America's Cup- Challenger initiates Construction Origin issue

by Richard Gladwell on 23 Dec 2009 The much expected Constructed in Country discussion has kicked off in the ongoing saga of the 33rd America's Cup.

The issue harks back to the 19th century Deed of Gift which requires that the vessel 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.'

It has not really been determined if the same rule applies to the Defending club, and it is believed that the Defender has beens using sails constructed in the North 3DL manufacturing facility in Minden, Nevada.

This morning (NZT) the Challenger, Golden Gate Yacht Club released an Open Letter addressed to the Societe Nautique de Geneve:

'Valencia, December 22, 2009 – America’s Cup defender Société Nautique de Genève has been asked if Alinghi 5 will meet the event’s nationality rules.

'In a letter today to SNG, GGYC Commodore Marcus Young wrote, 'We find the Deed to be clear and unambiguous. It requires that the yacht, including its hull, appendages, mast and sails, be constructed in the country of the club it represents. We have gone to great lengths to comply with the Deed in all respects, including ‘constructed-in-country,’ and expect that your Club will do so as well.'

'Alinghi 5 has been sailing continually with sails made at Minden, Nevada in the USA.

'Absent agreement on the constructed-in-country interpretation, the five-member International Jury recently appointed by the International Sailing Federation would be asked to rule on the matter.

'Both yachts should come to the start 'street-legal.' The sailing world expects this, and wants to know before the Match is sailed, not after. Having the Jury in place allows sailing matters to be dealt with by sailing experts.

'GGYC’s objective is that the on-the-water result of the 33rd Match be conclusive. Any remaining contentious issues should be dealt with properly before the Match is sailed. No one wants the outcome of the Match to have a question mark hanging over it.'

The matter has never been properly tested in previous America's Cups. The New York Yacht Club introduced a Resolution as Trustee in 1958 which interpreted the word 'constructed' to mean 'designed and built'.

That resolution by the NYYC (and all others) was set aside by the current Trustee, Societe Nautique de Geneve.

Alinghi's view of 'constructed' is understood to be the dictionary meaning, that it means assembled in the country of origin ie that the parts can be manufactured outside the country of defence or challenge, but the yacht itself must be assembled, in the country of origin. Under this interpretation, Alinghi could use the sail blanks produced in the 3DL process in USA and the sail finished in the team's facility, and that would be legal under their interpretation of the phrase in the Deed of Gift.

Ironically the 3DL sail concept was originally developed in Switzerland, before the plant was built by North Sails in Nevada.

Alinghi are also believed to hold the view that the constructed in country phase only applies only to the vessel (ie hull) and that the mast and sails are exempt.

The US view is believed to be more aligned with past practice for the America's Cups particularly in the 1960's where it was required that the Challenger used sailcloth manufactured in the country of Challenging club. This led to the development of 'Contender' sail cloth in Australia and of course the spars were constructed in Australia. In later Cups the rules were eased by Mutual Consent to allow the use of US developed sailcloth, however the sails still had to be designed and built in the country of the challenger/defender and could not be manufactured by a foreign based sail loft.

The subsequent globalisation of manufacturing has further compounded the interpretation of this 'constructed in country' clause and some believe that it could apply to the individual components used, and indeed where those raw materials were sourced. Such a determination would be impossible, and a more balanced interpretation will be required.

Societe Nautique de Geneve have been given five days in which to respond by the Challenger.

The matter is expected to be followed by a protest which will be determined by the International Jury, which while appointed is yet to be constituted - a process which is being delayed while the necessary indemnities and insurances against personal liability are put in place to protect the five Jury members from subsequent action by an aggrieved party.

Normally such a protest would only be lodged after the equipment has actually been used in a race. In other words the protest flag would not be flown until just after the start of the race. But under that scenario, the Jury would have to either dismiss or uphold the process and would have no option, if the protest was upheld to disqualify the infringing boat, or indeed both boats - depending on the interpretation reached.

The purpose of the letter is believed to get the matter aired before the start of the Match, so that both yachts are given the opportunity to comply.

However an International Jury would be very wary of making any general interpretation and would normally be quite specific on what is and is not allowed - depending on the matters and evidence placed before them by the parties.