The darkest hour

February in RAK is looking unlikely as the 33rd America's Cup return to court. We speak to Coutts and Butterworth.

Just when it looked like there might be some solidity forming over the 33rd America’s Cup - a date, a venue, two amazing boats launched - so with confirmation that BMW Oracle Racing are to contest in court the choice of Ras al-Khaimah as the venue for next February’s three race series, so we are back to square one with more question marks hovering over the event, the only certainty being that we are in for a long winter of litigation in the New York Supreme court, unless some small iota of sense prevails and the two parties can get around a table and negotiate their way out of this hopeless situation. As to the 33rd America’s Cup being competed in February in the United Arab Emirates the chances of this appear to have gone from good to slight and unless some breakthrough is made and both sides are encouraged to back down and make concessions, then there is increasing likelihood is that we might never see the world’s two most incredible boats line up. Groan.

We can frankly report that this is the lowest moment of the America’s Cup in its 157 year history, the amount of litigation that is going on making the 1988 debacle between San Diego Yacht Club and Mercury Bay over the catamaran v big boat mis-match seem like friendly competition.

So who is at fault?

One problem lies in the ineffectiveness of the Deed of Gift for the America’s Cup. This may be a quaint 112 year old document, its ‘mutual consent’ clause neatly allowing challenger and defender to agree common terms. But when they can’t, as is the case at present with the two multi-billionaires, Bertarelli and Ellison, both hell bent on getting their own way, the ancient Deed proves to be sorely lacking. And since there is no mutually agreed arbitrators to call on, it is beyond ISAF to handle it, then the ultimate body capable of ruling on the Deed of Gift and the issues of how the 33rd America’s Cup will be fought, falls on New York State Supreme Court. Here sadly the judges too, over the last months of litigation have also proved on occasion to be out of their depth, although this is perhaps not surprising when it comes to ruling on an event that comes with almost 160 years of history and precedent attached to it, a highly complex sport complete with its own jargon, state of the art multihulls that even modern day rules within our sport are hard pressed to define, etc.

BMW Oracle Racing CEO, Russell Coutts explains why they have to resort to court action: “If we had an international jury in place - which by the way Alinghi hasn’t allowed to happen - then I’m sure they could deal with many of these issues much more rapidly than the court could. But right now there is no other process we can go to. We certainly aren’t going to go to an arbitration panel that Alinghi selects, which is what they have tried to do in the past. So there is no other avenue that we can go to. We have proposed meditation before. We started a mediation process. [Alinghi state they understandably stopped this process when BMW Oracle sued them again]. We have said that we would be prepared to submit to arbitration. That hasn’t been accepted by the other side. The court, right now, is the only avenue we have got left to complain.”

Perhaps hardest to comprehend in today’s society, where we perhaps naively take fair play as a ‘given’, is that the Deed of Gift - and this was confirmed by the most recent ruling of the Supreme Court – indicates that in the event of no mutual consent between challenger and defender, the contest becomes strongly biased towards the defender. So in the case of the 33rd AC for example, Alinghi is both a competitor and simultaneously the rule maker too and they have the right to determine how much the playing field will be levelled in their favour. So given the profound distrust manifest between the Swiss and American teams, and BMW Oracle Racing argue, Alinghi’s track record too, is it any wonder that Ellison’s team might seem paranoid in the extreme over how skewed Alinghi could make the competition to their own benefit?

As Coutts spells out: “You look back on some of the history of this thing - when we first brought out our certificate dimensions there were all those comments about ‘this looks like a barge’ [due to the mis-wording on the their original challenge document that stated that their challenger would be a ‘keelboat’, a notion since quashed by the court]. Well they probably hoped we would turn up in a barge! It is just crazy thinking and you just wonder if these guys have ever wanted a race that gives the other side any chance of winning at all and if the other side looks like it has a chance of winning they are going to make every move they can to disqualify them. That was the concern with the Protocol that they brought out [with the CNEV] from day one and frankly their behaviour has continually reaffirmed that in actual fact these guys are prepared to do that.”

He adds: “I don’t underestimate anything these guys are prepared to do frankly. Their behaviour to date, right the way through this process has been alarming to say the least. It seems they are prepared to go to any measure in order to gain a massive advantage. The America’s Cup is meant to be difficult to win. It is not meant to be so biased that it becomes easy to win. It is meant to be a tough competition, a challenge in management, in design and sailing and strategy – all sorts of things. And once the deck becomes so biased one way, it absolutely destroys the competition as it was.”

