Emirates Team NZ may have been dealt a blow in the America's Cup battle over safety recommendations they suspect advantage opponents seeking a performance gain on the leading-edge Kiwis.
Yesterday's issuing of a permit by the US Coast Guard so the event can proceed carried far more significance than such documentation normally does.
For a start, the Coast Guard rebuffed an ETNZ request to defer the issuing of the permit until the America's Cup international jury ruled on the move to change the rudder elevators specifications. That is the issue which ETNZ believe benefits Oracle, the Cup holders, who do not have to race until September and who have time to develop and perfect the rudder elevators so they enhance performance.
Second, the Coast Guard permit incorporates all 37 safety recommendations forwarded to them by regatta director Iain Murray - including the rudder elevators, effectively making them law.
Third, Cup sources spoken to by the Herald on Sunday have intimated that, even if the jury finds in favour of Team NZ re the rudder elevators and drops them as safety measures, the Coast Guard will demand replacement safety provisions. They have hinted that could mean dropping wind speed limits for racing even more - anathema to Team NZ whose 72-foot catamaran seems the one best designed for heavier winds.
The Coast Guard permit carries a warning that if anything changes (like the safety recommendations), they have the power to annul the permit and stop the event.
This is new ground for the America's Cup.
However, the use of the Coast Guard has been a clever political ploy which is now attempting to close the door on Team NZ even if they win the jury case. Cup rules include a provision that the teams must comply with local rules and regulations - including those of the Coast Guard. Invoking the Coast Guard permit is a back-door way of changing the Cup class rule without having to gain the unanimous consent of the teams.
The people and issues involved in this political struggle are outlined below but, for the time being, the following seems clear:
Racing will start on July 7 while the jury hearing will not begin until July 8.
In a regatta already touched by farce with Artemis appearing only for the Louis Vuitton semifinals, it seems ludicrous starting races for which the rules have not yet been agreed. However the racing can begin because ETNZ's and Luna Rossa's giant AC72 catamarans comply with the current rules.
Organisers have been insistent upon all 37 safety recommendations - including rudder elevator changes - being adopted by the competing teams because of the tragic capsize of Artemis's AC72 catamaran and the death of Andrew Simpson in May.
Team NZ are feeling betrayed because they came up with a clever design solution which met the strict conditions of the class rule - one of the key facets of the Cup. Designing the boat to go fastest within the class rule is the name of the game.
The key players and issues in this political battle are:
Regatta director Iain Murray - one of those who has involved the Coast Guard as a determining factor. It is possible to feel some sympathy for Murray. He lost a true friend in Simpson and has been a strong proponent of safety measures - some would argue, necessary or not - because of that. Murray was the designer of oneAustralia 95, which broke and sank off San Diego during racing in 1995 - before Artemis's capsize, the single biggest Cup disaster in history. Murray will be mortified this latest catastrophe has happened on his watch. Some suspect he has been subject to lobbying from teams who talk safety but really focus on self-interest.
Murray said: "I have exercised my professional judgment to the best of my ability, and have weighed carefully the unfortunate circumstances thrust upon us including (as a paramount consideration) the need to increase the safety of our crews, the officials and other Bay users, as well as the investment made by Competitors and all other stakeholders in this event. Safety is not a multiple-choice selection from which Competitors pick and choose."
America's Cup Events Authority boss - a New Zealander in charge of the body supposed to be independent of the holder, Oracle. He is the former chief operating officer of Oracle Team USA, headed by another Kiwi, Sir Russell Coutts. Barclay has also been involved with playing the Coast Guard card.
Oracle - conspicuous by their roaring silence, the Cup holders are the force behind the scenes. If the cynics are to be believed, they want bigger rudder elevators to catch up with Team New Zealand. They are already trialling the new rudder elevators - currently illegal - on San Francisco Bay.
Luna Rossa - aligned with ETNZ, they have already signalled they may take this matter to court should the jury find against ETNZ. However, that is probably the least likely option.
The Protocol includes a condition that anyone resorting to court action is expelled from the regatta. That could still result in a court action after the event and a deed of gift match (as in 2010 when Oracle won in court and then beat Alinghi on the water).