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THE SEA LAWYER
Comments on the Racing Rules by I. M. Wright
CAVEAT: This column is merely the opinion of the author (who says he is never wrong) and has absolutely no official status with anyone, particularly Race Committees, Protest Committees and Judges. Making reference to these ramblings during protest hearings is judged to be futile, fruitless and frivolous, and perhaps even detrimental!
THE BURDEN OF PROOF (Part II)
Last month, I talked about the burden of proof and what it means to a protested yacht. Generally, it means trouble! When the rule involved places the burden of proof on the protested yacht, any doubt about the innocence of the accused will result in his disqualification. Several rules which place the burden of proof on the protestee were enumerated last month.
One of these rules is number 36, Opposite tacks Basic Rule; A port-tack yacht shall keep clear of a starboard-tack yacht. The principle of rule number 36 is very simple, and governs a lot of situations on the race course. Although the rule itself does not place the burden of proof on the protested yacht (the port-tack fella), USYRU appeal-32 (published in 1949) does so without a doubt.
The situation occurred on an upwind leg, when a port-tack yacht tried to cross in front of a starboard-tack yacht. The starboard-tack yacht, when about twenty feet distant from the port-tack yacht, bore away and passed astern. The Appeals Committee made the following statement in its written opinion:
“When there is reasonable doubt as to the ability of the port-tack yacht to cross ahead of a starboard-tack yacht, the starboard-tack yacht is entided to bear away and protest, and need for adequate evidence rests on the obligated port-tack yacht to support her claim that she would have cleared the starboard-tack yacht”.
What does that mean? It means the port-tack guy is out of the race unless he can prove to the protest committee beyond a reasonable doubt he did not violate rule number 36, a difficult thing to do at best!
The decision in Appeal 32 may seem severe but to have it any odier way would considerably weaken rule number 36. This rule is very basic and the starboard-tack yacht must be given preeminence. To do otherwise would increase the factor of uncertainty in starboard-port situations, multiplying the likelihood for close calls, collisions and many more protests.
This paints a gloomy situation for a port-tack yacht approaching a crossing situation with a starboard-tack yacht. What to do? Now that you know what you are really getting into, you can assess the risk involved against the possible reward. If you find yourself in the protest room, stay calm. Present your case in clear concise terms, with a logical argument as to why you didn’t violate the rule. If you can’t do that, the situation should not have developed to the hearing stage. Witnesses who had a good view of the incident are a good way to overcome the burden of proof.
Good Racing!
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