"Lasciate ogne speranza, voi ch'intrate", or "Abandon all hope, ye who enter here"
Charon, Boatman of the Dead. Painting by By Olexandr Lytovchenko (1835-1890)
Hi. Enough all ready. After spending two years trying to disseminate an endless trail of litigation, the 33rd America’s Cup has descended into nothing more than a bitter divorce battle.
In infamous glory, commodores Fred Murray from the Societe Nautique de Geneva (SNG) and his counterpart Marcus Young of the Golden Gate Yacht Club (GGYC) trade letters espousing their desires for an amicable America’s Cup.
With the utmost sincerity feeling that they are both somehow on the side of might and right; but even the Dante Alighieri [before this is over, his name will have a look familiarity here] would hesitate to cross over on these 'Cup boats into Hades.
The yachts in question this time around are not narrow, 80 ft. monohulls (1 hull) grasping to reach 20 knots, but behemoth multi-hulls 90 ft. by 90 ft on the load waterline, with carbon fiber masts that tower 200 feet into the sky. With more than 7,000 square ft. of sail area these boats can be expected to sail at more than 40 knots!
Pulling the purse strings are billionaires Larry Ellison, representing the GGYC in combination with his team BMW Oracle and Ernesto Bertarelli with Alinghi, holding sway over SNG. The sailors on board for the most part pay penance to their bosses and the legal teams involved are presumably the best and certainly the most expensive in the world.
BMW Oracle launched their trimaran (3 hulls) last year in Anacortes, Washington and this past July, Alinghi put a gargantuan catamaran (2 hulls) into the emerald waters of Lake Geneva, Switzerland. These high tech wonders will ensure that the next America’s Cup will be the most spectacular design fest in history......if the warring factions can ever escape their escapades in the courtroom.
With all the ruminations over the choice of the venue, fortunately or not Judge Herman Cahn left the door open for Alinghi to choose Ras al Khaaimah (RAK)in the United Arab Emirates to host the 33rd America’s Cup. RAK is perhaps the poorest of the seven Emirates (city/states) in wealth, shadowed by popularity of Dubai, just 50 miles to the south, that said; the largest concern is that its closest neighbor aside from bordering Omen is Iran, whose territorial waters border the race course.
In his ruling Judge Cahn, broke paths with the rules, for a variety of reasons and wrote that “Alinghi was free to choose Valencia, Spain or any other location,” for its defense of the America’s Cup. Alinghi did just that. Circumventing Dubai and choosing RAK, whose rulers have pledged infrastructure support. GGYC is challenging this selection in court, but a reality check should tell them its time to start packing their bags for the Middle East.
RAK should bring mild sea conditions and warm winds for February, just the right prescription for their new ‘cat.
Ras al Khaaimah (RAK)in the United Arab Emirates to host the 33rd America’s Cup. In 1987 the America’s Cup was gilded with “scientist who sail” now we’re tethered to a “yawl”-ful of lawyers who don’t necessarily sail, but like to be seen at the yacht club prospecting for more suckers (clients). GGYC have brought on reknowned windbag "lawyer" David Bois. Bois is most famous for losing Bush vs Gore to lead their legal team.
Is it time for the New York Court System to wrest control of this nightmare and protect their state’s charitable trust?
What began earlier this year as the butt of the Scuttlebutt’s fool’s joke has now reached an epic palisade’s head on a platter, with calls to revoke the trust and return control of the America’s Cup back to the New York Yacht Club. That, in combination with the other former trustees to finally amend the Deed of Gift for the 21st century.
Two years ago when nautical journalists around the globe promulgated the spectre of a nuclear doomsday scenario [we’re here] we have been led to no other place in the world than the probability of an America’s Cup Regatta on the Persian Gulf, mere miles from the Iranian Coast and another one of its newly discovered uranium enrichment (bomb) facilities.
Has SNG breached their fiduciary duties? Are the GGYC and BMW Oracle the true protectors of yachting’s holy grail? With the peripheral spiraling downward, explore the circles of descent into the inferno and channel thru this decadence jibing towards these (not) original sins in this litigation to look on how all of this came to be, while hoping that “there must be some other way”.
As for the regatta participants themselves, Alinghi 5 has started training in the Persian Gulf and BMW Oracle has just emerged from their construction tent in San Diego. Both sides face off on October 27th in Judge Shirley Kornreich’s courtroom in what should be the final round before February’s match. Hopefully, the judge will put a lid on the recent escalation of litigation.
It is time to set the rules for this rendezvous and reserve future legal action until after the match is completed, at which time the court can hopefully bar both sides from further litigation or face permanent expulsion from the America’s Cup.
Under that scenario we can watch an intriguing match and move on to set up mutual consent for the future America’s Cup races. So, it is in the spirit of that passion dream drama that may as yet not vaporized, we anguish in perpetuity wondering on whether we will ever have an America’s Cup next February.
Really, who doesn’t want to see at least one high tech parley of a cat and tri- foil show ripping it out on the Mediterranean Sea or even the Persian Gulf?
The first circle. Limbo
No doubt. With all this endless litigation, there has been a tailspin into limbo ever since that spectacular July afternoon in 2007, when Alinghi crossed the finish line ahead of Emirates Team New Zealand (ETNZ) by a mere second, ending an incredible; protest defined, lead changing race. Alinghi defeated ETNZ 5-2 in one of the most exciting America’s Cup series in history.
When the series was over Societe Nautique de Geneva (SNG) drafted the rules for the next America’s Cup. Enjoining the Spanish Sailing Federation (RNEF) they created a phantom yacht club to agree to new rules (bogus) and represent any challengers, who might be interested in racing for the right to face to Swiss in an America’s Cup final in 2009.
