Luna Rossa and Emirates Team New Zealand, racing on the Hauraki Gulf, December 2012
The International Jury for the 34th America's Cup, has just posted its Decision in Case 19, which was initiated by the Italian Challenger, Luna Rossa, over an incident where a surveillance boat from Oracle Team USA was within half the distance allowed for viewing competitors while training.
The International Jury found that Oracle broke the rules on surveillance because of a novel interpretation of the word 'navigating' and compounded their transgression by continuing to take pictures from closer than the permitted range.
Luna Rossa protested Oracle Team USA in early November, alleging that Oracle Team USA’s Matt Mason had been within a distance of 200 meters and taking pictures of the Italian AC72. Luna Rossa alleged that Mason’s actions violated Article 37.2(g) of the 34th America’s Cup Protocol, which prohibits competitors from navigating within 200 meters of each other.
In its discussion and conclusions, the International Jury determined that the 'pivotal question is whether Oracle Team USA’s vessel was ‘navigating’ within 200m.' The International Jury referred to the Oxford English Dictionary (as stipulated by Protocol Article 1.3) to determine the definition of 'navigating.'
It concluded that 'the word ‘navigate’ as it is used in Protocol Article 37.2(g) is to be interpreted such that a vessel is still being ‘navigated’ while it is stationary if there is someone in command of it with the ability to manoeuvre the vessel.'
Oracle Team USA submitted that 'to breach Article 37.2(g) OTUSA had to ‘…manage, steer, control or direct the course…’ of the OTUSA Protector to within 200m of the yacht(italics ours)', suggesting that their vessel needed to be moving towards something in order for the driver to be 'navigating a vessel.' The Jury disagreed with that view.
Long lens at work again in the Viaduct Harbour as the Emirates Team NZ AC72 prepares to pass through the Viaduct Bridge in daylight.
The Jury was satisfied that the taking of photographs during the incident was 'an attempt to gain information about another Competitor' and that there was no prior consent by Luna Rossa.
The International Jury has invited parties to make submissions on the appropriate penalty, if any. It has also instructed Oracle Team USA to hand over to Luna Rossa and the International Jury all photographic material taken while the Oracle Team USA vessel was within 200 meters.
Eight options for a penalty
A decision on the penalty is yet to be determined.
Had the usual Racing Rules of Sailing applied, Oracle Team USA could have been disqualified - the standard penalty for any boat which infringes a Rules (unless another type/range of penalties are prescribed). However a modified set of Racing Rules and Penalty options applies to the America's Cup Regatta.
The Int Jury have eight options set out in section 15.4 (d) of the Protocol, which range from Expulsion from the 34th America's Cup to Censure. Neither of these extremes look to be a likely option. In fact, none of the other six look realistic look practical except for a Fine.
In its deliberations, the International Jury will have to chose a penalty, which recognizes the gravity of the infringement. The usual options are a monetary penalty, loss of points, action against the individuals involved. A second issue is that the Defender will clearly have gained some knowledge from the images - even it was to confirm their own thinking.
In terms of a monetary penalty, the Int Jury will be aware that Oracle Team USA are backed by a billionaire, and on a previous occasion when a $100,000 fine was levied, it was dismissed by another billionaire backer as 'ice-cream'. It is difficult to imagine what level of financial penalty would actually have an impact of such a team.
Loss of points is a possibility, and as a Challenger would have been a option in the Qualifying Rounds, and a deterrent to a team and others. But as Defender Oracle go straight into the America's Cup Match and such a penalty might be considered too detached from the incident. But if it were applied, then certainly it would be a deterrent - and there would be no repeat offence.
Prohibiting Oracle from further surveillance in Auckland is certainly an option - both afloat and ashore. But this in not one of the eight penalties which may be imposed under the Protocol.
A spy boat watches Emirates Team NZ AC72 on her final day of sailing on December 12, 2012
It is relatively easy for teams who are being photographed to take a photograph in return. Emirates Team NZ have previously commented on the number of cameras with big lenses which are in apartments adjacent to their bases, and trained into the work areas and sheds. Whether the Italians suffer from the same level of supervision in their Westhaven location is not known.
Because Emirates Team NZ did not protest, they are unlikely to be a direct beneficiary of a protest lodged by another team - except to have additional impact on Oracle Team USA. Possibly relevant, is the fact that Emirates Team NZ claimed that this was not an isolated incident, but again as no protest was lodged, the Int Jury could not act.
Action against the individuals involved is unlikely, as it seems to be reasonably clear they were acting on team orders, and team principals have not dissociated themselves from the illegal surveillance.
The difficulty the Int Jury will have is that while the images can be returned, the knowledge gained cannot be erased, and Oracle is therefore in the position of benefiting from a professional foul.
Additionally Oracle's capsize of October 16, limited their data gathering opportunities to just eight days from their own boat, so information on other teams could have an additional urgency.
Oracle did not seek the prior interpretation of the word 'navigate' - which is the normal action when there is doubt about the way a rule is interpretative. Instead Oracle took the course of applying their own interpretation and then argued their case in front of the Int Jury, after a complaint by a team and after having gained the information they sought. In other words, instead of asking permission Oracle begged forgiveness. The issue being that their actions cannot be undone.
Compounding their error, which could be dismissed as being inadvertent, is the fact that the Oracle Team USA members continued to film instead of leaving the area they had 'strayed' into.
The fact that the team have profited from their infringement, will probably be the single issue that will weigh most heavily on the minds of the Jury.
What is to be done, will require the Wisdom of Solomon.
The full Decision can be read by http://noticeboard.americascup.com/wp-content/uploads/2011/08/JN059.pdf!clicking_here
Sail-World's earlier story can be read by http://www.sail-world.com/index.cfm?nid=104867!clicking_here and http://www.sail-world.com/index.cfm?nid=104292!click_here for comment and links to the original protest by Luna Rossa.