America's Cup Challenger responds to Swiss assertions, Match on hold?

by Richard Gladwell on 23 Jan 2010
Golden Gate Yacht Club has, not unexpectedly, refuted the claims made by the Defender of the America's Cup, Societe Nautique de Geneve, in the Swiss club's response filed in the New York Supreme Court on Friday.

In a statement just issued by the San Franciscan based Challenger, spokesman Tom Ehman retorts:

'The Deed of Gift requires the competing yachts to be 'Constructed in Country.' In the court papers filed last night by Société Nautique de Genève, they admit they are using 3DL sails.

Racing sailors the world over know that 3DL sails are American, not Swiss, made.

Instead of demonstrating that their sails have been constructed in Switzerland as required by the Deed of Gift, their court papers attempt to duck the issue with a long list of excuses, and shift the focus away from their own problems with bizarre attacks on our yacht.

In recent months, their excuses have been, literally, all over the map. First, it was, 'Sails aren't part of a sailboat.' Then, 'It's not an issue until we race.'

Next, 'Our sails were built in the USA but assembled in Switzerland.'

Yesterday it was, 'If we can't use our 3DL sails we'll forfeit.'

Now, in their latest court papers, 'GGYC's boat is a French design.'

This is untrue, and there is nothing whatsoever in the Deed of Gift that says where, or by whom, a yacht must be designed -- only that it must be constructed in the country of the yacht club it represents.

After claiming repeatedly, and erroneously, that GGYC is trying to win the Cup in court, SNG's latest filing seeks to disqualify GGYC's yacht. Moreover, SNG threatens to bring further litigation after the Match if they lose to GGYC on the water.

Making a modern sail is like baking a cake. You gather the ingredients, put it in a mold of a shape and size designated by your design team, and literally cook it. That's what takes place at the 3DL plant in Minden, Nevada, where Alinghi's sails were constructed.

Shipping that cake to Switzerland and adding some candles does not make it 'Swiss-made.'

The failure of the Swiss club to sign the Singapore Agreement, negotiated under the chairmanship of the International Sailing Federation, after a two day meeting in Singapore, has deepened the chasm of mistrust that exists between the Challenger and Defender.

It now seems that the New York Supreme Court will have to make a fundamental ruling on the meaning of the constructed term used in the Deed of Gift - essentially requiring the Defender and Challenger to be constructed in the country of their respective Clubs.

The Court earlier decided that the America's Cup was an event of sailing technology, when it allowed the innovation of the facilitation of engine power by the Defender replacing manually powered winches.

Now it must rule on the extent of that technology and how much of it must be home grown.

Such a decision, would be subject to at least one level of Appeal and both steps are unlikely to be completed before the Match takes place on 8 February 2010.

It is unlikely that the Court would make a ruling on this matter and then allow it to be applied retrospectively thus effectively determining the outcome of the match. If so, then it go a step further and order a resail, after the legal process on this issue had been exhausted and the rules properly established.

An alternative is maybe for the Court to rubber stamp the Singapore Agreement, in some way, in regard to the issues before it on Constructed in Country. And, for the International Jury to likewise rule on the issues of Wind Limits and Sea State; and other matters in the Notice of Race now the subject of a protest to that International Jury by the Challenger.

That is really the only way, failing an outbreak of Mutual Consent, for the legal table to be cleared before the start of the Match in Valencia in just over two weeks time.

No Hearing date has been set by the New York Supreme Court, and the matters before the International Jury are expected to be heard after 31 January 2010.