SIZZLE OR FIZZLE?

Will S.F.’s America’s Cup sizzle or fizzle?

By Bill Center2:16 p.m.July 5, 2013Updated2:28 p.m.
A pair of Oracle Team USA catamarans make their way past fog-shrouded Alcatraz Island during training for the America's Cup Wednesday, July 3, 2013 in San Francisco. Opening ceremonies for the sailing event are on Thursday. (AP Photo/Eric Risberg)
A pair of Oracle Team USA catamarans make their way past fog-shrouded Alcatraz Island during training for the America’s Cup Wednesday, July 3, 2013 in San Francisco. Opening ceremonies for the sailing event are on Thursday. (AP Photo/Eric Risberg) — AP

There is a lot of sizzle to the 34th America’s Cup this summer on San Francisco Bay.

For the first time in America’s Cup history, the event will be sailed inshore rather than far offshore with the San Francisco Bay venue guaranteed to be the best ever when it comes to spectator viewing.

And the 72-foot catamarans add elements and speed and excitement never before seen in the 162-year-old event.

But is there any substance to this America’s Cup, which is so drastically different from the traditional America’s Cup that it almost seems like a totally different event?

The total fleet for the event is four boats. Only two of the three challengers are ready to race this weekend with the beginning of the challenger trials. There will be no defender trials.

But there is controversy. There is always controversy in the America’s Cup. But this one takes the tradition a giant step beyond where we’ve been before.

On the eve of the July 4 Opening Ceremonies – which drew large crowds to San Francisco’s Pier 27/29 America’s Cup Park – race director Iain Murray threatened to ask the U.S. Coast Guard to pull the racing permit for San Francisco Bay if two challengers didn’t agree to 37 safety requirements.

The requirements were unilaterally imposed by the organizing committee after the May death of crewman Andrew “Bart” Simpson in an accident on San Francisco Bay that destroyed the entry of Sweden’s Artemis team.

If the Coast Guard pulled the permit, the event would be scuttled because the catamarans can’t race on San Francisco Bay without Coast Guard approval.

Meantime, the New Zealand and Italian challengers, who are scheduled to race Sunday in the first race of the Louis Vuitton Cup challenger trials, are going ahead with their protest of the changes — claiming they give the defending Oracle team an advantage.

The main dispute focuses on changes required to the rudder elevators – hydrofoils at the bottom of the rudders that allow both hulls to raise out of the water while on high-speed runs off the wind.

Emirates Team New Zealand and Italy’s Luna Rossa challengers are taking the issue to the international jury as soon as Monday and threatening court action. The Italians, meanwhile, say they might not race Sunday – further reducing an already limited schedule since the Swedes aren’t expected to be race-ready with their new boat until next month.

The spectacle of 72-foot catamarans flying around San Diego Bay could be reduced to a weaiting game.

Certainly, this is not what San Francisco expected when it signed on to back the 34th America’s Cup.

The defending Oracle syndicate led by Larry Ellison, team boss Russell Coutts and on-the-water skipper James Spithill hoped the entries would reach double figures when the rule was first established for the 72-foot catamarans for the 2013 America’s Cup.

Indeed, the America’s Cup World Series contested in 45-foot catamarans, which included a 2011 stop on San Diego Bay, drew nine boats representing eight teams.

But only four teams reached San Francisco. In contrast, the 1995 America’s Cup, the last of three raced out of San Diego, drew seven challengers and three defenders. The 1992 America’s Cup in San Diego, drew eight challengers and two defenders.

And whereas the last two America’s Cups sailed in San Diego included defense trials, the Oracle defenders won’t be sailing until the best nine-of-17 actual America’s Cup starts on Sept. 7.

There is no question that the 72-foot catamarans are spectacular – although many in sailing believe the risk of major accident goes beyond the reward. At a true wind speed of 18 knots, the AC-72 catamaran is capable of reaching speed of 40 mph – essentially flying on the tiny hydrofoils in question.

