Gladwell's Line- Justice Shirley's America's Cup questions answered

by Richard Gladwell on 4 Nov 2009
This Friday 6 November at 0930hrs the New York Supreme Court will reconvene once again to hear submissions from lawyers representing the America’s Cup Defender, Societe Nautique de Geneve, and the Challenger, Golden Gate Yacht Club.

Expected to be centre stage were three expert Jurors appointed following Justice Shirley Kornreich’s remarkable decision of just a week ago. To properly advise the Court, she required the two parties to select one expert Juror each, and for those two to select a third – forming her own advisory Panel.

Due to travel arrangements, this panel will now meet on the Saturday morning, consider their responses to the Five Questions, and will report directly to Kornreich.

Bryan Willis (GBR), a two time America’s Cup Jury Chairman, was appointed by Golden Gate YC. Graham Mckenzie (NZL) a member of the 2007 America’s Cup Jury was nominated by Societe Nautique de Geneve.

The third member is believed to be David Tillett (AUS) Chairman of the International Sailing Federation’s Racing Rules Committee, and Chairman of the 2008 Olympic Jury.

Tillett and Mckenzie are lawyers by profession. Willis is a former Magistrate on the Isle of Wight.

Last Friday, Kornreich identified five questions on which she wished to receive advice from the expert Jurors.

Ahead of the Hearing, your humble scribe, a former ISAF Int. Judge and Int Umpire, researched the questions and issues as follows:

1. How Load Water Line is measured in an America's Cup race, including, but not limited to whether SNG can exclude moveable ballast from the measurement, and whether the same procedures are used when dealing with a catamaran and/or trimaran.

For those not au fait with the measurement rules, the simplistic way of looking at the issue is to think of a Plimsoll Line which the online version of the Encyclopedia Britannica defines as: 'an internationally agreed-upon reference line marking the loading limit for cargo ships. At the instigation of one of its members, Samuel Plimsoll, a merchant and shipping reformer, the British Parliament, in the Merchant Shipping Act of 1875, provided for the marking of a load line on the hull of every cargo ship, indicating the maximum depth to which the ship could be safely loaded. Application of the law to foreign ships leaving British ports led to general adoption of load-line rules by maritime countries. An International Load Line was adopted by 54 nations in 1930, and in 1968 a new line, permitting a smaller freeboard (hull above waterline) for the new, larger ships, went into effect.'

Interestingly the time of the Act, and establishment of the load limit was about the time the Deed of Gift for the America's Cup was being formulated (final and fifth edition published in 1887).

Staying with that simple view, a measurer would establish the water line to which a yacht floated, fully loaded for racing, and then measured the distance between the most forward and aftermost waterline points, to determine the length of the load waterline.

However in the America's Cup, nothing is ever simple. And in this edition, the Defender, under whose rules the racing is conducted, believes that the use of water ballast is legal, and that it should not be taken into account when measuring the load water line - which must not exceed 90ft under the Deed of Gift.

In America's Cup parlance, Load Water Line is the waterline to which a yacht floats with all equipment, crew and ballast aboard that she would use in a race. It doesn't really matter whether the ballast is moveable or not, it is still ballast, and must be aboard at the time of measurement to be included in the load water line measurement.

Outside the America's Cup, the measurement is hardly used, and there is no commonly accepted definition. So Societe Nautique de Geneve http://multimedia.alinghi.com/multimedia/docs/2009/08/090806_SNG_letter_to_GGYC_re.measurement.pdf!published_measurement_rules_for_the_33rd_Match which specified how the dimension would be measured. Two rules cover items to be aboard at measurement time:

'4. The 'length on load water line', 'beam at load water-line', and 'draught of water' shall be measured with the yacht in 'load condition'.

'5. 'Load condition' shall mean the yacht has on board all equipment aboard while racing and shall include all sails, spars, computers, spares, consumables, anchors, warps, safety equipment and crew. All of the above shall be in their normal position. Ballast used during measurement shall be maintained in the same location whilst racing.'

Arguably you cannot take on more ballast, under these rules, than is aboard for measurement. However because SNG have removed Racing Rule 51, ballast weight can be redistributed.

