Constructed in Country

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.

The Nineth Lawsuit!

While Brad Butterworth, Alinghi skipper and Société Nautique de Genève representative, was in Singapore engaged in good faith discussions to resolve remaining issues ahead of the 8 February America's Cup Deed of Gift Match in the presence of David Tillett, the chairman of the ISAF America's Cup Jury, and David Kellett, the ISAF representative, BMW Oracle unilaterally aborted talks by filing their ninth lawsuit against the Société Nautique de Genève at the New York Supreme Court seeking to disqualify the Defender from the upcoming Match.

“BMW Oracle has already successfully disqualified 18 teams through the US courts to gain access to the Match, now they are seeking to win the Cup without ever racing for it,” said Brad Butterworth. “This latest lawsuit has come as a shock given we were planning a further meeting to finalise discussions today, it demonstrates extreme bad faith. Clearly they are not ready to race. They have completely disregarded the jurisdiction of the ISAF America's Cup Jury, which they sought so hard to have instated, and have instead reverted to the New York courts where they clearly feel they have a greater chance of success,” he added.

SNG's defending yacht has been constructed in Switzerland in compliance with the provision of the Deed of Gift. SNG disagrees with GGYC's interpretation.

BMW Oracle's statement that Alinghi will be using USA-made sails is wrong. The sails for the Match have been constructed in a sail loft in Villeneuve, Switzerland. Furthermore, the 3DL process of making sails is subject to Swiss intellectual property rights. The inventors of the process, Jean-Pierre Baudet and Luc Dubois, are two Swiss engineers. Every challenger and defender for the America's Cup since 1995 has used 3DL Swiss technology based sails.
“BMW Oracle's attempt to derail the America's Cup, and disregard ISAF's jurisdiction, and their continued unsportsmanlike behaviour is unacceptable,” said Fred Meyer, SNG vice-commodore. “Alinghi is ready to race on the 8 February as mandated by the 7 April 2009 court order,” he added. “We won the right to defend the America's Cup on the water by winning the 31st and 32nd editions, we want to go racing, we do not want the outcome of the America's Cup determined in court,” he concluded.

Sailing Instructions - Notice of Race

The Société Nautique de Genève, the 33rd America's Cup defending yacht club, today published a draft version of the Sailing Instructions for the 33rd America's Cup Deed of Gift Match due to start on the 8 February. This draft document has been sent to the challenger and may be discussed at the meeting between the two teams in the presence of the ISAF AC Jury Chairman, David Tillett, in Singapore on 12 January.

Please click here to read the draft Sailing Instructions for the 33rd America's Cup Match.

Also published, draft amended 33rd America's Cup Notice of Race

SNG also published a draft of the amended 33rd America's Cup Notice of Race incorporating the New York Supreme Court's recent decisions and following discussions with GGYC/BMW Oracle Racing representatives in Sydney on 15 December 2009.

Please click here to read the draft amended 33rd America's Cup Notice of Race.

Statement from GGYC

America's Cup defender Societe Nautique de Geneve has been asked if Alinghi 5 will meet the event's nationality rules. In a letter today to SNG, GGYC Commodore Marcus Young wrote, "We find the Deed to be clear and unambiguous. It requires that the yacht, including its hull, appendages, mast and sails, be constructed in the country of the club it represents. We have gone to great lengths to comply with the Deed in all respects, including 'constructed-in-country,' and expect that your Club will do so as well."

Alinghi 5 has been sailing continually with sails made at Minden, Nevada in the USA.

Absent agreement on the constructed-in-country interpretation, the five-member International Jury recently appointed by the International Sailing Federation would be asked to rule on the matter.

Both yachts should come to the start "street-legal." The sailing world expects this, and wants to know before the Match is sailed, not after. Having the Jury in place allows sailing matters to be dealt with by sailing experts.

GGYC's objective is that the on-the-water result of the 33rd Match be conclusive. Any remaining contentious issues should be dealt with properly before the Match is sailed. No one wants the outcome of the Match to have a question mark hanging over it.

Court Stands for Americans

New York Appellate Division court ruled unanimously against an appeal from Societe Nautique de Geneve to reinstate Ras Al Kahimah as the venue for the upcoming America's Cup races, and again unanimously against SNG's position on BMW Oracle's rudders with regards to measurement. The BMW ORACLE Racing team has departed San Diego for Valencia in preparation for February's 33rd America's Cup Match.

Golden Gate Yacht Club: The focus for the 33rd America's Cup is now squarely on Valencia, Spain. Today, the Appellate Division rejected the defender's second attempt to have Ras Al Khaimah, UAE, host the February match.

"This is a big stride forward," commented Tom Ehman, Golden Gate Yacht Club spokesperson. "In place of doubt and delay, the sailing world wants certainty. It wants to see this contest to go-ahead soon and be contested under fair rules."

