) will understand a reasonable reasons and situations and rule accordingly.

If you have a good reason, then fine. If not, then be prepared to share costs.

 

[allene222]

I thought they were ducking me and I tried to go as fast and high as I could to give them as much time as I could. I know that was just a couple of seconds but that is what I did. Even when it was not clear they would not keep clear, when my main trimmer saw them and felt they could keep clear by going either high or low, it was impossible for me to avoid the collision except by doing what I did. They almost cleared me. It was so close.

The reason I said they were too fast and big is that is what made it impossible to avoid contact once it was clear they were not going to keep clear. I was like a stationary object to them. They could avoid me but I could not avoid them.

This brings up a point. If you are racing and have the right of way and a boat is going to duck you, do you hold your course or tack? What if he missed you by a foot. Is that OK? Do you protest? And if he misjudges and hits you by a foot instead of missing you by a foot, is it partially your fault? Is their shared blame because what happens all the time in racing didn't happen that time?

 

[NoStrings]

I thought they were ducking me and I tried to go as fast and high as I could to give them as much time as I could. I know that was just a couple of seconds but that is what I did. Even when it was not clear they would not keep clear, when my main trimmer saw them and felt they could keep clear by going either high or low, it was impossible for me to avoid the collision except by doing what I did. They almost cleared me. It was so close.
The reason I said they were too fast and big is that is what made it impossible to avoid contact once it was clear they were not going to keep clear. I was like a stationary object to them. They could avoid me but I could not avoid them.

This brings up a point. If you are racing and have the right of way and a boat is going to duck you, do you hold your course or tack? What if he missed you by a foot. Is that OK? Do you protest? And if he misjudges and hits you by a foot instead of missing you by a foot, is it partially your fault? Is their shared blame because what happens all the time in racing didn't happen that time?[/quote

Allen,

Should you be out there racing? Here's a smart suggestion: Go buy a cheap laser and race it. You'll learn the rules in a boat that you can afford to ding up. and you'll do so in a fleet that won't hesitate to teach you when you screw up.

 

[allene222]

I reread my crew statements written the day after the race. They saw the boat well before I did but at that point it was not clear we should do anything except hold our course and let them keep clear. Again, some of what I said above was from me and some from my crew. I know that is confusing but I am not able to change my story as I wrote it down the day of the race. Same for my crew except it was the next day. Nothing here changes the facts.

I welcome all the comments here and think they have been helpful in pointing out the issues. I have nothing to hide from the other side. I hope they feel the same way. I look forward to hearing their story. At this point all I know of their side is that they apologized for hitting us both on the VHF for all to hear and on the phone with me after the race.

@nostrings. My point was a rhetorical one. I know the rules and the answer to what I was asking. My point was that just because someone hits you does not make you partially to blame. While there is no equivalent of 16.2 for being overtaken, I think it is similar. You expect others to follow the rules and when they don't, you might crash but that doesn't mean it was possible to have avoided it in a racing situation. That doesn't mean I don't wish I had assumed they were not going to keep clear well before it was clear that they were not. Like I said, I wish I had stayed home.

 

[allene222]

Seriously Allen, please go read case 107. You are NOT absolved of responsibility here.

I read it, thanks. At the advice of many of you, I will not comment further.

 

[Cement_Shoes]

I reread my crew statements written the day after the race. They saw the boat well before I did but at that point it was not clear we should do anything except hold our course and let them keep clear. Again, some of what I said above was from me and some from my crew. I know that is confusing but I am not able to change my story as I wrote it down the day of the race. Same for my crew except it was the next day. Nothing here changes the facts.

I welcome all the comments here and think they have been helpful in pointing out the issues. I have nothing to hide from the other side. I hope they feel the same way. I look forward to hearing their story. At this point all I know of their side is that they apologized for hitting us both on the VHF for all to hear and on the phone with me after the race.