Alinghi won the America’s Cup in Auckland, New Zealand in 2003. The yacht club chose Valencia, Spain over ports in Portugal, Italy and France to host the 2007 America’s Cup. Valencia, the European equivalent of Milwaukee, Wisconsin; is located on the Mediterranean and is one of the world’s oldest ports.
Days after defending the America’s Cup, SNG accepts an “in house” challenge from Nautico Club Espanol de Vela’s (CNEV) for the 33rd America’s Cup and a controversial new protocol is written. The following week the Golden Gate Yacht Club in San Francisco, CA files a formal challenge for the America’s Cup under the strict terms of the Deed of Gift. The GGYC contend that the challenge from CNEV does not meet the defining criteria in its acceptance as the challenger of record.
When that challenge was rejected by SNG, the GGYC filed suit in the New York Supreme Court, to invalidate the Spanish challenge. The New York court is bound by the Deed to arbitrate all disputes relating to the America’s Cup Trophy, which is held as a charitable trust by the state.
On November 27th, 2007 the Honorable Judge Herman Cahn ruled in favor of the Golden Gate Yacht Club (GGYC) and declared them to be the true challenger of record. Armed with a formidable team of new lawyers, SNG appeals the decision with the Appellant Court in New York.
In July, 2008 an Appellant Court in New York , littered with recent appointees ruled in a split decision (3-2) in favor of SNG and Alinghi. Surprise! The Club Nautico Espanol de Vela (CNEV) is again the challenger of record for the 33rd America’s Cup. In a ruling that has shocked everyone; most of all Team Alinghi, the Golden Gate Yacht Club was displaced as the challenger of record and faced the prospect of either appealing to the New York Court of Appeals or facing the possibility of being barred from the next America’s Cup.
As expected GGYC did appeal the verdict to the highest court in the State of New York and in April, 2009 the Appellant Court verdict was over turned by a unanimous Appeals Court 6-0.
The court remanded the decision back to Judge Cahn’s original ruling and now that he has since retired the whole affair has landed in the lap of Judge Shirly Kornreich.
Judge Kornreich has spent the entire summer and now the fall overseeing what has become a rapid fire series of exchanges between the litigants and hopefully, but probably not finally lay the law down for the match in February, 2010.
The Deed of Gift is the bylaw that governs the race, was written by the syndicate owners of the America and the NYYC. It was amended by the last surviving member; George Schuyler in 1887. The defense of the “Auld Mug” the nickname for the America’s Cup trophy, takes place for the most part every few years. Over the last two decades it has changed hands several times between America, Australia, New Zealand and now, Switzerland.
Since the last legal debacle in 1988, the Deed had generally been usurped of its authoritative grip on the rules by mutual agreement provisions called the America's Cup Protocol. The protocol's enabling resolutions allow the Challenger of Record to establish the rules and regatta format to determine who will challenge the defending yacht club for the America's Cup.
Over the last two years the warring parties have been in and out of court trying to capture the higher ground in the court of public opinion with an endless sea of snipes and gripes. Most of the paper trail materializes in the form of legal dispatches and press releases, which has led into the current state of limbo. The end seemed in sight this past May, 2009, with the ruling by the highest court in the state, but that seems ages ago now.
The second circle. Lust“
To have an inordinate desire” as defined and this case it comes down to Russell Coutts. Coutts clearly has been coveted by all sides and Alinghi would not have won the America’s Cup or been remotely competitive had it not been for his defection from Team New Zealand. Coutts is the pre-eminent America’s Cup skipper of this era.
He was the winning skipper on the victorious TNZ yachts in 1995 and 2000, Coutts was handed over the reigns of leadership by Sir Peter Blake and thou their rocky relationship appeared to more ego driven than contentious, Coutts was is in disagreement with the Blake and the trusteeship of the Royal New Zealand Yacht Squadron over negotiated corporate contracts and commitments for the team for the next defense in 2003. Was there trouble in paradise?
The writing was on the wall as many of the Kiwi afterguard jump ship to Ernesto Bertarelli’s fledging new America’s Cup team Alinghi, from Lake Geneva, Switzerland. The Swiss pharmaceuticals magnate sent a tsunami through the South Pacific by raiding Team New Zealand of its winning skipper and other key personnel. Quickly labeled as traitors, the Kiwi nation won't likely forget or forgive
The America’s Cup once a haven of nationalistic pride, amateurism and recreation, reeled in the realization that with the dawn of a new era encroaching on the Auld Mug, free agency and the high salaries associated with the rising costs, has taken hold.
After defeating TNZ in 2003, Alinghi chief Bertarelli and Coutts quickly fell into disagreement over the direction of the next America’s Cup. In June 2004 Coutts was fired by Team Alinghi “for repeated violations of his duties.” The new protocol had promised freer access by sailors to cross borders and compete for other countries, but now that access is being restricted by new mutual consent amendments.
Coutts, continued a mediation process with Bertarelli to allow access into 2007 America’s Cup, but sat on the shoreline as his former ‘mates won another America’s Cup. Dejected and resigned to his fate Coutts told the NZ Herald; “do we want an America’s Cup to be governed by two guys (Ellison & Bertarelli)”. They are the kingmakers “that all of a sudden get into a back room somewhere and decide to change the rules for whatever reason.”
"Most seriously, I was concerned at the impact of this management style not just on my contract, but on the wider America's Cup event,” said Coutts. “I found the role he increasingly insisted I occupy in the syndicate was at considerable variance with the one we had discussed, at length, during and since the last (2003) America's Cup campaign. “This and other issues were clear breaches of the contract I had entered into with him.” Lust, enter Ellison.
At the end of the 2007 ‘Cup and at the beginning of GGYC’s litigation it was a foregone conclusion that Coutts would end up at BMWO. Coutts is now the executive director of the syndicate and has complete directorial control over all sailing operations. Coutts said he had been delighted to accept the offer to join BMW ORACLE Racing as CEO.
