Sail-World understands that while the teams have agreed on many of the basic safety issues proposed for the 2013 America's Cup Regatta, they are very entrenched on a few others affecting the broad format of the regatta.
After the fatal Artemis capsize, the organisers of the 34th America's Cup, the Golden Gate Yacht Club quickly put together a Review Committee, who met but were unable to put their names to any specific recommendations. Instead that task fell to Regatta Director, Iain Murray who produced a list of 37 recommendations.
While those were still being discussed with the teams, it was claimed by Emirates Team NZ that America's Cup Events Authority CEO had jumped the gun by putting the document into the public arena.
That action triggered two weeks of acrimony between various players in the 34th America's Cup, compounded by the view expressed by Golden Gate Yacht Club officers that all the recommendations would be pushed through on the US Coast Guard permit and would all become safety regulations for the event.
When it was clear that decisions had to be made, so the Regatta could proceed, Murray referred what are believed to be his 37 Recommendations to the International Jury. That body, set up under the Neutral Management provisions of the America's Cup Protocol for the 34th Match, commenced a Mediation process as prescribed by the Protocol in an endeavour to try and reach consensus between the four teams.
That Mediation is believed to have been successful in revolved most of the genuine safety issues.
But sources spoken to by Sail-World believed that a full International Jury Hearing would be required next week to sort out the outstanding issues. If it goes ahead the remaining three members of the International Jury are expected to leave from England, Europe and Australia to meet with the two members already in San Francisco, conducting the mediation.
Although Sail-World's sources would not disclose the core issues in dispute, they are expected to be the format of the racing in the Round Robin phase of the Louis Vuitton Cup, coupled with the intention of the Challenger of Record that they will not be ready to race until close to the start of the Semi-Final phase of the regatta. That intention places the other two Challengers in the situation of having to sail the course in winds that could be up to 20kts to get the point for the race.
While the issues of lower wind limits have been agreed between the teams for the racing, reducing from 33kts before the start in the America's Cup itself to 25kts, and down to 20kts for the early round of the Louis Vuitton Cup.
Another contentious issue is the move to alter race times based on a weather prognosis, so that if the wind was forecast to increase above a prescribed limit in the race, then the start of that race could be moved forward so that it took place in lighter winds to meet spectator and TV schedules. Whether that prognosis proved to be correct is irrelevant - the point is that the race time would be bought forward.
That move would neuter much of Emirates Team NZ's perceived advantage as the team has sailed in Auckland in winds well over 33kts for many of the training days, and had engineered their boats for such conditions. Reducing wind limits both by absolute wind speed and by varying the start time, Emirates Team New Zealand and Luna Rossa would rightfully claim that their boats had been over-engineered to cope with loads expected for the 33kts windstrength.
With the reduction in windspeed to 75% of the original limits, and more likely 60% at the start in a race that is moved forward, the claims of being cheated into over-engineering would appear to be justified.
Also not clear are the implications of the 'AC72 Structural and Dagger-Board rake Control Hydraulic System Review' also required as part of the Recommendations by Iain Murray. Teams were required to file these analyses of their designed and recorded loads and similar engineering data for the platforms, wingsails and daggerboard cases. Iain Murray has the ability to consider these in his own right or refer them to a committee he appoints.
In a notice published on Monday, Murray said: 'the date for completion of the reviews is extended for all Competitors until completion of each review by such appointed third party experts, or prior to the respective Competitor commencing racing whichever is the earlier date'.
There is no provision in the Protocol or the AC72 class rule for determining what might be safe operating limits in regard to the engineering data. It has always been the case that competitors raced at their own risk, neither is there a is no scantling rule in the AC72 Class rules setting minimum construction specifications.
In a radio interview last weekend, in which the safety issues and Recommendations were traversed, Emirates Team New Zealand MD, Grant Dalton, made it very clear that his team would not tolerate what he called 'safety creep'.
The term is believed to mean that while the accepted the thrust of the recommendations in terms of safety, they would not accept 'scope-creep' to accommodate a short-coming of another team, or to alter the Protocol, just two weeks before the start of the regatta which was to the competitive advantage of any team.
Luna Rossa are believed to be of the same mind.
Earlier in the week, Artemis Racing's skipper, Iain Percy lamented that some of the other teams were trying to get Artemis out of the competition, and implied that his team should be cut the slack they have sought, in order to compete in the regatta. While all teams have previously expressed their sympathy for the Challenger of Record in terms of the death of crewman, and Percy's best mate, Andrew Simpson, the other two challenging teams at least will have been well aware that the Artemis Racing program was well behind schedule, prior to the May 9 capsize.
And that barring that fatal incident, everything would have needed to happen on schedule for the Swedish team to have got a second AC72 into the Louis Vuitton Cup with just one month of practice.
Being factored into the negotiations as well, is the long-held feeling that Artemis Racing, in its role as Challenger of Record has usually been voting against the other two Challengers. So in asking for a more lenient approach Artemis Racing are operating against a backdrop of suspicion, and lack of trust, and a belief that their motives are not more aligned with that of the Defender, than the Challengers.
The effect of this climate, in the Mediation process is that minor items will be agreed to readily, and the more substantive issues, particularly those which impact on racing and boat design, will be strongly contested by Luna Rossa and Emirates Team New Zealand.
The concessions that have been offered to Artemis Racing, in terms of the delay to the start of the regatta, are unprecedented at this level of the sport. Although Artemis seems content for the regatta to start as planned, and for them to work the Protocol by skipping the first few weeks. The other Challengers are less than enamoured with this prospect, wanting a proper racing series .
Discussions are continuing for the time being.
© This commentary is copyright to Richard Gladwell and Sail-World.com and may not be republished without permission
by Richard Gladwell
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10:27 AM Fri 21 Jun 2013GMT
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