Gladwell’s Line- Is this a Deed of Gift Match, or not?

by Richard Gladwell. Sail-World.com on 11 Feb 2010
For the past 31 months the three most common words all sailing fans around the world have heard in respect of the America’s Cup are 'Deed of Gift'.

Two other words 'Mutual Consent' have been very absent.

Now that we are three days into the most prestigious trophy in racing, the words 'Deed of Gift' are treated with an air of almost dismissive disdain and instead we are quoted 'the teams have agreed' predicating or explaining every new decision or action.

Yesterday, one example came in a release issued under the name of the event organisers when they explained the reasoning behind the race schedule, of only sailing every other day: 'As prescribed by the 1887 Deed of Gift which principally governs this regatta, the course remains the same, of 40 miles total distance comprising one upwind leg and one downwind leg. The deed also rules that there should be one day off in between racing days, hence the reason racing was not scheduled for today Tuesday. '

What the Deed of Gift actually says is:

'and one week day shall intervene between the conclusion of one race and the starting of the next race.'

Obviously if a race has not started, then it cannot have concluded, and it is fallacious to claim otherwise. What is being done is not in accordance with the Deed of Gift, and this is supposed to be a Deed of Gift Match.

Sorry, inconvenient as it may be, such a Match is not supposed to be fair, equitable or follow standard practice at other top line events, such as the Olympics.

And on Monday, following the cancellation of the first Race, the release that day said:

Race officer Harold Bennett (NZL) and the race committee team made considerable efforts to locate a wind which was settled enough and of sufficiently even strength across the proposed 20 miles first leg, but they proved fruitless.

An offshore breeze at times looked promising but it never quite mustered enough strength to spread out to sea to reach the start area. But the difference in the direction of that breeze and the direction of the very gentle air in which the Race Committee sat was considered too great for a fair race.

The different winds ranged between 2 knots and 13 knots, and at times there was 100 degrees of variance between the mean wind direction at the committee boat and the wind direction at the proposed turning buoy. At best there was around 40 degrees of difference.

For the prescribed 20 miles upwind leg the Race Committee need a strong measure of confidence that there will not be a significant wind shift after the start to ensure a fair race.

Returning after the postponement both multihulls were making around 15knots in just 5 knots in wind.

There are some interesting comments there.

Refreshing ourselves with the Deed of Gift once again:

'All such races shall be on ocean courses, free from headlands, as follows: The first race, twenty nautical miles to windward and return; the second race an equilateral triangular race of thirty-nine nautical miles, the first side of which shall be a beat to windward; the third race (if necessary) twenty nautical miles to windward and return; and one week day shall intervene between the conclusion of one race and the starting of the next race. These ocean courses shall be practicable in all parts for vessels of twenty-two feet draught of water, and shall be selected by the Club holding the Cup.'

Nothing in there about the race being fair. Nothing else about the America's Cup is fair. It's a Challenge Cup competed for in the Defender's home stadium in front of what should their home crowd. If you are good enough to win in those circumstances then, you are a worthy winner and get to stage the next event.

Arguably all the Race Committee has to do is select a course location, set up a start line, decide where windward is (meaning that the yachts don't start downwind), select a mark position 20nm up the track; 'free from headlands' meaning that there is no points of land to be sailed around to get to the first mark, and then sail downwind to the finish ('and return').

This very simplistic view of life was put to Principal Race Officer, Harold Bennett today, wrapped around some comment recalling the conditions of the medal race at the 2008 Olympics where competitors sailed for the Gold. Silver and Bronze medals in horrendous conditions of 20kt plus winds, steep breaking seas rebounding off the seawall and driving rain.

Bennett's response was rather terse: 'When you are dealing with a short course maybe you can do that, but on a long course like this when you are taking the boats off 20nm off the coast I think you have to use a little bit of discretion as to whether you are doing a smart thing, a safe thing, and we also have to consider that there are a lot of other organisations around this event trying their best to get the information back, so there is a bigger picture other than just the safety of the yachts. That's a gutsy thing to say, and if you've seen it in the Olympics, that fine. But I don't see that as being very smart at all.'

In response to an earlier question about suitability of the yachts for 'ocean courses' as prescribed in the Deed, Bennett responded: 'Ocean courses are fine for boats that are capable of dealing with those conditions, but today, my assessment was that those conditions were in excess of the capabilities of these boats.'

'It is a safety issue', he added.

The contradiction with the provisions of the Deed of Gift are confusing many of the media hawks at this regatta.

Today, Bennett went 23nm offshore to view the conditions for himself, before making the no-race decision. 'When we got to about 10nm it started to get rather lumpy and we were surfing down the waves rather well in that power cat,' he recalled. 'Once we turned around at the bottom, there were some pretty big seas there. We had the swell from the NE which was left over from last night, and the wind blowing from the west. And with one being against the other, every now and again there were some big waves being thrown about. I wouldn't have had a problem with the wind conditions which were about 17-18 kts - it was the sea state that was the deciding factor, ' he added.

When the question was put to James Spithill at the earlier BMW Oracle Racing Media conference about racing in 1.5 metre waves, he commented 'we would be more than happy with those waves and conditions today. We have sailed in San Diego in waves of 2 - 2.5 metres. Obviously there are some variables with waves such as the period between waves and direction etc. We would have been more than happy this morning, but we have full faith in Harold, and respect his decision.'

Spithill added that he didn't see any safety issues with sailing in the conditions today.

The issues really seem to be concerns about the giant multihulls suffering a breakdown in these conditions affecting the outcome of the racing. Such mishaps are not uncommon in the America's Cup, as Team New Zealand fans will well know, and that is part of the America's Cup test, and is in fact how the current holders won the trophy.

Another issue is the conundrum of the first leg.

The view of the teams and race committee is that the windward leg should be reasonably fair. Fine for short course racing, however in the context of a 20nm leg - what is fair? How much degree of wind variation is fair - ten degrees or forty degrees or more? How much variation in strength is acceptable - a range of ten knots? Bearing in mind that one of these America's cup multihulls sailing in 15kts is going to be a lot, lot quicker than one sailing in 5kts of breeze.

The point is that there aren't going to be too many places in the world where you can sail and not see substantial wind variation in strength and direction over a 20nm stretch.

And that brings us back to the Deed of Gift. The 1887 document makes some reference to the course being free of headlands, but on the subject of fairness, that is about as fair as it goes.

At their media conference today, Spithill repeated BMW Oracle's John Kostecki's comment that the 20nm leg was more 'a short offshore leg with routing and issues like that.'

And then he added 'with the two boats we have got, we do want some fair racing and good conditions. This lost race situation is no one's fault. It's not Harold's fault. It's the weather.'

Slipped into the amended Notice of Race for the 33rd America's Cup regatta, on the subject of using race days beyond the three race schedule which runs out on Friday 12 February is the sentence: ' Both competitors have agreed one (1) day shall intervene between each completed race and such intervening day need not be a week day.'

However if there is no racing Friday as some predict, then there are just six race days left before the teams appear again in the New York Supreme Court to argue about Constructed in Country.

And then we'll be back in the land of the Deed of Gift - and if Justice Shirley Kornreich made a ruling from the Bench, disqualifying one or both teams, then some might regret the opportunities lost, waiting for the fair race day.