“Taking up this new challenge gives me a leadership role with an outstanding team. I’m looking forward to building up a successful team. And I share Larry’s vision for close and exciting racing with neutral event management,” Coutts said. “It will be great to be back in the Cup. I enjoyed watching the last event – but I look forward to getting back on the water.”
Bertarelli would be loathe to place the center of his America’s Cup world on where or for whom Coutts sails, but this Brett Favre-like drama has all the earmarks of a jilted at the alter relationship.
The third circle. Gluttony
You’re so vain, you’ll probably think this story here is about you, and unfortunately you are right. This is an apocalyptical nightmare America’s Cup scenario that is deadlocked in an insurmountable billionaire ego driven bypass.
On one hand, there is Alinghi President Bertarelli, whose team defended the America’s Cup for SNG and who is trying to force his vision forward by usurping, for the most part, the mutual consent provision of a new protocol for the 33rd running of the world’s most prestigious yacht race. Bertarelli, Italian by birth, inherited his fortune from his family who founded the pharmaceutical giant Serono and amassed greater wealth when the company merged with Merck a few years back. The word alinghi was made up as a child by Bertarelli
On the other hand is Ellison, the founder and chairman of Oracle. Ellison inherited nothing, climbing to the top by pulling up his bootstraps, while growing Oracle with relentless passion and fervor. His racing team BMW Oracle had perhaps the fastest AC Class Version 5 boat in Valencia, Spain, but was virtually swept away in five of the six races against Luna Rosa from Italy and to compound their infamy they lost 5-1 to Alinghi in 2003.
Ellison’s private yacht “Rising Sun” is over 450 ft. long, has more than 80 rooms and cost more than $200 million dollars to build. It is considered the sixth largest private yacht in the world. At over 540 feet, Russian oil baron Roman Abramovich owns the world’s largest boy boat toy. Dubai’s ruling Sheik Mohammed bin Rashid Al Maktoumis in second. Bertarelli’s private yacht, Vava measures in at over 155 feet.
Speaking of measuring, one of the disputes in this whole affair revolves around the length of the yacht. According to the Deed, the load waterline length of the boat as it sits in the water cannot exceed 90 feet “if of one mast,” also BMW Oracle stated challenge locked in the dimensions of its multihull at 90 feet. With the publishing of the rules this summer by the International Sailing Federation (ISAF), which is the world governing body of the sport, much of the controversy centered around the waiving of Rules 49-54 (engines) and movable ballast, certainly when the boat is measured and also, whether to include the rudder, when measuring for waterline length. In an historical context the rudder is generally not part of the measurement formula.
BMW Oracle brought in the firepower on this one, in the person of Australian Ken McAlpine who has been measuring America’s Cup boats since 1988 and is beyond reproach. In his deposition McAlpine stated that according to the ISAF rules for sailing for 2009-12; “These (the current rules) exclude the vessel’s rudder in the measurement of length.” Adding that in the last default match in 1988 that, “if either yacht had had a rudder extending beyond the water line of the hull, it would not have been included in the measurement”.
“As a measurer I would interpret the term “load water-line” means the water line when the vessel is in the load condition” or the maximum weight the boat will carry during the race including; crew, sails, equipment, ballast etc.
So, Ernesto take a page from the “Ecstasy of St Theresa”, on your own families’ past, when Serrano’s founders took the initiative and started extracting urine from all those nuns to start what became; your business and man up. Realize that you still have tremendous advantages as the defender.
The fourth circle. Avarice
Engines on a sail boat, for BMW Oracle’s sake, hopefully not one of BMW's Formula 1 motors. Given the massive sails this time around. In her ruling Judge Kornreich wrote that: “A blatant example of a design feature that would violate the Deed, is an engine used to propel the boat; the Deed permits only vessels “propelled by sails.” The Deed does not, however, contain any restrictions on ballast or design features regarding trimming the sails. These features are therefore permitted because they are not prohibited by the language of the Deed.”
In her ruling she goes on to say; “Nor does the court find that the change in the rules to permit movable ballast and power winches to power sails in anyway violates the controlling rules.”
“SNG is breaking with the longstanding history and tradition in yacht racing that prohibited the use of non-manual power. For the first time in the Cup’s history, engines will be permitted to trim the sails, and computers can be used to control and steer the yachts; said Tom Ehman of GGYC. “This, we believe, is a sad day for the America’s Cup”.
Honorable judges, you and your colleagues have rightfully upheld the literal reading of the Deed and rather than having the parties concerned, return to your court every time they need an interpretation of every word in the document, be it “having”, “keel boat” or “when” and “where” it is time to direct the parties to mutually agree or forfeit.
If SNG or GGYC cannot come to an agreement on the simplest of terms, the America’s Cup should be returned to the New York Supreme Court and placed with it’s original owners the New York Yacht Club (NYYC). The NYYC can implement the new class rule or a “version six” of the current America’s Cup Class and establish a new protocol for races to commence in Valencia, Spain in 2011.
To be honest, engines; really? Why not follow the NFL's lead in regards to how they protect quarterbacks and put dresses on the crew.
The fifth circle Wrath and Sloth
Here comes the Judge...again. With not quite the patience or eloquence of the now retired Judge Herman Cahn and a bit more of the reckless, gunslinger type enter Judge Shirley Werner Kornreich. “unsportsmanlike behavior?
