Sunday, December 5, 2010

Sugar Magnolia's Appeal Decision

The Appeal of Sugar Magnolia is now decided. Pardon the date from last year on this post, but I pulled the original post at the request of PIYA until it was decided by US Sailing and now it has.. This post is to provide an update of the appeal and show how it was finally decided.  To start with the appeal was lost for a period of months after it was filed.  Because Sugar Magnolia filed two appeals for the same race involving the same two boats, US SAILING thought it was the same appeal sent twice.  We asked the status of the second appeal after the first had been decided by PYIA and found out PYIA AC was never was sent the second appeal by US SAILING.  The appeal that was lost was the appeal posted in my previous post Show time vs Sugar Magnolia.

At first blush it seemed to be a rather easy appeal to decide, but there were several question asked by the PYIA AC that  indicated they were struggling with the decision because we never found as fact whether Sugar Magnolia sailed her proper course after she passed the leeward mark boat.  What follows is the correspondence between the PC and the PYIA-AC and the final decision by US SAILING.

Below is a letter from the PYIA AC with questions and the responses from the PC in italics.  In addition, you will see some clarifications on the diagram requested by the AC.

October 14, 2010 Letter from PYIA-AC with PC Responses to Questions


The PIYA-AC requires certain additional information in order to decide this Appeal.  Please provide us with your answers to the following questions and amend the PC's diagram as requested:

1. After SM rounded the leeward mark, was the next leg of the Race a beat to windward or a free leg of the course?  If the latter, please indicate on the PC's diagram the direction of the course to the next mark.
PC Response – This  was a leeward mark, and the next mark was to windward.

2. Please show on the PC's diagram what SM's proper course – in the prevailing wind, sea state and current conditions – would have been (not necessarily the course she actually sailed) from the time that her bow was abreast of the leeward mark until SM would have accelerated up to speed on her course to the next mark.  SM's proper course to the next mark would depend on whether or not the next leg of the Race was a beat to windward.
PC Response – We have modified the diagram to show the direction of the wind and the direction to the next mark.  The next leg was a beat to windward so proper course was close hauled.  We have added an arrow to the diagram showing the close hauled course for SM. 

However, we didn’t find as fact whether SM was sailing her proper course or not between positions 5 and 6 only that she was below close hauled. We didn’t consider her to be “at the mark" when she broke rule 11 so we didn’t consider her proper course to be relevant to the decision.  We could reopen the hearing to determine if it was her proper course, but our decision would be unchanged.

3. Did SM have her dagger board fully lowered by the time SM was at the leeward mark and began altering course to windward while rounding the mark?
PC Response – We do not know if her dagger board was fully lowered.  The status of the center board was not a fact found.

4. What was the nature and extent of the damage to each of SM and ST?
PC Response – According to the testimony there was no damage to SM and ST had fiberglass damage at the point of contact possibly exceeding $200 to repair

Please reply to the foregoing questions and send the PC's amended diagram, to the PIYA-AC as well as both parties to the Protest, at your earliest convenience.

Yours very truly,

November 23, 2010 Letter from PIYA-AC


Thank you for providing us with some additional information and with a revised diagram in response to our letter to your of Oct. 14, 2010.

When SM entered the zone overlapped inside ST, ST was required by rule 18.2(b) to give SM mark room (defined terms in italics).  One of the fundamental issues involved in this Appeal is for how long rule 18 applied during the period of time from when SM had passed the leeward mark – the stern of the RC signal boat – until the moment of contact between SM and ST.  Per the definition of mark room, SM was entitled to sail her proper course while SM was "at the mark."  In our opinion, unlike how rule 18 applied prior to 2009, under the current rule a boat is "at the mark" from the moment in time when her bow is first alongside the mark until she is sailing on her proper course (in this incident, close hauled on port tack) to the next mark.  This means that, at a leeward mark when the next leg is a beat to windward, a boat is still "at the mark" while completing a proper course rounding from her previously offwind course until she is on a close hauled course to the next mark, which for most keelboats would be a period of time beyond when she would have left the leeward mark astern.

Acting under rule F6, Inadequate Facts; Reopening, we are writing to ask that you provide the following additional facts.  Please show on the your diagram of the incident what SM's proper course – in the prevailing wind, sea state and current conditions – was (not necessarily the course SM actually sailed) from position 3 until SM was no longer in the zone.  According to the materials you have provided to us, the only other boat involved in this incident was ST.  Therefore, what we are requesting is an addition to your diagram showing the course that SM would have sailed (from position 3 until she was no longer in the zone) to finish as soon as possible in the absence of ST.  We expect that this will necessitate your reopening the protest hearing, to take additional testimony in order to be able to find additional facts, so as to provide this information.

After you have concluded the reopened hearing, please send the PC's additional findings, amended diagram and conclusions to the PIYA AC as well as both parties to the Protest, at your earliest convenience.  Thank you for your help with this matter.

Yours very truly,

November 26, 2010 Letter from the SSSS PC Reopened hearing

As requested we have reopened the hearing and have found the following additional fact:

SM rounded up to just below close hauled at position 5 and sailed below close hauled between positions 5 and 6 to gain speed and would have sailed this course in the absence of ST to finish as soon as possible, making it her proper course.

The course shown in the diagram provided previously was found to be her proper course so I did not resend it.

Our conclusion is that SM should be DSQ regardless of if she was sailing her proper course from position 5 to 6.  SM is required by rule 11 to keep clear throughout the rounding, but does not.  The question is if she can be exonerated by rule 18.5 for breaking rule 11 because she is still “at the mark” and entitled to mark-room. We do not consider her “at the mark” when she breaks rule 11 because the mark is no longer influencing the course she is sailing from position 5 to 6. She has rounded the mark at position 5 and is sailing low to gain speed to position 6, which has nothing to do with the mark.  Rule 11 requires her to keep clear so she is not entitled to sail her proper course from position 5 to 6, but must keep clear. ST gave SM room to sail her proper course “at the mark” when she was in position 5 and as right of way boat changed course in compliance with rule 16.1. SM did not respond to the change in course by ST and took room to which she was not entitled from position 5 to 6.