“What’s so amazing about this boat is that it’s suspended on these tiny pieces of engineered carbon-fiber,” said Spithill. “that’s why these boats are so cutting-edge technologically. We’re pushing them right to the limit.”

A lot of sizzle.

But any substance?

© Copyright 2013 The San Diego Union-Tribune, LLC. An MLIM LLC Company. All rights reserved.

DAY 11 THE 285 AND LE PUYE CAVES

INSIDE A CAVE
INSIDE A CAVE
TOP OF THE MESA
TOP OF THE MESA
VIEW TO THE RIO GRAND
VIEW TO THE RIO GRAND
PATH UP WATER DOWN
PATH UP WATER DOWN
PETROGLYPH
PETROGLYPH
CAVES AT LE PUYE
CAVES AT LE PUYE
STORM IN THE MOUNTAINS
STORM IN THE MOUNTAINS
LE PUYE CAVES
LE PUYE CAVES
HORSE AND WINDMILL
HORSE AND WINDMILL
TWO LANE ROAD AT 90
TWO LANE ROAD AT 90

I did not expect to be in Santa Fe, just as I had not anticipated being in Roswell. I am not expressing disappointment, just that it was not the original plan. It turned out to be a better plan.

 

 

DAY 10 ROSWELL NEW MEXICO

MORE WEST TEXAS ROAD
MORE WEST TEXAS ROAD
ROSWELL NM
ROSWELL NM
LITTLE ALIENS
LITTLE ALIENS
ABDUCTION SURVIVOR
ABDUCTION SURVIVOR
ROUTE 10 WEST TEXAS
ROUTE 10 WEST TEXAS
FREDERICKSBERG TX
FREDERICKSBERG TX
ADMIRAL NIMITZ
ADMIRAL NIMITZ
HTE POST OFFICE
HTE POST OFFICE
PECOS RODEO
PECOS RODEO

Never in my wildest dreams did I think I would be in Roswell New Mexico; especially for the fourth of July. The drive through west Texas seemed like it would never end. This weekend is the festival for aliens.
One little note, Admiral Nimitz died in our last house. talk about degrees of separation.

HAPPY FOURTH OF JULY TO EVERYONE.

 

LANDLOCKED DAY 9

SAN JUAN
SAN JUAN
ESPADA
ESPADA
SAN JOSE
SAN JOSE
CONCEPTION
CONCEPTION
MENIL MUSEUM
MENIL MUSEUM
ROTHKO CHAPEL 2
ROTHKO CHAPEL 2
ROTHKO CHAPEL
ROTHKO CHAPEL

Landlocked Journal day 9. The long awaited visit to the Menil collection photographs not allowed, which opens wednesday to sunday at 11am. However it was worth the wait. For me, I have never seen such fine collection ever anywhere. We could have easily spent several days visiting the other museums in Houston. I wanted badly to see the missions in San Antonio, before continuing to Austin. We have now driven 3000+ miles and have yet to exit Texas.

MAX SAYS

from sailing anarchy:

If anyone deserves pity in the massive ‘ruddergate’ controversy, it’s Iain Murray.  We always suspected the salt-of-the-Earth boat builder and designer didn’t have what it took to navigate the minefield of modern America’s Cup politics, and sure enough (and regardless of the outcome of ETNZ and Luna Rossa’s protests) he’ll forever be known throughout the sailing world as the guy who tried to help Oracle change the design rules a week before the Louis Vuitton Cup.  It doesn’t matter whether he did or he didn’t, and frankly the guy’s reputation says he is honest and straight, but his lack of transparency combined with the timing of the rudder elevator issue makes him look to the world like he’s on the take.

We’re not going into the debate again – not yet, anyway – because it’s all here in the big Jury Notice thread.  We’ll just let Max Sirena tell it how he sees – from thisRepubblica.IT story.

