Another meeting to try to resolve America's Cup impasse

by Richard Gladwell, Sail-World.com on 5 Jan 2010 Following an unreported meeting held late last year in Sydney between representatives of the Challenger and Defender, a second meeting will be held in 12 January 2010, in Singapore to try and resolve several issues relating to the 33rd America' s Cup.

The previous meeting was held in late December was attended by Tom Ehman and Richard Slater for BMW Oracle Racing, and Brad Butterworth and Hamish Ross for Team Alinghi, and facilitated by David Tillett, convenor of the New York Supreme Court's Expert Panel. Tillett is also Chairman of the International Jury, approved by the International Sailing Federation for the event.

While that meeting was apparently able to reach agreement on several substantive issues and would have extended the series from a best of three to best of seven regatta, plus shift the start dates to 12 February 2010, to better fit from a spectator viewpoint, the outcome of those negotiations were not confirmed by the event organiser, Societe Nautique de Geneve.

At this stage it is not known who will attend the second meeting, set down for Singapore on 12th January, and indeed whether they will have the power to make binding decisions on SNG, who as Defender of the America's Cup and the current Trustee are required to organize the event.

The Agenda for the meeting has not been disclosed, however in a letter from Golden Gate Yacht Club to Societe Nautique de Geneve, the points overhanging from Sydney are referred to.

It may also be that the issue of Constructed in Country may also be discussed, in an attempt to avoid this matter being decided by the International Jury and New York Supreme Court. This relates to the requirement in the 1887 Deed of Gift that the Challenger and Defender be constructed in the same country as their club. Golden Gate Yacht Club, the Challenger, have put SNG on notice that they believe their sails were constructed in USA and therefore do not comply with the deed of Gift. SNG responded denying the claim and counterclaiming that there were parts of GGYC's yacht which did not comply with this requirement.

SNG are also believed unhappy with being invited to proceed on the basis of Mutual Consent for the regatta, while they still have a Breach of Fiduciary Duty lawsuit being hung over their heads, by GGYC over SNG's actions and role as Trustee of the America's Cup. So, the stalemate could continue.

Additionally both parties are on some pressure to reach agreement, with the regatta due to start in a little over a month, and there being no agreement at all on any arrangement, with the SNG position apparently being that the regatta will be conducted under the strict terms of the Deed of Gift.

In terms of hosting the regatta, little would seem to be in place except for basic race management under the oversight of Principal Race Officer, Harold Bennett (NZL) who does have the ability to issue instructions as to the on the water conduct of the event.

It is clear from the letter by GGYC that the International Jury is not functioning, even though it has been approved by the International Sailing Federation, with the sticking point, again according to the GGYC letter being the unwillingness of SNG to give the individual members of the Jury a personal indemnity on future legal action being taken against them by the organisers or competitors over one of their decisions.

It would seem that ISAF will have a representative at the meeting in David Kellett, a member of the ISAF Executive Committee and Treasurer of the world body. Tillett is also Chairman of the ISAF Racing Rules Committee, and was Jury Chairman of the 2008 Olympic regatta and 2007 America's Cup regatta.

With 33 days left on the clock to the start of the 33rd America's Cup, there are no announced media arrangements in place or announced media facilities for the event. SNG hold the media rights from the ISAF for the regatta. The regatta also is set to overlap withe the 2012 Winter Olympics in Canada, making TV schedules difficult.

In fact most club Optimist regattas are at a more advanced state of organisation than what is supposed to be the premier event in sailing, and that should be a point where the ISAF decides to act in the wider interest of world sailing.

Meanwhile the weather in Valencia is reported to be exceptionally good with temperatures having been in the low 20's and winds and seas co-operating within the strictures set down by the organisers.

The full text of the letter is as follows:

Dear Vice Commodore Meyer

Thank you for your letter of December 31, 2009 concerning the 'constructed in country' requirement of the America’s Cup Deed of Gift.

Our representatives will be available to meet in Singapore on January 12, 2010. We would welcome the attendance of David Tillett, chairman of the International Jury, as well as David Kellett representing the International Sailing Federation.

Our intention is that these talks make real progress on the substantive issues.

We respectfully remind you that, while the discussions in Sydney last month were positive, GGYC does not consider the process the success you described because it appears that SNG is stalling the implementation of those talks. Specifically the following have been delayed beyond discussed deadlines:

• Issuing the amended Notice of Race to take fully into account the decisions and order of the New York Courts, and the changes agreed at our Sydney meeting.

• Indemnifying the International Jury, announced as long ago as December 4, 2009, so it is able to begin to work.
With regard to the above matters, GGYC has long since, and in a timely manner, met all of its obligations. We ask that SNG fulfill its clear duty as Trustee.

I am also replying to your letter of December 27, 2009 insisting that BMW ORACLE Racing’s yacht be moored in Valencia’s Dársena. We view the safety of our crew, our yacht and other users of the DOrsena as priority number one, and we will not be pressured into jeopardizing them.