SNG has consistently claimed that under the http://multimedia.alinghi.com/multimedia/docs/2009/07/SNG.Meyer.Exs.D_to_F_.pdf!divisional_rules_for_which_yachts_participate_in_multihull_racing on Lake Geneva, that the use of water ballast is unrestricted is allowed. These rules are administered by a body ACVL.

The foundation for this view lies in the rules for the three classes which are governed by length of which M3 has a minimum length of seven metres and unlimited in maximum length. Article 7 of those ACVL rules state that with the exception of the rules expressly set out in the present M3 regulations boats shall not be subject to any limitation of any kind whatsoever including cases in which such limitations may be prescribed in the racing rules of sailing (RRS) published by ISAF, of which waiver is herein given'.

Essentially SNG are saying that any thing goes. There are no restrictions.

The ACVL rules do not measure Load Waterline Length, just the overall length from the forward end of the most forward float to the aft end of the most aft float. Interestingly they exclude rudder blades from this length measurement. But curiously, for several months SNG have been arguing that rudders should be included in the Load Waterline Length.

The Volvo70 class has used water ballast for many years. http://noticeboard.volvooceanrace.org/wp-content/uploads/Volvo_Open_70_V3_Final.pdf!The_current_edition_of_that_rule (2011/12) states that ISAF Racing Rule 51 (Moving Ballast) shall not apply in respect of the (single) aft ballast tank. The maximum volume of that tank is set at 1600 litres, and elsewhere the VOR70 rule states that the yacht shall be measured with all tanks empty. However those are tanks which are used for fuel and water, and in most rating rules, such tanks are generally limited in volume, or are restricted to reasonable consumable use, and are not to be used for the purposes of increasing stability or altering trim.

Essentially there are three forms of ballast. Fixed ballast - which can either be secured to the hull internally, or externally such as in a keel. It stays in the one place throughout a race, and is in that place for measurement. The ingots of lead which were fixed into the bilges of yachts rated under the old International Offshore Rule are a good example.

Movable ballast, which is as the term suggests means able to be moved. Examples are crew (especially if they are surplus to the operational requirement of the yacht, and are there to optimize righting moment or fore and aft trim), water for some other fluid which is moved between tanks to achieve the same ballast/trim effect as crew, or some form of weight be it extra sails which are stacked for a particular leg, to again optimize trim or righting moment.

The third form is, if you will, disposable ballast, examples of which are water sucked up into tanks as required, and then jettisoned when not required; maybe sand bags which could be aboard at the start of a windward leg and then dropped overboard for the downwind leg; excess crew which are aboard for the windward leg and then dropped over the side for the downwind leg, if they were surplus to requirements ( a practice which is illegal under RRS 47.2).

Racing Rule 47.1 requires 'a boat shall only use the equipment on board at her preparatory signal.' There is no definition of 'equipment' in the Racing Rules, but there is in the http://www.sailing.org/downloads/committees/ERS_2009-2012_Complete.pdf!Equipment_Rules_of_Sailing (ERS) which in section C6.1 names the 'equipment used by the crew to take part in a race' which includes ballast.

So the expert Jurors may well determine that moveable ballast is ballast which can be moved about the boat, but not jettisoned. In other words when measured the boat shall be measured with all crew, and equipment aboard and that the maximum weight able to be carried should be aboard when the boat is measured.

Therefore if water ballast tanks are used - whether they are used for trim or righting moment, then they should be full for the load waterline measurement, or in some trim which is the actual maximum volume that can be carried when in sailing trim.

When a yacht is put into measurement trim, it is usual to allow all forms of ballast to be stowed in specified positions, or in a way that measurements can be optimised. For measurement all fixed ballast must be secured in place for racing (and cannot be moved during a race). Movable ballast can be stowed in a position so that measurement trim is optimised to reduce waterline length as much as possible, but would probably not be allowed in a position that could not be justified when racing.