The American team is already screaming (and this is one of the subjects of the next round of litigation) that Alinghi has deliberately included the transom hung rudder on their trimaran’s centre hull in the LWL measurement, when typically it doesn’t in almost any other class, knowing that as is, their trimaran will not measure. Alinghi counter that their measurement procedures were issued on 6 August this year, before BMW Oracle gave them the Customs House registry document they have been demanding for months (BMW Oracle only provided them with this on 30 September).



Coutts reckons this is a non-argument: “Obviously the measurement procedures that they’ve brought out were with full knowledge of where our boat was at. It is puzzling that the team would say one thing in court - that they weren’t going to use these measurement procedures to disqualify us - and then they issue measurement procedures that attempt to do precisely that.”

Given that the Notice of Race is yet to be published (it is due on 6 November) BMW Oracle Racing wonder what more hurdles might be thrown up in front of them? For the power that Alinghi can wield is incredible: in addition to their ‘secret’ (now public) agreement with Alinghi, ISAF have agreed that the defender has carte blanche to change rules as they wish. Since then, in her 29 July ruling, Justice Kornreich, referring to the Deed of Gift, stated that “nothing in the provision prohibits the defending organisation from changing its rules, right up to the start of the race, so long as they do not conflict with the Deed.” This was a fantastic result for Alinghi who had gone into court arguing the case for ISAF RRS 49-54 to be waived (thereby allowing them to use powered winches) only to come out given carte blanche to change the rules whenever they like up until the start gun, a benefit we expect that not even they imagined they would receive.

So in one of their latest actions, BMW Oracle Racing is effectively appealing this ruling.
“What do they want us to do? Race our boat without rudders or rudders in the wrong location? What sort of Formula 1 race would it be if one of the teams said ‘you can’t have that braking system. We are going to change the rules to make the cars much more difficult to drive than our car is.’ It is just absolutely ridiculous. It continues to be a situation where we are forced to sort it out. People say ‘couldn’t you guys just accept it?’ I put it to you it would be pretty hard to drive a boat like that without the rudders in the correct location. And they [Alinghi] know that. It is not like they are saying ‘it is easy for them to do that’! They know full well that that would be a killer blow. So they try and bring out these new regulations that are just clearly self-serving and you look at where their rudders are and they are near the back of their boat [ie not on the transom]. It is pretty obvious why they are trying to do this.”

However Alinghi’s Brad Butterworth reckons Coutts is overstating the case: “They can easily measure. It is not a big ask for them to measure.” He adds: “I am hoping the judge will say to the teams – stop this and go out there and race and you can argue about this later.”

Venue

The big debate as of the day is over the choice of Ras al-Khaimah in the United Arab Emirates as a venue. As mentioned in previous articles, this concerns whether on 12 May last year when Justice Cahn ordered that the 33rd America’s Cup could be “in Valencia or any other location selected by SNG”, any other venue genuinely meant ‘any other venue’ as in anywhere anywhere (Alinghi’s interpretation) or any other venue that is Deed of Gift compliant, ie Valencia or southern hemisphere (BMW Oracle’s interpretation) given that the Deed of Gift specifically precludes racing in the northern hemisphere in February. Justice Cahn’s wording, taken literally, sides absolutely with Alinghi’s position, but BMW Oracle maintain that it still has to be Deed compliant. “You can’t have this race on Lake Geneva for example, because it is not Deed compliant: it is not on an ‘ocean course, free from headlands’, etc,” Coutts quotes the Deed. “So in other words you still have to read it as ‘anywhere in the world that is Deed compliant.’” Both compelling arguments. A third course could have been for both parties to agree on RAK or any northern hemisphere venue aside from Valencia, by mutual consent, but Coutts says they weren’t consulted over the decision. But then why would they be if Alinghi believe Justice Cahn said they could hold it anywhere?

Brad Butterworth claims that they chose RAK because there is a stable sea breeze there while off Valencia in February conditions are less stable. But Coutts wonders why RAK was chosen when there are so many other venues in the world offering these conditions. “There are lots of other sea breeze venues around the world, but there aren’t too many around the world who will put their hand up to host the America’s Cup,” explains Butterworth. “Basically Oracle, all they have done is to try and negate all we have done by taking the thing to court. It is a real scorched earth mentality.”

