RULES

A close call on the high seas might re­sult in a rule change re­gard­ing out­side as­sis­tance.

Sailing World - - Contents -

An off­shore race team is about to run aground, but the race com­mit­tee alerts them. Is it out­side as­sis­tance?

Late in the af­ter­noon on Jan­uary 6, 2018, the Volvo Ocean Race fleet was charg­ing north­ward at more than 15 knots across the Coral Sea, sail­ing a leg of the race from Mel­bourne, Aus­tralia, to Hong Kong. The Volvo Ocean 65s were many miles from the near­est port. SHK Scal­ly­wag, in last place on the po­si­tion re­ports, was cross­ing over the vast Lans­downe Bank. On the north end of the bank, there is an area called Nereus Reef, where the wa­ter depth is only 12 feet deep in some places. Scal­ly­wag drew just over 15 feet. Ev­ery boat in the fleet was be­ing tracked elec­tron­i­cally, and Rick Tom­lin­son, the of­fi­cial ob­server on duty in the event’s race-con­trol of­fice, was mon­i­tor­ing their tracks. Ac­cord­ing to the in­ter­na­tional jury serv­ing as the protest com­mit­tee for the race, Tom­lin­son was “an em­ployee of Volvo Ocean Race who, as a mem­ber of race con­trol, has a re­spon­si­bil­ity for the safety of all com­peti­tors.”

Tom­lin­son no­ticed that Scal­ly­wag was on a col­li­sion course with Nereus Reef, so he emailed the boat’s nav­i­ga­tor. “Just so I can re­lax a bit here in race con­trol,” he wrote, “tell me you are happy with your course in re­la­tion to Nereus Reef on Lans­downe Bank.”

It’s in­ter­est­ing to watch the gy­ra­tions in Scal­ly­wag’s track im­me­di­ately af­ter the boat re­ceived the mes­sage. Be­fore re­ceiv­ing the email, it had been head­ing just east of north at 16 knots. At about 0800 UTC it bore off to the east and slowed to around 7 knots. An hour later, it had turned through south to a westerly course, and at 1120, it was back on its orig­i­nal course and speed. The race com­mit­tee es­ti­mated that Scal­ly­wag lost 50 miles on the rest of the fleet dur­ing the time it was off course and sail­ing at re­duced speed while work­ing out a way around Nereus Reef.

The race com­mit­tee was aware that when Scal­ly­wag acted in re­sponse to the com­mit­tee’s email the com­mit­tee was an out­side source, and that it had pro­vided as­sis­tance. Rule 41 ( see box) pro­hibits a boat from re­ceiv­ing such help un­less one of the four ex­cep­tions in rules 41(a), (b), (c) or (d) ap­plies. An in­ter­na­tional jury had been ap­pointed for the Volvo Ocean Race. Rule N2.1, which ap­plies when there is an in­ter­na­tional jury for a race, states, “When asked by the or­ga­niz­ing au­thor­ity or the race com­mit­tee, [the IJ] shall ad­vise and as­sist them on any mat­ter di­rectly af­fect­ing the fair­ness of the com­pe­ti­tion.” The race com­mit­tee took ad­van­tage of this rule to ask the jury, “[Did our email to Scal­ly­wag] con­sti­tute out­side as­sis­tance un­der RRS 41 as the crew were in dan­ger? Please would you con­sider and ad­vise.” The in­ter­na­tional jury an­swered as fol­lows:

“The jury ad­vises that race con­trol’s ac­tion did not re­sult in a breach of Rule 41 by

did re­ceive help from an out­side source, in this case the race con­trol. How­ever, the help given is per­mit­ted un­der Rule 41(d). The in­for­ma­tion was not re­quested by SHK Scal­ly­wag, so it was un­so­licited in­for­ma­tion. The source, in this case a mem­ber of the race con­trol, was a dis­in­ter­ested source for the pur­poses of Rule 41 be­cause he had no per­sonal or other in­ter­est in the po­si­tion of SHK Scal­ly­wag rel­a­tive to other boats in the race. Nor would he gain or lose in any way as a re­sult of the po­si­tion of SHK Scal­ly­wag in the race.

“The source was an em­ployee of Volvo Ocean Race who, as a mem­ber of race con­trol, has a re­spon­si­bil­ity for the safety of all com­peti­tors. Ask­ing the ques­tion he did was there­fore a proper ac­tion for him to take.”