This view is consistent with an http://www.ggyc.com/Reply%20Affidavit%20of%20K%20McAlpine.pdf!affidavit_provided_by_Ken_McAlpine, via a submission by Golden Gate Yacht Club, to inform the court about the measurement process:

'As a measurer and a naval architect I would interpret the term 'load water-line' means the water line when the vessel is in the load condition; that is, the vessel has the maximum weight that it will carry during the race or voyage. The load condition contains everything that is anticipated to be carried during the race. For example, during the measurement process for the 1988 America’s Cup, the competing vessels were measured in load condition including all of the ballast, crew and equipment that would be used during the race. Unless specifically written out by the Organizing Authority, the ISAF Racing Rules do not permit moveable ballast. As this rule was not written out by San Diego Yacht Club for the Match in 1988, moveable ballast was not permitted. Had movable ballast been permitted on the 1988 competing vessels, the measurement committee would have required it be on board for measurement. '

In the absence of a formal Rules definition of a term, it is standard practice to refer to the dictionary meaning of a word or term. The online Oxford Dictionary definition of waterline is: waterline (n): the line to which a vessel’s hull is immersed when loaded in a specified way. This definition is consistent with the ISAF Rules and other contributions.

There is no single definition of Load Water Line from the US Coastguard (who also issue the Customs House Registry/Certificate of Documentation), in fact the subject of various waterlines are discussed in a document entitled http://www.uscg.mil/hq/cg5/cg5212/docs/LLPN.pdf!Load_Line_Policy_Notes which run to 71 pages and notes that the '(waterline) marks indicate the maximum waterline to which the vessel can be legally loaded.'

The summarised answer for Justice Shirley Kornreich’s first question would seen to be that for the Load Water Line to be calculated on America's Cup yacht all crew and equipment must be aboard, and all tanks must be full or at a level used for sailing which will have the yacht at its proper level of flotation . The key point being to determine a normal position that is not unfair on either yacht.

The only way out of the view that tanks should be filed to a prescribed and 'fair' level would be for Societe Nautique de Geneve to be able to show that the Club had a specific rule to state that say, water ballast/trim/fuel tank would be empty at the time of measurement, as they have claimed with the ACVL rule for the M3 class. However if they are going to be consistent, then SNG also has to discount rudder blades from the length calculation, instead of arguing that they should be included. You can’t really cherry pick rules, and have to adopt a consistent approach.

The significance of this discussion is, of course, to determine in what mode the yachts must be in when they are measured for the determination of the Load Waterline Length measurement which must not exceed the dimensions contained in the Notice of Challenge - in this case 90ft.

Filling ballast tanks, if carried, will obviously 'sink' the boat thus increasing the waterline length. The ruling issued on Friday, states that rudders are not included in the LWL calculation, and in the case of a trimaran such as BOR90/USA the immersed length of the main hull, would be expected to be the Load Water Line. BOR90/USA's hull does not contain significant overhangs (her bow is now plumb) and it is now unlikely to exceed the 90ft dimension.

Alinghi 5, a catamaran, does have significant overhangs, that are close to the water, and if her ballast tanks were filled, she may sink too deeply and her length stretch over the 90ft load Water Line maximum. As noted earlier, Alinghi can trim the boat with the use moveable ballast, to optimise the length.

The short answer to Justice Kornreich's question is that the yachts may fill their tanks to such a volume (and therefore weight) to sink the yachts, in measurement trim, to a maximum waterline length of 89.9ft excluding rudders, but otherwise measured in the way prescribed by SNG in their Rules 4 and 5 above.

Of course, when sailing that same total volume of water can all be carried on the one side, so the effect in terms of weight is doubled on the side, as allowed by the deletion of RRS51.

While it is standard practice to measure yachts with all tanks empty for rating rule purposes, there are several notorious cases which carried severe penalties for or using tankage to affect measurement trim. But in these classes, Load Waterline Length is not specifically measured, and the rules exist for consistency of measurement and practice.

In the end this argument is much ado about nothing. Because of their hull configuration, and the fact that rudders are now discounted from the LWL calculation, BOR90 would be unlikely to exceed the 90ft LWL maximum. Alinghi 5 may go over, depending on the state of her tankage and sink of her hulls - but would another foot of length necessarily make her a faster boat? Probably unlikely, and this argument, like many measurement arguments is about one side scoring a point over another, and forcing a boat alteration which may have an impact on speed, as happened with the Hula on NZL-84 in the 2003 America's Cup.

Closed up, in subsequent racing the Hula provided no real speed edge, but by encouraging the measurer to require the gap between the Hula and the hull to be more open, arguably there was more drag, and she was slower as a result. However even more dramatic was the effect of the measurement chiseling on the crew. So it is more of a psychological point than a physical point of advantage.

