9:18 PM Wed 23 Dec 2009 GMT
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'It is claimed that Alinghi 5’s sails are made by North’s in USA'
Guido Trombetta/Team Alinghi
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The Defender of the America's Cup, Soci?t? Nautique de Gen?ve (SUI) have responded to the Constructed in Country issue raised by the Challenger, Golden Gate Yacht Club via an Open Letter issued yesterday.
That letter queried whether the Defender was using sails that were built on Switzerland, or if they were built at the North Sails facility in Minden, Nevada.
The 19th century Deed of Gift for the America's Cup requires that the yacht or vessel must be constructed in the country to which the Challenging or Defending club belongs. The matter is normally covered by mutual consent, where the parties agree between themselves as to how this requirement will be interpreted.
Given that thus far there is no mutual consent, and also no precedent in terms of a New York Supreme Court ruling on the matter, it may well be that the question will be put before the Intrenational Jury for an initial decision.
Yesterday SNG were given five days in which to respond to the GGYC question. SNG responded with the following statement:
Soci?t? Nautique de Gen?ve and Alinghi thank Golden Gate Yacht Club and BMW Oracle for their Christmas gift and their wishes for further litigation in the New Year!
'Having disqualified all other Challengers for the 33rd America's Cup through their legal strategy, Larry Ellison's team is now trying to do the same with the Defender and continues to pursue its attempt to win the America's Cup in court rather than on the race course,' says Fred Meyer, SNG vice-commodore.
'We fear that this is an attempt by BMW Oracle to avoid racing Alinghi on 8 February,' adds Grant Simmer, Alinghi design team coordinator.
BMW Oracle's accusations regarding the defending yacht are simply false: Alinghi 5 complies with the Deed of Gift 'constructed in country' requirement, it was built in Switzerland and so are its sails.
This issue will be covered in later stories in Sail-World, however our initial view is that the Int Jury and NYSC will be applying the Four Corners of the Deed test, as has happened in most legal issues associated with the regatta over the past two years.
The Deed does not differentiate between off the shelf and custom built components, so the inference is that all components should be constructed in the country of origin.
The Int Jury will be unlikely to produce a general ruling along the lines of Interpretations provided in previous America's Cups, but will instead rule on specific issues, or which the sails might be one.
Normally a protest would not be lodged until one of the yachts had crossed the startline, and had actually used the alleged illegal equipment in a race, as there is nothing illegal about owning 'foreign' equipment or using such equipment for training and comparative purposes.
While many focus on the derivation of a finished component, it is likely that the Int Jury will drill-down and look at from where the materials originated and the processes used in the development of the finished product. Given the globalisation of manufacturing, it is very difficult to decompose down to determining the state of origin of components in a circuit board, for instance.
Further the Constructed in Country argument must also look at the origin of know-how and manufacturing process, plus the intellectual property used. Many of the design team on both sides are not US or Swiss nationals. It is interesting to note that when the New York Yacht Club produced a Interpretative Resolution on the matter of constructed in country, they extended the definition to require the designers be nationals of the country of the defending/challenging club.
The same resolution also allowed the modification of the hull of the challenger, or manufacture of sails in the country in which an America's Cup match is to take place. Again, this facility is outside the provisions of the Deed of Gift, in the absence of Mutual consent and neither is it mentioned in the Notice of Race.
One outcome from a pursuit of this matter, is that the Int Jury or New York Supreme Court could disqualify both competitors for breaking what could be a very literal interpretation of this condition of the Deed of Gift.
For an image tour of the Norths Sails 3DL plant in Minden, Nevada
click here
by Richard Gladwell
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