Rules and protest question

[Edith Bicknell]

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.

We have so many lawyers we don't know what to do with them all. Many are waiters and Limo drivers. Not unusual on a distance race to have a protest later. Watch or no watch, there is not much you can do about a bait to windward quickly overtaking you. Except blowing a horn

They could have both turned down same result.

He could have turned up and been tee boned.

That's why you have insurance. They will both have coverage and the insurance companies will work out the damage split.

 

[rgeek]

Looks like both boats have fouled RRS14. The question is whether either is entitled to exoneration.

Boat A will say RRS11 and 12 bang to rights.

Boat B will say something like...

"We are a large classic boat with limited maneuverability close to hard on the wind. A sudden luff to windward is a dangerous maneuver, bearing away requires preplanning and proper co-ordination among the crew. By her own admission a smaller more maneuverable vessel tacked in front of us giving us no more than 60 seconds to avoid a collision. An attempt was made to go to windward but this was an inadequate amount of time for us to take seamlike action to avoid her. It is clear from the testimony that the person in charge was not aware of our presence until after it was too late for either vessel to take action to avoid a collision."

.. which is a clear case of begin compelled to break RRS14 due to Boat A breaking RRS15.

 

[Brass]

Looks like both boats have fouled RRS14. The question is whether either is entitled to exoneration.

Boat A will say RRS11 and 12 bang to rights.

Boat B will say something like...

"We are a large classic boat with limited maneuverability close to hard on the wind. A sudden luff to windward is a dangerous maneuver, bearing away requires preplanning and proper co-ordination among the crew. By her own admission a smaller more maneuverable vessel tacked in front of us giving us no more than 60 seconds to avoid a collision. An attempt was made to go to windward but this was an inadequate amount of time for us to take seamlike action to avoid her. It is clear from the testimony that the person in charge was not aware of our presence until after it was too late for either vessel to take action to avoid a collision."

.. which is a clear case of begin compelled to break RRS14 due to Boat A breaking RRS15.

Any protest committee that falls for 'there was contact therefore we were not given room to keep clear' isn't doing a very good job.

In view of evidence that crew of Schooner were alerting the skipper to the presence of L36 when Schooner was only 1 boatlength from L36, it can be inferred that Schooner was not keeping an adequate lookout. Schooner was (presumably) a fore and aft rigged boat: it's not a 300 ft square rigger. If she can't manage a 5 or 10 degree bear away in 60 seconds, then it's doubtful that she is showing the required skills of a competent but not expert crew.

I agree that L36 is exposed to rule 14, however, I would find a submission that 'I looked aft and saw Schooner, on my line about 20m clear astern, heard the yelling to bear away from cher crew, and assessed:

1. that she was able to keep clear by either bearing away or luffing to windward, so that it was not clear to me that she was not keeping clear; and
2. that by changing my course I was not reasonably able to avoid contact at that time

therefore in accordance with rule 14( a ), it was not reasonably possible for L36 to keep clear.

And you can't be 'compelled' to break rule 14.

If another boat's actions are such that you can't avoid contact, you're not compelled to break rule 14: you don't break rule 14 at all.

 

[Presuming Ed]

AIUI from Lat 38, the schooner:

 

[aloha27]

Hard to believe with the evident lack of deck-sweeper foresails that no one aboard was looking forward.

My 2 cents (CDN)

 

[Brass]

Given the numerous public statements about not seeing Schooner until the last minute (= not keeping a good lookout), it's going to be hard for L36 to beat rule 14. All depends whether the protest committee is more outraged about keeping a lookout or an astern boat mounting a boat ahead like a chook.

But, again, presumably, both boats retired, so the decision of any protest hearing is going to be 'shall not be further penalised' so one wonders why go ahead with a protest?

 

[Steam Flyer]

Allen, you have my genuine sympathy on the damage to your boat.

From the viewpoint of having sat on many Protest Committees, here are some thoughts:

1- you need a clear diagram of the incident. Your GPS track means nothing, because it has no reference to either wind direction or the other boats' position. What you need is something like this, showing the scenario with the boats' relative positions and headings at several stages or steps thru the incident:

DO NOT go into a protest hearing with your GPS track and wave it around as thought it proves something, it will only alienate the committee and convince them that you are a computer jockey not a sailor.

2- You failed as a skipper, you & your crew were not keeping a good lookout. That does not absolve the other boat, who also failed. I mention this primarily because I assume you will keep sailing. Take this to heart and don't do it again.