There were never any protests or re­quests for re­dress as a re­sult of the help given to Scal­ly­wag. How­ever, there was dis­cus­sion among judges and on­line pun­dits. Ev­ery­one seemed to agree with the jury state­ments about Rule 41(d), but many were puz­zled that the jury did not dis­cuss Rule 41(a). The race com­mit­tee had said in its re­quest for ad­vice that the crew of Scal­ly­wag was “in dan­ger.” Rule 41( a) says that a boat may re­ceive help “for a crewmem­ber who is … in dan­ger.” There­fore, the ex­cep­tion in Rule 41(a), as well as the ex­cep­tion in Rule 41(d), ap­plied to Scal­ly­wag, but the jury only men­tioned Rule 41(d). If ex­cep­tion 41(a) ap­plied, then the last sen­tence of Rule 41 also ap­plied. That last sen­tence al­lowed any boat, or the race com­mit­tee or the protest com­mit­tee, to protest Scal­ly­wag if it re­ceived

Rule 41 Out­side Help

A boat shall not re­ceive help from any out­side source, ex­cept

( a) help for a crewmem­ber who is ill, in­jured or in dan­ger;

(b) af­ter a col­li­sion, help from the crew of the other ves­sel to get clear;

( c) help in the form of in­for­ma­tion freely avail­able to all boats;

( d) un­so­licited in­for­ma­tion from a dis­in­ter­ested source, which may be another boat in the same race.

How­ever, a boat that gains a sig­nif­i­cant ad­van­tage in the race from help re­ceived un­der rule 41(a) may be protested and pe­nal­ized; any penalty may be less than dis­qual­i­fi­ca­tion.

SHK Scal­ly­wag. SHK Scal­ly­wag

“a sig­nif­i­cant ad­van­tage in the race from help re­ceived un­der Rule 41(a).”

If a protest had been made, then the jury might have faced a very dif­fi­cult task, with no prece­dent to my knowl­edge, de­ter­min­ing what penalty “less than dis­qual­i­fi­ca­tion” to assess.

Let’s step away from the Scal­ly­wag in­ci­dent for a mo­ment and dis­cuss how the words “or in dan­ger” came to be in­cluded in Rule 41( a). For decades be­fore 2013, the words “or in dan­ger” were not in the rules about out­side help.

This word­ing was added in 2013, and the story be­hind the rule change is an in­ter­est­ing one.

For decades, it had been per­mis­si­ble for a boat to re­ceive out­side help un­der Rule 41(a) for a mem­ber of the crew who is ill or in­jured. In 2013, that rule was ex­panded to also per­mit out­side help for a crewmem­ber “in dan­ger.” The change came about fol­low­ing an in­ci­dent sev­eral years ago at a world cham­pi­onship for Cadet class dinghies near Perth, Aus­tralia. A week be­fore the first race, a swim­mer was at­tacked and mauled by a great white shark in the wa­ters where the cham­pi­onship was to be held. Rather than can­cel the event, or­ga­niz­ers ar­ranged for ad­di­tional safety boats to pa­trol the course and changed Rule 41(a) with a sail­ing in­struc­tion that per­mit­ted com­peti­tors to re­ceive out­side help when they were in dan­ger. The kids were told that if they cap­sized or fell over­board, they would im­me­di­ately re­ceive help get­ting their boats up and them­selves back in the boat, and they would then be per­mit­ted to con­tinue in the race. Ul­ti­mately, there was never a need, but when World Sail­ing lead­er­ship found out about the rule change made at the event in Perth, it strongly sup­ported in­clud­ing it in the 2013 rule book.

Not many of us will ever be in dan­ger of shark at­tacks or run­ning onto Nereus Reef in the Coral Sea, but we’ve prob­a­bly all seen sit­u­a­tions where a crewmem­ber of a boat is in some dan­ger, per­haps be­cause he or she be­came sep­a­rated from the boat, and then is helped out of dan­ger by another boat in the race, an of­fi­cial boat or even a boat that just hap­pens by and has no con­nec­tion at all to the race. Be­fore 2013, any boat that re­ceived help for a crewmem­ber in dan­ger broke the out­side-help rule and was ex­pected to re­tire from the race. That part of the out­side- help rule of­ten led to clashes be­tween com­peti­tors and res­cuers. When res­cuers of­fered help, com­peti­tors, not wish­ing to have to re­tire from the race, would refuse to ac­cept

the help and try to get back aboard their boat unas­sisted and con­tinue rac­ing.