“Profiteering! That’s what it is.  Nothing else. Sorry to say because sailing is my life, my world, my sport. But we cannot continue to pretend that this is the America’s Cup of gentlemen, of fair play. It is not true at all. Oracle and Artemis are doing something illegal, shameful, and they are doing it by exploiting the death of ‘Bart’ Simpson, a sailor, a friend. And I am fed up of accepting everything in silence .”

Luna Rossa’s skipper, Max Sirena, is beside himself. Under the cloak of the usual silence that preceds the battle, incredible things are happening in offices that overlook the bay of San Francisco. And the man most representative of the Italian expedition in the Coppa America has decided not to remain silent anymore. To name names and surnames. Here they are: Paul Cayard, Russell Coutts, Artemis, Oracle: They are the jackals. The question is simple. On the eve of the America’s Cup Cup, Luna Rossa and Team New Zealand – the only two credible challengers to the Cup held by the Americans Oracle – have succeeded in three years of work to make fly their catamarans (called foiling, the boat is five feet from the water “supported” only by the centerboard, and it is much faster).

Oracle and the swedes Artemis instead had judged it impossible to do from the beginning. So when they realized to be left behind, they began a frantic recovery.  Now Oracle is able to “fly” but not in a stable manner, needing to change the rudders in order to stabilize. The only problem is that you can not do that. To modify rudders as they want them, you have to change measurements rules. As if we were made to build a car with engine capacity 2000 and now a week before the race they want to run with a 2200. But the worst thing is that they want to pass this regulatory modification as a decision for reasons of safety. “

They are not for safety? “No there are not. They continue to use the term safety for changes that are only needed by them, and only for the performance.”

 

They are Oracle and Artemis?
“Well, there are four teams. We and Team New Zealand protested…. “

The rule amending the rudders is contained in the notice of race issued by the Director Ian Murray and on the basis of which the U.S. Coast Guard has given the go ahead.
” It ‘s clear that no one has evidence that behind this is the hand of Oracle. But Murray has no authority to change the rules of tonnage. For those it takes unanimity. Which there is not. “

The truth is that Oracle is in trouble …
“I am sure that in the end they will be very competitive. Now yes, they are a little back.”

The charge of profiteering is a serious charge .
“I know, I’m sorry. But it is so. They tell us that we are unsporting, a myth of sailing, Iain Percy (skipper of Artemis) has told that and it hurt me a lot. Actually it is them who are exploiting the incident of Artemis (the one in which on May 9 the sailor champion Olympic Andrew “Bart” Simpson lost his life, ed) to obtain advantages in water. By the way, Simpson died because he was unlucky, not because the class is wrong. The catamaran rolled over, anything can happen and will happen again. “

This does not cancel that there is a safety issue.
“And you say it to me? Of course it exists. I have been saying that since long before the accident. It was more than a year that I insisted with Murrey, with Coutts, Paul Cayard and they laughed in my face. Reduce wind limits – I said – enhance helmets, oxygen tanks, put straps on the hulls to held to in the event of capsize, prohibit the guest on board. They insisted, deaf. “

Until someone ended up dead.
“That, again, it was an accident. Anyway, it was right to intervene. They proposed 37 points to improve security: 35 were shared, while two were only needed to help Oracle and Artemis to regain lost ground . With New Zealand we have proposed: let’s pass now the 35 and we think about the other two. Cayard said, no, all or nothing. So I threatened to publish the response in the media. So you could tell who was trying to work for the safety and who for themselves. And we managed to have the 35 points passed. “

Then came the notice of Murray.
“Against which we did protest.”

It will be discussed on the eight of July. If they rule against you, up to what point are you willing to go?
“We may refuse to get in the water. It is a decision which may be taken only with the consent of Patrizio Bertelli, of course. But it is a matter of principle. Coppa America is a great game but also in games there are values to be respected.”

