James Farmer

Legal Commentary

America's Cup Wrap Up

Friday, October 04, 2013

In my preview of the 34th America’s Cup, published on 1 July 2013, I predicted that the Match between the Defender and the Winner of the Louis Vuitton Cup would be likely to become a procession which would turn people off long before the end because one boat would inevitably, with a radical new boat class, be significantly faster.   I was wrong!  The combination of spectacular, foiling, fast boats and the drama of the Oracle Team USA “come back” leading to a 9-8 score line had New Zealanders glued to their television sets morning after morning for the best part of 3 weeks and excitement aplenty in San Francisco.

Emirates Team New Zealand dominated the early part of the regatta, showing superior upwind speed in particular.  From the point where they led 8-1, Oracle, virtually overnight, turned the tables and won the next 9 races without answer.  Now it had the superior upwind speed to an extent and a stability downwind that it had not previously demonstrated.  So much was its improvement that, in the last race of the Match, it beat ETNZ by 44 seconds (a big margin in these boats), despite the fact that the New Zealanders won the start, led at the second of 4 marks and sailed the course faster than it had ever before.

Jimmy Spithill has credited this amazing turnaround to the determination of his crew to “climb the mountain” and win the Event despite being so far behind.  The replacement of tactician John Kostecki with 4 times Olympic gold medal winner Ben Ainslee is credited by the British Press as being THE cause of Oracle taking the Cup.  Ben is a wonderful sailor but no one, sensibly, could say that is right and Ben himself has characteristically down-played the part he played.  

Many others find the extent of the Oracle improvement beyond credibility and all sorts of theories have been doing the rounds, ranging from the Oracle boat being “rebuilt” by New Zealand boat builders flown up for the purpose in the day and a half break after Oracle played its postponement card to someone sitting on the shore with a laptop sending signals to the boat that automatically adjusted the rudders and dagger boards!

What is certain and factual is that in the 4 weeks leading up to the Match, Oracle made a number of applications to the Measurers seeking rulings and interpretations of rule 19 of the Class Rule which prohibits the use of stored energy and non-manual power to adjust the rigging, dagger boards, rudders, wing or soft sails.   The applications showed simple schematic drawings including electrical actuators linked to pivot points on appendages, in some cases directly and in others using a small spring.  The significance of the latter is that a spring is a specific allowed exception in rule 19, though the interpretation given by the Measurers was that it could not be used to infringe the prohibition against using stored energy or non-manual power to adjust the appendages.  ETNZ did, very shortly before the start of racing in the Match, seek to have the Jury review these rulings but it was held that it was out of time for bringing such an application.

From observation of the Oracle boats sailing before the Match and also in the early races of the Match, many thought that the Oracle boats had some stability issues, especially on the foil, and that ETNZ had a distinct advantage in that respect.  By the end of the regatta, the stability of Oracle was, to the naked eye, remarkable.  Spithill’s praise of the improvement of his crew’s work on the boat was undoubtedly justified but the doubts as to what the improvements were that were made to the boat itself continue.   ETNZ has commendably not entered the fray and, while not seeking to hide the bitter disappointment of the crew and others in the team, have moved on and left the controversy to others to debate.

Attention now turns to the future and the next round of the Cup.  The appointment of Hamilton Island Yacht Club as Challenger of Record was unexpected but hugely welcome.  I have sailed 8 Hamilton Island Regattas, which are arguably one of the very best in the World, with our best finish 2nd overall in 2010.  Hamilton Island is owned by Bob Oatley (now in his 80’s) and the Oatley family.  His Wild Oats boats have been a powerful force in Australian yachting.  His current Wild Oats XI, a 100 foot Reichel Pugh design, has won line honours in 6 recent Sydney-Hobarts.  Iain Murray has, until recently, been the Commodore of the Hamilton Island Yacht Club and was the Regatta Director for the America’s Cup Event just concluded.   Australian sailors were the dominating force on the Oracle boat – the fact that, after Kostecki’s departure, there was only one American sailor on the boat has not gone unnoticed.

Bob Oatley was reported as saying that, while he favours the retention of multihulls for the next America’s Cup, there must be a way found of lowering the cost of the event.  That echoes many statements to the same effect made by Grant Dalton.  The fact is that the Louis Vuitton Cup at San Francisco was a large disappointment.  With only 3 challengers, it could never be anything but that and was a massive contrast with the exciting fleet of challengers at Valencia in 2007, with boats from France, Spain, South Africa, China, Germany, Sweden, New Zealand, the United States and 3 teams from Italy.   If the event remains an arms race, with victory being perceived to go the team with the most money, Larry Ellison may find that for a second time he has only a handful of challengers.

As for Team New Zealand, the future at the moment is uncertain but it does seem likely that there will be a future.  The swell of public support that equals that for the All Blacks and the recognition of the direct and indirect economic value to New Zealand that participation at this level in the America’s Cup has brought has led to unexpected enthusiasm from Government Ministers, including the Prime Minister, for the idea of continuing to provide a level of financial support alongside that of commercial sponsors for the future.

Dean Barker has demonstrated not only sailing ability at the highest level but also leadership and maturity that appeals to the modest, but determined, nature of the Kiwi character.  Grant Dalton, who has done a splendid job in building the culture and confidence of a team that was demoralised in 2003, a confidence that will undoubtedly endure.  Dalton has said publicly that he will not be continuing and one imagines that he may return to his Volvo round the world origins.   That may require a revamp of the Team New Zealand corporate structure, which since before 1995 has been built on a charitable trust that the newly formed Charities Commission has refused to recognise as a charity.  That is probably no bad thing but the task now will be to design and adopt a new corporate model and, with it, possibly a different operational and management structure.

The immediate challenge though, as both Barker and Dalton have said, is to protect Team New Zealand’s greatest assets – its people.  Many of them, sailors and designers especially, will be attractive to other teams, possibly even to Larry if he loses some of his Australian stars.  While New Zealand has some wonderfully talented young sailors coming on, their immediate role in an ongoing Team New Zealand is likely to be in a back up position while they learn the complexities of America’s Cup sailing.  In the meantime, Dean Barker and some of his other senior sailors must, on any view, continue to comprise the core of the sailing team.


4 October 2013
Jim Farmer

Georgia Racing

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