Aside from the security issues and its proximity to Iran, Coutts has further issues with the venue: “Also the fact that in 2007 Alinghi were saying it is so critical to be near a big European population and all of a sudden they have taken it to a small town which is a real estate development from what we can see. And we are wondering why? How is that good for America’s Cup fans? It really doesn’t add up and frankly, we’d certainly like to hear more explanation as to why this venue has been chosen.”

On a personal note Coutts thinks it would be a shame if these boats are taken to a venue where in all likelihood they might find themselves drifting around in 4 knots of wind. “These boats are really cool and frankly both teams could make arrangements to make their boats more competitive if you shifted the wind range up a few knots. It is probably not going to change the results that much. What I mean by that – it will obviously be critical if one of the teams can fly their hull or hulls earlier than the other, then they may have a slight advantage over that small wind band, but as soon as they are both flying hulls, that advantage evaporates. It would be a bit of a shame if these boats aren’t showcased in reasonable wind conditions.”

As to what the typical conditions might be off RAK in February Coutts is unclear. “The site they specified is huge. In terms of a race course it is unclear whether it is Dubai or whether it is RAK. It is a big area and the wind varies across that area. So there is a bit of a choice there.”

BMW Oracle Racing’s announcement interestingly coincided with Alinghi 5’s arrival in RAK and it is hard to understand why they have taken so long to make this call. “I guess when it is off the ship they can safely sue us,” says Butterworth of the timing. “They knew when the boat was leaving to get to RAK. Now the boat is off the ship, so this thing will go on in court. It has been two months since we announced the venue and nobody said ‘no, no, we’re not coming’.

“It is pretty disappointing that they watch us sail for months down in Genoa, they know where the boat has gone and then they bring out this thing. The legal thing is obviously what is running the whole show and it is going to carry on. They are going to try and win this thing in the courts first and on the water second.”

According to Butterworth BMW Oracle Racing sent some team members to RAK to check it out. “Grant Davidson has been down there several times and they have boats there. They have a spy boat down there ready to go! It is pretty weird the whole situation.” Butterworth says the US team also sent down lawyers from the firm of Kensington Swan in New Zealand. “Right then I started to get worried that they were basically looking to sue the venue. This whole thing just delays things. Really these two boats have to come together at some stage and the sooner they do it and we get on with it and have the race and try and keep the courts out of it, the better off we will be.”

While it might seem that Alinghi 5 is now stuck out in the Middle East with no one to play with, the news is far from all bad for Ernesto Bertarelli’s team. They are almost a year behind in the development of their maxi-multihull compared to BMW Oracle and any delay to the 33rd America’s Cup benefits them in added work up time. Being in RAK also provides a better place for them to train and test over the winter than Genoa or elsewhere in the Mediterranean (readers will remember that over the winter prior to the 32nd America’s Cup they also based themselves out of the UAE, but up the coast in Dubai). Could it be that Alinghi deliberately chose RAK for the same reasons Cup pundits were claiming a few months ago that they might choose Iraq or Cuba, anticipating that the US team would take proceedings back to court, thereby gaining them time? In his letter today to Justice Kornreich, SNG/Alinghi lawyer Barry Ostrager is asking for the next hearing to be delayed from 6 October to week commencing 26 October – further delays.

If the process through the New York court delays the Cup into the summer, then the 33rd America’s Cup could conceivably return to Valencia where there will be more stable conditions, on the assumption that Valencia want it back. Unlikely.

However Butterworth can’t see it going beyond February. “I think the February date is the February date. We plan to have the regatta right there and then.”

The only possible light at the end of the tunnel may be that BMW Oracle Racing feel they can use this as a bargaining chip, say for example a freezing of the rules, if they do decide to come and play. “I think they might do, but they haven’t asked us for anything like that,” says Butterworth. “If they are after leverage, at the end of the day just have to comply with the 90 by 90 and they show up down there and we race the boats. It seems pretty simple to me.”

For aside from the issue with RAK’s legal validity as a venue, BMW Oracle Racing’s reasons for not coming are thin. As the SNG point out in today’s submission to Justice Kornreich – Oracle have an office in UAE, as do BMW Oracle Racing’s lawyers Latham & Watkins, while Coutts himself is shortly to take his RC44 fleet to Dubai for their next regatta.

