Gladwell's Line- Justice Shirley's America's Cup Jury may be flawed

by Richard Gladwell on 1 Nov 2009 The move to appoint a panel of technical experts by Justice Shirley Kornreich, to help her resolve five technical questions relating to the 33rd America's Cup might not be the great idea it seems on first blush.

The simple reason being that finding the technical experts, who fit her criteria may be a little more difficult, let alone get briefed and into her Court Room on 60 Centre Street, by next Wednesday.

The members of the international Jury for the 2007 America's Cup comprised five members, three of who were International Judges certified by the International Sailing Federation. The other two were appointed for their legal expertise, rather than their adjudication experience at major international regattas.

In the 31st America's Cup, in Auckland, there was a split function with an Arbitration Panel taking over many of the adjudication functions, and the International Jury being confined to issues regarding the actual racing rules.

In this theater, the Arbitration Panel were more notable for their impressive legal experience, than the frequency of their attendance on Jury's on the professional sailing circuits, essential to maintain currency.

For the America's Cups, while there is no perfect solution to adjudication, both systems worked well enough. The major issue being the duration of the event and the need to have a working Jury to deal with day to day decisions, but also to have a more detached level above that to deal with wider considerations, issues involving law rather than application of sailing rules, and to avoid the perception issues when Juries start hearing complaints about their own decisions.

So picking three 'independent experts, not affiliated with either party and who has sat on an America's Cup jury in the past' might not be that easy a task.

Overlay the fact that several experts have provided affidavits to one of the parties (GGYC) might tend to rule them out because they cannot not be said to be 'not affiliated with the parties'

Given too, that people have not been considered for a role in the upcoming America's Cup key race management roles if they are of Swiss or US nationality (ie could be partial to the Defender or Challenger) could further thin the available field of candidates.

And finally, it may not be that easy to find people outside USA who are prepared to drop everything and race off to New York to assist in a dispute, which could have been resolved long ago if the parties had picked up a phone and started reasonable communication and negotiation in good faith to reach an acceptable conclusion.

That begs the question of payment by way of compensation for loss of income for around a week, and as all know he who pays the piper gets to call the tune. So a party is hardly likely to pay for an expert to fly to New York to give evidence that will not line up with their desired outcomes on the five questions that Justice Shirley has proposed.

Maybe the good Justice Shirley is on a hiding to nowhere on this novel idea, which frankly could have been more easily resolved by ISAF announcing the 33rd America's Cup Jury, empaneling it, and requiring the Jury to produce the written answers to the five questions, as a Jury, in the normal way.

It will be interesting to see who is put forward, and whether this novel idea does fly. The Jury is out, if you'll excuse the pun.

On the vexed issue of the weather off Valencia in February, it would seem that that rather than too much wind there is a greater prospect of too little, as we saw in the opening days of the Louis Vuitton Cup in April 2007.

Sailing Scuttlebutt commissioned meteorologist Chris Bedford to give his prognosis for the weather in February 2010. Bedford was the team meteorologist for BMW Oracle Racing for the last Cup, and then worked for the Ericsson Racing Team in the Volvo Ocean Race.

He commented, in part: 'An America’s Cup held off Valencia during the month of February will take place in conditions much more variable generally lighter than those experienced during the Challenger Series (which began Apr. 16) and the America’s Cup match (held June 24-July 3) in 2007. Additionally, rather than sailing just a few miles from the shore, the Deed of Gift courses are longer and may require sailing some considerable distance away from the shore, bringing some new weather and tactical challenges to the event.

'Sometimes, strong low pressure will form over the Western Mediterranean east or southeast of the Gulf of Valencia. These systems are sometimes responsible for fresh or even strong Northeast winds that can last a couple days or more. These weather patterns often bring unsettled weather to the region with rain and squalls likely. In addition, these weather systems bring the roughest seas to Valencia. Thanks to a relatively long fetch from the NE, rough swells of 2m, 3m and sometimes more can develop.'

The full prognosis can be read at http://www.sailingscuttlebutt.com/news/09/0518b/!Sailing_Scuttlebutt

It would seem that the major issue with sailing in Valencia is not so much strong winds, but rather a lack of wind - which would disrupt training and buildup to the match in about 100 days time.

In terms of safety, the issue raised by Societe Nautique de Geneve against Valencia as a venue in February 2010. Both teams, as well as race management would have available very sophisticated wind prediction systems, and of course if winds were strong or unsafe for racing they would not do so, as happens in all other yachting regattas.

From a weather perspective, Ras al-Khaimah is the best option, affording training and racing in light to moderate breezes on a daily basis, and because of the near landlocked nature of the venue, near flat seas. However as Justice Kornreich ruled on Wednesday a Northern Hemisphere venue in February is not in compliance with the Deed of Gift.