Meeting called to resolve America's Cup construction issue

by Richard Gladwell and GGYC Media on 29 Dec 2009
America's Cup Challenger, Golden Gate Yacht Club has initiated further moves on the Constructed in Country issue after the passing of its five day deadline set on 22 December.

On 22 December GGYC notified The America's Cup defender, Societe Nautique de Geneve, requesting a response to claims that it's America's Cup Defender, Alinghi 5 had sails constructed using the 3DL process, manufactured at North Sails plant in Minden, Nevada, the only plant of its type in the world.

SNG responded saying Alinghi 5's sails were constructed in Switzerland.

The America's Cup Deed of Gift, dating back to 1887 requires the Challenger and Defender to be constructed in the country of the Challenging and Defending Club respectively.

Normally the issue is covered by Mutual Agreement/Consent between the Challenger and Defender, however because the 33rd America's Cup will take place under the strict terms of the Deed of Gift, applying when there is no mutual consent, the yachts must be constructed in the country of origin of the clubs.

There is no precedent set by the New York Supreme Court in this matter, and rules that applied in previous America's Cups do not apply either as they were undertaken under the Mutual Consent provisions of the Deed of Gift and last for the duration of that Match only.

Further a series of Interpretative Resolutions advocated by the New York Yacht Club and dating back to 1958, were set aside by SNG when they became the Defender, as is the recent practice prior to an alternative basis being agreed between the parties in the protocol governing the next Match.

There is no such Protocol for this 33rd Match, and the strict wording of the Deed of Gift will apply.

In their statement today, Golden Gate YC advised their intention to meet with SNG, and if the outcome of that meeting did not answer the matter to their satisfaction then it would be taken onto the International Jury for a decision.

While the International Jury has been approved by the International Sailing Federation, it is understood that it has not yet been constituted, pending agreement on indemnification and personal insurance for its individual members, against action by one of the parties.

The matter may also be returned to the New York Supreme Court, however, at this stage it is not expected to alter the staging of the 33rd Match scheduled to take place as determined by the NYSC on 8 February 2010 in Valencia Spain.

The statement issued by Tom Ehman, Golden Gate Yacht Club Spokesperson is as follows:

The Golden Gate Yacht Club and BMW Oracle Racing intends to meet with Société Nautique de Genève as soon as possible in an attempt to remove the question mark hanging over the legality of Alinghi’s yacht they will use to defend the forthcoming 33rd America’s Cup.

Foremost is the nationality clause in the America’s Cup Deed of Gift document which governs the event and requires the yachts of the Challenger of Record and the Defender to be constructed in the country of the yacht club they represent ('CIC').

Last week SNG was informed by GGYC of the obvious illegality of its yacht’s USA-built sails. Yesterday SNG responded and agreed to meet on the matter.

'With racing scheduled to start in Valencia in just six weeks, we want this serious issue dealt with before the boats come to the starting line,' said GGYC spokesman Tom Ehman.

The 33rd Match starts in Valencia, Spain, on February 8th.

'We don’t think the sailing world would tolerate the two teams failing to sort this out, especially given that GGYC first put SNG on notice concerning CIC in July 2008,' Ehman said.

'Virtually every racing sailor in the world knows North Sails’ molded construction is proprietary and unique to its Minden plant in the USA. It is the only place in the world where such sails are constructed. Nevada is not
Switzerland.'

When the two sides meet, GGYC is prepared to give the defender reasonable time to manufacture sails in Switzerland and take other remedial measures. 'Alinghi’s sails are not their only CIC problem, only the most obvious,' Ehman said.

Failing a satisfactory outcome, GGYC will take the CIC issue to the International Jury.

'What no one wants is the question mark hanging over Alinghi to turn into a question mark hanging over the result of the Match. The time to sort this matter out is right now, not during or after the Match, said Ehman.'


Q & A

What does the Deed of Gift require of the Challenging and Defending Yachts?
'…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.'

What does a yacht or vessel include?

Historically, 'yacht or vessel' has always included the hull, appendages, rig and sails.

What does this mean?

Exactly what it says. Constructed does not permit parts made in Switzerland to be added to
Alinghi 5 in Italy or Ras Al Khaimah, or sails manufactured in the USA to go to Switzerland for
'finishing' and then be called Swiss-made.

Are sails the only issue?

Unfortunately, no. The Nevada sails are the most visible violation. However Alinghi will need
to clarify where other major components have been manufactured and/or fitted to its yacht.
Does Alinghi skipper Brad Butterworth believe the Jury should sort out such problems
before the Match?

Yes. At the recent World Yacht Racing Forum both Russell Coutts, BMW ORACLE Racing’s
CEO, and Brad Butterworth agreed that the result on the water should be free from litigation.
Coutts said: 'Put the Jury in place now and use that Jury to answer open questions that,
perhaps, still need to be resolved.' Butterworth was asked if this made sense. 'Yes it does,'
the Alinghi skipper replied.

Why is GGYC raising the question now?

We want all issues resolved before racing begins for the 33rd America’s Cup. Complying with
the Deed of Gift’s CIC requirement was first highlighted by GGYC in July 2008. It is much
better to get all remaining rules-issues resolved now, to avoid protests or litigation during and
after the Match as well as causing possible delay to the 34th America’s Cup. GGYC has
waited for more than a year for SNG to allow ISAF to establish the International Jury. The five
person panel was named three weeks ago, but the legal sign-off to enable the Jury to sit is
still being held-up by SNG.

SNG said GGYC only wants to litigate?

On the contrary, GGYC is trying to avoid litigation by resolving this issue before racing begins.
CIC is a central requirement in the Deed and GGYC will not allow SNG to recklessly
disregard the rules. SNG must realize this, especially given that 13 of 14 decisions made by
the New York courts have found the Swiss defender’s interpretations of the rules to be wrong.