BMW Oracle on the water in Valencia 3 February
Geneva, Switzerland (GenevaLunch) – America’s Cup, the top international sailing event, may happen in Valencia after all, it appears, after months of legal battles between Alinghi and the challenger, BMW Oracle, threatened to sink the race. Remaining legal challenges, over such matters as Alinghi unilaterally setting the start time of the race at 10:06 Monday 8 February were put to rest by the International Jury Wednesday 3 February, which said yes, Société Nautique de Genève (SNG) has the right to set the rules.
The five-person jury early Wednesday refused several challenges from BMW Oracle to what the SNG argues are its rights to set the rules. The Geneva-based SNG, home to Alinghi, holds the Deed of Gift, which traditionally gives the bulk of decision-making power to the defending champion.
Alinghi on the water in Valencia, 1 February 2010 (photo: ©2010 George Johns/Alinghi)
One of the BMW Oracle objections concerns dumping substances in the sea while racing. The jury refused the San Francisco-based team’s objections to rules for this, it emphasized that all applicable laws apply during the race.
Weather will ultimately determine if the race begins on time. The weather forecast for Monday and Tuesday: 8-20C, 20 percent chance of rain and winds picking up from 10kph Sunday night to 21-25kph.
Links to other sites: Alinghi, BMW Oracle
This work by genevalunch.com is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported.
News story, GenevaLunch, 3 February 2010.
Filed under: Business
Tags: Alinghi, America's Cup, BMW Oracle, Geneva, legal, racing, rules, sailing, Spain, Sports, Switzerland, Valencia
February 4th, 2010 at 11:24 pm
Your article is not fair reporting-
“the Deed of Gift, which traditionally gives the bulk of decision-making power to the defending champion.” this is not a true statement. Alinghi has tried to twist the rules so many times ;
its too bad that the core of team New zealand 2000 was bought off by ernesto bertarelli to enable
him to win the cup twice. If you were fair and impartial you would note that alinghi have been
a black eye as the trustee of the cup.
“One of the BMW Oracle objections concerns dumping substances in the sea while racing. The jury refused the San Francisco-based team’s objections to rules for this, it emphasized that all applicable laws apply during the race.”
You are wrong here too, alinghi first requested that rule about adding friction-reduction technologies to increase slipping thru the water to be allowed, but then at the last minute they wanted banned, but the International jury ruled in favor of BMW oracle.
Get your facts right+++++
all the recent decisions explained
at Scuttlebutt.com
by Cory E. Friedman
Request 1 was based upon SNG’s placing the Notice of Race (NoR) and Sailing Instructions (SI) above the RRS in order of authority below the Deed. The potential harm was that the NoR and SIs could overrule the RRS and allow mischief, so this was not just nit picking. Once again, this was a gimme for USA, as the Jury ruled that the RRS explicitly provide that the RRS take precedence over the NoR and SIs which, of course, are creatures of the RRS, which authorize them. So SNG’s NoR and SI order went out the window and a simple provision providing that Deed takes precedence was substituted. Another example of why it pays to read the RRS.
Request 2 dealt with SNG’s attempt to ban USA’s Racer’s Edge Laser Wind Sensor, which allows USA to measure wind and shifts accurately a kilometer away. This proposed ban was so obviously in conflict the New York Courts’ interpretations of the Deed that a recess was called and SNG caved, substituting non-objectionable language in the NoR. Racer’s Edge has generously offered to show me how the device works on Tuesday in Valencia and I will report on what sounds like a really nice (@$149,500) gadget. Luckily, I will not be tempted to put one on my plastic, as the Laser Class bans any electronics beyond watches. Good thing. I would never hear the end of it when I got home.
Request 3 dealt with USA’s claim that the Deed requires that the Race start time be mutually agreed. SNG wants to start at 1006. USA argued that a better race could be held with a later start and that AC races had ended in darkness with no problem. Bennett agreed that a 1006 was not ideal but “doable” and that nighttime racing raised safety issues. That pretty much cooked USA’s goose, as there was no way the Jury was going to overrule the PRO on a safety issue. The Jury backed into a decision by reasoning that Justice Kornreich had ruled that in the absence of mutual consent, which was not going to happen, the default was SNG’s rules and that 1006 was reasonable and not improper.