Kornreich writes that; “ The GGYC’s arguments based on sportsmanship and fairness are equally unavailing, as well as ironic in light of both parties’ displayed lack of adherence to the Deed’s condition that the America’s Cup race be a perpetual Challenge Cup for “friendly” competition”
In early 1989 Judge Carmen Ciparick disqualified the SDYC and awarded the America’s Cup to the Mercury Bay Boating Club. Ciparick ruled that the San Diego Yacht Club had “violated the spirit of the deed” when its “clear goal to was to retain the cup at all costs.” “The vision that George Schuyler and the other donors sought to perpetuate over the years was that of an international race on a grand scale among boats on the seas and not a land bound battle among clever lawyers in the courthouse.”
In her ruling she wrote; “the defender of the America’s Cup is more than the current champion yacht club. The yacht club winning the America’s Cup becomes the sole trustee under the deed of gift and has an obligation there under to insure a fair competition. The holder of the America’s Cup is bound to a higher obligation than the victor of the Stanley Cup or Super Bowl. In organized sports such as hockey or football there is a central authority for the development and enforcement of competition rules. The defender of the America’s Cup, as trustee, is charged with the responsibility of insuring that a subsequent defense is carried out in accordance with the letter and spirit of the deed of gift. San Diego clearly fell short of its obligations as trustee of the deed of gift.”
In September 1989 by a 4-1 decision the Appellate Division of the New York Supreme Court overturned the ruling by Judge Ciparick and returned the America’s Cup to the San Diego Yacht Club. The auld mug itself never made the trip to New Zealand. The ‘Cup is being stored in a bank vault awaiting its fate. On April 26, 1990 the New York Court of Appeals rules 5-2 that the San Diego Yacht Club will retain the America’s Cup and will be free to organize the defense of their choosing.
The sixth circle. Heresy
In her decision Judge Kornreich wrote; “Allowing the challenger to continue construction after it issues the Notice of Challenge, and to reduce the size of the vessel below the noticed measurements, does appear to be inconsistent with the distinct advantage afforded the defender by the Deed's requirement of ten months' notice, but the court is mindful of the simpler state of technology that existed when the deed was drafted. There was only so much the challenger could do to its vessel once it learned the details of the defender's vessel, which under the Deed do not have to be revealed until the date of the match.”
“It is not only advances in technology, but the unsportsmanlike behavior of Golden Gate that has resulted in substantially reducing SNG's advantage as originally contemplated by the Deed.”
“Nonetheless, Golden Gate's actions are not contrary to law or sanction able in this limited forum. Because Golden Gate's vessel is still being constructed and the Deed permits the challenger to continue construction after the Notice of Challenge has been issued, the court will not compel Golden Gate to obtain a Custom House Registry (COD) within a specific period of time.”
“ To do so would be contrary to the Deed and counterproductive. (BMWO Rules Expert) Peter Willis explained that even if Golden Gate had the necessary supporting paperwork for issuance of a COD and one was issued, subsequent structural changes to the vessel would require issuance of an amended COD. Therefore, issuance of the COD does not freeze the vessel in time.”
“The court does find that Golden Gate must complete its vessel sufficiently in advance of the challenge date to allow for the approximate one month delay in obtaining a COD from the NYDC, and Golden Gate must provide SNG with the actual, final COD at least two weeks prior to the challenge date.”
“Accordingly, it is ordered that SNG's order to Show Cause why Golden Gate should not be disqualified for failure to provide SNG with a CHR (COD) is denied.”
Calling GGYC’s actions “unsportsmanlike” is a little bit like the pot calling the kettle black. Both sides are complicit. She sites Alinghi’s reduced advantage, without mentioning the fact that has been more than 2 years since GGYC gave 10 months notice in its challenge. The defender has had ample time to properly prepare for this match. Countless times in the ongoing litigation SNG/Alinghi has stated a desire to cooperate towards mutual terms and has not. Including changing council as a pre-empt for more litigation.
GGYC issued a mutually acceptable protocol approved by a majority of competing challengers for an America’s Cup in 2011 in Valencia, with almost identical terms to the 32nd match in 2007. It would have accepted most of Alinghi’s controversial terms, including the development of an AC 33 boat, with limits of one new boat per team.
Had GGYC engaged in ongoing “unsportsmanlike” behavior, Justice Carmen Ciparik would have smoked them out long before the Appeals Court ruling last April. Her feelings on fair play are well documented.
The seventh circle. Violence…all this & Armageddon too!
SNG has selected Ras al Khaaimah (RAK)in the United Arab Emirates to host the 33rd America’s Cup. It selected this middle east venue on August 8th as ordered by the New York Supreme Court (NYSC). SNG bypassed Valencia, Spain host of the last America’s Cup in 2007. Both sides allowed the contracts for the 33rd version of the races to expire, primarily due to the protracted litigation.
Alinghi 5 sailed under the expected whimsical conditions off RAK in their fragile catamaran. With a wind range of 5-7 knots, with possible building breezes and relatively flat seas this is exactly what Alinghi needs to work out the kinks in their new cat.
“The conditions are ideal here for these boats,” said Brad Butterworth, Alinghi team skipper, “exactly the building sea breeze that we hoped for which means we can sail as much as six days a week; it couldn’t be better for what we are trying to achieve.”
Preparations for the America’s Cup continue apace, both on Al Hamra Island, home to the team bases, and within Al Hamra Village where the teams and America’s Cup visitors will be accommodated over the next few months. The infrastructure is tailor-made for the event, courtesy of Ras Al Khaimah and Dr Khater Massaad, Advisor to H.H. Sheikh Saud bin Saqr Al Qasimi, Crown Prince and Deputy Ruler of Ras Al Khaimah, whose support has been invaluable.
“We are proud to host such a world-acclaimed sporting event and welcome Alinghi with open arms,” said Dr Massaad, “we just hope to be able to welcome BMW Oracle, the challenger, soon in order to finalize preparations at their base on Al Hamra America’s Cup Island. The government of Ras Al Khaimah and the UAE guarantee the security of both teams in the lead up and during the Cup,” he declared. Following three weeks of modifications, the latest iteration of the giant trimaran boasts new features which will be worked up on shore, before the boat hits the water for more testing near the end of the month.