“A lot of hard work has gone into getting some place which I think would be good for both team,” says Butterworth. “We are not going to be there forever, but now the whole thing is up in the air.”



Size matters

Since we last summoned up the strength to write about this fiasco, BMW Oracle Racing have handed over their ‘Certificate of Registration’, the Custom House Registry document that Alinghi have been demanding for months. This indicates their trimaran to be 113ft long and 89.9ft wide, which is unusual as we were led to believe by reliable sources that it was more than 0.1ft narrower than the 90ft stipulated on their original challenge document supplied to the SNG.

We put it to Coutts that their boat has got wider. “Thinking back there was a slight modification to where the floats were located but not a major difference,” is all he will say on the matter.

As to the issue of their trimaran being exactly 90ft long by 90ft wide on the load waterline – Alinghi stipulate it must be exactly this, in accordance with BMW Oracle Racing/GGYC’s original Notice of Challenge, while BMW Oracle maintain it should be up to these measurements. Their latest submissions to the court include some interesting history of previous challengers that have been shorter than the length stated in their challenge papers. Coutts says it would be impossible for the dimensions of their trimaran to be exact, whether they wanted to make them so or not. “Any science graduate will tell you that. With thermal expansion and so forth with a composite part that big, I put it to you that it would be impossible for it to be exact in two locations in the world let alone to try and get it exact.”

“It is a declaration, I don’t know how it was measured,” says Butterworth of the Custom’s House document. “To me if they are 90 by 90 and they have a certificate that says they are, when they get measured and they are not 90 by 90 it might look a little bit stupid. But if they are, let’s get on and race the boats.”

Their certificate also indicates a net tonnage of 14 tons (albeit also a gross tonnage of 48, presumably when their hold is full of fish). Given this is probably the US ‘short tonnage’ it equals 12.7 metric tonnes (12,700kg) and this compares to 18 tonnes for Groupama 3, which at 105ft is a bit shorter, but has a wholly more beefy structure aimed at getting her around the world.

(In fact, we're talking rubbish as Doug Schickler of Schickler Tagliapietra Yacht Engineering in Amsterdam points out: "Tonnage is a measure of volume (gross excluding frames, net using an esoteric formula to estimate the volume usable for CARGO inside the frames) not weight.")

At present the BMW Oracle Racing trimaran remains locked away in her shed, but is due to be put back in the water in the middle of October. There remains much conjecture on what might be new about it. Given the number of boat builders the team have been employing, the favourite seems to be that they could turn up, if the 33rd America’s Cup ever takes place, with some sort of C-Class/ Stars & Stripes style solid wing rig, which given the present wingmasts are approaching the 200ft tall region, is likely to be a most formidable piece of engineering.

Meanwhile Alinghi are preparing to go training in RAK. “We are not stopping. We have to move on. Our guys are mostly down there. The boat is down there. We’ll be sailing in a couple of weeks,” says Butterworth, who heads down there next week. “We will try to sail six days a week at least. Time is incredibly short for us. If they want to extend the time limit, I don’t think it is a good thing for the sport, but if we get forced by the courts to extend it, it will make our boat faster for sure.”

“It looks like they don’t want to race. I don’t blame them frankly!”

In RAK Alinghi have a shed set up and a crane to lift out their cat and the full boat building team led by Gary Hutchinson and Tim Guerr.

Butterworth personally hasn’t been sailing on Alinghi 5 much – he’s just returned from sailing the 8 metre belonging to the SNG’s Fred Meyer in the south of France (Coutts has similarly just returned from racing at the 12m Worlds in Newport with Bill Koch).

Back to the sorry matters in hand, Butterworth warns that BMW Oracle Racing could have the America’s Cup tied up in court for years and accuses the US team of trying to win the 33rd America’s Cup in court not on the water. Coutts maintains their court actions are simply a case of attempting to get the playing field level enough so that they have at least a chance of them winning on the water, for as he told us with the degree to which the rules are currently skewed towards the defender makes winning the America’s Cup all but impossible.

Worryingly this latest turn of events could well have a knock-on effect for all the other challengers waiting in the wings. Take Britain’s own TeamOrigin for example. The prospect of the next Cup occurring in February and of some resolution over the 34th America’s Cup following sometime after, prompted Sir Keith Mills last month to revitalise his campaign. But today’s news is certain to reintroduce doubts.

More photos on the following pages....