PART 5
Even if the facts are in dispute and there was no contact, that alone should not lead a protest committee to find facts that would not result in penalisation. However, when there is contact in an incident away from any mark or obstruction, then, except in a limited number of special cases (none of which apply in this protest), a right-of-way rule in Section A of Part 2 will already have been broken by one of the boats before the contact.
A protest committee is therefore required to make its best judgement as to what happened, in terms that will enable it to decide which rule or rules, if any, were broken by which boat. The protest committee may feel uncomfortable to do so, but the parties have, as stated above, consented to the risk of an unfavourable decision being made on facts with which they do not agree. Those facts will stand on appeal or reference, unless they are inadequate or perverse having regards to the evidence, in which case the national authority would require a fresh hearing.
As US 102 says, a protest committee may find it difficult to reconcile conflicting testimony, but must not penalize a boat without first finding facts about the incident that led to the protest and basing its decision on them.
I saw many protest forms in the appeals decided by the RYA, and the commonest failing of protest committees is to arrive at conclusions without stating the facts leading to those conclusions1
. To find that Iris did not keep
clear of Daffodil is a conclusion, not a fact, to be derived from facts such as Iris on starboard tack ran into the stern of Daffodil on the same tack. The boundary between facts and conclusions is in fact somewhat blurred. As Mary Pera pointed out, to state that a boat is close-hauled on starboard tack may seem like a fact, but it is in fact a conclusion derived from the wind direction relative to her heading and to the setting of her sails. Ready-made conclusions of this sort are acceptable as facts, otherwise protest decisions would be needlessly elaborate.
Descriptions of damage are often on or over the borderline of fact and conclusion. To state that Iris was seriously damaged in a collision is a conclusion derived from facts that must be stated, such as that Daffodil’s bow struck Iris on her port side two metres from the stern, resulting in a hole 50 cm x 20 cm at its widest extent that broke a rib, admitted water and which was estimated to cost £4,000 to repair. Such facts are non-judgmental, even though the conclusion to be drawn may be obvious. WS 104 examines the fuzzy boundary between facts and conclusions in more detail.
…the two concepts can overlap…a ‘fact’ is an action or condition that a protest committee ‘finds’ occurred or existed. A ‘conclusion’ is derived by reasoning from something else, and can be purely factual. For example, if the facts are that there were three classes in a race and five boats in each class, it is both a conclusion and a fact that there were 15 boat in the race. A conclusion can also be partially non-factual, as when a judgment is made that includes non-factual elements. An example is the statement ‘Boat A displayed her protest flag at the first reasonable opportunity after the incident’, which is based on a combination of the facts about an incident and an interpretation of the phrase ‘first reasonable opportunity’ in rule 61.1(a)2
.
There may be less to this World Sailing case than meets the eye, at least as concerns distinguishing fact from conclusion. A less intellectual approach is to ask oneself ‘Could a person with little knowledge of the club, the class and the conditions understand what happened from the ‘facts found’? Could that person construct a diagram or picture what happened from what is written?’ If not, it may be that a protest committee diagram would show the facts more clearly – indeed, a diagram is as much a finding of facts as the related words3
.
The task of the protest committee in boat-versus-boat right-of-way protest is more difficult when there was no contact. The facts found must be relevant to the rules applying to the situation, which is in part a putting of the cart before the horse. If is a question as to whether one boat kept clear of the other, the decision will be made by applying the definition Keep Clear to the facts, which will be a combination of the courses and speeds of the boats, of the conditions, and of communication between the boats. If the issue is whether room was given as required, the elements of the definition Room must be established as facts – the space given or available, the description of the existing conditions, and, if applicable the speed and description of the boat’s manoeuvre. The conclusion will then be a judgement as to whether the space given was adequate in those existing conditions for a manoeuvre that was prompt and seamanlike.
1 The distinction is important, since under rule 70.1 facts found by the protest committee have to accepted by the national authority unless they
appear perverse, whereas the conclusions drawn from those facts are appealable. 2 Even the words ‘displayed her protest flag’ are a semi-conclusion. The full facts might be ‘broke out a red flag 20 cm x 15 cm from her backstay’. 3 WS 104: diagrams are rarely produced by protest committees, if only because there is no longer any space on the standard protest form for one, but if an appeal is likely, the early production of a protest committee diagram while the case is fresh in the mind will assist the appeal process.
204 RYA The Racing Rules Explained
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