APPEAL No.

200910

APPEAL TO

YACHTING NSW

APPEAL BY

BIG KAHOONA

THE PROTEST

NESSIE TOO v BIG KAHOONA

NESSIE TOO and BIG KAHOONA were sailing upwind offshore in strong winds (approx 20 knots). NESSIE TOO on port tack approached BIG KAHOONA on starboard. NESSIE TOO tacked to leeward of BIG KAHOONA. BIG KAHOONA tacked away soon after. There was a collision during the tack. NESSIE TOO protested BIG KAHOONA.

The Protest Committee found the following facts: 

1. Protest is valid.
2. Nessie Too on Port tack approached Big Kahoona on Starboard tack.
3. Nessie Too completed a tack onto starboard
4. Both boats sailed on starboard tack for at least 30 sec with initially 1.5m – 2m separation which subsequently closed.
5. Big Kahoona luffed to tack. Contact occurred between Big Kahoona's mainsail and Nessie Too's rigging

PROTEST DECISION

The Protest Committee disqualified BIG KAHOONA for failing to keep clear as required by Rule 11.

APPEAL SUMMARY

BIG KAHOONA appealed on two grounds:

 1.     That the tack by NESSIE TOO was too close and that the Protest Committee misinterpreted or failed to consider rule 15 and rule 16.1

2.     That NESSIE TOO did not display an appropriate protest flag and that the Protest Committee has misinterpreted Rule 61.1(a).

APPEAL DECISION

GROUNDS 1

The Protest Committee has not misinterpreted rule 15 or rule 16.1. The appeal is denied on these grounds. 

APPEAL REASONS

GROUNDS 1

While NESSIE TOO was tacking and until she completed her tack she was bound by rule 13 to keep clear. 

Once NESSIE TOO’s tack had completed, rule 13 ceased to apply and BIG KAHOONA becomes bound by rule 11, and, NESSIE TOO by rule 15, which embodies the principle in the rules that when the right of way suddenly shifts from one boat to another, the boat with the newly acquired right of way must give the other boat space and time for response and thus a fair opportunity to keep clear.

NESSIE TOO’s obligation under rule 15 is not a continuing one; it protects BIG KAHOONA only temporarily, and only if she responds promptly after the overlap begins.

Rule 11 requires BIG KAHOONA to keep clear and, if this requires her to luff, she must do so promptly.

There was no attempt by BIG KAHOONA to luff or otherwise alter course for a period of 30 seconds after NESSIE TOO’s tack. Consequently BIG KAHOONA has lost her protection under rule 15 and is now bound by rule 11, as windward boat, to keep clear of NESSIE TOO.

 In order for NESSIE TOO to infringe rule 16.1 she must:

(a)     be the right of way boat; and,

(b)     alter course preventing the other boat from keeping clear.

There were no facts found that NESSIE TOO altered course.

The Protest Committee has not misinterpreted rule 15 or rule 16.1. 

APPEAL DECISION

GROUNDS 2

The protest committee has not misinterpreted rule 61.1. The appeal is denied on these grounds.  

APPEAL REASONS

GROUNDS 2

The Protest Committee found as fact 1 “The protest is valid”. This is a decision, as required by rule 63.5 and not a fact.

Notwithstanding, both boats, according to their rejoinders to this Appeal, admit hailing ‘Protest’ and, hearing each other’s hail of ‘Protest’. While there is no requirement that a protest flag be flown on any particular part of a boat there is a requirement that the flag be displayed conspicuously. Flying the protest flag on a shroud or side stay meets this requirement. Note that there is no requirement that the other boat must see the flag, only that it is displayed.

The intent of Rule 61.1 is to ensure that every boat involved in an incident is aware that they are being protested and can, if they choose, take advantage of an alternative penalty if one is available. Further, that should they choose not to take an alternative penalty that they are sufficiently informed that they are being protested and they have been provided reasonable opportunity to prepare their arguments.

It is clear from the facts and the rejoinders that both boats were aware that an incident had occurred and that there was a potential protest from each boat.

The Appeals Committee is reluctant to uphold an appeal based on rule 61.1 when it is clear that both parties were informed and had opportunity to take advantage of an alternative penalty if one applied.

The appeal, therefore, is denied. 

CONFIRMED BY

JENNY STURROCK

YACHTING NEW SOUTH WALES

 12^th February 2010  

 _________________________________________________________________________________________________________

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