Singapore mud sling

The latest from the 33rd America's Cup quagmire

At a meeting in Singapore that concluded earlier today, the remaining issues surrounding the 33rd America’s Cup came very close to being resolved, but sadly hit a brick wall again with both sides pointing the finger at the other as to why this happened.

The meeting was attended by Tom Ehman and Richard Slater representing BMW Oracle Racing, Brad Butterworth and Hamish Ross from Alinghi and mediated by ISAF jurors David Kellett and David Tillett.

Agreement was nearly reached on a most promising deal that would have resolved almost all of the outstanding issues, from those to do with the Notice of Race and Sailing Instructions, such as the wind/sea state limits and where the BMW Oracle Racing trimaran with its solid wing rig can be moored in Valencia to the Country of Construction issues most recently raised to whether or not the BMW Oracle Racing trimaran with its solid wing rig constitutes ‘a sloop’ as per the boat described in their original Notice of Challenge document to the American team’s outstanding law suit against the Societe Nautique de Geneve over their ‘breach of fiduciary duty’ as a Trustee of the America’s Cup. According to Alinghi one of the negotiating points proposed by BMW Oracle Racing was over a month’s delay to the event to the 8 March.

BMW Oracle Racing claims that the agreement was drafted on Tuesday night, agreed by all at the meeting, only for it to be turned down by ‘Geneva’ (ie Ernesto Bertarelli) on Wednesday morning. BMW Oracle says that they had warned Alinghi that if no agreement was reached on the Wednesday morning they would file a law suit with the New York Supreme Court over the Country of Construction issue (otherwise time would run out to get the suit processed before the start of racing on 8 February). Later Wednesday morning an agreement was again reached and sent to the team principles and Russell Coutts authorises Tom Ehman to sign it, but Bertarelli still said 'no'.

Alinghi on the other hand claim that at the end of negotiations on Tuesday (Singapore time) agreement hadn’t quite been reached and before they reconvened this morning BMW Oracle Racing had filed papers with the Supreme Court over the issue of Alinghi 5’s country of construction, with particular regard to her 3DL sails. Further discussions were had this morning and an agreement was reached only for this to be turned down by BMW Oracle Racing, state Alinghi.

At the moment, as has always been the case, there is a power struggle going on between each of the teams, with both searching for issues to use as potential bludgeons against the other.

Take the issue of the ‘Country of Construction’ as required by the Deed of Gift, on which BMW Oracle Racing are mounting their latest legal assault via the Supreme Court. If it is taken to mean anything other than the hull or the platform of the yacht, it becomes impossible to define where the line is drawn. If BMW Oracle Racing win this case, it could end up with both boats being disqualified from the event. Yes, Alinghi 5’s sails are made from 3DL and moulded in Minden, Nevada, but if the sails are deemed part of the boat then surely every fitting and all the gear on board is too? If the American trimaran has a BMW engine on it - then presumably this was built in Germany? What about the computers on each boat or the circuit boards within them?

According to Russell Coutts just what constitutes part of the boat in the eyes of the Deed of Gift will be decided by the Supreme Court, however even he pointed out: "The extreme way is that you could even go as far as to say - should the oil that you use be pulled out of the ground in the [your] country? But I think it is taking it to the extreme to say that the sails aren’t an important part of these sailing yachts. For sure we feel very strongly and are very confident that the sails are one of the key elements that have to be constructed in the country."

While prior to the last America's Cup, Alinghi did develop what has become North 3Di in Switzerland, there are no facilities to build moulded sails there and so the only option would be to make panelled sails, although this would be a major departure after all the sail development work they have done with their 3DL wardrobe. Within Alinghi the feeling is that it might take two months for them to build a new sail wardrobe. Coutts however isn’t feeling that lenient: "There are plenty of sail making facilities in Switzerland. It is my belief that they have the know-how and technology to make Deed-compliant sails in Switzerland. I think [they could make the new sails in] a matter of weeks if you put enough resource on it." He reckons less than one month.

As to why they have returned to the Supreme Court rather than use the International Jury to decide upon the Country of Construction issue, Coutts says it is because it is a Deed of Gift issue rather than one to do with the competition itself and that the Supreme Court is the correct jurisdiction for this to be debated. Alinghi state they are flummoxed over why this isn’t can’t be resolved by the International Jury. They believe that ultimately it is a ploy by BMW Oracle Racing to delay racing, allowing them time to get to grips with their solid wing rig. BMW Oracle Racing of course utterly refute this..."Could we use more time? I think both sides could use more time to improve the performance of their boat," says Coutts. "The real question is ‘are we ready to race on February 8’ and the answer is an emphatic ‘YES’, I can tell you we are and we will go racing on February 8th."

So if this ‘country of construction’ issue really is going to go before the Supreme Court, then the question is will it be decided before the competition begins on 8 February or will it hover over the event so that Alinghi or both boats can be disqualified once the ruling is made? Coutts is confident that the process can happen and a ruling made in less than a month (which would be a lot faster than the legal process has happened to date...) "We certainly want this issue resolved before the boats go racing. We want to race a street legal boat. We don’t want this to be hanging over the regatta afterwards. Brad Butterworth said at the Monaco conference recently that he wanted all the issues resolved and this is how we can achieve that."

It is possible the Supreme Court could rule that it is an issue for the International Jury to decide. It could be that if it goes BMW Oracle’s way that Alinghi could appeal... In reality the chances of getting racing done and dusted in February without having some legal issue pending is looking decidedly unlikely.

One of the issues published in the amended Notice of Race published last week is over the requirement for the BMW Oracle Racing trimaran to be berthed in the Darsena (Port America’s Cup). "They are trying to insist that we move the boat into the Darsena," Coutts explains. "As you know the boat has an enormous wing sail on it and we don’t think it is safe and I believe that the International Jury will agree with that position. They will agree not to force us to do something unsafe. I wouldn’t be asking Alinghi to sail into the Darsena and leave their sails up overnight. I would view that as an unreasonable request. You can’t sail a boat like that into a confined space without considerable risk." BMW Oracle Racing’s preference is to keep their boat in the commercial port in Valencia where they have already set up their boatyard and they have a swinging mooring where there is enough room for them to moor up and swing around regardless of the wind direction.

In the meantime Alinghi is set to go yachting for the first time in Valencia tomorrow, while BMW Oracle Racing will finish putting their boat together over the weekend and will be sailing early next week. More details on the deal struck with Valencia are supposed to be imminent.

As to whether talks will resume - this seems unlikely right now, but is urgently required otherwise the 33rd America’s Cup could end up being even more of a farce than it already is.

"From our point of view we are open to continue that process," says Coutts. "That was one of the best shots especially as we had some independent observers at that meeting in the form of ISAF. If there are future meeting we would want the same independent observer there."