RAK out

We look at the points agreed upon and still pending following yesterday's day in court over the 33rd America's Cup

The 33rd America’s Cup was back in the New York Supreme Court in Lower Manhattan, New York, yesterday with Justice Shirley Kornreich both ruling and reserving judgement on a wide range of issues from the venue to the rules and measurement. The session lasted for around two hours, the longest to date in this legal saga.

The most significant ruling from yesterday’s hearing was that Ras Al Khaimah will not be the venue for the 33rd America’s Cup, despite the government there having, according SNG lawyer Barry Ostriger, already forked out $125 million in preparations. Ostriger’s argument was supported by an ‘amicus’ from lawyer Jeff Rosenthal, presenting the case for the emirate of Ras al Khaimah.

But ultimately as Justice Kornreich concluded: “I believe that the order of Justice Cahn, as affirmed by the Court of Appeals, permits the race to take place in Valencia, Spain, and this was by virtue of previous preparation that took place in Valencia, Spain and there had been a mutual agreement prior to the order that it would take place in Valencia, Spain and I believe that may well be the reason Valencia, Spain was mentioned.

“Whether it is or not, Valencia, Spain was permitted and it is a northern hemisphere venue…” She continued: “Other than that the judge specifically said - and again this order was confirmed by the Court of Appeals – ‘or any other location selected by the SNG’.

“It is the belief of this court that that phrase must be read in conjunction with the Deed of Trust [Deed of Gift] and the Deed of Trust specifically requires that the race, if it takes place between November 1 and May 1, must take place in the southern hemisphere.

“Therefore since RAK is in the northern hemisphere, it cannot under the Deed of Trust take place in RAK.”

One wonders if this will have any more far reaching consequences on relations between the US and the United Arab Emirates of which RAK is part.

The SNG’s lawyer played hard on the length of time it had taken the GGYC to dispute RAK the venue for the 33rd America’s Cup, this coinciding to the day with Alinghi’s maxi-catamaran arriving in the UAE. On this point Justice Kornreich commented: “The court does want to state for the record that it feels again that what has occurred here was unsportsmanlike on the part of GGYC. I believe there were tactics employed that should not have been applied in an unsportsmanlike fashion if there really was going to be good sportsmanship.”

She went on to reiterate that the Deed of Gift requires “friendly competition among foreign nations” and interestingly also stated that “any venue that is selected must be a venue that permits spectators and competitors from any nation and any religion to take part”, which is believed to have been a passing reference to BMW Oracle Racing Team Principal Larry Ellison, who is Jewish.


So the situation now is that the 33rd America’s Cup must take place in February – both sides stated that they want no delay - in Valencia or the southern hemisphere or elsewhere in the northern hemisphere, provided it is by mutual consent between challenger and defender. Given that the 8 February date for the first race is just three and a bit months away now, it seems unlikely that Alinghi will be able to arrange for it to be anywhere else other than Valencia. There is an additional constraint that if Alinghi were to hold it at a venue in the southern hemisphere then according to a previous court order then they have to give the challenger six month’s notice. So will Alinghi throw in the towel and head back to Valencia, where there is existing infrastructure, both teams have bases and apparently there is a regional government willing to host it (albeit with a somewhat stronger bargaining chip to play with than they had previously), or will they fight for another venue six months hence? Interestingly six months on from 27 October is 27 April, with a final race on 3 May, so right on the cusp of the North-South hemisphere transition date stated in the Deed of Gift.

Our money is on February in Valencia but the 33rd America’s Cup has to date proved to be a rotten thing to bet anything on.

There is the obvious issue argued by Alinghi that the wintery conditions off Valencia in February are not ideal for an America’s Cup match, hence one of the reasons why they chose RAK. However there is no reason why races in Valencia in February can’t be postponed until suitable weather does materialise. Also, with Deed of Gift races being several times longer than we have become used to in recent Cups, with the weather mark being almost beyond the horizon, the setting of Peter Reggio-style perfect courses simply won’t be practical.

There are only three races after all, so if suitable conditions materialise and one team goes 2-0 up the whole show could be over in just three days. Frankly we hope that if there is just one thing that the teams can mutually agree on it is that they extend the series to say a first to five. That way at least they will get some value from the $100+ million price tags the present multihull campaigns are certain to be costing.

