Battered COD

Latest order on the 33rd America's Cup published

Justice Shirley Werner Kornreich of the Supreme Court of the State of New York yesterday published her latest order following a hearing to discuss, on this occasion, the phrase in the Deed of Gift 'as soon as possible', relating to when the Challenger must hand over their Customs House Registry documents to the Defender of the 33rd America's Cup. This of course follows the Supreme Court's discussion last year over the word 'having', relating to the CNEV's Annual Regatta. That the court can be dedicating so much time to discussing semantics within the Deed of Gift, merely indicates what a vague and ridiculously antiquated document it is governing what was once the top event in our sport.

The latest order follows a hearing that took place at the Supreme Court on 10 August where the Golden Gate YC, representing BMW Oracle Racing, had the opportunity to put their case as to why they were dragging their heels in producing their boat's Customs House Registry document, now referred to by the US Coast Guard's National Vessel Documentation Centre as a 'Certificate of Documentation' (COD). Thomas Willis, a past Director of the NVDC was called as a witness on behalf of the GGYC. He explained that a COD cannot be issued until "construction on a vessel and sea trials are completed". He also specified types of modifications that could be made to a boat after the COD has been issued - including changing sails, masts, but not structural work, although he contradicted himself by saying that changes can be made to bulkheads and the volume of the hull without affecting the 90ft load waterline length.

GGYC's counsel stated that when "as soon as possible" was added to the wording of the Deed of Gift, in the America's Cup immediately following this the registration documents were supplied six weeks before the race, then two weeks, then three months.

SNG's counsel argued that they wanted the COD because they want to see if the boat in which Golden Gate YC intends to challenge, matches the vessel specified in their original Notice of Challenge ie 90ft by 90ft on her load waterline beam and length. (The BMW Oracle Racing trimaran is believed to be less than 90ft long on her load waterline beam and there are also at present problems with her measuring 90ft on her load waterline length, as the Societe Nautique de Geneve's measurement rules include her transom-hung rudder). SNG's counsel once again reiterated that the challenging vessel must exactly meet the 90 by 90ft specified on the GGYC's original Notice of Challenge, but presumably not wishing to be distracted by this, the GGYC's counsel did not enter into an argument over this, although the team still believe that the dimensions specified in their Notice of Challenge to be maximum sizes rather than actual sizes.

The order includes a grey area when it comes to the rules as it states that nowhere in the Deed of Gift is mention made of the ISAF rules - true enough, although the Deed of Gift does state the race "shall be sailed subject of the rules and sailing regulations [of the defending club]" and the SNG is affliated to the Swiss Sailing federation that is part of ISAF. The rules issue has since spun off into a separate discussion (see below).

Seemingly out of nowhere the order also states: "It is not only advances in technology, but the unsportsmanlike behaviour of Golden Gate that has resulted in substantially reducing SNG's advatage as originally contemplated by the Deed". Ouch.

The order concludes that the final COD for the BMW Oracle Racing trimaran must be issued 'two weeks prior to the challenge date', which we presume means the match itself in February.

Rules

Meanwhile following the secret agreement between Alinghi/SNG and ISAF being made public, so BMW Oracle Racing has also published a letter from CEO Russell Coutts sent to ISAF President Goran Petersson in August where he outlines the shortcomings of the agreement made between ISAF and the Swiss.

The agreement can be read here, while Coutts letter is here.