Page 123 - Case Book 2017 - 2020 April 18

When Danger Mouse arrived in the start area she confirmed. The original decision to disqualify BOD 69
observed a valid course being displayed and was, was incorrect and she is reinstated.
therefore, under no obligation to look further. The When a protest committee considers reopening a
simultaneous display of more than one valid course for
a class was an improper action of the race committee. hearing because of significant new evidence, it must
first consider why the evidence was not brought to the
Any doubt about the consequences of that action must
be resolved in favour of the competitor (see RYA case original hearing. It must do this before actually
reopening the hearing to receive the further evidence.
1989/10). Redress is to be given to Danger Mouse, and
any other boats that sailed the same course, in an The protest committee must be satisfied that, if the party
requesting the reopening had exercised due diligence
arrangement that is as fair as possible to all boats
affected, including those boats that sailed the course prior to the original hearing, even then she could not
have brought the evidence at that time.
intended by the race committee.
In this case, the additional evidence was from witnesses
The protest committee was correct to recognize that who were in the vicinity of the incident and there is
under rule 61.1(a)(3) a protest by a boat for breaking
rule 28.1 need not be notified before the protestee has nothing to show that their testimony could not have
been offered at the original hearing. It was not therefore
finished.
‘new’ evidence.
Doyouthinkhesaurus v Danger Mouse, Parkstone Y C.
Therefore, based on the facts found in the original
RYA 2008/3 hearing, the disqualification of BOD 27 is confirmed,
Rule 14, Avoiding Contact corrected to be under rule 18.2(b) (as the protest
Rule 66, Reopening a Hearing committee had itself realised).
When a protest committee reopens a hearing to hear The protest committee’s reason for reopening the
additional evidence, and when this is invalid because hearing was not because it thought it might have made a
that evidence would have been available with the significant error, and the fact that it later realised that its
exercise of due diligence at the time of the original original decision was in part incorrect does not
hearing, the fact that the protest committee realises that retrospectively validate its decision to reopen.
its original decision was incorrect on the facts Hence the decision to reopen and thus the resultant
originally found does not negate that invalidity. reinstatement of BOD 69 was invalid.
In a protest, a party that is a right-of-way boat or one BOD 69 was entitled to mark-room from BOD 27 at the
entitled to room may be penalized under rule 14 even if mark. Penalization under rule 14 is possible when
the damage or injury referred to in rule 14(b) is neither of the clauses 14(a) and 14(b) protect her. There
incurred only by a third boat that is not a party to the was contact which caused damage, and the fact that it
hearing, if it is a consequence of the original breach of was caused to a third boat not a party to the hearing
a rule of Part 2 by one of the parties. does not negate the application of rule 14(b).

SUMMARY OF THE FACTS However, nothing in the facts found suggests that BOD
The protest committee found as facts that Broads One 69 failed to act to avoid contact after it was clear that
Design 69 was overlapped to windward inside the BOD 27 was not giving mark-room. It is possible that,
protestor, BOD 27, when approaching an off-wind had the hearing not been reopened and the original
mark. BOD 27 then collided with a third boat, Yare & decision had then become the subject of an appeal or
Bure 17, causing damage. The protest committee, reference, the RYA would have asked for further
basing its decision on a presumption under rule 18.2(e) information from the protest committee on this point.
that an earlier overlap had not been proved to have been Since there is no reason to question the clearer findings
broken, disqualified both parties, citing only rule 14(b). of the reopened hearing, despite its invalidity, this is not
The protestor asked for the hearing to be reopened to necessary. BOD 69 is therefore reinstated.
hear additional witnesses. This was agreed to and the The protest form made it clear that Y&B 17 was
protest committee now found as a fact (without recourse involved in the incident if only because there was a
to rule 18.2(e)) that the boats were overlapped when collision between her and BOD 27. The protest
BOD 27 entered the zone; that BOD 27 did not give committee should have made her a party to the hearing
mark-room to BOD 69; and it concluded that the actions by protesting her in accordance with rule 60.3(a)(2), a
of BOD 27 ‘did not give BOD 69 reasonable procedural move to keep open all possible outcomes
opportunity to avoid the contact that occurred between depending on the facts found. It is now too late for this
these boats’. to be done and, in any case, the clearer facts do not
The protest committee confirmed the disqualification of indicate any infringement by Y&B 17 - see RYA case
BOD 27 under the first sentence of rule 18.2(b) and 2003/3.
exonerated BOD 69. It then requested confirmation or Request for Confirmation or Correction of a Decision, Norfolk Broads
correction of its decision from the RYA under rule 70.2. YC
DECISION RYA 2008/4
The decision to reopen the protest hearing did not Definitions, Keep Clear
comply with rule 66. The revised decision was therefore Rule 15, Acquiring Right of Way
invalid. The original decision to disqualify BOD 27 is
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