The bottom line is that the burden falls on Bennett to either start or postpone at 1006, as the call is his. Once again, his reputation is on the line and the Jury is leaving the responsibility with him. Although SNG is claiming a victory, the effect of the ruling remains to be seen. The only practical result may be some sitting around on the water until the wind fills in the afternoon, with the likelihood that, if it does, the race will be over before dark. Sounds like some of the regattas in which I have sat around on the water for hours waiting for the AP to come down. Presumably, both boats will be prepared with navigation lights.
Request 4 dealt with wind and wave limits. The 15 knot at 60 meters wind limit and 1 meter wave limits are so patently contrary to the Deed that again redress was granted and the limits are out. Once again, the responsibility falls upon the PRO, who has plenty of discretion under the RRS. Interestingly, USA argued that 15 knots at 60 meters would be less than 12 knots at sea level. Tom Schnackenberg for SNG argued that a 15 knot wind at 60 meters would result in loads equivalent to 23 knots at 10 meters for the old AC boats. Coutts’ response boiled down to hey, learn to sail your boat. The interesting question I have not seen an answer to is how anyone measures wind at 60 meters. If you mounted a wind gauge at the top of a 60 meter mast on the committee boat, just the rocking and pitching alone would probably generate 15 knots of wind at the gauge.
Apparently, SNG made the bizarre argument that the wind restriction is necessary because of liability and insurance concerns and some fear of US litigation. There seems to be no colorable basis for such concerns. US courts enforce forum non conveniens and situs rules in maritime and admiralty cases that would almost certainly send any litigation filed in the US back to Spain. Obviously, USA would be in no position to sue if someone were hurt. Spectator boats have to meet winter safety rules to operate that far off the coast in February, so it is hard to see how anyone could have a claim for being lured out there in dangerous condition, i.e., the kind that Optis sail in. Anything can be insured if you want to pay the premium, so that does not seem terribly real.
Unfortunately, the Jury made the gratuitous statement that “The Jury recognizes that the RC has the obligation to comply with appropriate safety and legal obligations when making a decision to start or continue a race.” This is an adult race, not a kid’s race, and the decision to race is, under RRS 4, the responsibility of each boat. Such an unnecessary statement just encourages a lot of sealawyering over the radio threatening lawsuits if the RC starts or continues a race. If the wind pipes up, expect to hear more about this.
Request 5 involved skin friction reduction and whether the anti-trash SI could overrule the Deed and Justice Kornreich’s decision that RRS 53 does not apply. As SNG submitted no evidence that anything bad was being released, the Jury did not even listen to an in-camera presentation offered by USA regarding the technology. The Jury ruled that as long as all environmental laws and regulations were complied with, whatever USA is releasing is not trash, so RRS 53 is not reinstated and, as USA has nothing to complain about, the request is denied. SNG gets to claim a win and USA gets to use its skin friction reduction system. Everybody is a winner.
February 5th, 2010 at 10:31 am
Thanks for your comment, which provides more information. “Fair” is a tough concept when it comes to the America’s Cup: for those of us who follow it but are not passionate fans of one team or the other, much of the saga is about whose turn it is to be unfair. Nobody comes out very clean in this story, but then that has been the case as long as the Cup has existed. My reference to “traditional” refers to the whole long history of the America’s Cup. There are few sports where the winner has, over the decades, been allowed to set so many rules. As for some of these details, please note the timing of our story, which came out before many of the details were available from different sources. As always with this race, the news looks completely different if you’re getting it from Alinghi or BMW Oracle. Thanks for the reminder to our readers to check out Scuttlebutt, whose Cory Friedman has been following the legal battle closely. Please note that the web address you gave is incorrect. Here is a link to Cory Friedman’s coverage.