3- If, as it seems, the other boat came from astern and to windward, then they were the give-way boat at all steps thru the incident. This is very clear in Rules 11 & 12 and there is no exoneration I see for the other boat.

4- Others have talked about Rule 14, Avoiding Contact. It says "A boat shall (which means she MUST) avoid contact with another boat if reasonably possible. However a right-of-way boat or one entitled to room or mark-rook

a- need not act to avoid a contact until it is clear that the other boat is not keeping clear or giving room or mark-room, and

b- hall b exonerated if she breaks this rule and the contact does not cause damage or injury.

well, 4-b looks bad for you but under 4-a you don't need to take action until it is clear the other boat isn't. That gives you an 'out' for failing to avoid contact but the failure to even see the other boat is still pretty bad.

Given the numerous public statements about not seeing Schooner until the last minute (= not keeping a good lookout), it's going to be hard for L36 to beat rule 14. All depends whether the protest committee is more outraged about keeping a lookout or an astern boat mounting a boat ahead like a chook.

But, again, presumably, both boats retired, so the decision of any protest hearing is going to be 'shall not be further penalised' so one wonders why go ahead with a protest?

To decide insurance fault.

There isn't a racing rule requiring a good lookout, as far as I can see. If Allen's stance is "we didn't see him until it was too late to avoid him" then that violates R14. This seems to be what he started out saying. But it's important to remember that he was the right-of-way boat and the other skipper was even more at fault in the lookout department.

I wonder what the insurance company will say if both boats are DSQ'd

FB- Doug

 

[Brass]

...

3- If, as it seems, the other boat came from astern and to windward, then they were the give-way boat at all steps thru the incident. This is very clear in Rules 11 & 12 and there is no exoneration I see for the other boat.

4- Others have talked about Rule 14, Avoiding Contact. It says "A boat shall (which means she MUST) avoid contact with another boat if reasonably possible. However a right-of-way boat or one entitled to room or mark-rook

a- need not act to avoid a contact until it is clear that the other boat is not keeping clear or giving room or mark-room, and

b- hall b exonerated if she breaks this rule and the contact does not cause damage or injury.

well, 4-b looks bad for you but under 4-a you don't need to take action until it is clear the other boat isn't. That gives you an 'out' for failing to avoid contact but the failure to even see the other boat is still pretty bad.

If L36 can persuade the protest committee that when he saw Schooner (about 1 boatlength behind him, that is 40 ft) it was reasonable to expect that Schooner could readily bear away or luff up and keep clear, and thus that it was not 'clear that Schooner was not keeping clear', and by inference, that at all times before that time that it was not clear that Schooner was not keeping clear, then L36 is getting towards obtaining the benefit of rule 14( a ).

Given the numerous public statements about not seeing Schooner until the last minute (= not keeping a good lookout), it's going to be hard for L36 to beat rule 14. All depends whether the protest committee is more outraged about keeping a lookout or an astern boat mounting a boat ahead like a chook.

But, again, presumably, both boats retired, so the decision of any protest hearing is going to be 'shall not be further penalised' so one wonders why go ahead with a protest?

To decide insurance fault.

There isn't a racing rule requiring a good lookout, as far as I can see.

Case 107

Rule 14 begins ‘A boat shall avoid contact with another boat if reasonably possible.’ This requirement means a boat must do everything that can reasonably be expected of her in the prevailing conditions to avoid contact. This includes keeping a good lookout ...

If Allen's stance is "we didn't see him until it was too late to avoid him" then that violates R14.

Somewhat diminished in an incident starting with a faster boat clear astern.

As above: it may well be argued that at a time when it was still not clear that an astern boat was not keeping clear, it was not reasonable to change course in either direction (which may break rule 16).

But is sounds damn bad, doesn't it?

This seems to be what he started out saying. But it's important to remember that he was the right-of-way boat and the other skipper was even more at fault in the lookout department.

I wonder what the insurance company will say if both boats are DSQ'd

They would say that liability should be apportioned, and might rely on how many rules the decision said each boat broke, or fall back on general principles for apportionment (whatever they might be) established under COLREGS.

But see my comment above: if both boats retired, the protest committee cannot disqualify them: it must find 'shall not be further penalised',

Showing an insurer a written protest decision saying that you are not penalised is a whole lot better than one that says you were disqualified for breaking one or more rules.

If the protest decision did disqualify a boat that had retired, she should appeal.

