ISAF recently published Q&A 2013 034, and I think they got it wrong.
The question (which is a little hard to find in the Q&A) is, essentially:
If a boat A acquires right of way or changes course in such a way that a keep-clear boat B momentarily cannot keep clear, and then A immediately acts to give B room to keep clear, should one or both boats be penalized?
The answer they give is, essentially:
Not unless there was contact or B had to maneuver in an unseamanlike way.
This brings fleet racing in line with match and team racing, where there are calls saying that if a right-of-way boat ultimately gives the other boat room to keep clear and there's no contact, then the incident should be green-flagged (no penalty). These calls, and the Q&A, say, in effect, “No harm, no foul.”
Or maybe more accurately, “All's well that ends well.”
This basic idea has been around in match and team racing for a number of years. As an active match and team race umpire, I understand the motivation for this Q&A, and maybe even like it in some circumstances, because a “no harm, no foul” attitude reduces needless protests for situations where, ultimately, nothing happened.
Consider, for example, two boats maneuvering two minutes before the start. A and B are headed off to the right, beyond the race committee boat, with A two boatlengths to leeward and bows-even with B. A decides to go back to the line, so she luffs and tacks, with her helm hard over. At the moment she completes her tack, if she were to center her helm and go straight she'd run smack into B's starboard quarter; but of course, she doesn't do that. She keeps her helm over and ends up on a reciprocal course to B. Boat B never changes course, because she knows that A is simply “going back” and will get out of this situation with no harm to either boat; and in my experience B never protests. This kind of situation happens all the time, and Q&A 2013 034 says it's OK – even if B were to protest, the protest should be disallowed; and that's a good thing.
My problem is, whether this is a good idea or not, you can't get to the Q&A's conclusion from the rules. In other words, I understand the theorem – I just don't understand the proof.
The Q&A poses 4 incidents. Each of the situations is a little different from the other, and although the Q&A takes them all on at once, we'll look at them one at a time. Let's take the first scenario:
The situation 1 description, from the Q&A, is as follows:
A tacks onto starboard tack so close to B on port tack that A cannot sail straight ahead without hitting B, and B cannot avoid a collision by maneuvering promptly in a seamanlike way. A then immediately changes course to give B room to keep clear. A protests B under rule 10 and B protests A under rule 15.
Note the words, “A … changes course to give B room to keep clear.” This seems to require that we know A's motives, which we don't. Just above this statement, the description says, “A cannot sail straight ahead without hitting B”, so why doesn't the subsequent phrase say, “A … changes course to avoid hitting B”, which is clearly true, regardless of any other motives?
The answer is, if they had said that, then one of the boats would have to be penalized, because of the definition of Keep Clear:
A boat keeps clear of a right-of-way boat
(a) if the right-of-way boat can sail her course with no need to take avoiding action and,
(b) when the boats are overlapped, if the right-of-way boat can also change course in both
directions without immediately making contact.
The Q&A quotes part (a) of this definition, which is clearly the applicable part in situation 1.
It seems to me that, according to both the diagram and the description, if A had held her course at position 2 she would have hit B. So A needed to take avoiding action at position 2. So B broke rule 10 at that point, and A broke rule 15 by not initially giving B room to keep clear. It was A's breach of rule 15 that compelled B to break rule 10, so penalize A and exonerate B (see rule 64.1(a)).
In situation 2, B on port tack is clearly crossing A on starboard tack. After B commits to crossing ahead of A, A dials up on B to a point where B is no longer keeping clear. A then immediately changes course to give B room to keep clear. A protests B under rule 10 and B protests A under rule 16.1. According to the Q&A, neither boat should be penalized. The diagram is below.
Putting aside the difficulty of getting to the Q&A's answer from the rules, this situation raises some other issues. In situation 1, B sees A's maneuver and is able to eventually keep clear. But in situation 2, B has committed to the cross before A hunts up at her, so B is like a deer caught in the headlights. (The match-race Call where the keep-clear boat is unable to respond to a course change by the right of way boat is commonly referred to as the "Bambi call".) At position 2, B reasonably thinks she's going to be T-boned and there's nothing she can do about it. If her skipper isn't scared out of his mind, he should be.
In match racing, where boats are not required to take penalties for breaking rules and we couldn't care less about terrorizing competitors, A's behavior doesn't cause a problem. But in fleet racing, and even in team racing, where all of “Sportsmanship and the Rules” is in effect, it causes a big problem, at least for me. What B sees is that she didn't make the cross, and A had to bear off sharply to avoid her. B is not in a good position to judge A's course because her perspective is constantly changing, so she may well not be aware that A hunted up on her; and A's protest reinforces the assumption that A's bear-off was to avoid hitting B. By hunting up and then bearing off sharply, A is perpetrating a fraud in an effort to draw a foul. She hopes that B will take to heart her duties under “Sportsmanship and the Rules”, and take a penalty. In other words, A wants to punish B for being sportsmanlike. To my mind, whether or not either boat breaks a rule of Part 2, A's behavior here breaks rule 2, and the Q&A Panel should be ashamed of putting this situation in the Q&A.
Situation 3 raises yet another problem. In that situation, A establishes an overlap from clear astern on B. The overlap is so close to B that A cannot change course in both directions without making immediate contact with B. A then immediately changes course to give B room to keep clear. A protests B under rule 11 and B protests A under rule 15.
Here, part (b) of the definition Keep Clear comes into play. At position 2, according to the Q&A description and diagram, A cannot change course in both directions (in particular, she cannot luff up) without immediately making contact with B, so B fails to keep clear.
The interesting thing here is that rule 15 says, “When a boat acquires right of way, she shall initially give the other boat room to keep clear, unless she acquires right of way because of the other boat’s actions [emphasis added].” What could be more “initially” than the situation in position 2, where A has just established the leeward overlap? Rule 15 says nothing about “ultimately” or even “a little later”; so how does the Q&A Panel get around this word?
Situation 4 raises yet another issue. A and B are overlapped, with B as the windward boat. A luffs quickly, and before B can move away from A in a seamanlike way, the boats are so close that A cannot sail straight ahead without hitting B. A then immediately changes course, giving B room to keep clear. A protests B under rule 11 and B protests A under rule 16.1.
Unlike the other situations, this scenario frequently occurs in fleet racing, and not uncommonly results in protests. It's also one of the main scenarios the rules-writers were thinking of when we wrote rule 16.1 in the first place, back in the 90's. Rule 16.1 was a huge game change; the old rules said that A could “luff as she pleases”. When we wrote rule 16.1 we fully expected that if B could show that A luffed too fast for her to react, A would be disqualified under that rule. And now the Q&A Panel is saying, “Not so. As long as there's no contact, let A play her nasty little games.”
Which brings us to the final interesting feature of the Q&A. What does contact have to do with this issue? There's no mention of contact in any of the rules involved here (rules 10, 11, 15 and 16.1), and the only mention of the word “contact” in the definition of Keep Clear clearly deals with an event in the future. In other words, when there's contact, the keep-clear boat was already breaking a right-of-way rule before that contact. ISAF Case 88 says, “‘Keep clear’ means something more than ‘avoid contact’; otherwise the rule would contain those or similar words,” and of course, that Case is right. It doesn't really matter whether there is contact; if the right-of-way needs to take avoiding action or cannot change course in both directions without making contact, then the other boat is failing to keep clear.
All in all, I think the Q&A Panel got it wrong, this time.