33rd America's Cup - what next?

We look at the Judge's ruling and speak to BMW Oracle Racing/GGYC representative Tom Ehman

At 1200EST yesterday the New York Supreme Court called both sets of attorneys representing the Golden Gate Yacht Club and the Societe Nautique de Geneve warning them that Justice Cahn's decision over the outstanding litigation between their two clients was set to be resolved at around 2pm. As crunch hour approached so agency court reporters had already broken the story that the Golden Gate Yacht Club/BMW Oracle Racing and Larry Ellison had successfully rebuffed the attempts of the lawyers acting for the Swiss to reopen the case following the Judge's 27 November ruling.

Justice Cahn's has since published his latest ruling which shows that the Alinghi/SNG lawyers were attempting to get their Spanish Challenger of Record, the CNEV, reinstated as it had held its first annual regata on 24-25 November 2007. This the judge turned down on the basis that his 'prior decision acknowledged the scheduling of the November 2007 regatta'.

The lawyers representing the Alinghi/SNG also sought to have the GGYC's challenge deemed invalid due to an inconsistency they claim it includes - by describing the challenging yacht as a 'keel yacht' in the introduction to their challenge, while quite clearly the 90 x 90ft dimensions of the boat indicated a multihull. Again Justice Cahn ruled against them on the basis that the Deed of Gift only demands a few of the basic dimensions of the challenging yacht be specified and the wording of a piece of introductory text (where the word 'keel yacht' appears) is irrelevant in terms of the Deed. The Judge also deemed that the SNG had not established that word 'keel yacht' cannot describe a multihull.

The Alinghi/SNG lawyers also argued that the GGYC's Notice of Challenge was also invalid because it failed to provide 10 months' notice as required by the Deed. However in the GGYC's challenge, issued to the SNG on 11 July 2007, they stipulated the dates for a Deed of Gift competition to be 4, 6 and 8 July - almost 12 months away. The lawyers representing the Swiss were attempting to put the case that this period had been interuppted by the legal proceedings.

They also tried to argue that the proposed dates of GGYC's challenge violate the Deed as they do not constitute one weekday between each race. This specifically reffered to 5 July being a Saturday, however the Judge deemed that a 'weekday' as defined in dictionaries dating back to the time the Deed was written to be any day except Sunday. Besides the CNEV's own challenge also has a Saturday (5 July 2009) as a supposed 'week day'.



So what now? We put this to Cup veteran Tom Ehman who has been the spokesman for BMW Oracle Racing and the GGYC throughout the proceedings and who was even with the San Diego Yacht Club during the cat versus big boat debacle back in 1988.

"Unlike November when it was a bit of a celebration, last night was quite a bit more subdued," he told us this morning. "It has not been a huge surprise. We were expecting this. We have got a lot of work ahead of us. It is a bit of a sobering moment. We are certainly pleased, but we all realised what is ahead to try to get ready for any kind of AC match this year and in particular when you are building a boat that is 90 x 90ft it is a huge undertaking." He added that Mark Turner [no relation] and his build team in the US are the ones feeling the pressure right now.

But the wrangling appears not to be over. One query over the 33rd America's Cup remains the date. BMW Oracle Racing's original challenge stipulated July 2008, and yet Alinghi last night were talking about July 2009. Ehman however states that the 33rd America's Cup will not be either Julys, but October 2008 as agreed between the two parties and their lawyers back in December.

"You have to ask Alinghi where they came up with July 09 because that was in their press statement. The Deed of Gift says that the Challenger chooses the date and must give 10 months' Notice of Challenge. And the defender choses the venue and must give us the venue shortly after we challenge. So we challenged last July. We gave them not 10 months Notice of Challenge, we gave them 12 months notice and chose dates in July 08.

"In December after Justice Cahn’s ruling we agreed with their attorneys then - they have since been excused by Alinghi - that we would race in October [2008]. After that they said that Justice Cahn has ruled and they didn’t want to do it in July, so we said October. So we gave them another 11 months' notice from Justice Cahn’s decision and a total of 16 months notice [from the GGYC's original challenge] and now they want two years notice! As far as we are concerned it is in October, we won’t go back now, even though Justice Cahn makes it quite clear that the match could be in July [08], we stand by our agreement."

So 1, 3 and 5 October 2008. "Those were the dates that we negotiated with their lawyers, This was as they were negotiating during their so-called settlement order before they started filing their other motions," continues Ehman. "We will stand by that agreement. We are people of our word."

While various dates are being bandied about there is still no news yet from Alinghi about a venue for the 33rd America's Cup. This appears to be fairly dependent upon the date. As Ehman points out holding the event in Valencia in July would present a clash with Valencia's new Formula 1 Grand Prix, which like Monaco is on a 'city' race track that encircles the port including a new bridge by the Vele e Ventes building across the canal leading to Port America's Cup.

"The Formula 1 is here on August 24th, which is another reason why July is a bit of a problem, because this the first time there is Formula 1 here," says Ehman. "It takes Monaco three weeks to get the street circuit set up, but they have been doing it for 50 years plus and it will take them a while to get this thing sorted out and then torn back down. But there is no reason why a month and a half later it won’t be ready."

The Deed of Gift does not specify when the defender has to specify the venue, however Ehman says there is previous precident for it being 'soon'. "Traditionally in the Cup the defender has given the challenger the venue almost as soon as they have filed their challenge. In 1987, it was the Wednesday before thanksgiving at the end of November, when the Judge ruled in favour of Michael Fay and I think it was December 7 I sent them a letter on behalf of San Diego YC, saying that the venue would be in the waters off the coast of San Diego. So we gave the venue almost immediately and we think we are entitled to that as well."

