America's Cup- Challenger takes construction issue to NY Supreme Court

by Richard Gladwell and Golden Gate YC on 13 Jan 2010 Golden Gate Yacht Club, the Challenger for the 33rd America's Cup has filed papers in the New York Supreme Court, challenging the use of 3DL sails, claimed to have been made at the North Sails facility in Nevada.

The move in the New York Supreme Court comes while the Challenger and Defender, Societe Nautique de Geneve, are meeting in Singapore, under the facilitation of the the International sailing Federation to try and resolve outstanding issues with the 33rd America's Cup Match, due to be sailed on 8 February 2010 in Valencia, Spain.

North Sails has the only big sail 3DL manufacturing facility in the world at its plant in Minden, Nevada and supplies 3DL product to North lofts throughout the world using a http://www.northsails.co.nz/NorthTechnology/3DLTechnology/Howis3DLMade/tabid/8357/language/en-US/Default.aspx!process_described_here and http://www.northsails.co.nz/NorthTechnology/3DLTechnology/3DLManufacturingFacts/tabid/8358/language/en-US/Default.aspx!here.

The history of 3DL sail development is http://www.northsails.co.nz/NorthTechnology/3DLTechnology/Historyof3DL/tabid/8360/language/en-US/Default.aspx!explained_here. Ironically one of the initial developers of the 3DL process was Alinghi team member, Luc Dubois.

According to his profile on the Alinghi website http://www.alinghi.com/en/alinghi/team/index.php?idIndex=3&idContent=2245!Luc_Dubois originally trained as a geophysicist. 'He invented the 3DL production system developed by North Sails, together with Jean-Pierre Baudet, and moved to the United States in 1990 to start the project, only returning to Switzerland seven years later.'

Originally scheduled for just one day in Singapore, the meeting originally called by the Defender, SNG, was expected, like a previous meeting held n Sydney to last just one day. However the parties were understood to have agreed to continue the dialogue today in an effort to reach agreement on a number of issues of which the Constructed in Country is but one and was the subject of a http://www.sail-world.com/NZ/Gladwells-Line:-Constructed-in-Country---its-complicated/65054!previous_story_in_Sail-World

However Golden Gate would seem to have preempted any decision or resolution by the four negotiators and two ISAF officials with the release of their statement and action in the New York Supreme Court.

The talks were understood to be continuing despite the statement issued by Golden Gate Yacht Club, who also have a second action in the New York Supreme Court alleging Breach of Fiduciary Duty by SNG in its role as Trustee of the America's Cup. 'Progress' in that matter is not expected until the end of January 2010 when SNG and the other parties named in the action have to counterfile a response.

The continued legal actions are known to irk Alinghi Team boss, Ernesto Bertarelli whose usual response is to refuse to negotiate while such actions are before the Courts. Whether the dialog is broken off as a result of the latest action by Golden Gate Yacht Club remains to be seen.

The statement issued by BMW Oracle Racing CEO, Russell Coutts reads:

Can the Swiss defender race with sails made in the USA? This is the question Golden Gate Yacht Club put to the New York Supreme Court today.

GGYC has asked the Court to resolve this following the breakdown of two days of talks in Singapore with the America’s Cup defender Société Nautique de Geneve at which mutual agreement was being finalized when negotiations ended.

The Singapore meeting followed one last week in Valencia where a previous good- faith effort was also made to settle the matter.

'Naturally we are disappointed to see the chance of agreement taken away,' commented Coutts.

Also at the talks were David Kellett, from the International Sailing Federation’s Executive Committee, and David Tillett, chairman of the International Jury for 33rd Match.

Constructed-in-country is not a hypothetical question, but a fundamental one. The Deed of Gift is clear. Without mutual consent and in the absence of other rules, Alinghi, cannot construct sails in the USA and claim they are Swiss-made.
The New York Supreme Court has previously ruled on other key issues affecting the yachts of the challenger and defender ahead of the Match; such as whether engines can be used to power the winches and whether rudders are included in the measurement of the yacht’s waterline length.

'Once again SNG is showing total disregard for the Deed. First SNG claimed that sails were not part of the yacht. Then it claimed that Alinghi’s sails were built in Switzerland, not the USA. Now, SNG is saying that ‘constructed-in-country’ is not relevant until it announces its yacht for the Match.'

GGYC disagrees on all three counts.

'Our aim is to make sure that the Deed of Gift is upheld, and that the result of the match on the water is beyond question,' Coutts said.

It is expected that the Court will rule before the first race scheduled for February 8 in Valencia, Spain.

Q & A on Constructed- in -Country

What's CiC?

It means 'constructed in the country.'
It is the DNA of the America’s Cup. The national origin of each yacht is fundamental to America’s Cup

Why is CiC important?

The Deed of Gift requires the challenging and defending yachts to be 'constructed in the country' of the yacht clubs they represent. The question mark hanging over Alinghi’s sails must not be a question mark left hanging over the Match.

Are Alinghi’s sails illegal?

If they are made in America, they cannot be 'Swiss-made.'

What is the 3DL process?

A sail designer sends a ‘file’ of the required design. North Sails supply the high technology fibres, films, cloths, tapes, adhesives etc to construct sails over a sophisticated mould using heat and vacuum techniques.

At the end of the process the customer has a virtually finished sail delivered.
A customer may or may not add joints, fittings, stripes, chafe patches, etc., but effectively the sail is manufactured in Minden, Nevada.

Why is GG YC going to court?

Alinghi must abide by the rules same as we have. CIC is a basic and long-standing Cup rule.
Unless there is mutual consent to more liberal rules, CIC must be adhered to by both teams.
We want the result on the water to be the final result.
This is a Deed of Gift issue. The Court is the right jurisdiction for this.
This is not a hypothetical question or protest. We are asking the Court to confirm the correct interpretation of the Deed.

Won’t this delay the Cup?

No. The opposite is true. By removing doubt over Alinghi’s sails, there will be no need for litigation after the Match.
Removing doubt before the racing starts is the fairest solution for the Cup, race fans and both competitors.
We believe the Court process can be completed before the 8 February.

Are you trying to disqualify Alinghi?

No. Alinghi took a gamble building its sails in America. They can still build sails in SUI, or use sails that they may have already built there. Switzerland has a good record of innovation in sail making.

There is no reason why Alinghi could not have made legal sails in Switzerland in the past; no reason why they can not now.

Is GG YC still offering time to Alinghi?
Yes, but only a short time to sort this out.
It is really for SNG to find a solution Alinghi’s problem.
GGYC has been, and always will be, ready to negotiate about any problem, and any reasonable solution.

End