BMW Oracle Racing will rename BOR 90 as USA for America's Cup

by Richard Gladwell on 11 Aug 2009
BMW Oracle Racing have confirmed that they do not have a second yacht under construction and that they will challenge with the trimaran, BOR90, which is again sea-trialling in San Diego after major modifications.

Challenge spokesman Tom Ehman confirmed, in a media statement, after today's New York Supreme Court Hearing that BOR90 would be renamed 'USA' and her dimensions would be used to produce the Customs House Registry certificate which has to be issued by the US authorities.

'We are very satisfied with today's court session and the discussion around the Custom House Registry,' Ehman said after the Hearing in front of Justice Shirley Kornreich.

'We're pleased to publicly confirm that the BOR 90 - which will continue to undergo modifications - is the boat that will compete for the 33rd America's Cup in 2010.

'It's now clear that we can continue to modify the boat after submitting the CHR. Société Nautique de Genève asserted, once again, that they would not use the rules to disqualify our boat.

'We look forward to the Judge's decision.'

The statement from Societe Nautique de Geneve was a little 'we told you so', and one would suspect relieved, that BMW Oracle Racing didn't have a second boat in the shed, which could have leapfrogged Alinghi 5, and would also have given the US team the facility to run a two boat campaign (assuming it could have been supported logistically)

'We are pleased that after almost two years of withholding the information, counsel for the GGYC disclosed in Court today that the boat BMW Oracle has been sailing for almost a year is USA, their America’s Cup challenging vessel. USA must match the dimensions listed in GGYC's Certificate of Challenge.

'While the judge reserved her ruling on when the GGYC must issue the Custom’s House Registry, we are confident that the Court will uphold the Deed of Gift. We are pleased to have a further degree of certainty regarding the GGYC boat and we look forward to the 33rd America’s Cup in February 2010 in Ras al-Khaimah,' said Lucien Masmejan, lead counsel for the SNG.

'As we told the Court, our goal is to have an exciting race on the water and we are willing to assist the Challenger with any queries it has with regards the measurement procedures so that we and GGYC can be sure USA matches the dimensions in the Certificate of Challenge. We want to get the America’s Cup back to the water and out of the court,' he added.

Two witnesses were due to be called at today's hearing into the implications of the words 'as soon as possible' in the context of the Deed of Gift requirement for this document to be sent by the Challenger to the Defender certifying the measured dimensions of the Challenging yacht, so the Defender can be certain that a larger vessel will not be used.

Justice Shirley Kornreich was of the initial view that this certificate should have been furnished almost as soon as the Notice of Challenge had been sent, and in her view at that point the Challenger would already have been constructed, and the Defender need sufficient time to select or build a suitable sized yacht in response. This view seemed to be supported in the Mercury Bay decision, taking a strict interpretation of the words of the Deed of Gift and ignoring past practice.

Golden Gate YC called Thomas Willis, who had over 30 years experience in US Coast Guard vessel documentation and had established the Coast Guard's National Vessel documentation center in 1994 and staying with the organisation as Director until his retirement last year.

GGYC Counsel, James Kearney, led Willis through a tedious cross examination that stepped through the issuance process for a Customs House Registry document, (also known as a the Certificate of Documentation), gaining the comment that a vessel would not normally be issued with a CHR document until she had completed the sea trials process.


Kearney: 'I can ask you -- I'm going to ask you, Mr. Willis, assuming that the America's Cup vessel is installing an engine and removing the vessel's manual power system for raising and lowering sails and trimming sails, and assuming that that power system was embedded in and runs through the hulls and cross beams of the vessel, do you have an opinion as to whether or not construction would have been deemed completed?'

Willis: ' It should not be deemed completed at that time, because of the potential for moving bulkheads, for rearranging, for replacing bulkheads and other structural work.'

Kearney: 'Assuming that the vessel is installing tanks for movable water ballast systems, necessitating re-engineering the major structural parts of the vessel and structural changes to the hull and to the cross beams, in your opinion, is the vessel completed construction sufficient to get a COD?'

Willis: 'No, it is not.'

Kearney: ' Assuming that the vessel is installing skin friction reduction technology for hulls and requiring added structural support for substance containers and mechanisms to move and eject that substance, in your opinion, is the boat completed for construction sufficient to get a COD?'

Willis: 'It is not.'

Kearney: ' And I've got one other. Assuming that the sea trials had revealed certain structural features needed to be modified to enhance reliability and safety, requiring re-engineering and possibly changing volume of the hulls, would the vessel be deemed completed in construction sufficient to get a COD?'

Willis: 'No, it would not.'

SNG's Counsel, Jonathan Youngwood then cross-examined Thomas Willis focusing in this exchange on modifications undertaken that would, invalid the COD once issued:

Youngwood: 'Once a COD is obtained, there are some changes that are permitted on a vessel, am I correct?'

Willis: 'That is correct.'

Youngwood: ' So, for example, in the case of a sailboat, you could put on a new sail?

Willis: 'Absolutely.'

Youngwood: 'How about a new mast?'

Willis: 'Probably.'

Youngblood: 'What else could you do to a sailboat after it gets its COD without putting the COD in jeopardy?'

Willis: 'I'm not sure, because anything you did with regard to the hulls could certainly put it in jeopardy. Anything you did with regard -- and in the case of a trimaran with this type of arrangement -- to the supporting structures could also put it in jeopardy.'

Youngwood: 'But things like the mast, the sail, that would be fine?'

Willis: 'Mast and sail -- the sail would be fine. The mast would probably be fine, but if additional structural work were needed to step the new mast, there might be a problem, it might jeopardize the COD.'

Jonanthan Youngwood continued his cross examination taking the line that Golden Gate YC could have supplied the COD much earlier and then continued to modify the yacht without invalidating the COD. In the end Justice Shirley Kornreich will have to decide this point.

SNG then elected not to call their witness, and the Hearing proceeded to closing addresses by both Counsel , which saw no new points raised.