Push button America's Cup

Free for all for the two Cup teams as RRS 49-54 look set not apply following today's session in the New York court

Bring it on! It seems that following their latest session in the New York State Supreme Court Racing Rules of Sailing 49-54 will not apply for the 33rd America’s Cup. To save looking it up this effectively opens the regatta to the use of movable ballast, powered operation of sails, spars, running rigging and appendages, as well as ‘skim friction’ enhancements to the hulls, off-centre tack points, sheeting on outriggers and other go-faster features.

“It will be open season!” said BMW Oracle Racing spokesman Tom Ehman, freshly emerged from the court house. Although his side were hoping that the RRSes would all apply and specifically that stored power and powered winches be prohibited, he expressed relief that at least there was now some clarity.

The session before Justice Shirley Kornreich was the first of the day and lasted almost one hour - court sessions over the America's Cup previously have been around half this.
A significant coup for the GGYC came when according to Ehman, Justice Kornreich pinned down SNG attorney Barry Ostrager “and he had to say absolutely that ‘rules 49 to 54 will not apply’. So they [Alinghi/SNG] are not going to be able to pick and choose which of those rules will apply for their own benefit. That is good for us to know - it was essential and fair for us to know before we had to finish our design and development, because they were trying to force us into the Catch 22 situation of us giving them our Custom House Registry before the rules are finalised and she [Justice Kornreich] is not going to let that happen. I am confident that she gets that and is not going to let that happen.”

This is Ehman's view at least, for while several issues may have been clarified today, Justice Kornreich is reserving her judgement, which the BMW Oracle Racing legal team expect will be forthcoming in 7-10 days' time. It seems that the judge is not going to hold Alinghi/SNG in contempt, nor was she going to disqualify BMW Oracle Racing/GGYC.

According to Ehman’s version of events, Justice Kornreich also ordered for ‘meditation’ to continue. Mediation between Alinghi/SNG and BMW Oracle Racing/GGYC has already taken place two weeks ago, via a New York State system called ‘alternative dispute resolution’, although these discussions have been confidential and remain so.

“They [Alinghi/SNG] have said in their court papers that it was over and we disagree,” said Ehman. “We have always been in favour of mediation and remain in favour of mediation and I’m pleased to see that today she got them to agree to continue the mediation and we will do so.”

However it seems that this mediation wasn’t sufficient to sort out today’s issues over the rules. “She asked both sides if they would be willing to mediate today’s issues and both sides said ‘no, these are issues that you need to as a matter of law, an interpretation of the Deed that you need to sort out," says Ehman. "And hopefully we can sort out all the other things through mediation. And I am optimistic that we can. I have done business with Lucien [Masmejan - Alinghi lawyer] before and we will certainly give it our full effort and attention to try and sort all this stuff out in mediation, without any more litigation.”

About the secret agreement between Alinghi and ISAF, at the end of the session the Judge ordered that that be handed over so she could read it. According to Ehman: “She said she would review it and I am confident that if there is anything in there that affects the conduct of the match, she will hand it over to us, which is the other thing we want as it is only fair it be disclosed to both sides.”

Another highlight of the session for Ehman was when Justice Kornreich addressed Barry Osteger with “I don’t see anything in the Deed that says that they can’t even build a second boat.” So this is perhaps the first real confirmation that BMW Oracle Racing do indeed have a new multihull in build at their facility in Anacortes.

What didn’t get spoken about in court today for some reason was the venue. The deadline for announcing this is rapidly approaching - 8 August, but the date of 6 August for this came up in court (although it was possibly an error). As we have previously written, Alinghi/SNG have interpreted the various rulings from the various courts this process has been through, as allowing them to pick a venue for the 33rd America's Cup in either the Northern or Southern hemisphere, whereas BMW Oracle believe their choices are Valencia or Deed compliant (ie southern hemisphere if the match is to be held in February 2010). According to Ehman this fairly significant issue was not addressed today.

Ehman restates their case on the topic of the venue: “I will make it clear from our standpoint, that their reckless disregard and disrespect for the Deed of Gift - if they choose a non-Deed compliant venue, whether it is not free of headlands or not suitable yachts of 22ft depth of water or if they ignore the hemisphere requirement - we will not stand idly by, because the Deed is clear, Justice Korneich’s decision was clear and Justice Kahn’s decision before that was clear: any location other than Valencia which is Deed compliant.” He adds or a northern hemisphere venue that is agreed between the two parties by mutual consent.

Meanwhile just in from Alinghi is a comment from Brad Butterworth, who was in court today: “It's good that Justice Kornreich denied the Golden Gate Yacht Club's (GGYC) request to hold the America's Cup defending yacht club, Société Nautique de Genève (SNG), in contempt of court, but it doesn't come as a surprise because there were no grounds for such an action.

"Justice Kornreich showed a great deal of knowledge of the file and the case and while she reserved her decision, she made it crystal clear that the provisions of the Deed of Gift put no restriction on yacht design. She also asked both sides to return to the mediation that the GGYC halted with this new litigation attempt.

"We are ready and willing to continue discussions with them and will work on providing clarity with regards the 33rd America's Cup as far as rules and measurement procedures go; always within the framework of the Deed of Gift and SNG's rules. We are determined to get the competition on the water and out of the courtroom once and for all.”

So BMW Oracle Racing will now set about modifying their boat(s) so that they can fully have all the bells and whistles, setting the wheels in motion for a potential push-button America’s Cup.