Page 124 - Case Book 2017 - 2020 April 18

Rule 63.6, Hearings: Taking Evidence and Finding uncomfortable to do so, but the parties have, as stated
Facts above, consented to the risk of an unfavourable decision
Rule 64.1, Decisions: Penalties & Exoneration being made on facts with which they do not agree.
Those facts will stand on appeal or reference, unless
When there is contact between boats, a right-of-way they are inadequate or perverse having regards to the
rule will normally have already been broken. A protest evidence, in which case the RYA would require a fresh
committee must find facts to enable it to decide whether hearing.
any boat broke a rule. If a boat is found to have broken
a rule the protest committee shall disqualify her unless In this case A Boen had become the right-of-way boat.
some other penalty applies. The fact that there was damage permits her penalization
(rule 14(b)), and rule 14(a) does not protect a right-of-
When there is contact shortly after a boat gains right of way boat that provokes a collision with a boat that was
way, it is for her to show that she gave the other boat previously keeping clear. So A Boen is to be penalized
room to keep clear.
under rule 14.
SUMMARY OF THE FACTS The protest committee did decide that 'it was not
A Boen was clear astern of X Factor and then became conclusively proven that A Boen gave X Factor room to
overlapped to leeward. There was contact resulting in keep clear under rule 15.’ That must mean that she did
minor damage. There was no change of course by X not give room. Rule 15 puts a positive obligation on a
Factor.
right-of-way boat. It is for her to show that she gave
The protest committee found that A Boen could have sufficient room. As she was not able to do so, A Boen
avoided the contact, but decided that it had insufficient broke rule 15 and X Factor is to be exonerated for not
evidence to disqualify either boat as the evidence was keeping clear. If in fact the contact occurred from clear
conflicting, the damage was minimal and it had not astern, while A Boen was required by rule 12 to keep
been proven that a boat had broken a rule. It requested clear, then A Boen broke rule 12 shortly before the
confirmation or correction of its decision under rule collision, and in avoidably colliding with X Factor, she
70.2 then broke rule 14.
DECISION A Boen v X Factor , Royal Temple Yacht Club
The decision of the protest committee is corrected. A
Boen is disqualified under rules 14 and 15. RYA 2008/5
Rule 66, Reopening a Hearing
When there is an incident and one of the boats decides Appendix M4, Recommendations for Protest
to protest, all boats involved are at risk of penalization Committees
if they do not retire or (as was possible at this event)
take an available penalty. A protest committee should reopen a hearing, whether
or not requested to do so, if it may have made a
It is of the essence of protests that the parties disagree significant error, or if there is new evidence that was
as to what happened. The protest committee must not available at the original hearing. However, it need
decide facts regarding what they believe happened, and not do so if there is no prospect of a changed decision,
those facts need not coincide with what any one party or when a changed decision would not affect the major
alleged. It may be that the facts found differ from what places when final event results are urgently needed.
happened, but that can only be demonstrated if new
evidence gives rise to a reopening. A party asking for a reopening must offer a good
reason, and the protest committee need not hear from
Even if the facts are in dispute and there was no contact, any other party before deciding whether or not to
that alone should not lead a protest committee to find reopen. However, when it decides to reopen, its
facts that would not result in penalization. However, decision to do so may be open to appeal by another
when there is contact in an incident away from any party if an objection to the reopening is made and
mark or obstruction, then, except in a limited number of rejected at the start of the reopened hearing.
special cases (none of which apply in this protest), a
right-of-way rule in Section A of Part 2 will already Evidence that was clearly relevant to the original
have been broken by one of the boats before the contact. hearing and that was, or should have been, available at
that hearing is not new evidence. However, evidence
Keeping clear, as defined, is more than just avoiding related to issues not arising until during the original
contact, and the definition makes no reference to actual hearing, or evidence or a witness that the protest
contact. It may be that, although one boat broke a rule committee knows had been unsuccessfully sought for the
of Part 2, Section A, she is to be exonerated and it is the original hearing may be ‘new’.
other boat in the incident that is to be penalized,
because she broke rule 15 or rule 16 of Section B. In When a hearing is reopened, there is no limitation on
addition, avoidable contact breaks rule 14, although the evidence that may be presented.
rule gives circumstances where there is exoneration for QUESTION 1
breaking the rule. Rule 66 begins: 'The protest committee may reopen a

A protest committee is therefore required to make its hearing...'. Does the use of the word 'may' mean that a
best judgement as to what happened, in terms that will protest committee is entitled not to reopen in the
enable it to decide which rule or rules, if any, were circumstances stated in the rule?
broken by which boat. The protest committee may feel
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