Two dreaded but not unusual words - Supreme Court - entered the America's Cup dialogue yesterday as the four syndicates continued to be stalled over recommendations issued in the wake of the Artemis training death.
As two members of the International Jury trying to mediate a way through the problems found agreement on most of the safety issues in the 37 recommendations, sticking points remain to cast a shadow over the regatta.
A proposed change in the specification for a piece of boat equipment known as a rudder elevator, which helps control the super-fast, high-tech catamarans when they go airborne on hydrofoils, remains the major area of contention.
It appears to favour holders Oracle who have been trialling it. Team New Zealand and Italians Luna Rossa have been training and testing successfully without the rudder elevator - under the design rules as they stand now.
"We're prepared to do anything it takes to respect the rules," Luis Saenz, general counsel for the Luna Rossa Challenge told Reuters yesterday, with an eye on the Supreme Court in New York.
Other syndicates weren't commenting as that prospect was doing the rounds on the San Francisco waterfront, but Saenz made it public.
With the opening race between Luna Rossa and Team New Zealand set for July 8 (NZ time), the race schedule already devoid of the struggling Artemis (Sweden) for the initial round-robin phase could be further hit.
The Italians - sharing the same thinking as the Kiwis - argue that the rudder elevators relate to performance and not boat safety.
Regatta director Iain Murray is trying to push the amendments through under the safety banner required to get the racing permit from the United States Coast Guard.
Without that permit there will be no racing.
"The class rule doesn't contemplate rudder elevators at all," Saenz said. "We think they have nothing to do with safety. They are a performance instrument, and we do not believe the regatta director should get into regulating rudder elevators.
"The regatta director has all the right in the world to issue recommendations. He cannot change the class rule."
The teams need to agree on changes to boat design.
But Murray said yesterday he believed these were extraordinary circumstances.
"We're probably taking an unprecedented step, but after the Artemis Racing tragedy, it's a necessary step. Safety isn't something we can compromise on. A man lost his life and we need to ensure, as much as we can, that it doesn't happen again. We need to make changes," Murray said.
Having conceded to lightening the wind ranges by 10 knots despite successfully testing in extreme conditions, and also bringing race start times forward that would also mean lighter winds, Luna Rossa, are set to stick to their guns over design changes at this late stage.
They and Team New Zealand would have little or no time to implement the rudder wings before they start racing while Oracle have until the start of the America's Cup race on September 7 to further streamline their work in this area.
But the two challengers believe the changes are unnecessary and their designs appear to back that up. Team New Zealand have been by far the most impressive when foiling in San Francisco in recent weeks.
The full five-person International Jury remains an option but if they agree to the changes then Saenz believed court action would be justifiable.
The America's Cup has a history of court action. This 34th edition may be no different.
- © Fairfax NZ News