LANDLOCKED DAY 8

VALESQUEZ
VALESQUEZ
MODERN ART MUSEUM
MODERN ART MUSEUM
CHINESE
CHINESE
GREEK BOY
GREEK BOY
ST. ANTHONY HAVIING A ROUGH DAY
ST. ANTHONY HAVIING A ROUGH DAY
SHADOWS AT THE KIMBELL
SHADOWS AT THE KIMBELL
RHINESTONES ON HER BELT
RHINESTONES ON HER BELT
BRAIDS
BRAIDS
COWGIRL
COWGIRL
COWBOYS FOR GOD
COWBOYS FOR GOD

The “Landlocked Journals” continue with a visit to the Kimbell Museum and the nearby Modern Art in Ft. Worth. Across the street is the Will rogers exhibition hall; where the horses were being excerised. I have long admired western saddles and the style it was designed for. In particular the saddles and harnesses of Edward  Bohlin. I only wish I had had the time to go to the rodeo.

CORY FRIEDMAN SAYS:

THE AMERICA’S CUP WEB SITE IS BEHAVING LIKE NOTHING IS HAPPENING.

and what about the city of san francisco?

New Zealand protest could affect the America’s Cup…forever

Published on July 1st, 2013 | by Editor

With so much promise, so much build-up, so desperate a desire to put the America’s Cup on a stage where it can draw unprecedented interest, the last thing the organizers want to hear is bad news.  With the start on July 7, it must now be all about good news.

But the news is not all good.

Scuttlebutt’s legal analyst Cory E. Friedman has prepared a detailed tour of the facts which have led to the current Emirates Team New Zealand protest that could change the face of the America’s Cup forever…

“What a thing was this, too, which that mighty man wrought and endured in the carven horse, wherein all we chiefs of the Argives were sitting, bearing to the Trojans death and fate!” – Homer, Odyssey 4.271.

“It’s not cheating if you get away with it.” – Anon.

Make no mistake about it, the protest by ETNZ and Luna Rossa against the AC72 Class Rules changes mandating elevators (rudder trim tabs) recently imposed by Regatta Director Iain Murray is far from “minutia” and may be the most consequential in the history of the Cup as it affects not just one race but will almost certainly have a substantial if not deciding impact on the outcome of AC 34 itself.

As Artemis’ Tom Schnackenberg was recently quoted: “The [class] rule looked like it was conspiring against foiling, but it turns out the way it has been interpreted, you can.” The primary intentional impediment to foiling in the Class Rule was the ban on trim tabs (elevators) on the rudders. Murray has mandated them.

The first to figure out how to foil with sustained stability without elevators was ETNZ (and Luna Rossa which bought ETNZ’s design package). Indeed ETNZ has succeeded in perfecting the foil to foil jibe, the sailing equivalent of breaking the sound barrier. In contrast, while Oracle has been foiling around the Bay, it turns out it has been using elevators the class measurer twice ruled violated the Class Rule. Oracle has not demonstrated sustained stability without the heretofore banned elevators.

However, with the banned elevators, Oracle, which does not have the fuller bows, rigidity and more complex board control mechanisms ETNZ and Luna Rossa adopted to foil within the Class Rule, has significant aerodynamic and other speed advantages and may very well win the Cup, while without the elevators ETNZ or Luna Rossa are more likely to win.

Moreover, the rule change will have a substantial impact on future Cups. If one way or another the defender can obtain a decisively favorable Class Rule change at the last moment, it becomes hard to imagine how anyone will invest even half the approximately $100 million dollars challenging teams have invested in this Cup campaign. In retrospect, if this is the way it works, the New York Yacht Club, much criticized for high handedness, was negligent when it lost in 1983. It should have just jimmied the rules to ban Australia’s winged keel on some basis or other.

Nobody disputes that the Class Rules require unanimity for amendment and that two teams oppose the Class Rule change regarding elevators and claim that the elevators are dangerous. There is no provision of the Class Rules that allows the Regatta Director to impose changes based on “safety” or anything else. Instead, Murray hangs his hat upon an anodyne provision of the Protocol: “16 COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS, 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.” Murray argues that the Event Permit is an “applicable law[ or] regulation” of the U.S. Government and that the elevators are required. Really?