Most significantly, and in response to the new rules issued earlier this year for the 33rd America’s Cup by the Defender, SNG/Alinghi, the team has modified the BOR 90 cockpit to accommodate an engine.
The engine will primarily be used to drive hydraulics for trimming the enormous sails - the mainsail alone measures nearly 7,000 square feet - that propel the boat. Alinghi’s insistence on the use of engines has resulted in the team having not only to add an engine and related gear, but to redesign the boat’s cockpit on the center hull.
With the engine, there is no longer a requirement for the grinding pedestals and sailors (“grinders”) who until now provided the human power for the boat, so the cockpit has been reconfigured.
“When we originally designed and built the BOR 90, we assumed we would have to use the crew to provide all the power on board, as that has always been the case in the America’s Cup,” said design team director Mike Drummond.
“With the change to the rules, we’ve had to adapt, adjust and modify. Otherwise, the engine power that Alinghi designed into their boat would have given them a significant advantage. This all part of the process of preparing to race in February.”
Trucks containing boat components have arrived at BMWO’s team testing base in San Diego, California. Judging from the length and shape of the containers, the long anticipated hard wing carbon fibre sail appears to be taking shape. The components were built at Core Builders, the team’s Anacortes boat-building facility in Washington.
These new structures will be used in future modifications to the giant trimaran. “Everything has arrived in good shape and we’re pleased we can move on to our next stage of boat development,” said Mark Turner (NZL), boat construction manager.
"The timing is good,” says sailing team coach Glenn Ashby (AUS), “as the team ends this session on a high."
"Everyone has a huge amount of confidence in the boat right now," said Ashby. "The boat is now being sailed the way you'd sail a smaller boat like a Tornado or Extreme 40. We're now winding it up and pushing it hard. We're finding the boat's limitations, rather than the limits of our fear. So now it's a matter of continuing the evolution of the development program to just keep making it faster and faster."
James Spithill (AUS), BMW ORACLE Racing helmsman said, “Today we completed another very good test session. We have some new ideas on how to make this amazing machine even more powerful and responsive over a wider range of conditions.”
Russell Coutts (NZL), BMW ORACLE Racing’s CEO, echoed Spithill’s satisfaction with the latest sea trials, “We are pleased with our progress, and are confident that the yacht will be even faster and more versatile with these modifications.”
Coutts reiterated the commitment to the other challengers that after the Deed of Gift race with Alingi that the next America’s Cup would return to the traditional format adding; “Regardless, we will seek to negotiate with the Defender for a conventional, multi-challenger America’s Cup in monohulls.”
According to BMWO; “in light of the developing situation in the Arabian Gulf region, Ras al-Khaimah
is particularly unsuitable. SNG’s proposed course area is within 17 miles of islands occupied by Iran in a current territorial dispute with the United Arab Emirates, of which Ras al-Khaimahis a member state”
Ras al-Khaimah means ‘the top of the tent’ in Arabic, , it is one of the seven emirates that comprise UAE. In spite of the fact that BMWO principal Larry Ellison is Jewish, no one can be actually quite sure why Ernesto would choose a war zone for an America’s Cup defense except for Ernesto. He has long insisted that SNG being an NH club entitles it to a NH location and racing multihulls on an open ocean course is always an inherently risky business, anytime of year.
“We believe your venue is not Deed compliant because it does not provide “ocean courses, free of headlands”, stated GGYC Commodore Marcus Young. The “headlands” argument is a legitimate one, but with all else relatively minor.
“The GGYC believes that SNG’s choice of this venue without our mutual consent is contrary to the Deed of Gift and the decisions and orders of this court”, said Tom Ehman.
The issue at hand relates to a specific provision in the Deed of Gift relating to when the defending yacht club can host a challenge. As amended in 1985 when the Royal Perth Yacht Club won the ‘Cup in Newport, Rhode Island the Deed states; “The Challenging Club shall give ten months' notice, in writing, naming the days
for the proposed races; but no race shall be sailed in the days intervening between November 1st and May 1st if the races are to conducted in the Northern Hemisphere; and no race shall be sailed in the days intervening between May 1st and November 1st if the races are to be conducted in the Southern Hemisphere”.
The NYSC ordered that ten month tolling for the next America’s Cup began on May, 8th 2009 and that SNG was to select the venue six months prior to the start of the first race. RAK was chosen for its warm climate and moderate sea conditions, as opposed to Valencia, which in February has more winter-like weather. With the fragile nature of it’s newly constructed high tech composite catamaran Alinghi 5, SNG’s champion clearly was looking for a venue with wind ranges tilting more towards the lighter end of the spectrum.
The problem is that the Deed reads that the races in February cannot be held in the Northern Hemisphere and RAK,UAE is above the equator. In the defenders camp they feel that the language from Judge Herman Cahn, in his court order last year declaring that; “the location of the match shall be Valencia or any other location selected by SNG” gives them the “absolute legitimacy for Ras Al Khaimah to be the venue as per the Order and Judgment of 7 April 2009”.
The Golden Gate Yacht Club feels that Judge Cahn erred in his order and that he allowed Valencia, Spain as a Northern Hemisphere location contrary to the Deed only because he felt at that time there was mutual agreement on that location between the defender and challenger. Judge Cahn overstepped his authority in his interpretation in allowing a Northern Hemisphere site without mutual consent.
The ambiguity in that sentence should allow GGYC to prevail on appeal given the NY Courts track record in trying not to stray to far from its interpretation of the four corners of the Deed of Gift. If anything, given the strict language of the Deed, aside from mutual consent the only plausible Northern Hemisphere location would be the site of SNG’s annual regatta with is in Nice, France.