 

[Presuming Ed]

DO NOT go into a protest hearing with your GPS track and wave it around as thought it proves something, it will only alienate the committee and convince them that you are a computer jockey not a sailor.

I'm going to disagree. It may be useful in 2 ways:

1. To show clearly that time between your tack and contact, to counteract any "he tacked right in front of me" arguments from the other boat.
2. To show that you didn't luff, and likewise avoid any "he luffed right in front of me" arguments. (*)

Helpful to put timings on your print out - time of tack, and time of impact (+ distance between them both)

I would use it as backup to setting out the models. So:

"We rounded the mark, hardened up onto close hauled on port and held that course for xx minutes. We then tacked onto starboard, and the incident occurred xx minutes after our tack - you can see from this GPS track. Seaward was clear astern after we tacked and...."

Then continue with the models and description. Anything you can do to support your story is helpful

* - (given good enough sampling rate/positional accuracy/etc)

To decide insurance fault.

See my post #7 above. US Sailing prescription to rule 67 explicitly states that the PC is only ruling on RRS, not adjudicating claims for damages, which are a matter for the courts.

 

[Parma]

Hard to believe with the evident lack of deck-sweeper foresails that no one aboard was looking forward.

My 2 cents (CDN)

hard to believe it goess 11 knots

 

[random]

I wonder what the insurance company will say if both boats are DSQ'd

FB- Doug

Interesting question. It is possible for both to be DSQ'd while only one has fault (or the majority of) assigned for the actual incident.

JBSF claimed in this thread that PC decision is not necessarily binding on the insurance company, but I have not seen any occasion where blame assigned by a PC has been ignored by an insurer. I have seen an attempt in court, it failed. If anyone here has a link documenting where a court or insurance company has ignored the fault assignment by a proper RRS PC, please post it for me for reference.

Is there still uncertainty if the incident was RSS or COLREGS?

If it's RSS they cannot be DSQ'd if they retired and informed the RCO?

If it is COLREGS the PC cannot rule on it unless COLREGS are specified in the 'Rules' section of the Notice of Race?

COLREGS > see you in court

RRS > See decision of the PC (no lawyers)

 

[random]

To decide insurance fault.

See my post #7 above. US Sailing prescription to rule 67 explicitly states that the PC is only ruling on RRS, not adjudicating claims for damages, which are a matter for the courts.

That is correct, but the rulings of the PC will be used by the insurance company to adjudicate the claims. The PC decision will be a part of the overall process, but unlikely not the deciding factor in the end.

JB, there you go again. Please provide precedents where the decision of the PC has been overturned by a court or insurance company? Ta in advance.

 

[Brass]

... 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'm not nearly that confident. L36 can make a good case under rule 14( a ).

I think a hearing would find both at fault in some differing degree of %.

A protest committee has absolutely no business expressing anything in terms of percentages. The furtherst they can go is is to conclude that both boats broke one or more rules.

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.

I think it's fairly common experience that insurers will sometimes express reasons for refusing or reducing payouts in terms of COLREGS rather RRS. That's hardly surprising given that the experience of insurance clerks is mainly with motor-boats.

It's not usually a problem as usually, the COLREGS fault is not all that inconsistent with the RRS fault.

If there is inconsistency and an insured doesn't dispute it, tough.

 

[Brass]

Captain Goodvibes, on 06 Jun 2016 - 3:43 PM, said:

Steam Flyer, on 05 Jun 2016 - 11:16 PM, said:

I wonder what the insurance company will say if both boats are DSQ'd

Interesting question. It is possible for both to be DSQ'd while only one has fault (or the majority of) assigned for the actual incident.

A protest committee has no business expressing any opinion about 'majority of fault'. It expresses 'fault' by concluding whether boats broke specific rules.

If a reader of a protest decision chose to observe that one boat broke more rules than another, and thus infer there was a 'majority of fault', that would be their opinion, not the protest committee's.

JBSF claimed in this thread that PC decision is not necessarily binding on the insurance company,

No he didn't. He said that insurance companies will not necessarily completely abide by the RRS and a PC's ruling.

That's not the same as saying that these are not binding.

but I have not seen any occasion where blame assigned by a PC has been ignored by an insurer. I have seen an attempt in court, it failed. If anyone here has a link documenting where a court or insurance company has ignored the fault assignment by a proper RRS PC, please post it for me for reference.

It would not be at all surprising, as JBSF suggested to find that insurers, as considered policy or in error, did not recognise RRS or a protest committee decision.

