Gladwell's Line- Second guessing the America's Cup Jury

by Richard Gladwell on 31 Jan 2010
The International Jury for the 33rd America's Cup is due to sit for the first time, in early February, to consider the five issues raised by BMW Oracle Racing on 19 January.

Some would say the Jury meeting is none too soon, and given that the body contains three members of the Expert Panel appointed by the New York Supreme Court, their decisions may be watched with a little more interest than usual.

Looking at the specific issues raised by the Challenger, as set out in their media release, we see the decision scorecard running like this:

1. Effectively re-inserted Racing Rule 53 ('Skin Friction') after obtaining a New York Supreme Court ruling to delete it.

Outcome: Probable win or neutral for SNG /Alinghi.

Reason: The wording of the America's Cup Sailing Instruction is significantly different than its standard ISAF Sailing Instruction counterpart. It does, if read in a particular light, prohibit anything intentionally left by the boat in the water, which is technically contrary of the provisions and effect of deleting Racing Rule 53, which would have allowed the injection of substances into the water of the race course. Few sailors would be happy with the injection of any substance, other than sea water and air, into the Mediterranean.

The short answer is that BMW Oracle Racing will have to disclose just what they wish to discharge, and then the Jury will rule accordingly.

2. Set the starting time for the races despite the Deed of Gift’s requirement that this be agreed by mutual consent.

Outcome Probable win or neutral for SNG /Alinghi.

Reason: While it is correct that the Deed of Gift does require 'a time agreed upon for the start'. There has to be, in practical terms a time set for the earliest flying of the starting signal each race day. While the hour of 10.00am might not have been set by mutual consent, all that is required is for the International Jury to invoke this process and make a ruling as to the start time.

The Deed of Gift is clear that there is a seven hour time limit for yachts to complete the course. A start at 10.00am gives a finish time of 5.00pm - but there should not be an issue with finishing in the dark, any more than there is with any other inshore keelboat race which runs close to the time limit after a delayed start - and also finishes in the dark. Unusual, yes; but illegal, no.

As regards media coverage of the finish, realtime graphics should be running - which are obviously not daylight dependent.

3. Set wind and wave limits to favor its own yacht.

Outcome: Probable win for GGYC /BMW Oracle Racing

Reason: There are no wind limits set in the Deed of Gift. Unless the two clubs/teams agree mutually on some formula for which the racing may be defrayed or postponed.

Provided, at 10.00am on a designated race day, there is enough wind to tell where 'windward' is so the requirement of the Deed of Gift for the setting of the first mark '20 nautical miles to windward' can be met, then the race should proceed.

There is nothing in the Deed of Gift about having stable winds, winds of more than a certain strength, or less than a certain strength. The only operand is the time limit of seven hours and if the first yacht cannot complete the course in that time, then it will have to be resailed. However once there is wind you start, and then let the race run its course.

While it is correct that statements about organizers not anticipating holding racing in winds above a certain strength or waves of a certain height, have been made in previous America's Cups Protocols etc, these conditions have all been prescribed under Mutual Consent - which does not exist in this issue in this America's Cup, and certainly carries little weight when it is published after the Challenger has designed their yacht.

While the race officer does have some discretion before the start of racing about postponement, it should also be clear that the Deed of Gift provisions (and circumstances in 1887) required a less scientific approach than is required now - all that is required is that the first mark be to windward, not that there should not be big shifts on the first leg. That is surely the competitors' problem, who all said and done are elite professional sailors and coping with windshifts should well be within their capability and the oversight of their professional weather teams. Part of the test of skill, isn't it?

Waiting a small amount of time for a breeze to settle or a major shift to finish moving down the course, might be acceptable. But there is certainly no requirement for the racing not to be a 'lottery.'

Safety considerations after the race start would have to by consent of both competitors if a redress claim was to be avoided.

4. Changed the latest draft of the Notice of Race to ban certain wind detection equipment now being used by BOR that, previously, was permitted under all earlier drafts of the NOR.

Outcome: Probable win for GGYC /BMW Oracle Racing

Reason: The latest version of the Notice of Race ( cluase 14.2) seeks to prohibit certain types of technology and equipment through the common practice of being very specific of what is permitted, and by definition everything else is not allowed. Unfortunately for SNG/Alinghi, when they advised the New York Supreme Court of certain rule changes they were making, such as the carrying of water ballast, use of engines etc, the New York Supreme Court decided that the America's Cup was, in fact, a marine industry technology battle, then all technology was permitted - unless agreed otherwise - which has clearly not happened. And the prohibition of any equipment is likely to be overturned.

5. Re-arranged the hierarchy of the applicable rules so that SNG’s Notice of Race and Sailing Instructions would, in the case of conflict, overrule the Racing Rules; this is highly irregular and contrary to normal practice in yacht racing.

Outcome: Probable win for GGYC /BMW Oracle Racing

This is an argument about the precedence and importance of the various rule documents. In its latest Notice of Race the organizers have listed four governing rules and their order of precedence, being the Deed of Gift, the Notice of Race, the Sailing Instructions and the ISAF Racing Rules.

Unfortunately that is at variance with standard practice - which places the ISAF Racing Rules at the top of the list. In the case of the America's Cup it is obviously controlled by the provisions of the Deed of Gift, and the ISAF Racing Rules which are also the Defender Club Rules of Racing, and therefore sit below the Deed of Gift but in second - rather than fourth in order of precedence.

The International Jury meets in a day or two to rule on these and any other issues that have been placed before it.

Societe Nautique de Geneve claimed in a media release that the issues before the International Jury now numbered seven, however Sail-World has been unable to determine the two new ones, and there was no specifics in the SNG/Alinghi release.