Please select your home edition
Edition
Predictwind - Iridium

America's Cup- Oracle found guilty as charged on Italian spy incident

by Richard Gladwell, Sail-World on 22 Dec 2012
Luna Rossa and Emirates Team New Zealand, racing on the Hauraki Gulf, December 2012 Luna Rossa Challenge 2013 http://www.lunarossachallenge.com/

The International Jury for the 34th America's Cup, has just posted its Decision in Case 19, which was initiated by the Italian Challenger, Luna Rossa, over an incident where a surveillance boat from Oracle Team USA was within half the distance allowed for viewing competitors while training.

The International Jury found that Oracle broke the rules on surveillance because of a novel interpretation of the word 'navigating' and compounded their transgression by continuing to take pictures from closer than the permitted range.

Luna Rossa protested Oracle Team USA in early November, alleging that Oracle Team USA’s Matt Mason had been within a distance of 200 meters and taking pictures of the Italian AC72. Luna Rossa alleged that Mason’s actions violated Article 37.2(g) of the 34th America’s Cup Protocol, which prohibits competitors from navigating within 200 meters of each other.

In its discussion and conclusions, the International Jury determined that the 'pivotal question is whether Oracle Team USA’s vessel was ‘navigating’ within 200m.' The International Jury referred to the Oxford English Dictionary (as stipulated by Protocol Article 1.3) to determine the definition of 'navigating.'

It concluded that 'the word ‘navigate’ as it is used in Protocol Article 37.2(g) is to be interpreted such that a vessel is still being ‘navigated’ while it is stationary if there is someone in command of it with the ability to manoeuvre the vessel.'

Oracle Team USA submitted that 'to breach Article 37.2(g) OTUSA had to ‘…manage, steer, control or direct the course…’ of the OTUSA Protector to within 200m of the yacht(italics ours)', suggesting that their vessel needed to be moving towards something in order for the driver to be 'navigating a vessel.' The Jury disagreed with that view.

The Jury was satisfied that the taking of photographs during the incident was 'an attempt to gain information about another Competitor' and that there was no prior consent by Luna Rossa.

The International Jury has invited parties to make submissions on the appropriate penalty, if any. It has also instructed Oracle Team USA to hand over to Luna Rossa and the International Jury all photographic material taken while the Oracle Team USA vessel was within 200 meters.

Eight options for a penalty
A decision on the penalty is yet to be determined.

Had the usual Racing Rules of Sailing applied, Oracle Team USA could have been disqualified - the standard penalty for any boat which infringes a Rules (unless another type/range of penalties are prescribed). However a modified set of Racing Rules and Penalty options applies to the America's Cup Regatta.

The Int Jury have eight options set out in section 15.4 (d) of the Protocol, which range from Expulsion from the 34th America's Cup to Censure. Neither of these extremes look to be a likely option. In fact, none of the other six look realistic look practical except for a Fine.

In its deliberations, the International Jury will have to chose a penalty, which recognizes the gravity of the infringement. The usual options are a monetary penalty, loss of points, action against the individuals involved. A second issue is that the Defender will clearly have gained some knowledge from the images - even it was to confirm their own thinking.

In terms of a monetary penalty, the Int Jury will be aware that Oracle Team USA are backed by a billionaire, and on a previous occasion when a $100,000 fine was levied, it was dismissed by another billionaire backer as 'ice-cream'. It is difficult to imagine what level of financial penalty would actually have an impact of such a team.

Loss of points is a possibility, and as a Challenger would have been a option in the Qualifying Rounds, and a deterrent to a team and others. But as Defender Oracle go straight into the America's Cup Match and such a penalty might be considered too detached from the incident. But if it were applied, then certainly it would be a deterrent - and there would be no repeat offence.

Prohibiting Oracle from further surveillance in Auckland is certainly an option - both afloat and ashore. But this in not one of the eight penalties which may be imposed under the Protocol.

It is relatively easy for teams who are being photographed to take a photograph in return. Emirates Team NZ have previously commented on the number of cameras with big lenses which are in apartments adjacent to their bases, and trained into the work areas and sheds. Whether the Italians suffer from the same level of supervision in their Westhaven location is not known.

Because Emirates Team NZ did not protest, they are unlikely to be a direct beneficiary of a protest lodged by another team - except to have additional impact on Oracle Team USA. Possibly relevant, is the fact that Emirates Team NZ claimed that this was not an isolated incident, but again as no protest was lodged, the Int Jury could not act.

Action against the individuals involved is unlikely, as it seems to be reasonably clear they were acting on team orders, and team principals have not dissociated themselves from the illegal surveillance.

