The legal feud just goes on and on in the America’s Cup. A mere day after BMW Oracle asked the NY Court to hold Alinghi in contempt for entering into a secret agreement with ISAF to alter the sailing rules of the 33rd America’s Cup match, the Defender counterattacks and files a demand to compel the Americans to “to provide SNG with a Custom House registry of its challenge vessel described in its Notice of Challenge (and launched on August 25, 2008, and relaunched on July 6, 2009) within 14 days, or face disqualification.”
Both cases will be heard in front of Justice Kornreich next Tuesday, July 21, at 10am.
Posted by | Posted in BMW Oracle | Posted on 15-07-2009
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While the legal teams are sharpening their pencils in New York for Tuesday’s oral hearing in the State’s Supreme court, BMW Oracle’s shore crew across the USA stepped the big mast on BOR90 earlier on Wednesday. Sorry for the quality but this is the only picture we have, sent by one of our readers.
The BMW Oracle crew steps the big mast on BOR90. San Diego, 15 July 2009
Just to get an idea what it looks like from up there, here is a nice picture from Gilles Martin-Raget, taken last week, from atop the smaller mast.
Atop the BOR90 mast. San Diego, 10 July 2009. Photo copyright Gilles Martin-Raget / BMW Oracle
[Source: Alinghi] Statement from Alinghi skipper and four-time America’s Cup winner, Brad Butterworth, following the latest BMW Oracle legal actions: “The pending court case is the fourth time BMW Oracle Racing has chosen to go to court rather than meet us on the water and race for the 33rd America’s Cup. If you read the letters of the 2 December 1987 and the 26 May 2009 from the respective Defenders to their Challengers you will see similarities because the template of the 1987 letter was used by the SNG to avoid doubt, particularly as the author of said letter to the Mercury Bay Yacht Club was Tom Ehman, who now represents BMW Oracle. We are complying with the Deed of Gift in everything we do. Let’s not forget that the Deed gives the Defender of the America’s Cup some legitmate rights. Instead of diverting attention with groundless litigation, BMW Oracle should provide their yacht’s Custom House Registry as soon as possible, as required by Deed and Court.”
[Source: Alinghi] America’s Cup Defender, Société Nautique de Genève (SNG), statement in reaction to the latest Golden Gate Yacht Club legal action: “It is again a disappointment that the Golden Gate Yacht Club (GGYC) chooses to pursue its litigious strategy instead of fighting for the America’s Cup on the water. It is now the fourth time the American team goes to court, this time in an attempt to prevent the SNG’s legitimate right to use its yacht club rules – as prescribed in the Deed of Gift – and the ISAF rules and regulations to their full extent, as it has been the case in previous editions of the America’s Cup and in any international regatta in the world. While GGYC continues to put pressure on the SNG through the New York courts, SNG continues to wait for the GGYC to provide their yacht’s Custom House Registry as soon as possible, as per the Deed of Gift and the New York court decisions.”
[Source: BMW Oracle] At Golden Gate Yacht Club’s request, today the Supreme Court of the State of New York issued an order directing the defender, Société Nautique de Genève (SNG), to show cause why it should not be held in contempt of court for failing to comply with the America’s Cup Deed of Gift by denying GGYC its rights, as the next America’s Cup challenger of record, as detailed in the Order and Judgment.
Specifically, to date SNG has refused to affirm its sailing regulations and rules to GGYC as required by the Deed. To make matters worse, SNG said that it may change the rules in the future without GGYC’s consent, including the rules governing construction of the competing vessels. Further, it has entered into a secret agreement with the International Sailing Federation (“ISAF”), the organization which will have a central role in selecting match officials and sailing jury.
“Once again, Alinghi seems to believe the Deed and other rules do not apply to them,” said GGYC spokesman Tom Ehman. “As we said in our court brief today, the prejudice to GGYC is manifest. For example, SNG has proclaimed the intent and authority to construct its competing vessel with engines to trim sails and movable ballast, each now banned by the ISAF rules, and then announce a change in those rules that permits them. In designing its competing vessel, GGYC was compelled to rely on the ISAF rules which prohibit engines and movable ballast.”
In early April the New York State Court of Appeals, in a unanimous 6-0 ruling, held that GGYC is the rightful challenger, and that the next match would be in early February 2010.
The Deed of Gift provides that the Cup match “shall be sailed subject to [the defender’s] rules and sailing regulations so far as the same do not conflict with the provisions of this deed of gift.” The Deed also explicitly provides that the defender’s “rules and sailing regulations” for the match may only be modified through mutual consent of the defender and challenger.
At the time of GGYC’s challenge on July 11, 2007, SNG’s “rules and sailing regulations” were those of the International Sailing Federation (“ISAF”), including the ISAF Racing Rules of Sailing (“RRS”) that then and now govern major sailing events. These rules apply “so far as the same do not conflict with the provisions” of the Deed.