A significant issue will be exactly what represents ‘ideal conditions’ suitable to race fragile 115ft or so long maxi-multihulls in, what Alinghi decide this will be, when they will announce this and if BMW Oracle Racing get any say in the matter. In reality both cat and tri have at least two rigs (huge and incredibly huge and there is still talk of the Americans fitting a solid wingsail to their tri) and they are capable of racing competitively in any wind strength from light to moderate provided they are given enough advanced warning to enable them to optimise for that wind strength band.

Debate over the rules for the 33rd America’s Cup was less clear cut. In her last ruling Justice Kornreich had effectively given the defender unilateral rights to change the rules right up until the moment of the match. The GGYC are disputing this. On this topic, Justice Kornreich said “I’m not going to change my last ruling based on information that I now get because it would be prejudicial. However I think maybe I was little broad, overboard in what I said last time to permit rules to continually change.” However she reserved judgement.

Over measurement there remains the issue of the transom hung rudder on the main hull of BMW Oracle Racing’s trimaran forming part of the LWL measurement according to the measurement rules the SNG have issued. Justice Kornreich laid into Barry Ostriger in demanding to know if there is a custom to include transom hung rudders in LWL measurements to which the SNG lawyer responded: “Yes, absolutely. In many, many, many sailing events, in SNG rules, the rudder is always considered part of the vessel.” Mmm.

This is obviously the first occasion that a transom hung rudder has come up in the America’s Cup’s long history and GGYC lawyer David Boies repeatedly put the argument when he pointed out that under US trust law, the meaning at the time a Deed of Trust/Gift was written applies and at the time the America’s Cup Deed of Gift was written the New York YC rules defined LWL as ‘exclusive of any portion of the rudder or rudder stock’. Ostrager countered well stating that the Deed of Gift refers to the LWL of the vessel as opposed to its hull, and also that it makes specific mention that “no restriction or limitation whatsoever shall be placed upon the use of such centreboard or sliding keel” and so, if it was intended, it could have excluded the rudder as well.

Again judgement was reserved.

They then moved on to the issue of movable ballast and the GGYC’s objection to SNG’s desire that Alinghi 5 be measured without carrying water ballast. GGYC lawyer David Boies argued that in this case adding water ballast during racing could increase the LWL of their catamaran beyond the 90ft maximum limit allowed for a sloop in a Deed of Gift match. This caused much confusion and again Judge Kornreich reserved judgement.

Over the ‘shall not exceed’ issue, referring to in the Deed of Gift governing the dimensions of a vessel competing for the America’s Cup, Justice Kornreich summed up very briefly, again siding with the GGYC. She stated that ‘shall not exceed’ means exactly that, as in equal to or less than, as opposed to the SNG’s argument that the measurement should be exact. So now the GGYC trimaran can be less than 90ft wide (although, oddly, it is stated as having a beam of 90ft in its US Customs registration document).

Next on the agenda was whether the jury appointed by ISAF would be, in Justice Kornreich’s words “neutral and independent”. The GGYC objection was that in the terms of their ‘secret agreement’ (since made public) with ISAF, the SNG had the right to veto judges. In response to the Justice Kornreich’s demands to know whether the ISAF jury panel would be neutral and independent, Barry Ostrager replied “absolutely”. The judge also asked when this independent jury would be appointed. Ostrager initially stated that it would be after the publication of the Notice of Race. However the judge urged it be before, so that they could rule on technical issues relating to the sailing side of the event. No time frame was given, although this may come written into her ‘decision’.

Justice Kornreich said that she would attempt to issue her written decision finished by the end of this week, so the matters of the rules and measurement should be resolved then. Obviously RAK being given the thumbs down is a major blow for Alinghi and the SNG, however lawyer Barry Ostriger indicated that they were unlikely to appeal this ruling.

According to BMW Oracle Racing’s Tom Ehman, this latest round in the New York Supreme Court won’t affect the GGYC’s next suit against the SNG over their alleged breach of fiduciary duty as a Trustee of the America’s Cup. Other past Trustees are expected to come forward in support of this in due course. No date has yet be announced as to when this will be heard as first papers have to be served and there are various procedures that have to take place before the case comes before Justice Kornreich. At that hearing it is likely that expert witnesses will be able to be called.