Latest Cup disputes

They may have launched their giant multihulls, but there remains much disagreement over the 33rd America's Cup

After their mutual launches/relaunches the warring factions in the 33rd America’s Cup are sharpening their swords once again, this time over the venue for the competition due to kick off on 8 February 2010 and of the dimensions of the competing maxi-multihulls.

On the date issue, Alinghi, together with their yacht club, the Societe Nautique de Geneve, are obliged to disclose the venue six months out from the date of the first match. Alinghi have confirmed that this will not be forthcoming before 8 August.

As to their choice of venue the Deed of Gift stipulates that:

“The Challenging Club shall give ten months' notice, in writing, naming the days for the proposed races; but no race shall be sailed in the days intervening between November 1st and May 1st if the races are to conducted in the Northern Hemisphere; and no race shall be sailed in the days intervening between May 1st and November 1st if the races are to be conducted in the Southern Hemisphere.”

So according to the Deed, a February 2010 Cup would have to be held in the Southern Hemisphere. However this has been amended by the various rulings from the New York courts over the last months.

The upshot is that BMW Oracle Racing/GGYC are of the opinion that the venue for a February 33rd America’s Cup can be Valencia or the southern hemisphere, unless otherwise agreed by ‘mutual consent’. Alinghi/SNG maintain that following the latest court order their choice of venue can effectively be anywhere of their choosing. Specifically the issue is now over one statement made by Justice Cahn in his order of 12 May 2008 that the 33rd America’s Cup can be “in Valencia or any other location selected by SNG”.

Last week SNG Vice Commodore Fred Meyer wrote to the GGYC and in his letter stated: “To be perfectly clear: the last court orders of Justices Kornreich and Cahn stated that SNG is entitled to select Valencia “or any other location” for the next Cup,
without qualification or limitation. “Any other location”, of course, includes any
Northern or Southern Hemisphere venue. The orders also make clear that SNG has
until 6 months prior to the race of the next Cup to announce a location. SNG will
specify Valencia or any other venue in the Northern or Southern Hemisphere in due
course.”

BMW Oracle Racing/GGYC maintain that Justice Cahn’s statement of “Valencia or any other location”, means any other location but within the framework of the Deed, maintaining, as Russell Coutts told us, that if this statement were taken in isolation from the Deed of Gift (as Alinghi/SNG are) then it could also mean the February 2010 venue could ignore other stipulations of the Deed such as the race course not being free from headlands or shallower in places than 22ft or, significantly, not on an ‘ocean water course on the sea, or on an arm of the sea’. As Coutts said this could mean on a lake or even on ice!

Both are compelling arguments and it seems more than likely that Alinghi/SNG will make their announcement on 8 August and if it is not Valencia or the southern hemisphere then the America’s Cup will be heading rapidly back to court.

Meanwhile Alinghi/SNG have been continuing to press BMW Oracle Racing/GGYC to provide them with the Customs House registration document for the vessel in which they will be challenging for the 33rd America’s Cup. According to the Deed of Gift this must be provided “as soon as possible” after the challenge has been made, and BMW Oracle Racing seem to be feeling no pressure to hand this over until they are certain of the yacht they wish to field or have finalised any tweaks to it that might alter its dimensions.

Most recently Alinghi/SNG have taken issue with assertions made by Coutts that their challenge vessel need not be ‘exactly at’ but ‘up to’ the dimensions states their original challenge document that described to a boat with a 90ft long load waterline and a 90ft load waterline beam. This is the same document argued about and ultimately gunned down in court, that that decribed their multihull as a ‘keel yacht’.

The part of the Deed of Gift relevant to this is:

“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”

BMW Oracle Racing/GGYC argue that the implication of these last few words is that the stipulated dimensions can be less than those stated in their original challenge certificate.

However Alinghi/SNG take issue with this. Again in his latest letter Fred Meyer writes: “The Deed, as Justice Kornreich reiterated at the May 14, 2009 hearing, expressly requires GGYC to challenge in, and provide a Custom House Registry for, a challenge vessel that conforms exactly to the measurements contained in the boat certificate that accompanied GGYC’s notice of challenge. As Justice Kornreich said at the hearing, and as we noted in our letter of May 26: I am stating right now that … the Deed does require that the vessel conform to the challenge dimensions. If the [Custom House Registry] does not conform to the challenge dimensions, it is this Court’s belief, and my direction, that Golden Gate will be disqualified, and I am directing Golden Gate, in good faith, to abide by the Deed, to make application for the CHR as soon as possible and providing it as soon as possible. That’s the order of the Court.”

Meyer concludes powerfully: “Should you challenge in a vessel that does not conform to the challenge dimensions, we will seek your GGYC’s immediate disqualification. We look forward to the immediate receipt of the Custom House Registry.”

Aside from whether or not the BMW Oracle Racing multihull has a waterline beam of exactly 90ft or ‘less than 90ft’, there remains the issue of how to measure this since typically when at rest a racing trimaran typically only has two of its three hulls in the water.

A round of talks that was to take place between the warring faction Friday before last we understand did not take place, so our money is on at least one more return to the New York courts between now and February.