10:32 PM Tue 22 Sep 2009 GMT
In a decision issued this morning, NZT, Justice Shirley Kornreich has ruled that Golden Gate Yacht Club do not have to provide their Customs House Registry certificate until two weeks before the 33rd America's Cup Match, scheduled for 8 February 2010 in United Arab Emirates.
Kornreich was ruling on a motion lodged by Socuete Nautique de Geneve, requiring that the Challenger be required to produce the document, required by the Deed of Gift within two weeks. That request was not upheld by the Court.
The question posed by Societe Nautique de Geneve related to the meaning of the phrase 'as soon as possible' regarding furnishing of the document, which would officially state the Load Waterline Length of the Challenger, to show that it was broadly in conformity with the dimensions in the Notice of Challenge, lodged in July 2007.
The Customs House Registry certificate has a number of purposes, to show the nationality of the vessel at the time of its construction, the basic dimensions of the vessel, including waterline length, and its general use is as a tonnage certificate for cargo and other legal purposes.
Only the Challenger has to produce a CHR under the Deed of Gift, the Defender is exempt.
SNG have long claimed that the document should have been lodged as soon as the Giolden Gate Challenger, 'USA' was launched, and could have been measured by the US certifying authority, the US Coastguard. Production of the document takes about a month, so the latest the measurement can take place is around the end of December 2009.
Currently the yacht named BOR90 is is the building shed in San Diego for further modifications. During the Court hearing on the CHR being produced, a measurement expert, Thomas L. Willis, the Director of the Coast Guard's National
Vessel Documentation Center (NVDC) from 1994 to 2008, stated that certain modifications would not affect the production of the certificate, however if the modifications involved the moving of bulkheads and other structural members, then that would preclude the measurement process.
In his statement to the Court, Willis stated that the CHR required two preliminary certificates - a Builders Certificate (presumably as to completion) and a Tonnage Certificate (calculated on the basis of certain physical measurements, rather than the actual weighing of the vessel). As BOR90 is still being reconstructed and modified, it is unlikely that a Builder's Certificate could be furnished, so the production of the Customs House Registry certificate could not proceed.
Further, the confirmation of the change, by way of deletion, of certain rules relating to the use of engines provided BMW Oracle Racing with a compelling reason further delay in measurement, as BOR90 is believed to be in the building shed for the removal of grinding pedestals and systems and the fitting of an engine and hydraulic systems to drive the winches.
Eight grinding crew are expected to made redundant in the change, which will affect the Load Waterline calculation which required, under the rules published by SNG, for the crew to be on board the yacht at the time of measurement. While some weight will be added by the engine and hydraulics, over 800kgs are expected to be taken off in crew weight, substantially affecting the float position of the multihull which is estimated to weigh around 5.5 tonnes in her unladen state.
The point being that a form of movable ballast (human), a role which the grinding team would undertake when not being required for maneuvers, would be included in the LWL calculation, while another form of movable ballast (water) would not be included in the same calculation. The expectation is that if all ballast was required to be included in the LWL measurement, then Alinghi 5 and BOR90, if they carry water ballast, would be measured with full ballast tanks, not empty tankage, as is normally done in rating rules - which do not measure Load Water Line in the way that SNG have prescribed.
The rules adopted by SNG are expected to be subject to a further motion to re-argue, as they provide for waterballast to be taken on after measurement, as required, while all other ballast and weight used when sailing must be on board at the time of measurement.
In an agreement with the International Sailing Federation, the world body handed over all determination on rules to the Swiss Defender, and that point and its effects, are believed to be the subject of further Court action.
The Court also obliquely ruled on the matter of whether the Challenger had to 'match' rather than not exceed, the dimensions on the Notice of Challenge, as stated in the Deed of Gift for the America's Cup.
'Allowing the challenger to continue construction after it issues the Notice of Challenge, and to reduce the size of the vessel below the noticed measurements, does appear to be inconsistent with the distinct advantage afforded the defender by the Deed's requirement of ten months' notice,' Kornreicht wrote in today's Decision. 'But the court is mindful of the simpler state of technology that existed when the deed was drafted. There was only so much the challenger could do to its vessel once it learned the details of the defender's vessel, which under the Deed do not have to be revealed until the
date of the match.'
The only glimmer on the SNG argument came with the a comment on the delaying tactics by Golden Gate YC on the CHR production matter.
The statement from Societe Nautique de Geneve reads: 'In her ruling relating to a hearing on 10 August, New York Supreme Court Justice Shirley Kornreich highlights '.the unsportsmanlike behavior of Golden Gate that has resulted in substantially reducing SNG's (Soci?t? Nautique de Gen?ve) advantage as originally contemplated by the Deed of Gift.'
'The 33rd America's Cup Defender, Soci?t? Nautique de Gen?ve, had filed an Order to Show Cause in front of Justice Kornreich who, despite such an unprecedented statement describing the actions of GGYC, considers such 'actions are not contrary to law' and is left with no option but to deny the motion.
'Justice Kornreich's order also reiterates that the race shall be sailed under the rules and sailing regulations of the SNG.
'SNG and its representing team Alinghi remain committed to a 33rd America's Cup fought on the water in Ras al-Khaimah in February 2010.'
The full decision can be read by
clicking here
Golden Gate YC is yet to issue a statement on this latest Decision
by Richard Gladwell
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