“The choice of RAK underscores SNG’s abject failure in its responsibilities as Trustee of the America’s Cup,” said Russell Coutts, skipper and CEO of GGYC’s BMW Oracle Racing team. “It seems that the Defender is prepared to go to any lengths to make this America’s Cup a travesty.”
The following was a Q & A from Alinghi when announcing the site location.
Where is Ras al-Khaimah?
Ras al-Khaimah is one of the seven emirates in the United Arab Emirates (UAE); it covers an area of 656 square miles (1,700km2) and borders on Oman, situated in the southern part of the Persian Gulf. The capital city of Ras al-Khaimah is located 45 minutes from Dubai airport and is also served by the Ras al-Khaimah International airport. The 300,000 population is ruled by HH Sheikh Saqr bin Mohammad al-Qasimi. The Deputy Ruler is Crown Prince HH Sheikh Saud Bin Saqr Al Qasimi.
What are the reasons for choosing the UAE and Ras-al-Khaimah?
1. The absolute priority in making the venue decision was the prevailing weather conditions and the resulting
safety they bring to both teams. (Just don’t drive a car in the Emirates. It is considered one of the world’s
most dangerous places to drive a car or to be a pedestrian). ps outside of Boston or Wisconsin that is…
2. The investment and the infrastructure provided was another important reason: a purpose-built island is
being made available for both teams to operate from.
3. The experience and commitment the UAE has in hosting international high-standard sporting, arts and
business activities.
Why this choice over somewhere like Dubai where Alinghi had already trained in 2006/2007?
We looked at the Emirates and many other places but in the end we settled on Ras al-Khaimah because it has a great building sea breeze during the day, similar to Mediterranean conditions in the summer, making it good for these boats and safe for all concerned.
Isn’t it a conflict region?
The UAE is recognized worldwide to be extremely secure; testimony to this is the fact that some of the most important international corporations have business interests and investments in the country, particularly coming from the USA. How will you tackle security concerns? The UAE is among the safest countries in the region, a fact that is acknowledged around the world and Ras al-Khaimah in particular is known for its peace and stability.
How much has Ras al-Khaimah paid SNG to host the 33rd AC?
There is no venue fee.
Why is there no venue fee?
Because the venue is already making a considerable investment in infrastructure.
Does the facility provide for both teams?
Yes it does on a purpose-built America’s Cup Island in Al-Hamra Village near Ras al-Khaimah.
BMW Oracle says that the Deed doesn’t allow a Northern Hemisphere venue in February, other than Valencia, in contradiction to the New York Court order (below). What is Alinghi’s position?
We are confident that the NY Court order of 12 May 2008 allows for a Northern Hemisphere venue in February other than Valencia. Excerpt from 12 May Court order: “[…] ORDERED that the location of the match shall be in Valencia, Spain or any other location selected by SNG, provided SNG notify GGYC in writing not less than six months in advance of the date set for the first challenge match race of the location it has selected for the challenge match races; and it is further […]”
What is the alternative if the court decides against SNG’s choice of a Northern Hemisphere venue other than Valencia?
As ever we will accept the NY Court’s order just as we follow the provisions of the Deed of Gift and will look for an acceptable alternative.
Just when you thought, yeah….what a great place for a regatta, consider this. Jazireh ye Qeshm is the largest island in the Persian Gulf , located in the Straits of Hormuz off the coast of Iran it a baron wasteland devoid of vegetation. History tells us that explorer William Baffin was fatally wounded on Qeshm in 1622 in battle with the Portuguese. In 1988, an Iran Air Airbus was shot down by a United States Navy guided missile cruiser USS Vincennes just 2 miles off the southern coast of the island, resulting in 290 deaths.
Abu Musa, is a small island located on the race course and is part of a territorial dispute between Iran and the United Arab Emirates. Its name is referred to in the ancient maps as the “land of Moses”. In the early seventies, Iran relinquished sovereignty of the island to UAE, but stations revolutionary guard troops there. A decade later, Saddam Hussein thru his turbine in the ring proclaiming that “liberating” the small island was part of his agenda in going to war against Iran.
Officials claim that their Emirate city-state is a safe haven, citing that there are numerous American corporations and business interests in nearby Dubai, including Ellison’s own company; Oracle. But, RAK is no Dubai. Dubai lies 40 miles to the south and a potential race course there does not place it smack dab in the middle of the narrow straits, with a flotilla of Iranian gun ships nearby.
Also thrown into contention is that 2 of the 9/11 terrorist attack were UAE nationals, not to mention the ports controversy 3 years ago when Dubai Ports World attempted to purchase P&O United Kingdom which operated major United States ports of call along the east coast including New York, Philadelphia and Miami. This prompted members of congress from both parties to cry foul and with the threat of a presidential veto the merger was scuttled. Dubai World Ports eventually sold P&O’s American assets to AIG.
Attention. News flash! This just in from the Alinghi press office. “The UAE and specifically Ras Al Khaimah is an extremely safe venue for the America’s Cup. The Emirate of Ras al Khaimah has peaceful and friendly relations with all of its neighbors. The venue and all the visitors to Ras Al Khaimah in the coming weeks and months will be received in a similar friendly, peaceful and security conscious way,” said Dr Khater Massaad, CEO of RAK Investment Authority and Special Advisor to Ras Al Khaimah’s Crown Prince and Deputy Ruler, H.H. Sheikh Saud bin Saqr Al Qasimi.
Massaad went on to say that: “It is quite reasonable to state that security for the America’s Cup would be significant no matter where the event is held and in Ras Al Khaimah this event will receive the same level of importance with full cooperation from the Navy, Coast Guards and the Police services to ensure the safety and well being of all visitors to the Emirate.”
