10:45 AM Wed 22 Jul 2009 GMT
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'Brand new maxi catamaran (90 foot)'ALINGHI 5' second day training on Lake Geneva'
Thierry Martinez
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BMW Oracle Racing were the bigger winners out of the Hearing in the New York Supreme Court today. Not that Alinghi lost anything substantial, but the US team picked up some bargaining chips that Alinghi would probably have rather played later in the game.
First of these was the concession that the International Sailing Federation Racing Rules, current edition, would apply and that RRS 49 to 54 inclusive (covering Crew Position; Setting and Sheeting of sails; use of Outriggers, differentiating between a headsail and a spinnaker; Movable ballast; use of Manual Power, Skin Friction reduction and positioning of Forestays and Tacks) would be written out of the Rule Book for the 33rd Match. Given that BMW Oracle Racing were taking the stance that the previous (2005-2008) version should be operative, at first blush this would seem to be a loss for the US team.
However under cross-examination by Justice Shirley Kornreich, Societe Nautique de Geneve's lawyer, Barry Ostrager, was forced to concede the deletion of the five Racing Rules giving BMW Oracle Racing some confirmation as to how SNG intended to play the game.
Of course, had SNG been able to avoid the Hearing and being put on the spot, by Kornreich, then the Swiss team would have probably not conceded these vital points until much later, reducing the time available for BMW Oracle Racing to be able to respond and evaluate the use of the design and engineering options that the rule deletions afford.
Of course Justice Kornreich still has to determine whether the the proposed Rule deletions and their implications are consistent with the Deed of Gift. In doing this she is going to have to look beyond the four corners of the Deed and decide whether she believes the Deed of Gift contemplated one yacht being able to use an engine to sail against another that relied on man and wind power alone, or whether the use the engine is incidental.
Having proven that it is possible to build and sail a multihull of this size using manual power for sail trimming, the argument for engines becomes less compelling.
But either way BMW Oracle Racing can now evaluate the options and do so with a lot more time than the Defender would have ideally intended, or could have milked out of the situation.
For Alinghi's part, they probably take the view that the rule deletion was going to come out some time - and is no big deal provide that Justice Kornreicht gives a big tick to the use of their Swiss made engine. If the Learned Lady doesn't subscribe to their thinking then the Defender will have to completely rethink the engineering of Alinghi 5.
Same song, second verse for the issue of moveable ballast - BMW Oracle Racing now has some clarity on what the Defender intends to write in its sailing instructions. For its part Alinghi lets go some vital information ahead of time, losing a bit of advantage.
Removal of the other three rules in this bracket will come a relief to the soon to be appointed International Jury who are spared the anguish of having to decide if a sail is being flown from a legally acceptable place or manner - avoiding the a regurgitation of the NZL-20 bowsprit arguments that dominated the 1992 Louis Vuitton Cup.
On the Alinghi counter-motion to obtain the Custom Hose Registry of the Challenger, this was taken quickly off the boil by Justice Kornreich until it is crystal clear whether BMW Oracle will rename BOR90 as 'USA' or if in fact they have a new yacht in the final stages of construction. The time has largely passed for information in the CHR to be of use to Alinghi, and as a ruse to fluster BMW Oracle Racing, it has been more of nuisance value. Legally it has given Alinghi some grounds to front-foot their Learned Friends in the Golden Gate employ, but the move was never really going to fly, and Alinghi did not advance their position further than they were able at the last Hearing.
The secret agreement between Societe Nautique de Geneve and the International Sailing Federation will come under the gaze of the Court - in camera, and will be released to Golden Gate Yacht Club, if Justice Kornreich so orders. Another gain for BMW Oracle Racing - having dragged the agreement under an independent spotlight at least. If it is as unextraordinary as claimed, then BMW Oracle Racing can rest assured - if not, then there will be a few red faces, and possibly more Court action.
The vexed issue of the venue was not raised, however it would seem that unless Valencia is named as the venue on 6-8 August, then another before Justice Shirley is assured.
by Richard Gladwell
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