Gladwell's Line- Where are the lines drawn in the America's Cup sand?

by Richard Gladwell on 21 Apr 2009
As the parties in the America's Cup head for their first meeting in Geneva the respective positions of the parties will come under some real scrutiny by the America's Cup and sailing community.

The hundreds of thousands of words that have been offered in this cause, during the 18 month legal process count for little now, and as happened in the 1988-1991 Mercury Bay case, can be dismissed as legal and PR posturing.

Earlier today, Golden Gate Yacht Club released a preliminary position which is consistent with that which they have adopted from 11 July 2007, when their Notice of Challenge first passed across the reception counter at the Societe Nautique de Geneve.

The response of the Swiss club to the call for a multi challenger Match is not clear.

In their response of 14 April 2009, SNG's Vice Commodore Fred Meyer rather curiously stated 'Finally, we have repeatedly requested and have yet to receive the custom-house registry for GGYC's challenge vessel, which the Deed of Gift required GGYC to deliver 'as soon as possible'. Please provide that certificate as soon as possible.'

That comment puts SNG firmly in the court of wanting a Deed of Gift match, without first fully exploring the Multi Challenger Match options.

Sir Keith Mills, head of Team Origin once described the positions of the two parties as being 'so close that you would be hard pressed to fit a piece of paper between them'.

The point being that with the gap in positions this close, negotiating a Mutual Consent Match should be readily achievable, and could well be done in the one meeting.

The so-called Deed of Gift Match only clicks in when the parties are unable to agree on the terms of a Match under Mutual Consent.

On the America's Cup 32 website, the situation and process is correctly explained:

'Perhaps the most important concept in the Deed of Gift is contained in the eighth paragraph, where the concept of ‘Mutual Consent’ is introduced.

'It is through Mutual Consent that the Challenger of Record system has come to the fore as a means of organising the America’s Cup. In the modern era, with just one exception, the Defender has found a Challenger of Record to agree upon the Rules, usually creating a Protocol that outlines, among many other things, the schedule of events, the class of boat to be raced, the location of the regatta, and the eligibility requirements for Challengers.

'When Mutual Consent cannot be obtained, the Deed of Gift describes an outline of conditions for racing for the Cup. In 1988, on the one occasion when Mutual Consent could not be arrived at, these conditions were the basis for the event, ensuring the survival of the America’s Cup.

'For the 32nd America’s Cup, using the principle of Mutual Consent, the Protocol was drafted by Team Alinghi, on behalf of the Defending club, the Société Nautique de Genève, in collaboration with the Golden Gate Yacht Club’s BMW ORACLE Racing Team, the Challenger of Record.'

While a the Deed of Gift also stipulates that a 'custom-house registry of the vessel must also be sent as soon as possible,' it follows that the parties must first agree on the type of boat, under mutual consent, and if they cannot then the customs house registry certificate would be sent to the Defender by the Challenger.

It is also worth noting that this logic, and approach, was followed by Societe Nautique de Geneve when they accepted the Challenge on 3 July 2007 of the now discredited Club Nautico Espanol de Vela (CNEV).

In their Notice of Challenge CNEV actually named a yacht of the America's Cup class rule Version 5, as their Challenger, with the comment that they did not really wish to challenge with a yacht of this type, but wanted to negotiate under Mutual Consent to use a new class to a yet to be devised rule for a yacht of about 90ft overall length.

There was no request from SNG for the customs house registry of their AC V5 yacht, so why is a different position being adopted to the Golden Gate YC Challenge, which is lined up in the same Mutual Consent queue?

Or has SNG predetermined the outcome of the meeting between itself and the Challenger of Record, and is hell-bent on jumping over the Mutual Consent requirement of the Deed of Gift, opting instead for a Multihull Match, with all that entails for the America's Cup and sport of sailing?

We will know on Thursday.