Jury decisions

We look at the seven points decided upon for the 33rd America's Cup

The final decisions made by the 33rd America’s Cup International Jury over the seven outstanding issues brought before them, have been published, following a hearing on Monday and continued on Tuesday night.

Water ballast

The longest debate seems to have been over the use of water ballast on Alinghi 5 and in particular how this is measured. Alinghi were putting the case that their boat should be measured without water ballast, as according to Grant Simmer this was how their boat was originally designed, although it has since been adapted to take into account the new measurement rules.

BMW Oracle argued that they felt the measurers were interpreting this issue as: ‘the maximum amount of water ballast that may be used when racing when measuring the yacht, rather than “as much water ballast as might be used at any time during any race.”’

This was based on ‘paragraph 20’ of the document conjured up by the Experts Panel, appointed by NY Supreme Court judge, Justice Shirley Kornreich which states: ‘It is the Panel’s opinion that with respect to catamarans and trimarans, for the purpose of measurement of load water-line, the principle of being ‘fully loaded’ when measured, should be employed. This would be consistent with the measurement rules provision in 1988. Any moveable ballast should be distributed equally in the available ballast storage areas, and should include as much water ballast as might be used at any time during any race.’ So effectively all water ballast tanks should be equally full in measurement trim.

Richard Slater, representing BMW Oracle, along with team CEO Russell Coutts, felt that when measuring the boats, the measurer must determine what is the ‘longest measurement condition, not the heaviest measurement condition’. Their fear was that Alinghi could use their water ballast to extend their LWL beyond 90ft and for this reason the measurers should take into account the effect of water ballast on Alinghi 5, not just laterally but how it affects fore and aft trim.

However Grant Simmer countered: "It is well accepted that the actual waterline length of any boat when sailing can be considerably longer than at rest in ‘measurement position’ and that designers take full advantage of this fact when designing their boats.’ Alinghi’s overall length when sailing is 110 feet, whereas USA, as recorded by their Custom House Certificate, is 113.3 feet."

According to measurer Guy-Roland the final Measurement Procedures (published on 26 January ) state “to achieve a ‘Fully Loaded Condition’ for measurement, the procedures require competitors to make a declaration to the measurer stating the maximum amount of movable ballast and its normal position. The declared moveable ballast would then be distributed symmetrically about the boat’s centre plane in accordance with the Expert Panel’s Opinion paragraphs 14 and 20. The LWL would then be measured.”

The jury chose to stick with the measurement procedure as its stands and thus the use of water ballast to extend LWL is not taken into account.

Rules precedence

BMW Oracle also argued the point that the NoR and Sis took precedence over the Racing Rules of Sailing.

- NoR 1.1 and SI 1.1 list the rules applicable to the match in the following order: (a) Deed of Gift; (b) Notice of Race; (c) Sailing Instructions; (d) RRS.
- NoR 1.2 states: ‘Subject to RRS 63.7 any conflict in the rules shall be resolved by applying the rule in the first listed document above which shall prevail over a conflicting rule in a subsequently listed document.’
- Sailing Instruction (SI) 1.2 states: ‘Any conflict in the rules shall be resolved by applying the rule in the first listed document above which shall prevail over a conflicting rule in a subsequently listed document.’
- RRS 63.7 states: ‘If there is a conflict between a rule in the notice of race and one in the sailing instructions that must be resolved before the protest committee can decide a protest or request for redress, the committee shall apply the rule that it believes will provide the fairest result for all boats affected.’

In this instance the jury ruled in favour of BMW Oracle and the NoR and SI have been amended putting the Deed of Gift ahead of any rule conflicting with the event’s other official documents.

Laser beam

BMW Oracle also won the point over their being allowed to use laser wind detection equipment, such as ‘the Racer’s Edge’. This appeared to have been prohibited in the latest writing of the Sailing Instructions. Hamish Ross, representing the Organising Authority, said it was not their intention to prohibit such equipment.

10:06

However the challenger lost their case against Alinghi and the event authority for fixing the start time at 10:06. BMW Oracle maintained that this was “in direct contravention of the clear and unambiguous language of the Deed of Gift that states: 'The challenged Club shall not be required to name its representative vessel until at a time agreed upon for the start...'"

BMW Oracle Racing was gunning for an afternoon start time (when the wind is often stronger). BMW Oracle failed to reach agreement with the organising authority over this and hence the jury ruled that the responsibility for setting the start time lay with the organising authority. They in turn have stuck with a 10:06 kick-off.

Wind and sea state limits

In terms of the 15 knot maximum wind limit at 60m and the 1m sea state maximum imposed by the SIs and NoR, BMW Oracle argued that nowhere in the Deed of Gift, nor in the judgements made in the case of the 1988 Cup, does it indicate that the defender is allowed to impose such limits. These could easily bias the outcome in favour of the lighter-wind optimised Alinghi 5.

On behalf of the organising authority, Hamish Ross pointed out that the wind and sea state limits set were to take into account significant legal and insurance issues. Also the organising authority was obliged to inform the Valencia Port Authority of these limits.

However ultimately the jury sided with BMW Oracle on this point, maintaining that “the RRS contain adequate provisions for a race comittee to delay starting a race because boats are unlikely to complete the course within the time limit, or because of safety concerns. After the start the RC may ‘abandon the race because of foul weather’ or ‘because of insufficient wind making it unlikely that any boat will finish within the time limit’ or ‘for any other reason directly affecting the safety or fairness of the competition.’” Thus the wind and sea state limits and the decision whether to start races or to stop them is now in the lap of Harold Bennett and his race management team (the race committee cannot reduce course and nor can they change course in the event of a wind shift).

Slippery hulls

BMW Oracle Racing also won the right to use a mysterious 'skin friction reducing liquid' we have so far been unable to find anything out about (any suggestions - email us here). This was original thought to be in breach of SI 24, which states: ‘Boats shall not put trash in the water, or fail to fully recover anything (other than discharged water ballast) intentionally left by the boat in the water.”

BMW Oracle argued that the skin friction reducing liquid complied with all appropriate laws in the USA and Spain, while Hamish Ross concurred that rule 24s was in the Sis not to prevent skin friction reduction technologies, but to prevent pollution.

So out of the seven points raised (the water ballast measurement we understand counts as two) the scoreline is BMW Oracle Racing 4, Alinghi 3.

If you can bear them , the two jury decisions are here in their entirety: