Alinghi in contempt?

Wrangling over the 33rd America's Cup returns to the New York court on 14 May

Clearly BMW Oracle Racing and their yacht club front, the GGYC have not been sitting on their hands since Thursday's disappointing meeting with their Swiss counterparts in Geneva.

Today they have issued the following statement:

At Golden Gate Yacht Club’s request, the Supreme Court of the State of New York today issued an order directing the defender, Société Nautique de Genève, to show cause why it should not be held in contempt of court. SNG has refused to comply with the Court’s April 7, 2009 Order and Judgment concerning the dates for the next America’s Cup match.

The court scheduled a hearing for May 14, 2009 at 0930.

In early April the New York State Court of Appeals, in a unanimous 6-0 ruling, held that GGYC is the rightful challenger, and that the next match would be in ten months, meaning early February 2010.

However, in a letter last week to GGYC, SNG unilaterally dictated that the match would be in May 2010 in defiance of the Court’s April 7 Order and Judgment. SNG and Alinghi officials also made the same statements widely in the media.

“By forcing litigation over our rightful challenge, they have already managed to delay the match from July 2008 to February 2010,” said GGYC spokesman Tom Ehman. “Now they seek another three-month delay, in defiance of the Court’s clear mandate. Enough is enough.”

At a meeting with SNG representatives in Geneva last week, GGYC’s straightforward proposal for a conventional, multi-challenger America’s Cup in monohulls was categorically rejected by SNG.


In their order of 7 April, 2009, the Court of Appeal judges ruled that "the dates for the challenge match races shall be the date ten calendar months from the date of service of a copy of this order...unless it is a Sunday or legal holiday in which case the next day shall be the first date of the challenge series."

It goes on to state clearly that race two will happen two days after the first and the third race, if needed, shall take place two days after this. It also states that the parties may agree to other dates if it is by mutual consent.

Alinghi/SNG are adhering to the letter of the Deed of Gift that states that an America's Cup, if held in the northern hemisphere, cannot take place before 1 May. BMW Oracle Racing/GGYC are maintaining that the Court of Appeal order overrules this and thus means matches on 8, 10 and 12 February 2010. Alinghi/SNG are suggesting 3, 5 and 7 May as their preferred dates (bear in mind Alinghi need more time to work up their multihull, which has yet to even be launched, compared to BMW Oracle Racing, which has been sailing its 90ft trimaran since last year).

BMW Oracle Racing/GGYC also state that Alinghi/SNG seem to be setting themselves up for another contempt of court by declaring that they will not reveal the venue for the match until December 2009, while the court order of 7 April states that 'the location of the match shall be Valencia, Spain or any other location selected by SNG, provided SNG notify GGYC in writing no less than six months in advance of the date set for the first challenge match of the location it has selected for the challenge match series'.

If found guilty of contempt, Alinghi/SNG could face a fine or imprisonment, however BMW Oracle Racing/GGYC request that Alinghi/SNG be held in contempt, are fined the maximum amount 'allowed by the statute' and pay their fees in bringing this latest motion. They also want Alinghi/SNG, within five days of the serving of the Court order, to make a public announcement and verification to BMW Oracle Racing/GGYC that the first race for the next America's Cup match will be held on 8 February, etc.

Meanwhile in a letter dated 23 April, the day of last week's meeting, from Fred Meyer, Vice Commodore of the SNG and Chairman of the America's Cup Committee, he once again requests BMW Oracle Racing/GGYC to supply them with the custom's house registration document for their challenging vessel. This again is a requirement of the Deed of Gift, although the date as to when this must be furnished is typically vague:

"Accompanying the ten months' notice of challenge there must be sent the name of the owner and a certificate of the name, rig and following dimensions of the challenging vessel, namely, length on load water-line; beam at load water-line and extreme beam; and draught of water; which dimensions shall not be exceeded; and a custom-house registry of the vessel must also be sent as soon as possible," states the Deed.

The 'custom house certificate' for the Mercury Bay challenge in 1988 was merely a letter stating the name of the vessel, the configuration of its rig, its length on load waterline, beam on load waterline, extreme beam and draught of water, endorsed by a lawyer. Typically Customs House registration documents, similar to Part 1 registration in the UK (the 'Blue Book') are ancient affairs more interested in ownership details and the cargo-carrying ability of the vessel in question, ie including 'gross and net tonnage' - somewhat inappropriate in the case of a racing trimaran. Measurement of this tonnage is also vague based on the volume of the three hulls - ie length, beam and draft multipled together and again by standard keel and hull shape factors.

As we have stated in the past when it comes to measurement, another significant hurdle is likely to arise from GGYC stating in their Notice of Challenge document that their boat will have a load waterline beam of 90ft. Unless they sink the boat in the water, all three hulls of their trimaran won't touch the water at the same time. So getting load waterline beam to equate to 90ft by conventional measurement is certain to be a problem.

As a forewarning of the impending measurement issues, Meyer's letter states: 'SNG may adopt regulations clarifying and implementing the provisions of the Deed of Gift related to measurement of the challenging vessel and its compliance with the Notice of Challenge.'

Meyer's letter also repeated the clause of the Deed of Gift - that their vessel if of one mast can be 90ft long or 115ft long if it has two, that has led to the conjecture that Alinghi are building a 115ft multihull, probably a catamaran, and probably with a small wand at the back that they will define as a mizzen.

The letter also confirmed the nature of the three races as stipulated by the Deed of Gift, ie race one - a windward-leeward with a 20 mile first leg and race two a 39 mile long equilateral triangle course with the first leg to windward, etc. Rules and regulations for the race will be "promulgated by the SNG", which ironically is how BMW Oracle Racing viewed the original Alinghi/CNEV Protocol for the 33rd America's Cup as it was originally drafted in June 2007.

So we can look forward to anything but a clear run towards a DoG match 33rd America's Cup with each side endlessly picking holes in the other and probably referring back to the New York court on every occasion. If it gets to be sailed it will be a miracle and even the outcome could well end up being returned to the New York courts, as was the case in 1988.