2. The safety of holding the race off the coast of Valencia in February 2010.

This is covered in http://www.sailingscuttlebutt.com/news/09/0518b/!Chris_Bedfords_ analysis featured in May 2009 Scuttlebutt, which concluded that there was a greater risk of a lack of wind, than too much. The real impact of sailing in Valencia during the winter is that winds are too fickle for training on a daily basis and that a lot of time would be lost. Meaning that it is best to train in venues like Ras al-Khaimah,or San Diego, where the breeze is more consistent and reliable.

As most racing sailors would know, when the weather is not suitable for racing, you don’t race – just wait for weather to moderate or wind to pick up, before racing gets underway.

Both Challenger and Defender and Race Management run sophisticated weather prognosis software which will accurately predict windstrength hours and days ahead. The chances of getting caught in dangerous weather are very remote.

The downside of Valencia is the necessity to be more than 22 miles offshore, for a start in an offshore breeze, which may be more likely in February than July. The key with the venue selection is the direction of the wind at the time of the match as much as the direction.

3. When the Notice of Race and other rules of the race are customarily issued in an America's Cup challenge, including when they are changed after the Notice of Challenge.

In the only other Deed of Gift match (ie conducted without Mutual Consent) in 1988, the Notice of Race was issued just two weeks before the start of the 27th Match. All other matches are conducted under Mutual Consent and the Notice of Race is usually published when the Defender and Challenge of Record, acting on behalf of the other Challengers have agreed and signed off the document. The RRS do not specify a minimum time for publication of the Notice of Race. Similarly for Sailing Instructions and other documents. Rules may be changed or new a new Sailing Instruction issued at any time, however a competitor may be entitled to Redress if the requirements of RRS 62.1 (Redress) have been met.

4. When a panel of Jurors is customarily appointed to an America's Cup challenge.

Again there is no rule, Usually the Jury will meet a few days before the start of a regatta. Longer than that, it depends on who is paying and the requirements of the event. For an America's Cup the Arbitration panel or International Jury are empaneled by mutual consent of the Defender and Challenger of Record - depending on the work load required of the Int Jury. For instance, how many rule interpretations are being referred to it by competitors or the race officials. It also depends on whether the members of the Jury are required to meet face to face, or if electronic communication will suffice. Face to face meetings are very expensive as Jury fees are paid typically in the vicinity of USD 15,000 per month per member, plus accommodation, expenses and meals. Such a fee, while appearing to be quite high, may still represent a cost to the Juror (who is also say a top lawyer) in lost earnings.

In the 33rd America's Cup Match there would appear to be no entry fee stated (as the Notice of Race has not been issued). Therefore there is no money to pay the Jury, race Officials or cover any of the other expenses associated with the event. A substantial entry fee would probably be required to run a proper America's Cup regatta. It is the responsibility of Societe Nautique de Geneve to run the regatta.

In 1988 the Jury assembled five days before the start of the first race, which is generous - even for a World Championship, where the Jury may only meet one or two days before the event.

5. Whether the contract between ISAF and SNG provides for an independent and objective panel of jurors, and by which rules such a panel of jurors is bound in an America's Cup challenge.

To some extent the contract between ISAF and SNG is irrelevant, except for any provisions in that contract which are transported into the Notice of Race and/or Sailing Instructions. Most, if not all ISAF certified International Judges would not agree in principle to participate in an International Jury where they were anything but impartial and independent of direction from race organizers or other bodies including ISAF. For an ISAF certified Int. Judge to be even perceived as a puppet of the race organizers or an outside party is quite unacceptable.

The announcement of the America's Cup Jury by ISAF will take place at their Annual Conference in Korea next week. All five members are expected to be ISAF International Judges and will comply with the criteria set out by SNG. All are believed to have Olympic Regatta experience, and several will have previous America's Cup experience. It is expected that the question of Jury partiality will completely evaporate when the Jury is announced.

Quite how the expert Jurors will answer Justice Kornreich’s questions won’t now be revealed until Kornreich delivers her decision.

In our view the questions are, in reality, largely irrelevant and will not have significant bearing on the eventual outcome of the regatta, provided normal race organisation practice is followed. The exception being the use and measurement of water ballast, and that will probably the question that will most exercise the minds of the expert Jurors.

However again, in reality, it is much ado about nothing, and all about point-scoring - which has been a feature of this whole sorry saga.