The New York Supreme Court ruled on October 30th that Ras al Khaimah did not comply with the Deed of Gift, a decision upheld by the Appellate Division in a unanimous verdict.

The Court also turned down SNG's second attempt to have rudders included in the crucial Load Water-Line measurement calculation. This has never occurred in the 32 previous America's Cup matches and won't happen in the 33rd.

"With the International Sailing Federation re-drafting the previously unbalanced and unfair agreement it struck with Societe Nautique de Geneve, and discussions continuing to normalize the Notice of Race, the common-sense approach to the remaining issues in this America's Cup is prevailing," added Ehman.

SNG: The Appellate Division of the New York Supreme Court today upheld Justice Kornreich's decision of 30 October 2009 that disqualified the America's Cup Defender Societe Nautique de Geneve's choice of Ras Al Khaimah in the United Arab Emirates as venue for the 33rd America's Cup. The four-judge panel also upheld Kornreich's decision to exclude rudders from the measurement of the load waterline length of the race yacht.

"Once again BMW Oracle's strategy to try to win the America's Cup in court instead of on the water has been successful. For the first time in the history of the America's Cup the Defender has been stripped of its fundamental right to select the venue. Societe Nautique de Geneve accepts this decision and Alinghi is looking forward to racing for the America's Cup on the water in Valencia, Spain, in February 2010," said Fred Meyer, SNG vice-commodore.

Valencia is Final

In a letter written today to New York Supreme Court Justice Kornreich following the unsuccessful discussions with the Golden Gate Yacht Club (GGYC), the America's Cup Defender, Société Nautique de Genève (SNG), has confirmed that it will conduct a Deed of Gift Match with GGYC in February 2010 in Valencia, which is the date and venue repeatedly requested by GGYC and previously ordered by the Court. SNG has also expressed its intention to publish the 33rd America's Cup Notice of Race with immediate effect.

When SNG's first choice of venue, Ras Al Khaimah, UAE, was declared invalid by the New York Supreme Court, the Swiss Defender proposed two alternative Southern Hemisphere venues: Proserpine/Airlie Beach and Townsville in Australia, where the weather conditions are suitable in February.

GGYC's reaction has been to try to delay the Cup and to continue to try and gain competitive advantage while SNG attended the meetings in good faith with the objective of finding a settlement.

While SNG confirms Valencia as the venue for the 33rd America's Cup in February 2010, the offer to GGYC of an Australian venue for the same date remains on the table until 13 November 2009 provided GGYC agrees to withdraw all legal actions.

SNG Offers Australia

Société Nautique de Genève (SNG), the 33rd America's Cup defending yacht club, has proposed an alternative venue to the American challenger in a bid to end their continued litigation and return the Cup to the water.

Ahead of tomorrow's hearing at the New York Supreme Court, the Swiss Defender has proposed a solution to the legal impasse brought about by the Golden Gate Yacht Club (GGYC). While the Defender's first choice for the Deed of Gift Match is Ras Al Khaimah in the United Arab Emirates, in order to achieve a Match in February SNG proposes to stage the 33rd America's Cup on the east coast of Australia, in the Southern Hemisphere, in compliance with the Deed of Gift. This is a venue that should be acceptable to both teams if, as expressed publicly, the true intention of BMW Oracle is to race for the America's Cup on the water.

A specific race course in the Pacific Ocean off the east coast of Australia, with weather conditions suitable for racing in February, will be announced promptly should GGYC accept this offer and cease their legal strategy. The east coast of Australia offers several locations with ideal sailing conditions for the best-of-three match. A venue in this region would be approximately two and a half weeks away by ship from BMW Oracle's base in San Diego, while Alinghi's voyage from Ras Al Khaimah would take approximately three weeks.

SNG is hopeful that this offer will be accepted and that the competition will resume on the water rather than in court.

Alinghi's Request Rejected

The Appellate Division in New York has rejected the Swiss defender's request to freeze last week's Supreme Court decision that Ras Al Khaimah (UAE) did not comply with the Deed of Gift for the 33rd America's Cup. Golden Gate Yacht Club said Ras Al Khaimah was wrong all along. The Supreme Court said it was wrong last week. And the Appellate Division said no to a Stay today. The message is clear. SNG/Alinghi will try one more time to have Ras Al Khaimah re-installed in a fast-track expedited Appellate Division application due to be heard in the coming weeks.

The race dates for the 33rd America's Cup remain unchanged, commencing February 8th, 2010. Justice Kornreich ruled from the Supreme Court bench on Wednesday October 27 that Ras Al Khaimah was not Deed-compliant. There will be a further hearing before her this Friday. The Court will determine if Valencia (Spain) is confirmed as the venue - as both sides had previously agreed to this in Court - or if SNG/Alinghi can still choose a Deed-compliant location in the Southern Hemisphere despite the expired six month notice of the venue that the Defender is required to give the Challenger.