Let’s take a look at the actual laws and regulations, so hang on, this may be a little drier than usual. When we are done ‘buttheads can decide for themselves who is right.

Events like the Cup are covered by 33 U.S.C. § 1233, which simply authorizes the U.S. Coast Guard to issue regulations. The Coast Guard has done so in 33 Code of Federal Regulations (CFR) Part 100.

So let’s see if section 16 will actually hold the water Murray claims it will. First of all, ‘buttheads who slog through the U.S. Code section and the CFR sections will not find any regulation that makes an event permit or the application attached a law or regulation of the United States. Only Congress can do that — or, more likely these days, not do it. Indeed, 33 CFR 110.15 which regulates the application for an event permit only requires the “who, what, where and when,” of the event. It does not require anything about class rules. If a safety plan is needed, the CFR does not require it and the application does not have a place for it. Indeed the Coast Guard Chief Petty Officer involved in this event permit has been quoted in the press to the effect that the Coast Guard does not care about or want to get involved with class rules. Thus, anything to do with Class Rules attached to the application is pure surplussage.

If there are any document that shows the Coast Guard demanded the safety information or anything about Class Rules, Murray should disclose it. Indeed, because the Protocol provides that the protest is under the Federal Arbitration Act (FAA), the Jury and the parties, upon a request to the Jury, have subpoena power pursuant to 9 USC § 7 and can subpoena any such document. The parties can also obtain it from the Coast Guard under FOIA.

It is not at all clear the Coast Guard demanded more than general safety information as the panel headed by Murray to investigate the Artemis/Simpson tragedy produced no investigation at all, unlike the recent Safety at Sea investigations of fatalities. The claim that liability was the issue is absurd. It was not a problem with other recent investigations and if it is a real issue ACEA/ACRM can afford insurance. The fact that ACEA/ACRM refused to resolve potential liability neatly deep sixed the investigation.

Obviously, there has been a cover up of what the Artemis helmsman’s Dad first reported (called untrue by the powers that be) and now confirmed by Loick Peyron, the one honest man in this whole sorry mess. What Peyron reports, together with what was common knowledge at the time about the structural problems of the Artemis boat, arguably suggest the elements of involuntary manslaughter in California. Obviously, there is plenty to cover up and plenty of people with an interest in keeping it that way at least until the event is finished. Everybody ought to come clean about what happened.

Let’s move on to the Event Permit itself. 33 CFR 100.30 merely provides that the application for an event permit must be approved. That is all. It does not transform the approved application into a law or regulation, just an approved Event Permit.

The Event Permit itself does no more. The very first line of the Event Permit recites: “Issuing a permit does not imply any endorsement of the activity, guarantee that it will be accident free, or make the Coast Guard responsible for the safety of participants.” That does not sound like a law or regulation. Indeed it is a ringing non-endorsement. The second page recites that: “Marine event sponsors are responsible for the safety of the events.” While it does provide that “You are expected to conduct your event in accordance with the Marine Event Permit Application, including all attachments …”, that is only an expectation. It does not say “You are required.” The argument that Murray can attach anything he wants to the application and thereby transform anything he pleases into a requirement of the event is obviously not what the boiler plate printed language of the Permit could possibly intend. If it was, Murray could give himself a raise by simply attaching it to the application.

Further along the Event Permit spells it out: “You are required to immediately inform the Coast Guard if circumstances necessitate a change in any component of your safety plan along with your assessment on how the change affects the safety of your event.” Note that the Event Permit does not terminate if the protest is granted and the Class Rules change is nullified. All that happens is that Murray has to notify the Coast Guard of the change and say either: “A. It is not a problem, we can deal with it; or B. It is a show stopper, we cannot safely proceed, shut us down.” The choice is his. The Coast Guard will presumably evaluate his information and act appropriately.

