40. Facts found: Kiss Me had an inside overlap to leeward of Death Wish as the two come up to the gybe mark in 20 knots of breeze and waves 2 metres high.

Kiss Me waited so that he could time his gybe to coincide with a surf. The actual gybe took place when Kiss Me was about 5 lengths past the mark. The Kiss Me helm stated that he had done this in order to reduce wind pressure on his sails and thus reduce the danger of a capsize. Death Wish protested under rule 18.4 because Kiss Me went five lengths past the mark before gybing which Death Wish felt was not a proper course for Kiss Me.

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Ruling: As Death Wish correctly pointed out, rule 18.4 required Kiss Me to "sail no farther from the mark" than needed to sail her proper course. Therefore the question is: "Did Kiss Me sail her proper course?" The definition characterizes proper course as "A course a boat would sail to finish as soon as possible in the absence of the other boats referred to in the rule using the term". The key criterion is not what another boat thinks the proper course should be but rather  any course of action that the boat in question can defend as being a reasonable course for her in that situation if the other boat had not been there. Kiss Me gave a very valid reason for sailing the course that she did, a course which was not influenced by a desire to make a tactical move against Death Wish. Kiss Me sailed her proper course and the protest by Death Wish is disallowed.
18.4 does however suggest that KM is expected to gybe. If she is so afraid of the conditions that she wants to tack, she should probably luff her sails and let an outside boat go by before she goes off to do the proverbial "chicken gybe".
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NOTE:  If the two boats are still overlapped after the gybe, Rule 18.2(a) is in effect - i.e. Kiss Me would only be entitled to mark-room (a seamanlike rounding) if Death Wish is overlapped to leeward of her.

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Case #41
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