As has been mentioned, L's course straight to the mark has to be on a higher heading than W's, or L will not make the mark. Jumpstart's reasoning is also valid. Besides this, no one has yet mentioned that W (a Hunter 34) is likely making more leeway than L(a J/105). This might make it appear that L is coming up when in reality, W is coming down. W must keep clear.
I thought it might be helpful to re-post this original question, because I have been fascinated by some of the comments, and truly appreciative of those who have responded to defining terms of which I was unfamiliar, thanks for those.
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You are talking about two different things. L sailing her proper course is not the same thing as L coming alongside and then heading W up. If L were to suddenly luff up, the rule requires that she "promptly sail astern of the other boat." Imagine instead two boats simply sailing along, with L heading higher than W, and their paths converging. It happens all the time. In such a situation it is obvious that W would need to keep clear if their paths crossed, and it would be dangerous if L made any sudden, unexpected moves, like luffing up. That is why the rule is written the way it is. If the J/105 and Hunter are sailing on the same course, parallel courses, as you suggest, and the Hunter, to windward, is laying the mark, that would mean that the J/105, to leeward, would have to pass to leeward of the mark. Not heading high enough to fetch the mark - by sailing the same course as W - cannot be L's proper course. Jumpstart shows how having different sails set could make a difference in proper course for two different boats as well. To take it even further, imagine a dead-downwind leg in a race. The J/105 with an A-sym set will be tacking downwind, gybing back and forth across the course and sailing on reaches the whole way. The Hunter with its symmetrical chute up will head dead downwind straight on the rhumb line for the mark. If their paths should cross with the Hunter to windward on the same tack as the J/105, the Hunter will still have to keep clear as the J/105 swoops by. It should be easy for them, since the J will be going by so fast that just a quick turn of the Hunter's wheel would suffice. For the J, it would be almost as if the Hunter wasn't even there- which is, according to the definition of proper course, how it should be.
1: No, L should not have given way. Where they could have been earlier and how they might have avoided W altogether has no bearing. L is where she is, and is trying to get to the mark - wherever it is- as quickly as she can, behaving as if W is not there. L is following her proper course.
A few things -I thought it might be helpful to re-post this original question, because I have been fascinated by some of the comments, and truly appreciative of those who have responded to defining terms of which I was unfamiliar, thanks for those.
The fascination part(s) come from what I consider extraneous mention of items such as:
--- mark rounding - the OP makes no mention of being close to a mark and has no bearing on his question
--- starts - no bearing here
--- parallel courses- impossible given the question
--- puffs, lulls, other boats - not mentioned, nor relevant to the question
--- HunterbeneteaucatalinaJboat is immaterial. Why? W is sailing a beam reach. L is sailing higher - almost any boat could! They were both in the same race.
Basically, John's post which highlight the, uhm, highlights of the question.
To me, I tried to simplify this to: let's say W is sailing due west 270, his tack (port or starboard) doesn't matter, wind is from either north (or south) 'cuz he said he's beam reaching, to what I believe we can consider a distant mark BUT he is on his layline. For our purposes, let's say the wind is from the north.
The L boat is coming up on his port side steering 290, and he is sailing higher because the proper course to the distant mark for W is a reaching course. This is regardless of how the course is or was set to the wind; it is where he and the other competitor are AT THAT POINT IN TIME. (Ever sail on an empty lake and find a hour later that the ONLY other sailboat on the lake is going to end up in exactly the same place as you're gonna be?!?
So, back to the question:
1. Should L have given way? L could have made the mark by falling off earlier and avoided W altogether because from where L was earlier he could have laid the mark because of the wind direction (not because he was in a boat that could point higher than W).
2. Should W have given way? A simple windward/leeward question for boats on the same tack (they had to be on the same tack or else the question wouldn't make sense).
I don't know the answer, but have simply tried to, uhm, simplify the question and weed out the stuff that has no bearing on the question.