If you decide ST broke 18.2(b) for not providing mark-room, we would then ask you to consider if it was reasonably possible for SM to avoid contact as required by rule 14 once it was clear that ST was not providing mark-room.  If it was reasonably possible and there is damage, then she should be penalized since rule 18.5 does not allow exoneration for breaking rule 14. If the facts we found do not convince you that SM broke rule 14, then again the decision should be overturned.

We look forward to your decision,
SSSS Protest Chair

We decided not to challenge the assertion in the protest by SM that she was sailing her proper course throughout the rounding.  The parties were not close to agreement as to if SM made a seaman like rounding, or was below her proper course.  In any case we didn't believe they were "at the mark" when the foul occurred, so it didn't matter.  Also, in reviewing the ISAF Cases and US SAILING Appeals,  the boat entitled to mark room was generally sailing below her proper course after the rounding, making the decision obvious. There is no case that tells us when is a boat was no longer "at the mark" after a mark rounding. The PYIA-AC seemed to be saying in their letter of November 23rd  that a boat's proper course during the rounding defined and extended the period when a boat is "at the mark".  If this is true, then when can a right of way boat begin to take a boat above her proper course after rounding the mark needed to be clarified by way of an appeal.

January 9, 2011
PYIA-AC overturned our decision and found the SM was entitled to mark room and also found that SM did not break rule 14 so they reinstated SM. However, they forwarded the decision to US Sailing for them to review since they were concerned with the result.  PIYA-AC requested that I not publish their decision as they believe that only final decision of US Sailing is relevant and I want to respect their request.

March 29, 2011 US SAILING completed their review of the appeal and the following is the text of their decision.

This is the US SAILING Appeals Committee’s decision on the Pacific International Yachting Association (PIYA) Appeals Committee’s request for confirmation or correction of its decision on the protest Sugar Magnolia vs. Showtime, arising from an incident in Race 3 of the South Sound Sailing Society First Wednesday Night Series on June 16, 2010, conducted by the South Sound Sailing Society.

The primary issues in this incident concerned Sugar Magnolia’s right to mark-room and whether she
held that right at the time of the contact between her and Showtime.  Rule 18 applied as long as at least one of them was in the zone. Rule 18.2(b) required Showtime to give Sugar Magnolia mark-room as soon as Sugar Magnolia reached the zone. However, the definition Mark-Room introduces another consideration. After Sugar Magnolia had finished sailing “to” the mark, and was “at” the mark, she was entitled to “room to sail her proper course,” the course she would have sailed to finish as soon as possible in the absence of Showtime. The critical question in this case is whether Sugar Magnolia was still “at” the mark when the contact occurred. In our judgment she was beyond the mark, not “at” it.  Between positions 5 and 6 she had left the nearest part of the mark vessel astern, and the mark was no longer relevant to her course to the next mark. As the protest committee chairman commented, “We do not consider [Sugar Magnolia to be] at the mark when she breaks rule 11 because the mark is no longer influencing the course she is sailing from position 5 to 6.” We agree.

Since Sugar Magnolia was no longer at the mark when contact occurred, she was no longer entitled to room to sail her proper course. The fact that she was sailing her proper course (slightly below close-hauled to regain normal speed) did not extend the time she was “at” the mark. We therefore cannot agree with the  PIYA Appeals Committee’s statement that “under the current rule a boat is ‘at the mark’ from the moment . . . her bow is first alongside the mark until she is sailing her proper course . . . to the next mark.”

At the time of the contact between the boats, the only rules of consequence were rules 11 and 14. (Although rule 18.2(b) still applied, it did not specify any rights or obligations after Sugar Magnolia was no longer at the mark.) Rule 11 required Sugar Magnolia to keep clear of Showtime but she failed to do so. She would have been entitled to exoneration under rule 18.5(a) had she been taking markroom, but she was not; therefore she is not exonerated from breaking rule 11. Had Sugar Magnolia been unable to keep clear of Showtime immediately after she was no longer at the mark, that could have been evidence that Showtime failed to provide mark-room, but in this case Sugar Magnolia could have kept clear of Showtime after she was no longer at the mark.

Concerning rule 14, Sugar Magnolia was required to avoid the contact “if reasonably possible.” She could have kept clear of Showtime after she was beyond the mark. Furthermore, she had been hailed by Showtime at position 5 and must have been aware that the boats’ courses were converging. She therefore had enough time and space to change course and avoid the collision, but failed to act soon enough, so broke rule 14. Showtime also broke rule 14. Although rule 14(a) provided that she did not need to act to avoid Sugar Magnolia until it was “clear” that Sugar Magnolia was not keeping clear, that fact had been evident for some time because Sugar Magnolia was not changing course as Showtime approached.

In summary, Sugar Magnolia broke rules 11and 14, and Showtime broke rule 14. Accordingly, the appeal of Sugar Magnolia is denied, and the decision of the protest committee to disqualify both boats is upheld.

Some Appeals Committee decisions are published in the US SAILING Appeals Book because of their educational value. They may be simplified or otherwise modified, and the version to be published is sent to the parties and committee chairmen involved.

Very truly yours,

US SAILING Appeals Committee

This incident took place approximately 9 months ago and is now finally decided.  It has been an interesting process and an interesting discussion of the mark room rule and when is a boat "at" a mark.  Perhaps in the near future there will be a new published appeal  using this incident. from a Wednesday night race in Budd Inlet.

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