Professional Foul
The difficulty the Int Jury will have is that while the images can be returned, the knowledge gained cannot be erased, and Oracle is therefore in the position of benefiting from a professional foul.

Additionally Oracle's capsize of October 16, limited their data gathering opportunities to just eight days from their own boat, so information on other teams could have an additional urgency.

Oracle did not seek the prior interpretation of the word 'navigate' - which is the normal action when there is doubt about the way a rule is interpretative. Instead Oracle took the course of applying their own interpretation and then argued their case in front of the Int Jury, after a complaint by a team and after having gained the information they sought. In other words, instead of asking permission Oracle begged forgiveness. The issue being that their actions cannot be undone.

Compounding their error, which could be dismissed as being inadvertent, is the fact that the Oracle Team USA members continued to film instead of leaving the area they had 'strayed' into.

The fact that the team have profited from their infringement, will probably be the single issue that will weigh most heavily on the minds of the Jury.

What is to be done, will require the Wisdom of Solomon.

The full Decision can be read by http://noticeboard.americascup.com/wp-content/uploads/2011/08/JN059.pdf!clicking_here

Sail-World's earlier story can be read by http://www.sail-world.com/index.cfm?nid=104867!clicking_here and http://www.sail-world.com/index.cfm?nid=104292!click_here for comment and links to the original protest by Luna Rossa.

HALLSPARS_BANNER_SW_660X82-EVAICollinson and CoSilverFern_Open Day_Bottom 728x90px

Related Articles

Six RS21s line up at the San Diego NOOD Regatta
The six RS21s, now named the '6 pack', battled it out Sail22 unloaded the six boats from a 40ft container and set to work rigging the charter fleet. On Thursday afternoon, six teams arrived and received a briefing on the new one design fleet before beginning a training session on the water.
Posted today at 2:00 pm
New women's class in the Copa del Rey MAPFRE
For the very first time in history the Copa del Rey MAPFRE will have an all-female winning team Following the recent announcement of the new classification system, a new Women's Class will also be added to the 38th edition, with the aim of reinforcing female participation in the sport of sailing
Posted today at 11:38 am
Collinson FX: March 20 - Oz house price slide
The Dollar was soft, with the AUD trading just below 0.7100, while the NZD pushed up to 0.6850. The RBA minutes revealed threats to the Australian economy thus ensuring a dovish, balanced monetary policy. The RBA took note of sliding House Prices (further exemplified in the latest data) which is hurting consumer spending,
Posted today at 9:30 am
Harken Young 88 Nationals: Raging Hormones wins
Andrew Wills and his team on board Raging Hormones win 2019 Harken Young 88 Nationals Andrew Wills and his team on board Raging Hormones have risen above a bumper sixteen boat fleet to win the 2019 Harken Young 88 National Championships in Auckland over the weekend.
Posted today at 7:58 am
Open Day on 70ft cruising sloop this Sunday
Are you are looking to head off on a major cruise, or wish to downsize to a floating apartment? Are you are looking to step out of the fast lane, and head off on a major cruise offshore? Or are you interested in downsizing and acquiring live aboard accommodation? Take the opportunity to see SV "Silver Fern" this Sunday at Marsden Cove.
Posted today at 5:54 am
Back to back wins in Two Handed Round NZ Race
Titanium co-skippers Bellingham and Skinner won the double for Legs 2 and 4 Line honours winner Titanium crossed the finish line 25 days after starting the SSANZ Two Handed Round New Zealand race. An overall elapsed time for the four legs of 13 days, 22 hours was enough for Titanium to also win overall handicap honours.
Posted today at 5:10 am
Olympics 2024: Singlehander Trials conclude
Kontides wins 2024 Olympic single-hander equipment trials in Valencia Grand finale for the Olympic Trials in Valencia. The fourth and final day of testing at sea has reserved
Posted today at 4:13 am
Time starts drawing thin for Cup teams
While 2021 might still seem like a long way off... While the sailing world has been distracted by Caribbean regattas and the unsavory revelation that Stanford University's former sailing coach has pleaded guilty to racketeering and conspiracy charges, the 36th America's Cup is quietly hoving into view.
Posted on 19 Mar
All purpose G1 Sailing Gloves from Zhik
The latest addition to Zhik's growing range of performance sailing gloves The latest addition to Zhik's growing range of performance sailing gloves. Zhik's G1 Gloves are intended for the sailing enthusiast, warm weather and general protection.
Posted on 19 Mar
LBYC Ficker Cup:Gateway to greatness
Gateway to greatness If the Congressional Cup is the gateway to the America's Cup, the Ficker Cup is the gateway to the Congressional Cup.
Posted on 19 Mar