@nostrings. My point was a rhetorical one. I know the rules and the answer to what I was asking. My point was that just because someone hits you does not make you partially to blame. While there is no equivalent of 16.2 for being overtaken, I think it is similar. You expect others to follow the rules and when they don't, you might crash but that doesn't mean it was possible to have avoided it in a racing situation. That doesn't mean I don't wish I had assumed they were not going to keep clear well before it was clear that they were not. Like I said, I wish I had stayed home.

Did any of your crew have reason to think that the other boat's crew spotted you? Did they see any of the other boat's crew looking at you? It would be more reasonable for you and your crew to expect the other boat to avoid you if you were certain that their crew knew you were there. If one or more of their crew knew that you were there it would be reasonable for your crew to assume that they were going to avoid you as ROW boat. And as you said there would be a very small window of opportunity from thinking they were going to keep clear and it becoming obvious that they weren't while you still had the ability to keep clear. Given the speed difference a very small change of course by the other boat could completely erase the window of opportunity.

Edit: I see that you aren't going to be a part of this thread any further and I think that is wise.

 

[NORBowGirl]

What kind of race was this? Sounds like a big one, with lawyers and stuff, and the hearing is not done right after the race? Or is this just how you do it in the US? We do hearings right after, unless it's a distance race when boats finish hours apart. And if we have a dinghy sailor among the crew, they'd usually represent the boat in the hearing, as they often are the most experienced in protest hearings. The only outside people attending will be witnesses from other boats. Bringing a lawyer is unheard of.

 

[random]

Don't shoot me but how does Rule 14 apply here, if at all? Was it reasonable to expect the L-36 to see and avoid collision? I understand the schooner came from behind but I'm asking those who know way more than I do if the skipper is responsible in any way for looking behind to make sure someone doesn't stick one up the backside.

Yes, I believe unfortunately that R14 will surely apply to both parties as both are expected to maintain a proper lookout and avoid collision. As described, Allen had ROW - but that still does not relieve him of looking for traffic and avoiding a collision. I think a hearing would find both at fault in some differing degree of %.

And unfortunately, insurance companies will not necessarily always completely abide by the RRS and a PC's ruling on it. Insurance companies will do whatever they can to avoid paying and will make the process as painful for all parties as possible. Allen, I would just settle in for a long fight unless the other boat fesses up. And I'm not suggesting you lie, but I don't think I would emphasize the fact that you didn't see the other boat either. That will not go well for you.

If you have any information on an insurance company not accepting the PC decision on blame, please post it.

 

[allene222]

What kind of race was this? Sounds like a big one, with lawyers and stuff, and the hearing is not done right after the race? Or is this just how you do it in the US? We do hearings right after, unless it's a distance race when boats finish hours apart. And if we have a dinghy sailor among the crew, they'd usually represent the boat in the hearing, as they often are the most experienced in protest hearings. The only outside people attending will be witnesses from other boats. Bringing a lawyer is unheard of.

I need to comment on this. There are not lawyers involved except as crew. I have two lawyers on my crew. I do not have a lawyer representing me in this process.

 

[NORBowGirl]

What kind of race was this? Sounds like a big one, with lawyers and stuff, and the hearing is not done right after the race? Or is this just how you do it in the US? We do hearings right after, unless it's a distance race when boats finish hours apart. And if we have a dinghy sailor among the crew, they'd usually represent the boat in the hearing, as they often are the most experienced in protest hearings. The only outside people attending will be witnesses from other boats. Bringing a lawyer is unheard of.

I need to comment on this. There are not lawyers involved except as crew. I have two lawyers on my crew. I do not have a lawyer representing me in this process.

Aha, ok. If any of them are dinghy sailors, you know what to do

 

[Presuming Ed]

...I am relying on his written statement....

...I reread my crew statements written the day after the race. ...

Written statements have no weight at all. You need to get witnesses into the room in person - it's your responsibility.

From the IJ manual:

K.15 Written Evidence

Written evidence from a witness or a party that cannot attend a hearing violates the principle that a witness’ testimony can be cross examined or questioned by the other parties and protest committee members.