America's Cup - Coutts' comment contradicted by GGYC rules expert
by Richard Gladwell, Sail-World.com on 18 Nov 2016
Russell Coutts, Oracle Team USA, AC72 launch April 23, 2013. The AC72 was constructed in USA Guilain Grenier Oracle Team USA
http://www.oracleteamusamedia.com/
A top America's Cup Rules expert has called into question claims over Cup venues by America's Cup Events Authority CEO, Russell Coutts.
In an interview with Queenstown newspaper, Mountain Scene, Coutts was asked
if Auckland could host the event again.
While saying that it’s a long way for teams to go, he adds: “I think it’s good that it moves around, it’s good for the sport, and why not have it in Queenstown?”
And he’s not joshing.
Coutts says that land-locked Switzerland, whom he won the cup for in 2003, could have hosted the following regatta.
For this America's Cup, Russell Coutts is CEO of America's Cup Events Authority the event management arm of America's Cup Defender Golden Gate Yacht Cub.
Coutts comments were widely reported internationally, and earned a sharp retort from Tom Ehman, currently the Vice Commodore of Golden Gate Yacht Club and widely regarded as one of a handful of experts around the world with an accurate understanding of the Deed of the Gift, the 19th century document which governs the conduct of the America's Cup.
Ehman wrote on his Facebook page in response to the reported comments by Russell Coutts:
'Future AC on a lake, in New Zealand? I guess if you can ignore the Deed's requirement that yachts be built 'in the county of the club they represent,' you can ignore the provision that the races be held on 'ocean water courses'?'
Ehman was a key figure in both the 1987-89 and 2007-10 cases which were heard in the New York Supreme Court over two so-called Deed of Gift Challenges.
He was part of the successful legal defense by the Defender San Diego Yacht Club over the Challenge by Mercury Bay Boating Club (NZ) which resulted in the Big Boat versus The Cat Match in 1988.
Almost 20 years later Ehman was on the other side when Challenger Golden Gate Yacht Club (Oracle BMW Racing) took Societe Nautique de Geneve (Alinghi) to legal task and a Match in 120ft multihulls in Valencia in 2010.
Ehman is also a Flag officer of the current Defender and Trustee of the America's Cup and is one of many in San Francisco and the USA who do not agree with the America's Cup being sailed outside the home waters of the Defending Club.
The argument as to whether the America's Cup Match can be sailed on a lake is slightly debatable, but the Deed of Gift specifies that a challenging club must have its annual regatta on an arm of the sea. There is also the clear implication in the Deed of Gift that the donor, George Schuyler intended that the winner would defend the Cup in its own waters, and sail under its rules.
Constructed in Country rules are clear
Be that as it may, Ehman's first comment is even more interesting and with potentially serious ramifications for several teams in the 35th America's Cup due to be sailed in Bermuda in mid-2017.
A clear requirement of the Deed of Gift is that yachts be constructed in the country of the Defending or Challenging Club.
There are in fact three basic requirements for a Match for the America's Cup which is a Challenger driven event.
They are that the Match must be sailed in Yachts; they must be 44ft to 90ft on load waterline (if sloop rigged); and they must be '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.'
There is a widely held, erroneous belief that anything be altered in an America's Cup Match Protocol by using the Mutual Consent provisions of the America's Cup Deed of Gift.
The correct interpretation is that these relate only to modifying 'dates, courses ... and all other conditions of the Match'.
It is not permitted to circumvent the basic intentions of the donor of the America's Cup by using the Mutual Consent provisions. If that were the case the America's Cup could be raced under Mutual Consent in powerboats.
Swiss Professor backs Ehman's view
There is comment on several aspects of the Protocol for the 35th America's Cup, in the authoritative publication 'Dispute Resolution in the 34th America's Cup' (pub. Wolters Kluwer), edited by Professor Henry Peter who served on several America's Cup Arbitration Panels and Juries, as well as being head of the commercial law department of the University of Geneva Law School,
Regarding the 'Constructed in Country' provisions of the Protocol for the 35th America's Cup the definitive publication says:
'The Deed of Gift requires yachts to be constructed in the country of the competing club. The Protocol attempts to limit the obligation to lamination of the exterior of the hulls of the competing yachts. Under recent Protocols, hulls had to be entirely laminated in the country of the club, now only the exterior layer does. The Deed (rightly) is said in the Protocol to prevail over the terms of the Protocol. It follows that there might be a risk of a competitor successfully claiming another competitor's yacht does not meet the Deed's requirements that it must be 'constructed' in the country of that other competitor, if (as the Protocol permits) as little as applying a coat of paint has been relied upon by that other competitor to meet the constructed requirement of the Protocol. '
Since that commentary was written the Protocol has been further watered down to require that only the front 2.7 metres of the bow section be constructed in the ' country of the yacht club represented by the Competitor '.
Several of the teams entered in the 2017 America's Cup Match have had the remaining 12 metres of their hulls and other parts constructed in New Zealand, and finished in Bermuda and would appear to be liable to appeal under the Deed of Gift as being ineligible to win the America's Cup, or indeed compete in the Match.
There has been a strong swing to globalised manufacturing since the final draft of the America's Cup Deed of Gift was filed in 1887.
This blurring of borders requires a Protocol definition as to what is meant by 'constructed.' In the previous 34 editions of the America's Cup, the canoe body of the Challengers and Defenders has always been fully built in the country of the yacht's club.
In the coming America's Cup, with the exception of a couple of teams, just a short piece of the bow section is built in the country of origin of the team/club. The hulls and cross beams are built in New Zealand and the fit out and finishing of the hulls and assembly takes place in Bermuda.
Enforcement options
There would seem to be two ways in which action could be taken to enforce the provisions of the Deed of Gift.
The first is from one of the competitors whose Challenger was constructed in accordance with the provisions of the Deed of Gift, against a competitor who had their boat constructed outside the country of their club.
The other is using the Transfer provisions of the Deed of Gift which come into play when a Challenger wins the America's Cup and becomes the new Trustee.
A document is then signed by the outgoing Trustee and the new Trustee requiring the incoming Trustee to ensure in the words of the final paragraph of the Deed that the '...foregoing conditions are fully observed with by any contestant for the said Cup... '
That would seem to open the way for the immediate past Trustee, Societe Nautique de Geneve, to require that GGYC adheres to the terms of the handover agreement, or if SNG fails to act, then any of the other four former Trustees including the New York Yacht Club could take similar action.
While there have been numerous interpretations of the meaning of 'constructed' since 1958, all have consistently stated that the boats must be built in the country of the challenging or defending club.
Both the 1988-90 and 2007-2010 cases heard in the New York Supreme Court, were sufficiently clear-cut to be able to be determined 'within the four corners of the Deed.'
It would seem that this would also be the case if action were taken by any party on the issue of 'Constructed in Country.'
Emirates Team New Zealand and Groupama Team France did not sign the Protocol change made on June 15, 2015, which was agreed to by three Challengers and the Defender.
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