Oracle Team USA sailing off San Francisco. The winglets on the rudder are clearly visible. The windward daggerboard is lowered in preparation for a gybe.
Following the conclusion of a four day Mediation by two members of the International Jury for the 34th America's Cup, it was confirmed by various sources, that while the main sticking point for the teams is the adoption of rules regarding Rudder Elevators, there are still serious issues remaining.
'There is a lot of water to go under the bridge', one high-placed source told Sail-World.
The comment comes in contrast to the bland media release issued at the conclusion of the Mediation session, which did not identify the outstanding issues.
Quite what happens from here is yet to be revealed.
It is expected that regatta organizers working under the auspices of the America's Cup Trustee and Defender, Golden Gate Yacht Club will try to get sign-off from the US Coast Guard for the Recommendations which originally came from the Review Committee, appointed to investigate all aspects of the America's Cup Regatta after the fatal capsize of Artemis Racing's AC72.
After those Recommendations were initially published, on May 24, Golden Gate Yacht Club Vice Commodore, Tom Ehman, was adamant that they would be pushed through using the safety provisions of the Protocol, and specifically Article 16 which states that 'Competitors shall comply with all applicable laws and regulations of any city, state, national or other governmental authority having jurisdiction over the Event or part thereof.'
Given that as yet there is no agreement from the teams on all the Recommendations, it appears that the event organizers may be using the US Coast Guard as a Trojan Horse to get new rules imposed on the regatta as part of the Permit to be issued by the USCG.
Clearly if the Teams don't accept the USCG imposed conditions, then there can be no event.
While there seems to be little disagreement on the changes introduced under the guise of Safety, the changes to the AC72 Class Rule for Rudder Elevators are a completely different category, and it would be argued that the USCG had no basis for making the rule change as two of the three teams currently sailing in San Francisco are not using the devices, and have been sailing for almost 12 months without them.
Normally if an organiser did not comply with the Protocol a team's first recourse would be to the full International Jury, but it is not clear whether the International Jury has any jurisdiction to direct the US Coast Guard, as the government agency is not a party to the Protocol.
That situation has created speculation that the aggrieved Challengers might have recourse to the New York Supreme Court, to obtain the equivalent of an injunction under English law, until the Rudder Elevator issue has been resolved by the International Jury.
Turning to the vexed issue of Rudder Elevators - which first emerged as one of the 37 Review Committee Recommendations, following the fatal Artemis Racing capsize/breakup on May 9, 2013.
The AC72 class rule 8.6 is clear: Rudders shall not have components such as trim tabs or moveable winglets, that can be adjusted while racing.
In other words you can have winglets, but they cannot be adjusted while racing.
The Measurement Committee received a request for a Measurement Interpretation , in mid-2012 which seemed to query as to whether the whole winglet could rotate (presumably during a race).
(Interpretations are issued by the Measurement Committee in response to a question from one of the teams, and are a way of avoiding lengthy protest hearings during the regatta, when one or more boats turns up with a design 'innovation' which is immediately protested and ruled in or out by the International Jury.)
In an Interpretation issued on August 12, 2012, the Measurement Committee said that: Adjusting the angle of one surface of an appendage relative to another surface of that appendage constitutes a change to the shape of the appendage surfaces, and invalidates the yacht's measurement certificate in accordance with AC72 Class Rule 27.2 (c)
In other words if the winglet moved then that yacht was out of class, until she was re-measured with the winglet in the new position.
Regatta Director, Iain Murray effectively reversed that Interpretation with Recommendation 1.3e from the Chairman of the Review Committee allowed Rudder Elevators to be 'permitted to be adjusted until warning signal', or five minutes before the start of a race.
The AC72 Class Rules are even more specific with Rule 8.6 saying 'Rudders shall not have components such as trim tabs or moveable winglets that can be adjusted while racing'
Taking this rule a stage further a team using such devices would normally have to be able to demonstrate that the winglets could not be adjusted while racing. Scout's Honor isn't good enough. The only winglets which are legal are those which cannot be adjusted adjusted while racing.
In this discussion we have used the term 'racing' in the sense it is used in the the Racing Rules of Sailing - America's Cup version. There is no definition in the class rule of the term 'racing'. Further in 27.2a of the class rule lists several items which may be adjusted when not racing which will not invalidate an AC72's measurement certificate.
The inference being that anything which is adjusted, even when the yacht is not racing, will make the AC72's measurement certificate invalid.
The bottom line is that the adjustable rudder winglets used by any AC72 are probably illegal, certainly for racing, and she cannot have a valid measurement certificate while they are in their current state - unless they are completely non-adjustable and fixed in angle at the time of measurement.
Caught on camera
Oracle Team USA was photographed with such a device in mid-March. Again that is not illegal but it must not be adjusted while racing ie two minutes before the starting signal for a race. They are of course allowed to sail out of class, outside an America’s Cup Regatta race, and while training or in development.
The Measurement Committee Interpretation effectively said that it couldn’t be adjusted at all, after the boat had been measured – which is only done while the boat is hauled out, and put into a measurement condition ashore.
That Interpretation was not immediately challenged by the teams in public, and indeed if such a challenge were made, the decision was not overturned.
Emirates Team NZ and Luna Rossa would be expected to argue that it is not Neutral Management for a team to see an Interpretation, fit a device that could be used in a way contrary to that Interpretation, and then for that team’s club to effectively push through a rule change on the basis of safety, after a fatal accident in winds of just 11-17kts.
The other issues with having an adjustable rudder elevator, means that unless it is sealed after measurement in some way, there is no real way of checking whether a crew has adjusted the elevator angle during a race.
The advantage to a boat using an adjustable rudder elevator (by moving the rudder stock) is that it gives her two means of controlling her foiling – through the adjustable daggerboard case, which only Emirates Team NZ and Luna Rossa initially fitted, and with a second adjustment on her rudder elevator.
As the situation stands, the two sailing Challengers have little scope to fit Rudder Elevators, as they are due to start racing in 10 days, while the Defender still has two months to continue and refine development.
Further the Challengers are entitled to rely on the Class Rules as they are published, and in particular any Interpretations that explain the Measurement Committee’s view.
If the Class Rules are to be changed they can only be done by the agreement of all Teams, and not unilaterally by a single party.
It would be difficult to argue that the rudder elevators are a safety device, as two of the Challengers at least have been sailing for up to a year without them and in winds of well over 30 knots.
However the ongoing saga could rebound on teams who fit and use the devices. Those with even modest America’s Cup memories will recall the shenanigans that occurred in 1992 over the bowsprit used by then Team New Zealand in the Louis Vuitton Cup. With regular protests the team was not clear on its use, and at one stage had a race result reversed.
The issue with the rudder elevators, that unless properly processed through the Class Rules in the manner prescribed by the Protocol, then the rules battle will continue, and may well rebound in the same way as happened over 20 years ago, in San Diego.