AC34: The Devil is in the Details

Here is a summary of the current situation with the America’s Cup:

* The event’s Protocol, dated Sept. 13, 2010, an agreement between Golden Gate Yacht Club and Club Nautico Di Roma in how the event will be run, is what each team has used to prepare for the event.
* Some teams have prepared better than others.
* The event organizer now deems the Protocol unsafe and seeks to change it.
* Some teams don’t agree with all the changes.
* Those teams may be forced to accept the changes.

The primary means to change the Protocol is for the majority of the teams to agree on the change. Some of the changes sought out by the event organizer – possibly changes that could minimize a competitive advantage – do not have a majority vote. This is a problem, as the event organizer included all the changes to their Coast Guard permit application.

Did we mention the Coast Guard has not yet issued an event permit?

Assuming the permit is issued, all the teams will be required to comply with the changes because of Article 16 in the Protocol:

“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.”

You got to love the America’s Cup. The defender is historically criticized by the challengers. This could be why.

So that’s the short version of the current situation. Here is the long version as presented by Stephen Barclay, CEO of the America’s Cup Event Authority on June 18, 2013…

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Ever since the Regatta Director issued his 37 safety recommendations following the safety committee review of the Artemis capsize and Andrew “Bart” Simpson’s tragic death, there has been much speculation regarding their implementation.

Adding 37 new rules and requirements this late in the game was never going to be easy. To their credit, the teams have responded well, with everyone acknowledging the importance of enhancing safety on the racecourse.

But the devil is in the details. And the process of implementing these recommendations into concrete rules is important.

In this article I provide background so you may understand why Regatta Director Iain Murray is asking the International Jury to mediate in getting the safety recommendations implemented rather than simply mandating their implementation.

To start with, the America’s Cup is governed by a simple one and one-half page document – the Deed of Gift – written 160 years ago. There is no permanent governing body for this competition. To compete, a yacht club must agree to race by the rules of the competition and these are documented in the event Protocol.

In our case, the Protocol for the 34th America’s Cup can be found here.

Once ‘inked’, changes to the Protocol can only be made with the approval of a majority of the Competitors – see Protocol Art 14.1. With four competitors and voting blocks usually in place, it effectively requires all teams to agree for a Protocol change.

The 37 safety recommendations involve Protocol changes, Class Rule changes (the design parameters for the boats), and Racing Rules of Sailing changes (how the races will be conducted).  The Regatta Director had received verbal commitment to the safety recommendations, however, when he asked for teams to sign off on each of the changes in writing, a couple of the teams refused.

To the casual observer this may seem risky, but one needs to recognize that teams have spent a lot of time, effort and money to build boats to satisfy the original rules. Hence it is understandable they are upset about safety changes that may impact these rules and hence their competitiveness.

The position taken by a couple of the teams was not unexpected but it left in question whether or not the Coast Guard would issue the marine permit required to run the regatta.  The Coast Guard had made it very clear to the America’s Cup Event Authority (ACEA) as Event Sponsor (organizer) that it (ACEA) was responsible for the safety of the event and pointed us to their permitting documentation:

4(a) – For marine safety at the event – The event sponsor, not the Coast Guard, is responsible for the safety of the event. […]. If the District Commander or COTP have concerns that the event sponsor will be unable to ensure the safety of the participants, then the application should be denied unless the event sponsor provides additional information, in writing, that demonstrates to the satisfaction of the Coast Guard that the sponsor has a safety plan in place that will mitigate these concerns.

NOTE: “Ensuring the safety of the event” should not be interpreted to mean that the event sponsor guarantees all safety or proves there is absolutely no risk. However, if specific safety concerns exist, the COTP should identify them, discuss the concerns with the event sponsor, and, ultimately, resolve those safety concerns, which may include an amendment to the marine event permit application.

Working together to run a safe event, GGYC, ACEA and America’s Cup Race Management (ACRM) submitted the Marine Permit Application with all 37 safety recommendations attached. Assuming the permit is issued, the Competitors will be required to comply with the safety recommendations because they will have become regulations of the event – Art. 16.

It is this process of getting the safety recommendations implemented that is at the heart of the Regatta Director seeking mediation. Should the teams not agree to the safety recommendations through the mediation process, the Regatta Director will then submit an application to the Jury for a determination that the Competitors be required to satisfy all 37 safety recommendations attached to the marine permit application should it be approved by the Coast Guard.

And just to allay any fears of ‘vested interest’, Iain Murray as Regatta Director has the support of all Competitors. He is elected by the Competitors and he heads an organization controlled collectively by the Competitors.

I think Iain will be successful with the Jury, maybe not in mediation but with the determination. In a couple of weeks we will see.  The Jury starts hearing submissions tomorrow (June 19, 2013).