However, by letter to GGYC dated April 23, 2009, SNG for the first time claimed the right to change the rules for the match at anytime without mutual consent.
But SNG did not stop there. An ISAF Executive Committee member has acknowledged that on June 5, 2009, SNG (or its racing team Alinghi) paid ISAF €150,000 pursuant to a secret agreement making certain arrangements concerning ISAF’s role in, and the “rules and sailing regulations” for, the next Cup match.
Neither ISAF nor SNG/Alinghi will disclose the secret agreement to GGYC. Especially in light of ISAF’s central role in selecting the match officials and sailing jury, such collusive secrecy is unacceptable and violates SNG’s fiduciary duty to GGYC as the challenger of record and trust beneficiary.
The court scheduled a hearing for Tuesday, July 21 at 10 a.m.
Mr Fred Meyer Vice-Commodore Chairman, SNG’s America’s Cup Committee Société Nautique de Genève Port Noir CH-1223 Cologny SWITZERLAND
Dear Vice-Commodore Meyer,
We write in response to your letter of July 6, 2009
Let us again reiterate, the Deed and the Order and Judgement are clear that you may not select a Northern Hemisphere venue, other than Valencia, without our mutual consent. Justice Kornreich’s May 14th order contains nothing that even suggests, let alone “stated”, otherwise. To the contrary, Justice Kornreich ordered “SNG to hold the race as per the order of the Court of Appeals and Justice Cahn in February as the order required.”
As further proof that our reading of the Deed and the Judgement and order is correct, you agreed with it when light and truth were original to you. In your May 11, 2009, court papers you agreed that “the Deed of Gift unambiguously prohibits sailing a match between November 1 and May 1 in the Northern Hemisphere… There is nothing in the order that suggests that a race should be held in contravention of the terms of the the Deed of Gift.”
What is more, during the May 14th hearing when your attorney attempted an about face by asserting that SNG has the right to select a Northern Hemisphere venue other than Valencia without our consent, Justice Kornreich stated that “that’s not what the Court of Appeals said”.
Your letter also again fails to respond to the inescapable conclusion that the Deed and the Order and Judgement my be read harmoniously, giving force and effect to the terms of each, requiring a February race in Valencia or any other Southern Hemisphere location selected by SNG, unless otherwise consented to by GGYC. There is therefore no basis to conclude that the phrase “any other location” in the Order and Judgement intended to alter the Deed of Gift’s Northern Hemisphere restriction; just as there is no basis to conclude that this phrase intended to alter the Deed’s requirement to select a location free of headlands or a location that has an ocean water course.
You also misconstrue Justice Kornreich’s order and the Deed when you assert that they require GGYC’s Custom House Registry to “conform exactly” to GGYC’s challenge certificate. To the contrary, the Deed is unambiguous that the dimensions provided on a challenge certificate “shall no be exceeded”. Justice Kornreich’s order is entirely consist with the Deed and the Order and Judgement; and you are simply wrong in your repeated assertions that Justice Kornreich’s order in any way contravened the terms of the Deed or the mandate of the Court of Appeals.
Sincerely,
GOLDEN GATE YACHT CLUB
Marcus Young Commodore
cc: Ernesto Bertarelli, Team Ainghi Brad Butterworth, Team Ainghi Russell Coutts, BMW Oracle Racing Tom Ehman, BMW Oracle Racing Larry Ellison, BMW Oracle Racing
[Source: BMW Oracle] BMW ORACLE Racing today started sea trials of their 90-foot by 90-foot high-tech racing machine in the waters off Point Loma in San Diego.
Helmsman James Spithill (AUS) guided the newly modified BOR 90 trimaran off the dock at 11:30am sharp local time. The 16-story mast was installed on Monday and on Tuesday the team conducted a series of engineering tests to ensure the boat was ready to take to the water for the next phase of sea trials.
The team will ease into this next round of testing as structural and other tests continue on the water. “As we gain more confidence with the boat, we’ll certainly be out there pushing it and seeing what we can get out of it,” Spithill said.
“It’s breaking new ground,” says the team’s 30-year-old helmsman. “This has never been done before, so it’s an incredible opportunity for the sailors on both teams, and all the people involved; designers, builders. These boats have the most amazing power-to-weight ratio. There’s nothing else that’s ever been done on this sort of scale.”
BMW ORACLE Racing is the Challenger for the 33rd America’s Cup. The team will meet the Swiss Defender Alinghi in a best two-of-three head-to-head duel starting February 8. The venue for the competition will be named by the Defender by August 8.
First sea trials of the newly modified BOR 90 trimaran. San Diego, 8 July 2009. Photo copyright Gilles Martin-Raget / BMW Oracle
First sea trials of the newly modified BOR 90 trimaran. San Diego, 8 July 2009. Photo copyright Gilles Martin-Raget / BMW Oracle
First sea trials of the newly modified BOR 90 trimaran. San Diego, 8 July 2009. Photo copyright Gilles Martin-Raget / BMW Oracle
First sea trials of the newly modified BOR 90 trimaran. San Diego, 8 July 2009. Photo copyright Gilles Martin-Raget / BMW Oracle
Mr. Marcus Young Commodore The Golden Gate Yacht Club #1 Yacht Road San Francisco California 94123 USA
6 July 2009
33rd America’s Cup
Dear Commodore,
We write to correct your erroneous letter of June 19, 2009 and to address news reports of a recent interview with Russell Coutts.