Since 2013, a crewmem­ber in dan­ger that is helped does not break Rule 41 and may con­tinue in the race. The last sen­tence of cur­rent Rule 41 was also added in 2013. It was added be­cause of con­cern that a sit­u­a­tion like the one I will de­scribe now would oc­cur: Go­ing into the last race of a series for Op­ti­mists, Abel and Cain are tied for first place. Who­ever fin­ishes ahead of the other will win the series. On the last leg, Abel and Cain are over­lapped and bat­tling each other when a squall hits the fleet, cap­siz­ing many boats, in­clud­ing Abel and Cain, who be­come sep­a­rated from their Op­tis. They are “in dan­ger” be­cause the wa­ter is cold and hy­pother­mia is a risk. Im­me­di­ately af­ter the squall passes, safety boats hurry to place sailors back in con­tact with their dinghies. Abel is helped a cou­ple of min­utes be­fore Cain, so Abel fin­ishes ahead of Cain and wins the series. This seems un­fair, and it is for just such an in­ci­dent. Thus, the last sen­tence of cur­rent Rule 41. It per­mits Cain to protest Abel and en­ables the protest com­mit­tee to pe­nal­ize Abel just enough to make the out­come fair, which in this case would mean cre­at­ing a tie be­tween Cain and Abel.

The dis­cus­sion stim­u­lated by the Scal­ly­wag in­ci­dent has un­cov­ered many am­bi­gu­i­ties in Rule 41(a) and Rule 41’s last sen­tence. Here is a list: Did Scal­ly­wag “gain a sig­nif­i­cant ad­van­tage” from the help it re­ceived? The an­swer isn’t ob­vi­ous. It was in last place when the email ar­rived, and the rest of the fleet ad­vanced 50 miles be­fore Scal­ly­wag was back on course. No ad­van­tage there. It would not have fin­ished at all, how­ever, if it had piled onto the reef and torn open its hull. That’s a sig­nif­i­cant dis­ad­van­tage, for sure.

Sup­pose some­one wanted to protest Scal­ly­wag. A protest is an al­le­ga­tion that a boat has bro­ken a rule, and Rule 61.2 re­quires a pro­tes­tor to iden­tify that rule in writ­ing. Scal­ly­wag did not break Rule 41 by re­ceiv­ing out­side help be­cause all of its crew were in dan­ger. So what rule did Scal­ly­wag break? Rules un­der which protests are made state, or clearly im­ply (see, for ex­am­ple, Rule 42.2), that a boat “shall” or “shall not” do some­thing. Rule 41’ s last sen­tence does not make such a state­ment. So, a boat that re­ceives help per­mit­ted by Rule 41( a) does not break Rule 41 or any other rule that I know of.

Rule 64.1 per­mits the protest com­mit­tee to pe­nal­ize only a boat that “has bro­ken a rule and is not ex­on­er­ated.” Scal­ly­wag, there­fore, can­not be pe­nal­ized even if the penalty the protest com­mit­tee wanted to give was sub­stan­tially less than dis­qual­i­fi­ca­tion. In the Abel and Cain in­ci­dent, if Abel re­al­ized that by ac­cept­ing help, he might be pe­nal­ized, he would prob­a­bly have re­fused to ac­cept the help. The words “or in dan­ger” were added to Rule 41( a) in or­der to avoid com­peti­tors re­fus­ing to ac­cept help. So, the last sen­tence of Rule 41 works against the in­tent of the words that were added to Rule 41(a).

The bot­tom line: Rule 41 has sev­eral log­i­cal and prac­ti­cal prob­lems. What should World Sail­ing do? I have dis­cussed these is­sues with sev­eral ex­pe­ri­enced judges and sailors, and the con­sen­sus seems to be that the last sen­tence of Rule 41 should be deleted. This would mean that if an in­ci­dent like the Abel and Cain one ever oc­curred, an un­fair re­sult would oc­cur. But lots of “stuff” can hap­pen to make the re­sult of a sail­boat race seem ran­dom or un­fair. Un­til I learned of the Scal­ly­wag in­ci­dent, I had never heard of the last sen­tence of Rule 41 ever be­ing ap­plied, so its dele­tion would be un­likely to re­sult in many, if any, un­fair out­comes.

Email ( rules@ sail­ing­world .com) if you know of a penalty that was given un­der Rule 41’s last sen­tence. I would be in­ter­ested to hear your views on whether you think delet­ing Rule 41’ s last sen­tence is a good idea. Q

PHOTO : KON­RAD FROST / VOLVO OCEAN RACE

Team SHK Scal­ly­wag nav­i­ga­tor Libby Green­halgh mon­i­tors the boat’s po­si­tion dur­ing the re­cent Volvo Ocean Race.

: . I L L U S T R AT I O N D RUS­SELL

The race tracker shows Team Scal­ly­wag’s dra­matic course change to avoid Nereus Reef in the Coral Sea af­ter prompt­ing from race head­quar­ters.

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