Alinghi ups ante in America's Cup origin of construction dispute

by Richard Gladwell on 23 Jan 2010
The America's Cup Defender, Societe Nautique de Geneve have upped the stakes in the simmering Constructed in Country dispute, to the point where both teams could now be ineligible to compete in the 33rd Match for the America's Cup.

In a massive 14 Motion and Affidavit attack just over two weeks before the 33rd Match for the America's Cup, the Defender has responded to the sails construction issue raised by the Challenger, Golden Gate Yacht Club, late last week and which was the subject of an action lodged by GGYC to the New York Supreme Court while negotiations were underway between the parties in Singapore to resolve this issue and several others.

While agreement was reached between the negotiators on a draft, that was signed by the International Sailing Federation and Golden Gate Yacht Club, the Defender, Societe Nautique de Geneve chose, on referral back to Switzerland, not to countersign the agreement which had reached its eighth draft.

In their statement and response lodged with the New York Supreme Court, SNG gets into some basic issues, which if the Court takes a very literal interpretation of the 19th century Deed of Gift, both yachts could be ineligible to compete.

The issues and possible outcomes were traversed in a http://www.sail-world.com/NZ/Gladwells-Line:-Constructed-in-Country---its-complicated/65054!Gladwells_Line_commentary which covered most of the issues now raised by the Defender.

The 1887 version of the Deed of Gift for the America's Cup required that'...a yacht or vessel propelled by sails only and constructed in the country to which the Challenging club belongs, against any one yacht or vessel constructed in the country of the Club holding the Cup.'

Like so many of the legal arguments in the 33rd America's Cup they issue often revolved around the meaning of one word, in this case 'constructed'. The issues around this term were discussed in the Gladwell's Line commentary.

However the Court will have to determine the interpretation of the term and how it applies in a legal sense consistent with the intent of the donors of the America's Cup.

The definition will of essence be a legal one, and not necessarily one which allows the competition to be sailed using the current yachts and teams. In other words the solution does not have to be practical for the forthcoming event, since it is the Court's place to interpret the Deed and the competitor's to comply with that interpretation. If one of both competitors can't comply, then that is the competitor's issue not the Court's.

The interpretation that would trigger that double jeopardy circumstance is if the Court decided that designers had to be nationals of the Challenging or Defending club's country. In which case SNG are out by their own papers, and GGYC would soon follow - as both run multi national design teams.

In their Response, SNG make the counter motion that USA-17, as the Challenger is now known is not a sloop, as stated in the Notice of Challenge, if they use their wingsail.

While interesting, the term 'sloop' is not actually mentioned in the Deed of Gift, and as the Court previously ignored the term 'keel yacht' also mentioned in papers lodged initially by GGYC, but not in the 19th century Deed of Gift, the same could be expected here.

The Deed of Gift does talk about whether a yacht is of one or two masts (as this affects the allowed length of the competitors). However as USA-17 only has one mast step, she must, by definition have a single mast.

In their Notice of Challenge GGYC described 'USA' as 'single-masted, sloop rigged'. The Deed required this specification to be made in the Notice of Challenge so the Defender knew from the outset whether the Challenger was 80ft-115ft on Load Water Line Length ('if of more than one mast') or 44ft -90ft LWL 'if of one mast'.

Given that USA-17 has a two element wing mast, the argument is really whether the after or second element has to be constructed of a soft flexible fabric, or if a harder form is allowed. GGYC would probably respond that their second wingsail element was constructed of a soft fabric, it was just stretched over a frame.

However it is a very esoteric argument.

Sail-World questioned a BMW Oracle spokesman on the compliance with a sloop, in terms of use of a jib, we were advised that USA-17 could carry a jib when sailing to windward (ie above 90 degrees to the true wind angle). There is of course no rule to require her to do so, if her crew felt that it is faster to sail without the jib, at a particular wind angle.

If the sloop issue were held to be relevant by the Court, then Justice Kornreich would have to consider whether USA-17 were 'una rigged' with mainsail only like a Finn, or Laser, or if she were sloop rigged, and able to carry a mainsail and jib.

The statement issued today, by Societe Nautique de Geneve reads:

Société Nautique de Genève (SNG), the 33rd America’s Cup defending yacht club, today presented its opposition arguments to the New York Supreme Court in response to Golden Gate Yacht Club’s (GGYC) ninth lawsuit; a misguided interpretation of the ‘constructed in country’ (CIC) requirement of the Deed of Gift, the event’s governing document. SNG's comprehensive set of papers reaffirms its interpretation that only the ‘yacht or vessel’ has to be constructed in the country of the club holding the Cup, and that sails do not.

