PART 1
That case reminds us that there is a breach of rule 2 only when it is ‘clearly established’ that the mysterious principles of sportsmanship and fair play have been violated. So any doubt must be resolved in favour of the accused, but it is not clear to what extent the burden of proof is greater under rule 2, compared with any other rule. It is curious that the rule speaks of violating ‘these principles’ in the plural, whereas retiring after breaking a rule is only one fundamental principle.
Taking advantage of sub-standard sailing instructions or of a sub-standard competitor does not break rule 2. If a race committee intends a mark to be rounded, but its sailing instructions require only that it be passed, a boat that detects this can sometimes validly sail a far shorter race1
. Anchoring during a race at a position charted as
‘Anchoring Prohibited’ breaks no rule, rule 2 included, if the prohibition is not activated by the sailing notice of race or instructions2
.
Rule 2 applies to both a boat and her owner (who may not be aboard while racing), which opens up the possibility of action under this rule against the boat of a non-competing owner when there is deliberate non-compliance with class rules. A penalty under rule 2 may be only the first step. An owner can be the subject of a rule 69.1 hearing.
It is not a breach of rule 2 (or any rule) for a right-of-way boat to hold her course even though she has good reason to believe that another boat is about to break a right-of-way rule with respect to her. So in WS 27, Iris and Daffodil were approaching the port-hand windward mark on port tack. Iris, clear ahead and to leeward, tacked (predictably, it was claimed) onto the starboard-tack layline for the mark right across the bows of Daffodil, which almost immediately hit her and holed her. The protest committee disqualified both boats, Iris under rule 15, and Daffodil under rule 2, pointing out that she knew that Iris was going to tack but did nothing to avoid collision. On appeal, Daffodil was reinstated, as she was not required to anticipate that Iris would break any rule3
.
It is not a breach of rule 2 for protestors to collaborate over lodging a protest: ‘Any boat is entitled to protest any other boat, subject to the provisions of rule 60. If any one boat may do so, three may also do so, and they do not break rule 2 simply because they consult before delivering their protests or because they deliver a joint protest4
.’
WS 138 points out that misjudgements are common during a race, and are not unfair sailing or misconduct. It is only when a penalty is not taken for a known rule breach that results from a misjudgement that rule 2 applies.
A protest committee that finds that a boat has broken rule 2 now has the option of awarding an excludable disqualification (DSQ) as well a non-excludable one (DNE). The penalties in the published rule 2 cases hitherto have been DNE. Would any of those have merited only a DSQ at the time, had that been available? In protests where there is found to be unfair sailing by a party that is to be disqualified under some other rule, the protest committee now has to decide whether just to add rule 2 to the rule(s) under which it is giving a DSQ, or whether to upgrade it to a DNE. Currently, there is no guidance. To give just a DSQ under rule 2 may be difficult to rationalise with having decided that the principles of sportsmanship and fair play have clearly been violated.
As the following table show, there is a substantial overlap between rule 2, Fair Sailing and rule 69, Misconduct, and a protest committee will sometimes have to decide whether to apply one, the other or even both of these rules. If either could be invoked, and if the perceived outcome of a rule 69.2 hearing is not likely to worse than a single DNE, rule 2 has the attraction of greater speed, less effort and fewer bad feelings. There is nothing to stop a protest committee that is penalising under rule 2 from giving a warning as to future conduct – which might include the threat of a rule 69.2 hearing for repeated misconduct.
WS 138 points out that rule 2 refers to ‘competing’, so that a protest under rule 2 ‘must involve the competition’. However, the facts found under a rule 2 protest may be seen to be misconduct, in which case ‘it may be appropriate for the protest committee to take separate action under rule 69.’
1 RYA 1985/4, see also under rule 28.1. 2 RYA 1989/6: the same applies to any local byelaw or regulation if not called up by the sailing instructions. 3 See also SC 4: ‘When a right-of-way boat touches a give-way boat that is not keeping clear without causing damage she does not break
rule 2…there was nothing unfair in [her] holding her course.’ 4 US 42, concerning a measurement protest
RYA The Racing Rules Explained 23
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