It remains our sincere hope and desire that all outstanding issues be resolved before the Match, and we ask that you join us in making every effort to do so.

Yours sincerely

GOLDEN GATE YACHT CLUB

Following are two previously unpublished letters sent by Societe Nautique de Geneve which set a backdrop to the meetings conducted to date:

Letter 1:

Mr. Marcus Young Commodore
The Golden Gate Yacht Club
#1 Yacht Road
San Francisco
California 94123
USA

27 December 2009

33rd America’s Cup Event

Dear Commodore,
At a meeting held on Decemb
er 17, 2009 in Valencia, Mr Tom Ehman, representing
Golden Gate Yacht Club (GGYC) and BMW Oracle Racing (BOR) declared that BOR
was building facilities in the commercial harbour of Valencia to host the challenging
vessel USA from its arrival on January 5, 2010 until the end of the America’s Cup. Mr
Ehman described these facilities as a 'reserve base,' but refused to confirm that USA
was going to be based – as required by the Notice of Race (NOR) – in the Darsena.
As you know, under the NOR, the competitor’s boats must be kept in their assigned
places in the Darsena or in the outer harbour of Valencia Darsena. Any mooring of
the USA in the commercial harbour would violate the NOR. At the previous meeting
held in Valencia in the presence of the Alcadesa de Valencia on December 10, 2009,
SNG made clear that any mooring of the USA in the commercial harbour would
violate the NOR, except for rescue or emergency purpose on buoys to be installed in
the commercial harbour without any access to the pier.

GGYC’s declared intent to moor the USA in the commercial harbour would contradict
the representations that GGYC has made throughout the proceedings before the
New York State Supreme Court. In fact, when challenging SNG’s selection of Ras al-
Khaimah as the venue for the 33rd Cup, GGYC argued that Valencia was a proper
venue because it had 'spent three years investing in and preparing its city and
marina to support the 32nd America’s Cup, and now has a world-class dedicated
infrastructure for hosting an America’s Cup match' (GGYC Oct. 1, 2009
Memorandum of Law, at 4.). Accordingly, we are disappointed and concerned that
GGYC, having succeeded in court, is no longer willing to use Valencia’s 'world-class'
infrastructure for mooring the USA.

Moreover, GGYC refusal to comply with the NOR and SNG directions regarding the
mooring of the USA is disrupting the organisation of the 33rd America’s Cup Match
and will create significant damage to SNG as organizer of the America’s Cup. Indeed,
GGYC’s continued refusal to cooperate will adversely impact the efforts of SNG and
its representing team, Alinghi, to promote the 33rd Cup. SNG will seek to hold GGYC
responsible for any damage to SNG from GGYC’s refusal to comply with the NOR.

SNG expects that GGYC will comply with the NOR as it is the case for all competitors
in every ISAF regatta around the world.

Yours sincerely,

Fred Meyer

Vice-Commodore and
Chairman of America’s Cup Committee

Alec Tournier
General Secretary, SNG


Letter 2:

Consorcio Valencia 2007
Muelle de la Aduana s/n
46024 Valencia
Spain

Attn Jorge Gisbert

27 December 2009

33rd America’s Cup Event

Dear Jorge,

We refer to your letter dated December 23, 2009 and would like to thank you for your
support towards the organisation of a great 33rd America’s Cup in the Darsena of
Valencia.

We are willing and prepared to discuss the details of your letter in the very next days.
However, before we can start this discussion, the participation of the competing
teams in the event must be clarified. As you express in the introduction of your letter,
you wish to organize a 'compact event' in the Darsena and we – at SNG – believe
that the presence of both teams in the Darsena is compulsory for the success of the
event.

Unfortunately, the presence of the teams in the Darsena is not yet confirmed. While
SNG team – Alinghi – has prepared to operate exclusively from its base in the
Darsena, Golden Gate Yacht Club (GGYC) and BMW Oracle Racing (BOR) have
declared at a meeting held on December 17, 2009 in Valencia in your presence that
BOR was building facilities in the commercial harbour of Valencia to host the
challenging vessel USA from its arrival on January 5, 2010 until the end of the
America’s Cup.

As you may know, under the NOR, the competitor’s boats must be kept in their
assigned places in the Darsena or in the outer harbour of Valencia Darsena. Any
mooring of GGYC boat in the commercial harbour would violate the NOR, negatively
impact the 33rd America’s Cup, and significantly damage SNG and Alinghi. SNG will
use its best endeavours to enforce the NOR.

We ask you and the Spanish Authorities to clarify with GGYC and BOR if and – to
which extent – they intend to comply with the NOR and operate exclusively from the
Darsena.

Please let us know GGYC and BOR answers as soon as possible. We will then
discuss the details of your letter.

Yours sincerely,

Fred Meyer

Vice-Commodore and
Chairman of America’s Cup Committee

Alec Tournier
General Secretary, SNG