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America's Cup- Review Committee member - will commonsense prevail?

by Jim Farmer QC on 1 Jul 2013
Oracle Team USA flies the controversial rudder winglets/elevators ACEA - Photo Gilles Martin-Raget © http://photo.americascup.com/

Jim Farmer QC is one of New Zealand's top amateur and offshore sailors, with several boats under the Georgia racing banner. Arguably he is one one New Zealand's top lawyers working in the corporate sector.

He brings all these skills to the Emirates Team New Zealand Board - a body from which he resigned to participate in the Review Committee set up after the fatal incident involving Artemis Racing.

Now that exercise is over, and he is currently no longer on the Emirates Team New Zealand Board, Farmer set out his thoughts on his experiences over the past few weeks on the Georgia Racing website:

It’s probably about time I said something about this year’s America’s Cup, now that it’s almost upon us with the first race due in a week’s time. There has certainly been a lot said lately!

There is no doubt that this year’s Cup event is one of the most controversial ever, in a history of controversial events. This was almost inevitable given the immediately preceding history of litigation followed by the Deed of Gift Challenge by Oracle in place of the usual multi-challenge event that has existed during the modern history of the Cup.

Perhaps the right to have a one-on-one challenge against Alinghi with all other competitors excluded was the justified reward for Oracle and the Golden Gate Yacht Club having initiated litigation in the New York Supreme Court – the judicial custodian of the Deed of Gift that bestowed the Cup for 'friendly competition among nations' – and successfully exposing the cynical attempt by Alinghi to stack the new Protocol after the 2007 Event with rules that unduly favoured it.

On the other hand, there are certainly many who say that Oracle’s choice of a multi-hull boat, so soon after winning against Alinghi in a giant multihull with the new technology of a solid wing, was itself designed to give them a technological start over all the other competitors who had been sitting idle with no one to race. That view obtains support from the fact that Oracle chose as its Challenger of Record a team (Mascalzone Latino) who never made it to the Event itself but in the meantime agreed with all the rules for the Event that Oracle proposed. Then too there was the fact that Oracle delayed for many months the announcement as to both the venue and the type of boat, with speculation continuing until the last minute as to whether it would be a light weather or a heavy weather venue and a monohull or a multihull boat.

When announcing the choice of a multihull Oracle’s Chief Executive Officer famously said that this was a boat for the Facebook rather than the Flintstone age, for the young and not for the old and for the age of television. The racing rules reflected that with start times fixed to coincide with NBC’s programming.

Much of the vision, it is now apparent, has turned to custard. Larry Ellison’s prediction that there would be a dozen or more challengers (up to 15 perhaps) looks absurd with only three challengers making it to the start line and one of them not yet ready to race. The City of San Francisco is very unhappy with the promised financial bonanza being anything but. The tragic death of Andrew Simpson when the first (and so far only) Artemis boat disintegrated as it collapsed has cast a pall over the Event from which even the spectacular speed of these boats is unlikely to clear away.

I had the privilege of serving on the Safety Committee, established after Andrew Simpson’s death to investigate the accident and to make recommendations to improve the safety of the Event, with the Regatta Director, Iain Murray (a hugely respected Australian sailor), the Principal Race Officer, John Craig, distinguished American yachting administrators, Sally Lindsay Honey and Chuck Hawley, and French multihull designer Vincent Lauriot Prevoist. The work of that committee was intense, with 25 interviews over 6 days of designers, sailors, engineers, syndicate heads and others. Ultimately the Committee found itself unable to make recommendations as a committee because issues around legal liability were unable to be satisfactorily resolved by the Event Authority and the Golden Gate Yacht Club. However, Iain Murray, in his capacity as Regatta Director, following that investigation, did make 37 safety recommendations which have since been attached as conditions of the Permit issued by the US Coast Guard to hold the Event on San Francisco Bay.

The much publicised problem that still exists is that a small number of those recommendations require the Class Rule, which governs the parameters of the design of the boat, to be amended. Amendments to the Class Rule require the unanimous consent of all competitors and Emirates Team New Zealand and Luna Rossa have withheld their consent because in those instances they believe that the changes are not required for (or even in the interests of) safety but are simply performance enhancing measures that will favour Oracle who had taken a different design route from ETNZ and Luna Rossa, it would seem, to their apparent disadvantage.

This has led to something of an impasse. The International Jury will hear protests from ETNZ and Luna Rossa on 8 July – the day after the opening race between the 2 challengers able to race at the moment (the same protesters, with the second Artemis boat not even completed and in the water). But if the Jury upholds the protest – as it would seem it should – the question then exists whether the Coast Guard will accept that decision or insist on maintaining the original recommendation as a condition of its permit. In which case, no Event! One has to hope that somewhere along this tortuous event common sense will prevail but no one should hold their breath.

As to safety generally, it has to be acknowledged that yacht racing is inherently potentially a dangerous sport at the best of times and there have been from time to time tragedies such as in the Fastnet and Sydney to Hobart off shore races. The new AC72s have however increased that danger exponentially. The emphasis on television coverage accentuates the danger with many of those attracted to the sport via that medium perhaps hoping for a spectacular crash and the attendant risk to life and limb. There are those who regret the fact that Formula One motor racing was cleaned up, following the death of Ayrton Senna, with no deaths since. There is a whole body of law and academic writing in the United States especially on the duties of care that attach to those who are associated with the promotion, conduct and participation in dangerous sports which, while acknowledging the volenti principle nevertheless overlays it with obligations to do everything necessary to minimise risk. Iain Murray can surely be forgiven for erring on the side of caution in his 37 safety recommendations.

The challenge for ETNZ, as Grant Dalton has said publicly, is to maintain its focus on preparing for the racing. There is, as Dalton has said, the precedent of the 1992 Event when, after an early lead in the Louis Vuitton Final series, Team New Zealand lost composure (to use a rugby term) and the series 5-4 to the Italians after getting embroiled in a bow sprit challenge by the latter. A lawyer might be tempted to compare these situations with objections during trials to the admissibility of evidence and to the vigour with which they are presented. 'Your Honour, if this piece of evidence is received by the Court, the trial will miscarry and there will be a grave Injustice'. Well …. maybe …. or maybe not.

So how is this Event likely to unfold and to be perceived? One has to hope most earnestly that there is no further disaster. So far these boats have not yet raced in anger and that has to be the major concern. Two boats, each sailing at over 40 knots and closing from opposing tacks at a mark at an effective combined speed of 80 knots, is not for the faint-hearted. Getting crew down safely or out of the water from a boat that has capsized remains a serious challenge even for sailors who are well equipped, fit and trained to deal with that situation as best they can. Fortunately, sanity prevailed with one of the Regatta Director’s safety recommendations being a prohibition on corporate guests sitting on the back of one of these racing machines. How crazy was that idea in the first place?

Absent collapses or collisions, the racing will undoubtedly be spectacular as these boats are themselves spectacular. However, whether the racing ends up being close is problematic. It will only require one team to have designed and built a boat that is fractionally faster than the others for it to be likely to become a procession. Best of 17 races in those circumstances could easily become 9-0, with many turned off well before the winning boat reaches 9. Of course, I may be well off the mark in this respect but the racing is unlikely to have the excitement and the subtlety and changing fortunes of Valencia with monohulls (whether from the stone age or not) in close combat much of the time.

For his rest of this story, and what Farmer thinks will happen after the 34th America's Cup http://georgia-racing.co.nz/americas-cup-2013/!click_here

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