‘This is a fantastic venue for the America’s Cup. It is work in progress, but what has been achieved so far is second to none. It’s an honor and a pleasure to be here and I can’t wait to get sailing,” said Ernesto Bertarelli, Alinghi team president, at a press conference in Al Hamra Village on Saturday. “Some of the things I see from BMW Oracle read like the trailer of a Hollywood movie, do they really think we and the rest of the world ignore the fact that 40% of the world oil traffic goes through the Strait of Hormuz and as many goods are coming in to provide for what is the fastest growing region in the world over the last 10 years?
If the Strait or this area had any security issues, we would know about it. So I say: Come on BMW Oracle, Larry Ellison, Russell Coutts and Tom Ehman; let’s get real and let’s get sailing. Stop inventing things for the sake of it.”
The Swiss defenders of the America's Cup strongly rejected security worries about holding the event in the Middle East for the first time and said Saturday they would be open to racing others in the Gulf if their U.S.-based challenger refuses to come.
The comments by Alinghi team president Ernesto Bertarelli hinted at the possibility that the bitter dispute over the venue — less than 80 miles from the Iranian coastline — could threaten the rare one-on-one competition in February for the oldest trophy in international sports.
Bertarelli said he still hopes to persuade BMW Oracle's owner, software tycoon Larry Ellison, to drop his objections. But it is clear that time is limited.
It took up to six weeks for Alinghi to get its sailing operations in place in Ras al-Khaimah, said Bertarelli, whose team took its catamaran, Alinghi 5, on its first Gulf training sail on Friday. That would mean BMW Oracle would likely need to begin its preparations by late December to be ready for the scheduled first race on Feb. 8. A hearing on the New York lawsuit is scheduled for Oct. 27.
“We can't force the Americans to show up if they don't want to show up,' Bertarelli told The Associated Press. He said there is no option to postpone the race and Alinghi would be open to racing another team if BMW Oracle refuses to come and is ruled as a forfeit by the America's Cup overseers.
“A delay is off the table. We have a commitment here with the country,” he said. 'We're ready to race in February.” He added that there are other teams that could be willing to step in for BMW Oracle, which had the right to ask for a one-on-one match under America's Cup rules. “All of these other teams I'm sure would be happy to join us here in Ras al-Khaimah,” he said. “I think we should open it up to other teams.” Bertarelli said the U.S. team was coming up with 'horror stories' that have no bearing in fact.
He noted that the United Arab Emirates hosts some of the world's premier sporting events — including an inaugural Formula 1 race in Abu Dhabi on Nov. 1 — and that bringing the America's Cup to the Gulf will generate more international interest in sailing. “Do (BMW Oracle) really think we are children?' Bertarelli told a news conference. “Come on. Let's get real and let's get sailing and stop inventing stuff,' he said.
”I think perhaps if we want friendship and dialogue between nations, one cannot only just send aircraft and soldiers. They have to send sportsmen,” he said. 'That's exactly what we are doing here.”
This has got to have all the earmarks of Armageddon and in the end who would have thought the Apocalypse could be sparked by a yacht race?
The eighth circle. Fraud
The 32nd America’s Cup proved once again that the Deed of Gift stands on its own merits as a brilliant, timeless document that has proved resolute against all takers and remakers.
The New York Supreme Court has shown once again that they are the true and rightful arbitrators of yacht racing’s “Holy Grail”. Juxtaposition aside, it is time to close the door on the silver spooning between BMW Oracle’s Larry Ellison and Bertarelli.
As the Deed implores; the America’s Cup “is donated upon the condition that it shall be presented as a perpetual Challenge Cup for friendly competition between foreign countries.”
In this case, with all the time and effort that you dear sir have spent on the continuing litigation, combined with the New York Court of Appeals providing a definitive America’s Cup roadmap in their ruling on the Mercury Bay Boating Club vs. San Diego Yacht Club in 1990.
March 28, 1989
Judge Carmen Ciparick disqualifies the SDYC and awards the America’s Cup to the Mercury Bay Boating Club. Ciparick ruled that the San Diego Yacht Club had “violated the spirit of the deed” when its “clear goal to was to retain the cup at all costs.” In her ruling she wrote; “the defender of the America’s Cup is more than the current champion yacht club. The yacht club winning the America’s Cup becomes the sole trustee under the deed of gift and has an obligation there under to insure a fair competition. The holder of the America’s Cup is bound to a higher obligation than the victor of the Stanley Cup or Super Bowl. In organized sports such as hockey or football there is a central authority for the development and enforcement of competition rules. The defender of the America’s Cup, as trustee, is charged with the responsibility of insuring that a subsequent defense is carried out in accordance with the letter and spirit of the deed of gift. San Diego clearly fell short of its obligations as trustee of the deed of gift.” “Accordingly, San Diego shall be disqualified in the September 1988 competition.”
The time has come to close the door, in lieu of mutual agreement and order the parties to proceed with next America’s Cup or to revoke the charitable trust on the grounds that SNG/Alinghi has not upheld its obligation as current trustee.
“ It is because of our vigilance that we – and not a make-believe yacht club – are now the Challenger of Record. There continue to be serious issues with the way Société Nautique de Genève is conducting their stewardship as Trustee of the oldest trophy in sports, and the way Alinghi have mounted their defense of the America’s Cup – from Day 1 when they tried to issue rules that were widely condemned as “the worst … in the history of the America’s Cup” to their recent issuance of measurement regulations that would disqualify our boat if left to stand,” said Tom Ehman.
Ehman continued, “That is why attorney David Boies and his firm Boies, Schiller & Flexner LLP have joined with our current legal team – to protect our competitive interests, the interests of sailing, and of the Cup itself.”
The ninth circle Treason
NYYC should revoke charitable trust, now. The club’s chairman of the America’s Cup Committee George Carmany lll entered the fray last year stating; that he “hoped our discussions will lead to agreements that will benefit all members of the broader America’s Cup community”.
The club appears to be duplicitous in its actions at least and if it wants to get evolved, it should have the onions to challenge the Swiss in the regatta. What does the club’s chairman do these days anyway; host luncheons?
The crux of BMW’s argument against the new protocol was that the defenders were running the challenger series, in addition to being able to participate in them. According to SNG/Alinghi the major problem in a billionaire dominated America’s Cup cycle was that the defender would lack the resources to simultaneously conduct a defense and prepare a host port city.
From the GGYC Website comes their latest barrage in an arsenal of defense for the 'Auld Mug.
"Reckless and repeated disregard in its stewardship of the America’s Cup by the Société Nautique de Geneve (SNG) has prompted the Golden Gate Yacht Club (GGYC) to ask the New York Supreme Court to remove the Swiss yacht club from its position as Trustee in a Breach of Fiduciary Duty."
"In its place, GGYC – the Challenger of Record the 33rd America’s Cup - has requested the Court to appoint a faithful, fit and proper substitute to oversee the next Match to be sailed in 2010, starting 8 February. A new Trustee would provide equitable terms for both competitors, something SNG has denied GGYC by its orchestration and manipulation of the rules and processes designed to ensure that the defending sailing team, Alinghi, can not lose."
"GGYC, and its sailing team, BMW ORACLE Racing, remain committed to sailing the Match on the dates in February 2010 set by the Court. There is no desire by this action to change Alinghi’s role as SNG’s sailing team and defender."
Foremost among a catalogue of failures of SNG and listed in a Breach of Fiduciary Duty complaint are:
• Offering the America’s Cup hosting rights in order to extract secret commercial deals
• Repeated attempts to seize control of the rules and officiating processes to ensure that Alinghi can not lose
• Moves to disqualify GGYC’s yacht despite assurances to the New York Supreme Court that this would not happen
• Selecting Ras Al Khaimah for the 33rd Cup to further its own business interests whilst exposing GGYC to unnecessary danger.
“Winning the Cup brings not just honor and pride, but responsibilities too. The honor may have gone, but the responsibilities remain,” said Russell Coutts, Skipper and Chief Executive of GGYC’s challenging team, BMW ORACLE Racing.
“The America’s Cup is meant to be hard to win, not impossible to lose,” added Coutts.
"The complaint also states that the America’s Cup was used as a powerful bargaining chip to extract enormous commercial benefits through secret and complex side deals in selecting Valencia and Ras Al Khaimah as host venues for the 32nd and 33rd Matches."
"It is clear that entities associated with Ernesto Bertarelli leveraged the America’s Cup for gain. “SNG says it has the right to change the rules for the America’s Cup races at any time and select all the umpires. It’s like letting the Phillies change the rules for the World Series after it starts and select all the umpires,” said David Boies, chairman of Boies, Schiller & Flexner.
“Basic fairness and sportsmanship require that a contest be played with set rules and judged by umpires free of interference. The Courts have already had to stop SNG from negotiating unfair rules with a sham competitor orchestrated by SNG. We hope that SNG will now abandon its efforts to win with rule manipulations and back-room deals. Let the best boat win on the water,” added Boies. GGYC is also contesting SNG’s choice of Ras Al Khaimah in a separate case before the New York Supreme Court because it is in direct contravention of the Deed of Gift’s clear stipulation that the Cup can only be sailed in the Northern Hemisphere between 1 May and 1 November. Nevertheless as Trustee, and in breach of its duty, SNG did not consult GGYC at any stage in selecting Ras Al Khaimah."
"Ernesto Bertarelli has taken advantage of the Cup holder’s inherent competitive balance in the Deed of Gift to absurd and obscene levels. By his actions on land he has tried to make sure that he can not be beaten on the water,” commented Bill Koch, whose America3 team was the successful defender of the America’s Cup in 1992. Italy’s Vincenzo Onorato, a three-time challenger, said of Alinghi’s proposed rules for the next Cup: “This is the most unsporting document ever done.” The America’s Cup has prospered for 158 years, despite the American Civil War, two World Wars and several economic depressions.
"The oldest international trophy in sport is now in peril because of the selfish and self-serving acts of the Swiss yacht club, its representative sailing team Alinghi, America’s Cup Management (both controlled by Ernesto Bertarelli) and other affiliates."
Heaven or the End or is it all the same? It has been posited (to put forward as a truth) that the right to act as trustee of the America's Cup should be decided on the water and not in a courtroom. We wholeheartedly agree. It falls now to SNG and GGYC to work together to maintain this noble sailing tradition as "a perpetual Challenge Cup for friendly competition between foreign countries"
Justice Carmen Ciparik, writing on behalf of a unanimous New York Court of Appeals, April 2, 2009
The next America's Cup should be in 2011.
1] Agree on the issue of the Version 6, or the AC 33 or 90 monohull.
2] Put on a financial cap of 100 million dollars per team with a rebate kicker back to the lesser funded teams if
the cap is exceeded.
3] Appoint a neutral America's Cup arbitration panel to be chosen by the former trustees of the America's Cup.
The panel will arbitrate disputes and appoint race officials.
4] All competing yacht clubs should be held to a higher standard and meet the minimum qualifications of the
Deed of Gift.
5] To the New York Supreme Court: Don't answer your phone. Get caller ID and if anyone representing an
America's Cup Syndicate or Yacht Club calls; ban them permanently from competition. It is time to stop the spin cycle, step back and return to basics. I'm sure that in New York City there will be plenty of ambulances
for all these attorneys to chase.