It would be very surprising if a court ignored Juno v Endeavour

Is there still uncertainty if the incident was RSS or COLREGS?

No.

Juno SRL v Endeavour

B. The Contractual Nature of the Sailing Instructions and the IYRR

 The history of the COLREGS shows that they were enacted because of the need to establish a code of international rules of the road for maritime traffic throughout the world.   See H.R.Rep. No. 447, 95th Cong., 1st Sess. 1977, reprinted in 1977 U.S.C.C.A.N. 509.   However, nothing in their history, or in the public policy issues that led to their enactment, indicates that they were meant to regulate voluntary private sports activity in which the participants have waived their application and in which no interference with nonparticipating maritime traffic is implicated.   Therefore, by entering a regatta with sailing instructions which unambiguously set forth special, binding “rules of the road,” the participants waive conflicting COLREGS and must sail in accordance with the agreed-upon rules.   We base this conclusion not only on the nature and history of both the COLREGS and the private activity in question, but also because of the strong public policy in favor of the private settlement of disputes.

If it's RSS they cannot be DSQ'd if they retired and informed the RCO?

If they retired, they cannot be disqualified (rule 64.1( b )), but if a protest committee was not aware that they had retired the protest committee might decide that they were disqualified.

If that happened, a boat involved in an insurance claim would do well to appeal the decision.

If it is COLREGS the PC cannot rule on it unless COLREGS are specified in the 'Rules' section of the Notice of Race?

Put this the other way round. COLREGS do not apply to a race conducted under the RRS, unless the SI state that the rules of RRS Part 2 are replaced by [COLREGS or government right of way rules] (Preamble to Part 2) A protest committee has no jurisdiction to find a breach of the COLREGS unless the COLREGS apply.

And NOR cannot change RRS, only the SI can change RRS, (rule 86.1( b )), although intended changes should be referenced in the NOR (rule J1.2(1)).

COLREGS > see you in court

RRS > See decision of the PC (no lawyers)

If it's a race under the RRS, the parties should, in accordance with rule 3, pursue their dispute through the protest process, whether the SI invoke the COLREGS or not.

If both boats are not racing, then COLREGS apply. There might be a protest under the RRS or there might not.

In any case, I think it's unlikely that a court would refuse to entertain a claim for damages because the RRS were alleged to apply.

If there is a decision by a protest committee a court should rely on, (as far as it goes) the conclusions and decisions of the protest committee.

If, on the other hand, a party pursued a claim for damages in a civil court without first protesting under the RRS, then the court would then go ahead and determine the issue, and should do so according to the RRS.

Juno SRL v Endeavour

[boats racing under the RRS] were contractually bound to race by the rules of the road contained in the [RRS], and to resolve issues related to fault for any collisions according to those rules.   ...
[this] comports with § 2 of the Federal Arbitration Act, which pointedly states that “[a] written provision in any maritime transaction ․ to settle by arbitration a controversy arising out of such ․ transaction ․ shall be valid, irrevocable, and enforceable.”   These conditions exist here.  Yacht racing is a maritime transaction, and the provisions of the [RRS] establishing the racing rules and the protest procedures are in writing and binding on participants.

Furthermore, the procedures established by the IYRR meet the requirements of due process:  there is appropriate written notification of the allegations, notice is given of the hearing;  the parties are allowed to appear and present evidence and witness testimony;  they may also cross-examine opposing witnesses and argue orally;  and generally, engage in all those accepted activities held so dear by common law lawyers.   Finally, a written decision, in which findings of fact are made and fault apportioned, is issued to all interested parties.   Equally important, the evidence is heard soon after the events take place by a panel of experts who are fully versed in the niceties of the activity in question.   It is hard to find fault with such a process, particularly when it is exactly what the participants agreed to.

But, as mentioned above, and in accordance with the US Sailing Prescription to rule 67, the protest committee, once it has found 'fault' in terms of which boats broke which rules, should have nothing further to do with damages or liability

US Sailing prescribes that:
( a ) A boat that retires from a race or accept s a penalty does not, by that action alone, admit liability for damages.
( b ) A protest committee shall find facts and make decisions only i n compliance with the rules. No protest committee or US Sailing appeal authority shall adjudicate any claim for damages. Such a claim is subject to the jurisdiction of the courts.
( c ) A basic purpose of the rules is to prevent contact between boats. By participating in an event governed by the rules, a boat agrees that responsibility for damages arising from any breach of the rules shall be based on fault as determined by application of the rules, and that she shall not be governed by the legal doctrine of ‘assumption of risk’ for monetary damages resulting from co ntact with other boats.