The Event Permit does provide that: “If at any point, your event becomes unsafe due to weather, vessel traffic, irresponsibility on the part of the sponsor or participants, failure to meet the conditions in the Marine Event Permit, or any other reason,…” the event can be terminated. However, termination requires a determination that the event has become unsafe, which is a pretty heavy finding which should terminate the event no matter what the reason. “Condition” is a legal term of art. Unless the Event Permit explicitly says something is a “condition” or that it is on “condition,” it is not a condition. The Class Rules are not a “condition.” In short, the Event Permit still is not a law or regulation. It is just a permit – like your driving permit. Drive illegally or unsafely and you will lose it — same as with the Event Permit.

Tellingly, the only parts of the application actually cut and pasted into Event Permit itself, to which the application is appended, are the two maps of the race area, not anything to do with the Class Rules.

‘Buttheads can read the regulation and Event Permit themselves, but it is pretty clear that there is no law or regulation that requires the Class Rules change and Murray’s position does not hold water.

One interesting question is how a jury that does not include a single U.S. lawyer can feel confident dealing with this legal question regarding U.S. administrative law. The Jury does include an Australian barrister and a New Zealand barrister, as well as a former British magistrate, but the U.S. legal system separated from the British system in 1783 when George III foolishly declared independence from the United States so that future Brits would have to answer to bureaucrats in Brussels. That was before the first Europeans settled in either Australia or New Zealand. Our systems are now quite different.

The solution is not that difficult. If a U.S. court has to rule on an issue controlled by foreign law the parties would each call expert witnesses in that area of the relevant law – typically law professors who have written on the subject (in this case U.S. administrative law) – who can testify as to what the law is. The point is that the Jury needs help and should get it from the parties.

Last and least is a bizarre provision of the Protocol which has been used as a crude weapon and as an excuse for not going to court under the FAA if the Jury exceeds its jurisdiction. Obviously, in the ordinary case, one would go to arbitration first and see if you win, rather than attempting an end run around the arbitration. Something would have to really wrong with the arbitration process to attempt such an end run.

The bizarre provision, section 15.14, purports to disqualify any team that goes to court on a matter the Jury has jurisdiction of, which explicitly does not include anything having to do with the Deed of Gift. The provision was apparently drafted by a Kiwi lawyer who is not admitted in the U.S. whose “watermark” is the prissy Victorian phrase, “for the avoidance of doubt,” which I have never seen in a U.S. document and Kiwi’s tell me they have never seen except in the impenetrable documents drafted by this particular Kiwi lawyer.

For all I know such a forfeiture is proper in New Zealand. In the U.S. it is so bizarre that, on a quick and not exhaustive look, I cannot find anything similar in the Federal and New York Lexis databases, except statutes and cases that say that a party cannot be penalized for exercising a statutory right, in this case, the right to go to court under the FAA. (‘Buttheads with time on their hands and access to Lexis, Westlaw or “the books,” are encouraged to see if they have any luck – let me know what you find.) Moreover, for hundreds of years lawyer have been trained to honor the equitable maxim that “equity abhors a forfeiture.”

The enforceability of such a forfeiture provision is further called into doubt by the fact that the FAA provides in 9 USC § 3 the proper remedy for going around arbitration to court. That is a stay in aid of arbitration, which stops the court action and sends the parties back to arbitration. In any event, a court hearing a matter under the FAA would likely grant a temporary restraining order barring the enforcement of a forfeiture provision like section 15.14 until the matter was fully litigated. If a party does not want to go to court, it does not have to, but that provision of the Protocol should not be a major consideration or excuse. What the teams do is between them and their sponsors, in the case of ETNZ including New Zealand’s taxpayers.

 

– See more at: http://www.sailingscuttlebutt.com/2013/07/01/new-zealand-protest-could-affect-the-americas-cup-forever/?utm_medium=email&utm_campaign=Scuttlebutt+3872&utm_content=Scuttlebutt+3872+CID_587e57a1a567c7e7aa9b46369c9ebbfd&utm_source=Email%20Newsletter&utm_term=Read%20on#more