In the June 19 letter, you curiously claimed that naming a Northern Hemisphere venue other than Valencia without your “express agreement” would “flaunt the Deed of Gift and/or the Court’s Judgment and Orders.” This statement is baseless.
To be perfectly clear: the last court orders of Justices Kornreich and Cahn stated that SNG is entitled to select Valencia “or any other location” for the next Cup, without qualification or limitation. “Any other location”, of course, includes any Northern or Southern Hemisphere venue. The orders also make clear that SNG has until 6 months prior to the race of the next Cup to announce a location. SNG will specify Valencia or any other venue in the Northern or Southern Hemisphere in due course.
We also take issue with a report of an interview of Russell Coutts that appears in the August, 2009 issue of Seahorse Magazine. When asked, “[D]o you feel bound by the 90ft x 90ft dimension of the challenge document?” Mr. Coutts stated, “We won’t exceed the dimensions as stipulated. The Deed is clear that you are not allowed to exceed the dimensions.”
This is, of course, a blatant misreading of the requirements of the orders and the Deed of Gift. The Deed, as Justice Kornreich reiterated at the May 14, 2009 hearing, expressly requires GGYC to challenge in, and provide a Custom House Registry for, a challenge vessel that conforms exactly to the measurements contained in the boat certificate that accompanied GGYC’s notice of challenge. As Justice Kornreich said at the hearing, and as we noted in our letter of May 26: “I am stating right now that … the Deed does require that the vessel conform to the challenge dimensions. If the [Custom House Registry] does not conform to the challenge dimensions, it is this Court’s belief, and my direction, that Golden Gate will be disqualified, and I am directing Golden Gate, in good faith, to abide by the Deed, to make application for the CHR as soon as possible and providing it as soon as possible”.
That’s the order of the Court. Should you challenge in a vessel that does not conform to the challenge dimensions, we will seek your GGYC’s immediate disqualification. We look forward to the immediate receipt of the Custom House Registry.
Your letter and Mr. Coutts’ interview make clear that your favored means to compete for the Cup is through litigation. We encourage you to stop these tactics and agree to meet us on the water in a boat that conforms exactly to those dimensions listed in the Challenge.
In the same interview Mr. Coutts said that the challenge received by SNG from Circolo Vela di Gargnano (CVG) was “unrealistic”. As far as we know you have not responded to the latest letter of CVG dated June 12, 2009. Please advise as soon as possible if GGYC is going to give the opportunity to other challengers to compete in the 33rd America’s Cup or will continue to exclude challengers from competition.
Yours sincerely.
Fred Meyer Vice-Commodore and Chairman of America’s Cup Committee
[Source: BMW Oracle] BMW ORACLE Racing today launched their trimaran in San Diego as the team prepares to sea trial the 90-foot by 90-foot high-tech racing machine. The mast will be installed dockside and the boat will be load-tested before the huge multihull is tested by the crew in the waters off Point Loma.
“We are really excited to get out on the water,” said helmsman James Spithill (AUS). “We still have plenty to do to complete sea trials and be ready for the America’s Cup in February so every day counts. It is only seven months until the America’s Cup so we are now in the home stretch.”
BMW ORACLE Racing is the Challenger for the 33rd America’s Cup. The team will meet the Swiss Defender Alinghi in a best two-of-three head-to-head duel starting February 8. The venue for the competition will be named by the Defender by August 8.
The team will test the trimaran in San Diego this summer.
“This is cutting-edge technology and sailing. We look forward to testing how fast is fast,” said Spithill.
The newly modified BOR90 is back on the water. San Diego, 6 July 2009. Photo copyright Gilles Martin-Raget / BMW Oracle
The newly modified BOR90 is back on the water. San Diego, 6 July 2009. Photo copyright Gilles Martin-Raget / BMW Oracle
The newly modified BOR90 is back on the water. San Diego, 6 July 2009. Photo copyright Gilles Martin-Raget / BMW Oracle
The newly modified BOR90 is back on the water. San Diego, 6 July 2009. Photo copyright Gilles Martin-Raget / BMW Oracle
The newly modified BOR90 is back on the water. San Diego, 6 July 2009. Photo copyright Gilles Martin-Raget / BMW Oracle
The newly modified BOR90 is back on the water. San Diego, 6 July 2009. Photo copyright Gilles Martin-Raget / BMW Oracle
The newly modified BOR90 is back on the water. San Diego, 6 July 2009. Photo copyright Gilles Martin-Raget / BMW Oracle