SNG’s affirmations are supported by historical precedent, as reflected in the expert declaration of John Rousmaniere, a leading America’s Cup historian, ‘the donors of the original Deed of Gift never contemplated limits on foreign sails or foreign sail technology. Those donors, in fact, hoisted British sails in first winning the Cup with the schooner America. In fact, in adding the CIC clause to the Deed in 1882, George Schuyler, the last surviving donor, sought to ensure that the Cup remained a genuinely competitive event, while preserving the Cup’s international character. He thus struck that balance by limiting the CIC requirement only to a competing vessel’s hull, but not its sails.’

Additional documents presented to the court confirm that GGYC’s CIC claim is factually wrong: SNG’s sails were constructed in Switzerland and this fact is supported by an affidavit from Tom Whidden, president of North Sails, and an official certificate of Swiss origin from the Swiss Chamber of Commerce.

'SNG is certain of our yacht’s Deed compliance, including the ‘constructed in country’ provision and our interpretation is supported by the language of the Deed, historical precedent, and by the Cup donor’s intentions,' said Fred Meyer, vice-commodore of SNG. 'In any event, GGYC’s CIC claim is factually wrong and we have submitted to the court substantial evidence proving that our sails are Swiss made. It is our view that we should go racing on 8 February. GGYC should end their legal strategy to try to delay the Cup and to try to gain competitive advantage over the Defender and should proceed with the competition on the water. If they wish, however, to pursue their latest lawsuit, then the judge should have a close look at BMW Oracle’s yacht, which does not comply with GGYC's own interpretation of the Deed,' he concluded.

‘Constructed in country’ counter motion

In parallel to the opposition papers, SNG has presented a counter motion stating that, should GGYC’s interpretation of the CIC in the Deed of Gift be validated by the Court, then its own boat would be illegal. Affidavits from a number of leading experts in the field of yacht design, such as Duncan MacLane and Nigel Irens, support the fact that GGYC’s trimaran is in fact a French-designed boat and not American, as supported by photographic exhibits the boat also includes a number of non-American constructed elements. In addition, BMW Oracle's yacht is not even a sloop, propelled by sails, with a main and a jib, as declared in the American club’s certificate of challenge, but a wing-mast rig.

SNG’s set of documents showcases how this latest motion by GGYC is in contravention of the spirit of the Deed of Gift and how Larry Ellison’s yacht club has forgotten the call for friendly competition between nations.

Excerpts from expert affidavits:

Excerpts from the declaration by John Rousmaniere (USA), America’s Cup historian:
'For more than a century of America’s Cup competition, nationality concerned only yacht clubs and yacht hulls. There were no nationality restrictions on sails in the first race in 1851, when the American donors of the America’s Cup used English sails. The first formal restriction of international exchanges of sail and other technologies was not established until after the nineteenth cup regatta in 1962. That was when the then trustee, the New York Yacht Club, issued what it would call an 'interpretive resolution' limiting access to technology across national borders. Subsequently other, sometimes conflicting restrictions were imposed until all interpretive resolutions were rescinded by SNG and GGYC before the most recent cup races in 2007.'

'Unlike hulls, sails were not regarded as subject to nationality restrictions – not by sailors, not by sailmakers, and not by the donors and the trustee New York Yacht Club.'

'Had a stringent 'constructed in country' rule – like the one proposed by Golden Gate Yacht Club in this action – been in place and enforced, in most of those nineteen regattas either the challenger or the defender (and sometimes both) might have been disqualified.'

'Since the complaints about Atalanta concerned how identical her 'model,' or hull shape, was to U.S. yachts, 'constructed' can only have meant 'designed and built.' Nothing was said or even implied in the 'Second Deed' about sails, scantlings, or other construction standards.'

Excerpt from the affidavit by Tom Whidden (USA), president of North Sails:
'In Switzerland, I understand that the Alinghi team constructed the sails for Alinghi 5 by (1) joining the 3DL pieces/sections to construct the body of the sails; (2) finishing the sails by traditional sail-making methods; and (3) transporting the constructed sails to the location of Alinghi’s yacht.'

Excerpt from the affidavit by Nigel Irens (GBR), multihull designer at Irens-Cabaret:
'In my view, the BOR yacht represents an extrapolation and adaptation of other current racing designs of the French firm, VPLP.'

Excerpt from the affidavit by Duncan MacLane (USA), multihull designer:
'Over the last ten years, there has been very little development of large performance multihulls in the United States. The larger racing multihulls have been concentrated in Europe, with European designers. The BOR 90 foot trimaran is clearly the offspring of European racing trimarans, particularly the ORMA 60’s and their development programs.'

Golden Gate Yacht Club have the right to respond to the arguments and material raised by SNG. No hearing date has yet been set. It is not certain that this matter will be resolved before the staging of the 33rd America's Cup due to be sailed in Valencia on 8 February 2010.

For links to all papers and affidavits http://www.alinghi.com/en/33ac/news/index.php?idIndex=656&idContent=21429!click_here