PART 4
The protest committee was obligated to decide whether Iris’s protest was valid before considering its content [see rule 63.5 (Hearings: Validity of the Protest or Request for Redress)]. If the protested incident had been the right-of-way incident, the protest would have been invalid because Iris did not display her protest flag until five minutes after the incident. This was not the “first reasonable opportunity” as required by rule 61.1(a).
However, Iris’s protest of Daffodil’s failure to take a proper and timely Two-Turns Penalty met the requirements of rule 61.1(a), since the incident referred to under rule 61.2(b) was Daffodil’s failure to take a Two-Turns Penalty when required and Iris complied with rule 61.1(a) at that time. Iris’s protest was therefore valid.
However, Daffodil’s failure to take a proper and timely Two-Turns Penalty broke no rule. It meant only that she failed to take a penalty, but her failure to take a penalty had no bearing on the protested incident. Since the right-of-way incident was not the incident described in Iris’s protest, Daffodil could not be penalised for that incident.
Taking a penalty does not mean that the incident that gave rise to it cannot be the subject of a protest hearing. Indeed, as above, the protestor’s intention may be to prove that the turn(s) did not exonerate the incident, which may be for one or more of a number of reasons, namely that the boat taking the penalty - • did not get clear of other boats before starting a turn • did get clear, but not as soon after the incident as possible. Getting clear may take longer than the actual taking of the penalty, particularly for a starting line incident around the time of the starting signal, and positive action is needed, not just waiting until the boats separate after a mark or after starting. Nor is a boat entitled to thinking time after the incident before deciding to take a penalty1
.
• did not keep clear while taking a penalty turn, as required by rule 20.2 • did not take the second of two turns promptly after the first turn • did not take a second turn in the same direction as the first turn • took only one turn when two were required • both touched a mark and broke a rule of part 2, but took only a single turn2 • caused injury or serious damage or gained a significant advantage in the race or series: facts related to a request for redress and/or an insurance claim may be sought
• purported to take a penalty for an infringement for which the penalty was not available, such as a breach of rule 23
, or of rule 42, Propulsion.
In addition, there may be a protest when turns were validly taken for an incident resulting in damage that was not serious but which affected the other boat’s score in the race or series, resulting in a related request for redress based on the facts from the protest, even though no further penalisation is possible.
‘Damage’ and ‘injury’ are considered under rule 14. As in that rule, damage includes damage to a third boat or vessel. A former Q&A said that rule 44.1(b) applies to damage caused to a committee vessel that is a mark, precluding taking a turn penalty. If there is injury to a person, it will preclude the taking of a two-turns penalty (or a scoring penalty, if available), including by a right-of-way boat that broke rule 14 resulting in contact causing injury. If there is non-serious damage, a two-turns penalty is available, including for breaking rule 14.
However, rule 44.1 precludes the availability of a two-turns penalty when the damage is serious. What is ‘serious’? First, there must be damage, as discussed, and it is for the protest committee to decide whether it is serious or not.
US 115 considers a dictionary definition of ‘serious’: ‘important because of possible danger or risk; having potentially undesired consequences; giving cause for concern; of significant degree or amount.’ It suggests related questions:
1. Did the damage put the safety of the crew at risk?
2. Did the damage include a hole in the boat which compromised the integrity of the hull? 3. Did the damage adversely impact the boats’ sailing performance in a significant way? 4. Will the cost of repairing the damage be a significant amount relative to the market value of the boat? 5. Will the value of the boat after repairing the damage be significantly diminished?
1 ‘Rule 44 does not provide time for a boat to deliberate whether she has broken a rule. If a boat decides too late that she has broken a rule, the
penalty provided by rule 44.4 is not available to her’: US 60. Some judges would nevertheless afford her a little thinking time. 2 The appropriate penalty for an incident involving both infringements is two turns, not three – see rule 44.1(a) 3 See rule 64.1(b)
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