Based on 'fault' found by the protest committee, a court will determine liability for damages in accordance marine or admiralty law, which, in the event of any fault on both parties will normally involve apportionment of damages between them.

In the event of an insurance claim that has not yet gone to court, the insurer will make a decision based on what they think a court would decide (or what they mistakenly believe a court would decide, or what they think they can get away with).

Captain Goodvibes, on 06 Jun 2016 - 5:00 PM, said:

JBSF, on 06 Jun 2016 - 4:43 PM, said:

Presuming Ed, on 06 Jun 2016 - 12:35 AM, said:

Steam Flyer, on 05 Jun 2016 - 11:16 PM, said:
To decide insurance fault.

See my post #7 above. US Sailing prescription to rule 67 explicitly states that the PC is only ruling on RRS, not adjudicating claims for damages, which are a matter for the courts.

That is correct, but the rulings of the PC will be used by the insurance company to adjudicate the claims. The PC decision will be a part of the overall process, but unlikely not the deciding factor in the end.

JB, there you go again. Please provide precedents where the decision of the PC has been overturned by a court or insurance company? Ta in advance.

I think that what JBSF is saying is that the insurer will base their determination on the decision of the protest committee, which, as discussed above should go no further than a determination of 'fault' in terms of rules broken, and then, the insurer will enagage in a process of quantification and apportionment based on their understanding of maritime law.

 

[random]

... 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'm not nearly that confident. L36 can make a good case under rule 14( a ).

I think a hearing would find both at fault in some differing degree of %.

A protest committee has absolutely no business expressing anything in terms of percentages. The furtherst they can go is is to conclude that both boats broke one or more rules.

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.

I think it's fairly common experience that insurers will sometimes express reasons for refusing or reducing payouts in terms of COLREGS rather RRS. That's hardly surprising given that the experience of insurance clerks is mainly with motor-boats.

It's not usually a problem as usually, the COLREGS fault is not all that inconsistent with the RRS fault.

If there is inconsistency and an insured doesn't dispute it, tough.

Ok, interesting but none of that is "information on an insurance company not accepting the PC decision on blame".

I'm still interested in this issue, been searching but have not found a precedent yet.

 

[Brass]

... 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'm not nearly that confident. L36 can make a good case under rule 14( a ).

I think a hearing would find both at fault in some differing degree of %.

A protest committee has absolutely no business expressing anything in terms of percentages. The furtherst they can go is is to conclude that both boats broke one or more rules.

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.

I think it's fairly common experience that insurers will sometimes express reasons for refusing or reducing payouts in terms of COLREGS rather RRS. That's hardly surprising given that the experience of insurance clerks is mainly with motor-boats.

It's not usually a problem as usually, the COLREGS fault is not all that inconsistent with the RRS fault.

If there is inconsistency and an insured doesn't dispute it, tough.

Ok, interesting but none of that is "information on an insurance company not accepting the PC decision on blame".

I'm still interested in this issue, been searching but have not found a precedent yet.

Well, you are not going to find a 'precedent' because a decision by an insurer to accept or refuse a claim is a private matter and will not find it's way into court reports unless and until it is disputed by a claimant.

I think you have to be satisfied with anecdote.

What would, of course be interesting, would be a court decision that was contrary to Juno v Endeavour.

 

[random]

<snip>

but I have not seen any occasion where blame assigned by a PC has been ignored by an insurer. I have seen an attempt in court, it failed. If anyone here has a link documenting where a court or insurance company has ignored the fault assignment by a proper RRS PC, please post it for me for reference.

It would not be at all surprising, as JBSF suggested to find that insurers, as considered policy or in error, did not recognise RRS or a protest committee decision.

<snip>

Really? I am asking for evidence, you are offering opinion. So I will ask again.

If anyone here has a link documenting where a court or insurance company has ignored the fault assignment by a proper RRS PC, please post it for me for reference.

 

[random]

I will be involved in a protest hearing. I protested a boat that hit me and destroyed my mast along with some other damage. I have been told the damage to my boat is $50,000 although I do not have an estimate yet.

<snip>

Which rules did you claim they broke on the protest form?

 

[Presuming Ed]

If Sumurun vs Amorita was settled out of court (as it was), I would think that the chances of anything else actually ending up in front of a judge would be minimal.

 

[GRUMPY]

You're being trolled. Best ignore.