Yachting: America's Cup battle of brinkmanship

By Paul Lewis

Crewman Andrew Simpson died when the Artemis catamaran capsized. Photo / AP
Crewman Andrew Simpson died when the Artemis catamaran capsized. Photo / AP

A US expert in sailing law says Emirates Team New Zealand should be preparing to take their case to American lawyers if they feel disadvantaged by America's Cup changes - made under the banner of safety but which shorten the Kiwis' competitive advantage.

Team NZ say they are talking to US lawyers - but only to address the issue of the US Coast Guard and the permit it is yet to approve so the Cup regatta can proceed.

It is understood that mediation between the warring teams over safety changes has so far failed - but there are still hopes a deal can be struck which will satisfy all or most of Team NZ's fears.

While talk of lawyers and courts will make many in the sailing community groan after the years of legal tussling between Oracle and former holders Alinghi, US litigation lawyer Cory E Friedman says moves to get agreement between the four teams could have legal ramifications.

He was referring to the 37 safety recommendations made after Artemis's capsize and the death of crewman Andrew Simpson.

While Team NZ have agreed with some changes - like lowering wind speed limits for racing - other points have been in dispute because, the Kiwis say, they are not safety changes but designed to boost the performance of other teams or diminish Team NZ's.

The next step is to refer the matter to the international jury this week.

In the meantime, however, America's Cup Event Authority head Stephen Barclay has issued a long statement pressuring the teams by referring to the fact the Coast Guard has to approve safety and rule changes before allowing the regatta to proceed.

The intent was clear: No Coast Guard approval, no event, so let's sort it all out.

But Friedman said: "The international jury does not have the power to change the America's Cup protocol or the class rule. They do not have the power to change things without the consent of the teams. If they try to do so, a team could march into the New York Supreme Court and ask them to intervene under the Federal Arbitration Act." Told the protocol forbids teams going to outside legal agencies to prevent legal action like that between Oracle and Alinghi, Friedman said: "Doesn't matter. The protocol itself is subject to that act."

Friedman said the move invoking the Coast Guard's powers threatened to stop the event altogether, even though there was no Cup rule that said such a permit was needed.

"It's a way of saying, 'cut the comedy, guys, let's get to work'. If they were to stop the event, where do we hold it? Outer space?"

Friedman added: "I don't know how on the ball Team NZ is with US lawyers and US law but if I was them, I'd be looking into the Federal Arbitration Act. I know no one wants lawyers involved but sometimes you have to show you are prepared to blow the event out of the water to protect your interests - otherwise it's an admission of weakness in a game of who blinks first."

Friedman also said he believed it was unlikely any legal action would now be taken against Artemis or leading personnel from Artemis over Simpson's death.

The San Francisco Police Department, he said, would likely be happy to let the matter of criminal liability slide beneath the waves anyway.

"If it had involved the San Francisco Giants or the San Francisco 49ers, then it might be a different story. But you folks in New Zealand are probably following the America's Cup way more closely than people in the US are - it's really not a big deal here - and they have no snitch, no inside information, it's a bunch of rich guys and the wife of the man killed has maybe been compensated. "The SFPD may figure they have a lot of other things to do, like unsolved murders."

On the possibility of a civil lawsuit, Friedman said he would be surprised if someone hadn't thought to approach Simpson's widow and family with a financial settlement.

America's Cup yachting circles have been abuzz with rumours that a sum of about US$5 million ($6.43m) has been settled on Simpson's widow, though that has never been confirmed.

Friedman said he thought that settlement, if true, was small: "I'd be absolutely shocked if the people in charge were stupid enough not to settle something on them [the family]. She [the widow] is entitled to sue Artemis for wrongful death, as well as some of the higher-ups in Artemis, including the CEO. She would be entitled to a jury trial and she would be an appealing plaintiff; I'd say that could be major, major money - much more than $5m."

- Herald on Sunday

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