So what happens if Alinghi start dragging their feet over the venue announcement? "Hopefully they won’t do that. We have no idea of how far along they are. They say they haven’t been building, but Ernesto is very clever, he is a very fine sailor, he has a lot of multihull experience, Brad has won the Cup four times. They will be formidable opponents whenever this thing happens. I’m sure they could be ready in July if they had to be. They’d figure out something. By October, mark my words, they will be plenty well prepared."

Ehman points out that a challenger of the America's Cup has never won the America's Cup without a challenger selection series, so despite their advantage of being apparently further ahead than Alinghi with the design and build of their new 90ft long multihull, it is still certain to be no walk in the park.

Obviously there is still the potential for Alinghi to make life hard for BMW Oracle in their choice of venue - holding the event in Cuba or Iran where Americans are less than welcome have been cited as just how hard they could make it. It is possible that Alinghi may put it out to tender again but with so little time, a regatta with no challenger series that could be over in three or five days it is not going to be the world class event the 32nd America's Cup is going to be. It is possible that Alinghi could choose an alternative venue and not say until the last moment in order to get the most competitive advantage from this decision.

"They could try but hopefully they won’t," says Ehman. "They said they won’t appeal - they want to get on with it on the water. We certainly share that view. Hopefully that is now what will happen, because, bottom line, that is what we want to do - we want to move forward after this not just for AC 33 but for the sake of Dalts and Sir Keith [Mills] and Moose [Mike Sanderson] and Vincenzo [Onorato] and Patricio [Bertelli] - there is some hope that he will come back if we get this thing back on track with a proper protocol. Shosholoza - they haven’t given up. It is great to see that they are soldiering on. That is ultimately the bottom line to get this back on track and get AC33 behind us as soon as possible and win, lose or draw get on with a proper AC34."

Ehman says that at BMW Oracle Racing they certainly hope the Cup stays in Valencia. "We have all, including Alinghi, been sailing the Extreme 40s here over the last month or so and it is a wonderful venue. It is great sailing in October. We had an Act here in October 2004 and it was one of the best acts. We had some light air and we had some heavy air. It is a little cooler by then, but it is still very warm and great sea breeze conditions. We see no reason why Valencia is not the place. But of course the venue decision under the Deed of Gift lies with the Defender. So hopefully they will choose Valencia or if not some place equally as nice."

BMW Oracle Racing still stand by holding the 34th America's Cup in Valencia should they win the 33rd. Early this year Ehman and Russell Coutts met the King Juan-Carlos of Spain and delivered him a letter from Larry Ellison confirming this and that they would look to run the next America's Cup as soon as possible. "Certainly by 2011 and if possible in 2010 or 2009, although that’s pushing it. You have to talk to the challengers and the television and the city, etc."

Ehman also confirms that should BMW Oracle Racing win the 33rd America's Cup the 34th will be held in AC90s. "Russell has said that repeatedly. We just want to have a proper fair AC32-style protocol. We like the AC 90. But again that is something you need to negotiate with the other challengers. It is not something you dictate to the challengers. So we have to sit down with them and assuming that the majority of them want to do the AC 90, and no one has come up with any big problems with the boat in the meantime, there are maybe one or two minor things which would need to be tweaked from what I’m hearing, it is our fervent hope to get back on the water and move forward with a fair and proper protocol and with the AC90, a conventional AC as soon as possible. That’s why its all the more important to get this thing done and dusted this year."

Ehman says that the Judge's decision will not affect Coutts and team's extensive sailing program outside of the Cup. This includes the RC44, a new Team Oracle TP 52 and possibly some VX40 racing. "I think very definitely. And Larry [Ellison]. He is going to be sailing on the TP but also on the cats as well. He is a full member of the sailing team and in the three campaigns I’ve been involved with he has been an avid and active member of the team."

Given that the 33rd America's Cup looks set to be a much smaller, more focussed affair it will be interesting to see the kind of infrastructure, if any, that is put in place to host the regatta. ACM already seems to have all but wound down with Michel Hodara understood to be taking over the role as head of marketing and communications at Alinghi.

Despite the reduced scale of the competition, Ehman - and we agree with hiim - maintains that the 33rd America's Cup will still be a good competition, much much more so than the 1988 disaster of an event. This time both teams should be racing 90ft multihulls - although there is still a lot of mentions of 'catamarans' rather than 'trimarans' - and there is sufficient knowledge of the design of these boats that they should be reasonably competitive. It is obviously a shame they may only get to sail two or three races in their life.

"I am cautiously optimistic that these boats will be magnificent and Ernesto has a lot of experience with multihulls," says Ehman. "The Decision yard have a lot of experience in multihulls [they have built all the Decision 35s both Bertarelli and Coutts regularly sail]. They have a lot of design and sailing talent. They have been practising in the Extreme 40s. If they produce a boat and we produce a boat that are both in the 90ft range this will not be like 1988, the coma off Point Loma. This could be very interesting indeed.

"This has been very interesting for both sides with a lot of learning back and forth. The multiull guys have been learning about how an America’s Cup team goes about such a match, the intensity and the research and the performance analysis and so on. And equally it is interesting for our guys, the same as it was for Dennis [Conner] in 1988 when Cam Lewis and Randy Smyth, got Dennis up to speed. It was a fasciniating experience. John Marshall led the design team with Bert Rutan and they are marvellous boats. I think there is every prospect that the design competition that was envisioned by the founding fathers and sailing competition - I think we are going to see it here."

Later today BMW Oracle Racing will be announcing their sailing team which is expected to include Groupama skipper Franck Cammas.

At present there is no word from TeamOrigin over how yesterday's decision will affect the British America's Cup team.