Back to the future

Dennis Conner once famously counselled: "Avoid protest meetings at all costs - if you can." His doctrine was, that even if you were 100 per in the right, you only had a 50/50 shot in front of the jury; so it has proved with BMW Oracle's 100 per cent ‘right' America's Cup challenge.

The rulings of Justice Cahn that installed Oracle as challenger for the 33rd America's Cup match, have been overturned by appeal judges. These judges have misinterpreted the original Deed of Gift, and have reinstalled a Spanish Yacht Club that has never even hosted a regatta as the challenger of record.

This decision was only a majority verdict of three to two however, leaving the door open for one final appeal by BMW Oracle. This, needless to say, has been lodged and will be heard in January 2009.

Not only is all this proof positive that protests can go either way, but that the law itself is no more reliable and is prone to the random selection of facts.

As I pointed out in this column, some months ago, everyone involved in this dispute is taking only bits of the original Deed of Gift, and subsequent amendments; picking and choosing which parts of the Deed suit their particular cases.

To reappoint, what is effectively, a non existent Spanish Yacht Club as the challenger is taking the law to new levels of absurdity and flies in the face of what can practically be achieved. But then, when was the law of the land ever practical?

Back in 1988, when New Zealander Michael Fay issued his DOG challenge to the San Diego Yacht Club, he followed the original Deed of Gift to the letter. It simply states, more-or- less, that a challenge can be made with a sailing vessel of no more than 90ft on the waterline and that the defender must be ready to meet the challenge within a period of 10 months. The only ‘break' the defender gets is to choose the location of the ‘match'.

There are no rules regarding displacement, length of overhangs, beam or sail area and, perhaps most importantly as it turned out in 1988, the number of hulls. The other major, and not unreasonable proviso, was that the challenging club had some experience of having raced large sea going yachts - so the credibility of the America's Cup as a yacht design contest, would be maintained.

I know that Fay's challenge emanated from a club that used an old Mk 2 Ford Zephyr motor car as its club house - but it was able to call on genuine offshore racing experience!

Very few sailors, sponsors, or syndicate heads really feel that the Alinghi protocol, that started this whole problem when they created a challenger of record with the now teamless Club Nautico Espanol de Vela (CNEV), were in the right.

The whole protocol was far too heavily slanted in favour of the defender. Some however, had hoped that with Oracle's loss in the court, they would be able to cosy up with Alinghi and create their own protocol - getting a multi-challenger AC on track for 2009/10.

The lawyers for Oracle have obviously struck back, trying to get a ‘one-on-one' multihull challenge. They may yet have success too; the NY Court of Appeals will not be constrained by points of law, but will be able to rule on the facts of the case. This will clearly show that the Spanish Yacht Club was a sham, created solely to orchestrate a defender biased event, disguised as a mutual consent protocol.

So how does this leave the 33rd America's Cup event? I predict this new time line will force the next AC challenge back to at least April 2010: a new 10 month notice period will have to be applied after the Appeal court rules. Putting back any multi challenger event until 2012 at the earliest.

This will impact very badly on all other existing challengers. Grant Dalton, of Team New Zealand will continue his legal challenge against Alinghi and other syndicates will, at best, have to go into hibernation.

One positive that could come out of this delay, is that the maybe protagonists will have time to reflect on the absurdity of their cobbled together AC 90 box rule. Maybe they'll produce a rating formula that preserves, rather than downgrades, the original New York Yacht Club proviso: that the America's Cup is first and foremost a Yacht Design contest?

Of course, Oracle could lose their appeal, in which case a certain Spanish Yacht Club will have to be recreated so that a mutual consent challenge can take place. But will there be any challengers left for such an event which could not take place until September 2011 or April 2012?

In the rush to judge the multi-challenger events versus a one-on-one, everyone forgets that the deed of gift was written for the latter. Apart from the absurdity of the 90ft multihulls, a one-on-one regatta between Alinghi and Oracle is a return to traditional values and the AC's origins.

Those bleating on the sidelines are only there because of mutual consent - hardly a position of strength to argue from, as recent events have proved!

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 designs. He has also been Editor of the Royal Ocean Racing Club's magazine Seahorse and a columnist for Asian Marine.

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