Phantom measurements in America's Cup Challenge?

by Richard Gladwell, nzeditor@sail-world.com on 19 Oct 2007
Information obtained by Sail-World reveals that Club Nautico Espanol de Vela used the dimensions their 2007 America’s Cup Class yacht, ESP-97, in their Notice of Challenge made on the 3rd July 2007, when, in fact a much longer boat was intended.

The Protocol announced two days later on the 5th July by CNEV and Societe Nautique de Geneve said that the 33rd Match for the America’s Cup would take place in a 90ft LOA yacht with a maximum draft of 6.5 metres (using a retractable keel to a minimum draft of 4.1 metres).

The Deed of Gift for the America’s Cup is very clear that the 'dimensions of the challenging vessel' shall be provided to the Defender, ten months in advance of the Match.

An accompanying letter with the certificate of the 'challenging vessel' Club Nautico Espanol de Vela says that in spite of the certificate, the dimensions of the Challenger and Defender would not be in accordance with the certificate but in accordance with the Protocol agreed between the two clubs. (Protocol negotiations had been underway since 14th June 2007, more than two weeks before the Challenge was lodged).

Sail-World’s inquiries stemmed from an earlier Competitors’ Commission meeting where Societe Nautique de Geneve had made much of the offer for the Challengers to pick a key dimension for the new class, which would be sufficient to ensure that all previous design work was negated and the Challengers and Defenders would be starting from the same point in time in their respective design exercises.

The America's Cup Deed of Gift specifies four key measurements that must be given in the certificate of the challenging vessel, so that the Defender has an accurate view of the yacht and can select or design an appropriate opponent. (In reality, since 1930 the America's Cup has been sailed under the J-class rule the 12 metre rule and currently the America's Cup Class Rule and the basic dimensions are controlled by those rules).

However with the changes to 90ft LOA class (with no class rule in place) it follows that the four dimensions relevant to CNEV's challenger should have been contained in the Certificate. (The measurements being Length on Load Waterline, Beam at Load Waterline and Maximum Beam and 'Draught of Water' meaning the maximum depth of the yacht with keel attached and in the lowered position). In the Protocol only the latter measurement was mentioned (Length overall not being required by the Deed of Gift.)

An understanding of these dimensions would have indicated, to sailing fans and potential competitors, the type of yacht being envisaged for the 90ft AC Class – whether it was of a displacement type, as is used with the present AC Class, or if it was to be a planing type of hull, more in keeping with the high performing 100ft canting keel supermaxis.

It was therefore a little surprising to find that the dimensions of an existing ACC Version 5 boat were used for the Challenger Certificate.

Sail-World contacted Alinghi General Counsel, Hamish Ross, to query the legality of this process.

Ross believes the use of a different yacht’s certificate is quite legitimate under the Deed of Gift, provided the Defending and Challenging parties were of a mind to work quickly through the Challenge formalities before working out the details of the Match under the

Mutual Consent provisions of the Deed of Gift provide that: 'The Club challenging for the Cup and the Club holding the same may, by mutual consent, make any arrangement satisfactory to both as to the dates, courses, number of trials, rules and sailing regulations, and any and all other conditions of the Match, in which case also the ten months' notice may be waived.'
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In other words, provided the two clubs are in agreement the provisions of the Deed of Gift can be varied in respect of the conditions of the Match. However it is a moot point as to whether the size of the yacht can be radically different from that proposed.

When questioned on this point Hamish Ross believed that it could, provided the yacht stayed within the minimum and maximum lengths specified in the Deed of Gift (44ftLWL minimum and 90ftLWL maximum for sloops, singlemasted yachts).

'So a certificate for a 12 Metre class yacht could have been used in the Notice of Challenge, and a 90ft long yacht to a new rule could be used in the Match, provided both parties were in agreement?' we asked. 'Yes' said Ross, 'but there’s always a debate as to how far you can go in this respect, and you are OK if you stay within the maximum and minimum dimensions stated in the Deed of Gift'.

Ross gave the required dimensions as LWL = 25.366m; BLWL = 3.414; BMAX = 3.414 and 'Draught of Water' = 4.100.

Sail-World subsequently obtained a copy of the Certificate which is part of the Notice of Challenge and is referenced in an affidavit sworn by Hamish Ross and contained on the Alinghi.com website.

Clearly Ross and Societe Nautique de Geneve are of the view that there is a formal ritual to be undertaken in the Challenge process before the parties can negotiate under the green fields and blue skies of Mutual Consent.

From what has been revealed of the documentation it is equally clear that the two Clubs believe that any connection with reality in this process is co-incidental, and the Protocol is consequently the binding document.

(Protocols, by the way are a relatively recent phenomenon having come into play for the 1992 Match as a way out of the impasse created from the Mismatch of 1988. The first Protocol created a 60 day window in which the challenging yacht clubs had to elect a Challenger of Record and determine the 'class of vessel' to be used in the next (1992) America’s Cup)

Turning to the upcoming Court Hearing and the options if Societe Nautique de Geneve and Club Nautico Espanol de Vela do not prevail and a Match is ordered under the terms of the Challenge lodged by Golden Gate Yacht Club, Hamish Ross took the view that Golden Gate was obliged to sail in the vessel they had nominated in their Certificate – being 90ft LWL by 90ft Beam.

'But the Deed of Gift just says that the dimensions shall not exceeded, so they couldn’t they sail a smaller, or narrower boat?' we asked.

'Not according to our advice from New York' says Ross. 'The boat must have materially the same performance as the one specified in the Notice of Challenge'.

This is quite a different scenario from that which Club Nautico Espanol de Vela played the Challenge game with Societe Nautique de Geneve, on the 3rd of July, where a certificate for a yacht could be used without any intention of using that sized yacht in the Match. But that’s Mutual Consent for you.

'But,' we countered, ' didn’t San Diego YC put up a 65 ft catamaran when a 90ft monohull had been specified by Mercury Bay in 1988'

'Yes, but that is the Defender’s prerogative ', said Ross, going on to explain that it’s the Defender’s choice to put whatever size yacht it likes against the specified challenger (provided that it is not larger). 'So you can defend in a 65ft boat against a 90ft boat, but the challenger cannot come in with a smaller boat, which may in fact be faster.'

Ross directed us to the 1877 match involving the Scottish challenger, Thistle, which was built under great secrecy, and when measured just before the regatta was found to be one and a half feet longer on the load waterline length, than stated on her challenging certificate. As racing was conducted on a rating basis, at that time, the error was taken up in the time allowance for the Defender.

After that match the Deed of Gift was altered again to clarify the terms under which a match might take place and extending the challenge period to 10 months, the phrase 'dimensions which shall not be exceeded' were worked into the document.

Ross also noted: 'I think the key p