Windward boat when By-the-lee

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When two boats, side by side, are sailing downwind at the same angle; say around 40 degrees by the lee, which boat is the windward boat in terms of the rule "windward boat keep clear"? Is it the boat whose sails hit the wind first, or the boat to leeward - as if the boats had gybed and were sailing the same course but on a broad-reach?
yup, rules are the same the same,

however you can gybe into the right of way position say if you were both on port tack, and you gybed into starboard leeward position, another thing to keep in mind especially downwind is that sailing close to other boats is often slow because you can get stuck in their wake and won't be able to pass them (light-med breeze),

it's also good to keep in mind that if you gained your overlap from clear astern as leeward boat you cannot force the windward boat above their proper course,

you could use the first technique here to gybe without altering course much to get into a right of way position: