Courting disaster

The Deed of Gift America's Cup Challenge is now set to go ahead between giant 90ft multihulls on, wait for it - 12th March 2009. But is it? According to the 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, but in fact it is an attempt 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 or have it take place in the Southern hemisphere.

But will they agree on something that simple? Apparently not. Alinghi has challenged the ruling rather than 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 many more years to come - more on this next month.

Holding it in Valencia in May 2009 seems perfectly attractive, but clearly not to Alinghi who want to use every trick in the book to postpone the event for as long as possible; wreaking 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 - not 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 would think that highly paid lawyers would be able 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; 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; whether either boat will comply with Nationality requirements. The original document is very loose on this, simply stating 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' referred only to the framing and planking of the hull, and the sails. There has never been any restriction on equipment, or indeed 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 current problem is, 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 12th March 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!

I am no lawyer, but the 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. During that year the Kiwi's failed to realise that there was no requirement for the boats to be monohulls!

Millions of dollars of law time are being poured into interpreting a document that takes a full five minutes to read. Sailing experts like Coutts and Butterworth are 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!

Known in the Middle East for his powerboat designs for Al Yousuf, Julian Everitt has a successful design practice that has produced many race winning racing yacht designs over the past 30 years. He has also been Editor of the Royal Ocean Racing Club's magazine Seahorse and a columnist for Asian Marine. Email: This email address is being protected from spam bots, you need Javascript enabled to view it

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