Gladwell's Line- Golden Gate lodge Appeal over Alinghi rule changing

by Richard Gladwell, Sail-World on 7 Sep 2009
Golden Gate Yacht Club's new uber-lawyer, David Boies, has filed an Appeal with the Appellate Division of the New York Supreme Court over the decision handed down on 3 August and also refers to the Appeal Court Decision of 7 April.

Essentially Boies is questioning Kornreich's view that the Deed of Gift allows the Defender to change the rules of the regatta anytime up to the start of the first race.

In fairness to Societe Nautique de Geneve, the Defender, they have said they will not do that, and will instead publish the Notice of Race on 8 December and the Sailing Instructions one month later on 8 January, with the Match due to get underway one month later than that on 8 February 2009.

However Kornreich's decision goes further, and does give the Defender the power to change the rules up to the start of the regatta.

To some extent that is the normal practice in any sailing regatta where the Race Committee can post a change to the Sailing Instructions or other Conditions of the event. However such a change is always subject to a Redress claim (RRS 62.1a) as an 'improper action or omission of the Race Committee'.

Arguably, Kornreich's decision subverts this essential counter of Redress afforded to an aggrieved competitor under the Racing Rules.

After the Appeal Court Ruling of the 7 April 2009, the decisions of Justice Herman Cahn from his Decision of 12 May 2008, were entered, including one which stated 'Ordered that GGYC and SNG may engage in a mutual consent process and may make any arrangement satisfactory to both as to dates, courses, number of trials, rules and sailing regulations, and any and all other conditions of the challenge match races in accordance with the Deed of Gift.'

The key point here is that Kornreich has found that an alternate process will suffice, which is not what the Appeal Court ruled in their concurrence with Justice Cahn's decision.

Justice Kornreich has instead gone back to the Four Corners of the Deed doctrine (where the 'clear and unambiguous' meaning of the Deed of Gift governing the America's Cup is applied).

She states in her decision ' Nothing in this provision prohibits the defending organisation from changing its rules, right up to the start of the race, so long as they do not conflict with the Deed'.

BMW Oracle Racing's issue with Kornreich's dictate is that it allows the Defender to make advance decisions on rules that it might, or might not adopt/delete, incorporate these into its design thinking and options, and then announce them to the Challenger when it is too late to be a useful design option.

The allowing of water ballast and engines to drive winches, would have been a decision taken many months ago by Alinghi, permitting them to look at the catamaran design option - knowing that they did not need to provide a grinder platform.

BMW Oracle Racing, without such forewarning had to assume that the Racing Rules would be left intact, and that water ballast and motive power would remain outlawed. Of course once the Challenger is committed to a trimaran option, and doesn't have they time left to design and build a catamaran, then SNG/Alinghi make their intentions known on Rule changes.

In some ways, SNG/Alinghi have taken a leaf out of the book of the New York Yacht Club, where Sir Frank Packer of the Gretels fame, used to say that protesting to the race Committee of the NYYC, as was like 'complaining to your mother-in-law about your wife.'

Following on that same theme, Alinghi could have a raft of interesting rules in hand such as a very low wind limit, of say 10kts, meaning that they don't have worry about ensuring Alinghi 5 is capable of sailing in the more normal upper wind limit of 25 - 30kts. But until this wind limit is announced, BMW Oracle must assume they will race in such winds - just as they had to assume that water ballast would be illegal and manual power only could be used for sheeting the sails.

One of Alinghi's design team Duncan MacLane touched on this issue in another way in the concluding comment in his excellent article in Seahorse August 2009 edition when he noted: 'getting the sizing of the sail plan wrong can leave you hopelessly slow in light air, or out of control and prone to capsize in heavy weather.'

By having the degree of control over the rules, and with the design team and rules team working in concert, it is possible that the Defender can give themselves significant competitive advantage by (a) choosing a light air venue (b) gearing their yacht to be over powered in wind other than light airs, and offsetting any downside they may have, by allowing water ballast and maybe setting a low true wind limit for racing.

Justice Cahn's ruling apparently did not contemplate SNG/Alinghi having such arbitrary powers. As we have mentioned above he talks about 'making satisfactory arrangements to both ... rules and sailing regulations'.

But Justice Kornreich seems to have re-interpreted this Decision against the Four Corners of the Deed doctrine, which she believes means that in the absence of any statement in the Deed of Gift to the contrary, then anything goes.

The reality perhaps, is that when Mutual Consent does not exist, as in the present Match, then the Deed of Gift becomes in fact the Notice of Race - which sets out the basic conditions of the Match - namely that it shall be a best of three series, over courses prescribed in the Deed of Gift, on waters complying with the Deed of Gift and run under a set of sailing rules used by the Defending club in its normal racing, between boats not exceeding a certain size, and constructed in their club's country of origin.

These basics are very similar race conditions to those used by many skiff clubs, where a maximum length is set for the yacht - usually 12ft or 18ft overall (on the hull not the rudder), carry however much sail you like, however many crew you like - and the race starts at 2 o'clock!

To our eyes that approach makes a lot more sailing sense than that adopted by Justice Kornreich, which while an interesting piece of legal theory, is ultimately a sailing nonsense.

Most America's Cups are won long before the first race has started - and this one looks to be no different, as the Defender sets and uses the rules to its advantage to catch up on any shortage of sailing time left before 8 February 2010. Whether that is what George Schulyler and friends intended, is another matter.