I don't see 16.1 giving a capsizing boat a pass there is nothing that says an overtaking boat must keep clear by a defined distance. IMO, if that situation goes to the room the windward boat would get tossed for failing to keep clear. It's not difficult to figure out that passing a sloop with a spin is filled with risk especially as the breeze comes up. If you choose to roll the dice (regardless of what you think of the tactics) it's on the windward boat and they have chosen their fate.