Saturday, 23 January 2010

America's Cup: America's Cup Defender submits 'constructed in country' opposition papers and a counter motion

by Daphne Morgan Barnicoat

Société Nautique de Genève (SNG), the 33rd America's Cup defending yacht club, today presented its opposition arguments to the New York Supreme Court in response to Golden Gate Yacht Club's (GGYC) ninth lawsuit; a misguided interpretation of the ‘constructed in country' (CIC) requirement of the Deed of Gift, the event's governing document. SNG's comprehensive set of papers reaffirms its interpretation that only the ‘yacht or vessel' has to be constructed in the country of the club holding the Cup, and that sails do not.

SNG's affirmations are supported by historical precedent, as reflected in the expert declaration of John Rousmaniere, a leading America's Cup historian, ‘the donors of the original Deed of Gift never contemplated limits on foreign sails or foreign sail technology. Those donors, in fact, hoisted British sails in first winning the Cup with the schooner America. In fact, in adding the CIC clause to the Deed in 1882, George Schuyler, the last surviving donor, sought to ensure that the Cup remained a genuinely competitive event, while preserving the Cup's international character. He thus struck that balance by limiting the CIC requirement only to a competing vessel's hull, but not its sails.'

Additional documents presented to the court confirm that GGYC's CIC claim is factually wrong: SNG's sails were constructed in Switzerland and this fact is supported by an affidavit from Tom Whidden, president of North Sails, and an official certificate of Swiss origin from the Swiss Chamber of Commerce.

“SNG is certain of our yacht's Deed compliance, including the ‘constructed in country' provision and our interpretation is supported by the language of the Deed, historical precedent, and by the Cup donor's intentions,” said Fred Meyer, vice-commodore of SNG. “In any event, GGYC's CIC claim is factually wrong and we have submitted to the court substantial evidence proving that our sails are Swiss made. It is our view that we should go racing on 8 February. GGYC should end their legal strategy to try to delay the Cup and to try to gain competitive advantage over the Defender and should proceed with the competition on the water. If they wish, however, to pursue their latest lawsuit, then the judge should have a close look at BMW Oracle's yacht, which does not comply with GGYC's own interpretation of the Deed,” he concluded.

‘Constructed in country' counter motion

In parallel to the opposition papers, SNG has presented a counter motion stating that, should GGYC's interpretation of the CIC in the Deed of Gift be validated by the Court, then its own boat would be illegal. Affidavits from a number of leading experts in the field of yacht design, such as Duncan MacLane and Nigel Irens, support the fact that GGYC's trimaran is in fact a French-designed boat and not American, as supported by photographic exhibits the boat also includes a number of non-American constructed elements. In addition, BMW Oracle's yacht is not even a sloop, propelled by sails, with a main and a jib, as declared in the American club's certificate of challenge, but a wing-mast rig.

SNG's set of documents showcases how this latest motion by GGYC is in contravention of the spirit of the Deed of Gift and how Larry Ellison's yacht club has forgotten the call for friendly competition between nations.

Excerpts from expert affidavits:

Excerpts from the declaration by John Rousmaniere (USA), America's Cup historian:
”For more than a century of America's Cup competition, nationality concerned only yacht clubs and yacht hulls. There were no nationality restrictions on sails in the first race in 1851, when the American donors of the America's Cup used English sails. The first formal restriction of international exchanges of sail and other technologies was not established until after the nineteenth cup regatta in 1962. That was when the then trustee, the New York Yacht Club, issued what it would call an “interpretive resolution” limiting access to technology across national borders. Subsequently other, sometimes conflicting restrictions were imposed until all interpretive resolutions were rescinded by SNG and GGYC before the most recent cup races in 2007.

“Unlike hulls, sails were not regarded as subject to nationality restrictions – not by sailors, not by sailmakers, and not by the donors and the trustee New York Yacht Club.

“Had a stringent “constructed in country” rule – like the one proposed by Golden Gate Yacht Club in this action – been in place and enforced, in most of those nineteen regattas either the challenger or the defender (and sometimes both) might have been disqualified.

“Since the complaints about Atalanta concerned how identical her “model,” or hull shape, was to U.S. yachts, “constructed” can only have meant “designed and built.” Nothing was said or even implied in the “Second Deed” about sails, scantlings, or other construction standards.”

Excerpt from the affidavit by Tom Whidden (USA), president of North Sails:
“In Switzerland, I understand that the Alinghi team constructed the sails for Alinghi 5 by (1) joining the 3DL pieces/sections to construct the body of the sails; (2) finishing the sails by traditional sail-making methods; and (3) transporting the constructed sails to the location of Alinghi's yacht.”

Excerpt from the affidavit by Nigel Irens (GBR), multihull designer at Irens-Cabaret:
“In my view, the BOR yacht represents an extrapolation and adaptation of other current racing designs of the French firm, VPLP.”

Excerpt from the affidavit by Duncan MacLane (USA), multihull designer:
“Over the last ten years, there has been very little development of large performance multihulls in the United States. The larger racing multihulls have been concentrated in Europe, with European designers. The BOR 90 foot trimaran is clearly the offspring of European racing trimarans, particularly the ORMA 60's and their development programs.”

Notes (sources of quotations given above):

- Rousmaniere quote: SNG MOL in opposition to GGYC improper motion to ‘enforce' the April 7, 2009 order and judgment, page 3.
- Rousmaniere excerpt 1: Rousmaniere affidavit, pages 2 & 3
- Rousmaniere excerpt 2: Rousmaniere affidavit, page 6
- Rousmaniere excerpt 3: Rousmaniere affidavit, page 7
- Rousmaniere excerpt 4: Rousmaniere affidavit, page 15
- Whidden excerpt: Whidden affidavit, page 4
- Irens excerpt: Irens affidavit, page 2
- MacLane excerpt: MacLane affidavit: page 2

Documents and Court filings:

- Opposition papers
- Notice of Cross Motion
- MOL Cross Motion
- Declaration of John Rousmaniere
- Alinghi Sails Certificate of Origin
- Whidden Affidavit
- Vrolijk Affidavit
- Tournier Affidavit
- Sahli Affidavit
- Pattison Affidavit
- Masmejan Affidavit
- MacLane Affidavit
- Irens Affidavit
- Giuffra Exhibits

Société Nautique de Genève

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