Shockwave40: Eclipse - E Boat - Burnham 2014

Shockwave40: Eclipse - E Boat - Burnham 2014

Julian Everitt offshore column

COURTING DISASTER



The Deed of Gift (DOG) America's Cup Challenge is now set to go ahead
between giant 90ft multihulls on, wait for it!, March 12, 2009 - but is
it!? According to that very same Deed racing is prohibited in the
Northern hemisphere between November and May.
You would think that this was a silly mistake by Justice Cahn after all
the coming and going in the New York Supreme court, but in fact it is an
attempt, on his behalf, to be pragmatic and to gently force the warring
participants, Oracle and Alinghi, to agree, on at least one mutually
beneficial aspect. to either postpone the challenge by two months or
have it take place in the Southern hemisphere.
But will they agree to something that simple. Well apparently not, as
Alinghi has challenged the ruling rather then come to an accommodation
with Larry Ellison's Oracle Team.
In many ways the Southern hemisphere option is a non starter anyway as
there are no suitable places available to stage such an event. The
antipathy in both New Zealand and Australia towards the current
wrangling would rule those countries out of hosting the series and
nowhere else really has the facilities to exploit the event. Indeed New
Zealand with their ongoing court action to claim for loss of earnings as
a result of the multi challenger America's Cup being delayed, could put
the future of the AC on hold for years to come. (More on this next
month).
Holding it in Valencia in May 2009 seems perfectly attractive, but
clearly not to the Alinghi people who want to use every trick in the
book to postpone the event for as long as possible and wreak as much
havoc as they can on the integrity of the America's Cup. Justice Cahn
also ruled that if Alinghi wanted to alter the venue from Valencia they
had to give six months notice which of course gives them the option for
another delaying tactic. I am beginning to wonder if Alinghi, having
failed to get the rules skewed round to their advantage as defenders,
are now waging a war of attrition - no just on Oracle - but on all of
the potential challengers. After all, how many of them will survive
ongoing time delays before the cup returns to a multi challenger format?
You wouldn't think that highly paid lawyers would be unable to read the
Deed of Gift document, but for all of its conciseness they and the
powers that be in the Alinghi and Oracle teams seem unable to understand
its simplicity. The Swiss are threatening legal action because Oracle
have not sent a Custom House Registry certificate to prove the dimension
of their vessel. The Deed, however clearly states that this must be sent
as soon as possible and that can't be until the vessel is completed for
inspection. No case to answer there then.
The other banana skin looming is the construction issue and whether
either boat will comply with Nationality requirements. Well the fact is
the original document is very loose on this and simply states that the
vessels of both defender and challenger be constructed in their own
countries. An amendment to this was adopted in 1958 to read: "designed
and built" . A further amendment in 1980 clarified that "built"
refereed only to the framing and planking of the hull and the sails.
There has never been any restriction on equipment or indeed on who
builds the deck or rig!
Various other amendments have been adopted since the first change in
1956 (this simply removed the requirement that the challenger should
sail on her own bottom to the defender country ) including one
allowing for the cup to be staged in the southern hemisphere. The
problem for the current DOG challenge is that all parties, including
Justice Cahn, are picking and choosing which amendments to apply - if
any.
If you revert back entirely to the original Deed, drawn up in 1887 then
the court ruling that the event must be staged on March 12 2009 cannot
be applied as the event must take place between May and November.
Alinghi could, quite rightly, simply not turn up, but not forfeit the
Cup either.
Alternatively, if amendments to the Deed are allowed, then Oracle is
also doomed. They have used foreign Nationals to design their boat. All
Alinghi will need to do is turn up for the races, in any old boat, cross
the line and then protest the race. That should be enough to get Oracle
thrown out!
Now I am no lawyer, but the language used in the dreaded Deed of Gift is
very simple and covers but a few pages of A4. History records that until
the New Zealand big boat challenge in 1988, nobody had bothered to
read or take on board the significance of the Deed and then the Kiwi's
failed to realise that there was no requirement for the boats to be
monohulls!
Now we have millions of dollars of law time, being poured into
interpreting a document that takes a full five minutes to read and
sailing experts like Coutts and Butterworth arguing their respective
cases for an event that whatever way you look at it, is, at best,
permanently on the back burner, or destined to stay in the hands of the
Swiss.
All America's Cups, except 1988, have drawn on a mutual consent aspect
of the Deed. Well this isn't going to happen with Ernesto Bertarelli of
Alinghi on the warpath. He must be relishing the prospect of a 'French
designed' American challenger!
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