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

Recent Posts

  1. Why I Did Not Sign "The Letter" 20-Nov-2024
  2. Is there any hope for the next America's Cup being held in Auckland? 13-Sep-2024
  3. Directors’ Duties to Creditors in an Insolvency Situation 22-Sep-2023
  4. Redundancy, Good faith and Employment Law 18-Aug-2023
  5. Is the America's Cup a poisoned chalice for New Zealand? 09-May-2023
  6. The Passing of Two Knights of the Realm - Sir Murray Halberg and Sir Ian Barker 07-Dec-2022
  7. Random Legal Thoughts While on a Post-Covid Lockdown European Trip 31-Oct-2022
  8. America's Cup Venue - Fact or Fiction Chris Goode 04-Apr-2022
  9. Covid and the New Zealand Rules Committee Proposed Reforms Chris Goode 24-Jan-2022
  10. A Chat On The Virtual Couch About My Legal Career Chris Goode 26-Nov-2021
  11. America’s Cup Home Defence – Requisition For Special General Meeting Of Members Of Royal New Zealand Yacht Squadron To Discuss Venue For Next Defence Chris Goode 24-Nov-2021
  12. Pandemics 12-Nov-2021
  13. America's Cup - Just Do It and Positivity 20-Sep-2021
  14. September 11 - 20 Years On 09-Sep-2021
  15. Whither America's Cup? Chris Goode 22-Jun-2021
  16. Conducting Civil Appeals Chris Goode 07-Mar-2021
  17. David Barnes (27 April 1958 - 23 October 2020) - A Personal Note Chris Goode 02-Nov-2020
  18. Cannabis Bill Not the Right Reform Chris Goode 07-Oct-2020
  19. Whatever the result, is this the last time the America's Cup event is held in New Zealand? Chris Goode 14-Sep-2020
  20. Cannabis Legal Reform - Arguments For and Against Chris Goode 13-Aug-2020
  21. Will the Proposed Cannabis Legislation Achieve its "Overarching Objective" of Reducing the Harms Associated with Cannabis Use? Chris Goode 18-May-2020
  22. The Debate Continues - Virtual Hearings or Real Hearings Chris Goode 02-May-2020
  23. These Issues were all Predicted Pre-Covid-19 and 6 Years Ago Chris Goode 02-May-2020
  24. And here is a Report from Stuff of a Virtual Hearing this Week Chris Goode 30-Apr-2020
  25. More Correspondence on Covid-19 and the Courts Chris Goode 30-Apr-2020
  26. In Defence of Remote Technology - from Steve Keall Chris Goode 29-Apr-2020
  27. Court Hearings and Covid-19 - Part Two Chris Goode 29-Apr-2020
  28. Court Hearings and Covid-19 Chris Goode 28-Apr-2020
  29. Covid-19 and Executory Contracts: Will the Doctrine of Frustration Apply? Chris Goode 06-Apr-2020
  30. Race, Poverty and Education - Lessons from the UK learned while spending Christmas in London December 2019 Chris Goode 13-Jan-2020
  31. Witnesses in Civil Cases - the Consequences of Not Calling and of Not Cross-Examining - A Paper Presented to the Pacific Islands Lawyers Association, Auckland, 22 November 2019 Chris Goode 21-Nov-2019
  32. The Forthcoming Referendum on the Growing and Supply of Cannabis for Personal Recreational Use Chris Goode 19-Nov-2018
  33. Armistice Day and Its Sequel Chris Goode 13-Nov-2018
  34. An Easy Read of the Rule of Law in the World of Fiction Chris Goode 08-Aug-2018
  35. Bullying, Harassment and Gender Bias Chris Goode 22-May-2018
  36. Criticising Judges Chris Goode 07-May-2018
  37. America's Cup Part 3A Chris Goode 11-Dec-2017
  38. America's Cup Part 3 Chris Goode 04-Dec-2017
  39. Pro Bono Publico as an Aid to Living a Balanced Lifestyle Chris Goode 08-Nov-2017
  40. Terence Arnold Retires From the Supreme Court Bench Chris Goode 10-Apr-2017
  41. From Violence to Redemption Chris Goode 14-Mar-2017
  42. Drugs, Sports and Society Chris Goode 18-Oct-2016
  43. Are Our Law Schools Churning Out Too Many Lawyers? Chris Goode 25-Aug-2016
  44. Equiticorp 20 Years On Chris Goode 07-Jun-2016
  45. The Year in Retrospect Chris Goode 19-Jan-2016
  46. A Good Year for the Farmer Legal Family Chris Goode 30-Oct-2015
  47. Having a Balanced Life Style - Part 4 Chris Goode 21-Sep-2015
  48. A Balanced Life Style (Part 3), Prisoners' Voting Rights, Top Gun, 7000kms in a Corvette, John Maynard Keynes and Atticus Finch Chris Goode 05-Aug-2015
  49. Biographies Chris Goode 13-Apr-2015
  50. The Cost of Justice Chris Goode 13-Mar-2015
  51. The Increase in Unrepresented Litigants and Their Effect on the Judicial Process Chris Goode 11-Feb-2015
  52. Evidence - Notes of Presentation to Continuing Legal Education Seminar November 2014 Chris Goode 01-Dec-2014
  53. Corporate Governance and Directors' Liability Chris Goode 19-Aug-2014
  54. Paper Presented on 2 August 2014 at the Competition Law & Policy Institute of New Zealand 25th Annual Conference Chris Goode 05-Aug-2014
  55. Life in the Fast Lane Chris Goode 06-Jun-2014
  56. 2014 - Roaring Past Chris Goode 04-Jun-2014
  57. Commentary on Paper Delivered by Professor Andrew I Gavil at Commerce Commission Conference Chris Goode 18-Nov-2013
  58. America's Cup Wrap Up Chris Goode 04-Oct-2013
  59. Happiness, Living a Balanced Life and Legal Practice - Part II Chris Goode 15-Aug-2013
  60. America's Cup 2013 Chris Goode 01-Jul-2013
  61. Why the Rules of Evidence Matter in Civil Cases Chris Goode 11-Mar-2013
  62. The High Court in Review Chris Goode 07-Oct-2012
  63. "Criticism of Supreme Court needs to be put in context" as published in the New Zealand Herald 11 May 2012 Chris Goode 23-May-2012
  64. Recent Reform Reports Chris Goode 03-Apr-2012
  65. Happiness, Living a Balanced Life and Legal Practice Chris Goode 09-Jan-2012
  66. In Defence of the Supreme Court Chris Goode 12-Dec-2011
  67. LEGAL COMMENTARY HOW GOOD IS OUR SUPREME COURT? Chris Goode 16-Nov-2011
  68. Cross Examination Notes Chris Goode 11-Nov-2011
  69. Are the independence of the Judiciary and the Rule of Law under threat? Chris Goode 16-Oct-2011
  70. Commentary on my commentary on Morse Chris Goode 14-Sep-2011
  71. The passing of three leaders of the Bar Chris Goode 14-Sep-2011
  72. How good is our Supreme Court? Chris Goode 08-Aug-2011

Georgia Racing

Website Managed by Generate Design