12:21 AM Sat 5 Sep 2009 GMT
The sailing world has gained some insights into confidential agreement between the International Sailing Federation and the America's Cup Defender, Societe Nautique de Geneve.
An affidavit from sailing rules guru, Bryan Willis (GBR), traverses the independence and impartiality of an ISAF appointed International Jury, used for events like the America's Cup.
Willis also looks at a couple of key rules in the ISAF Racing Rulebook which govern the authority and scope of decision by an International Jury, and specifically how such a Jury might handle measurement issues.
Such advice is not randomly volunteered.
The process used to obtain affidavits by Golden Gate YC, is that they will generally have one of their legal team approach an authority relevant to the particular motion being put to the Court. That lawyer will generally sound out the authority and get their views on certain points to be covered in the affidavit.
From there the lawyer will draft an affidavit based on interview notes, and the authority will modify the statement so that it is technically correct and fairly represents their views.
The point being that the Golden Gate lawyer or legal team have pre-selected the points on which they require comment in the Affidavit.
The secret agreement between the International Sailing Federation and SNG has intrigued many in the sailing world. Previously such agreements have been handled on a mutual consent basis between all involved parties, who agree on a common view.
In the 33rd America's Cup, one of the competitors is also the event organiser. Such an inherent conflict of interest could easily be handled with discussion between the parties as to rules and racing for the event which will be governed by the Deed of Gift.
Unlike the 1988 Deed of Gift match, no such discussions seem to have taken place, and disclosures as to the rules are revealed by SNG either just before or during one of the many Court Hearings that have been held.
Normally an event organiser would have an agreement with ISAF for their event, which is normally a licence to use ISAF Racing Rules and Officials, rather than hire directly. For the 33rd America's Cup, this agreement has been made only between two parties with the third, the Challenger excluded.
Further this agreement has been protected by a confidentiality agreement signed with the New York Supreme Court, for reasons that were never revealed, save that ISAF claimed it to be standard practice with agreements signed between itself and event organisers.
Golden Gate YC have been very keen to have the confidential agreement made public. BMW Oracle Racing's owner, Larry Ellison, made clear his unhappiness with some provisions of the agreement at the team announcement function in San Diego in August. However the software billionaire was precluded by the confidentiality agreement from spelling out the specific issues.
So the first inkling of these specifics came yesterday in the publication of five affidavits lodged with the New York Supreme Court, and in particular that of Bryan Willis, and ISAF International Judge and Umpire, and with almost 30 years of involvement at a senior level with ISAF's Racing Rules Committee, Officials Committees, and three America's Cup Juries. Willis also acted as rules advisor to teams in another three America's cup campaigns. No-one else has his level of experience covering the Racing Rules and America's Cup.
Bryan Willis has not seen the ISAF agreement, because of the confidentiality agreement signed between the parties and the New York Supreme Court.
That agreement has only been seen by the Clubs, team heads, their rules advisers and lawyers. Despite several approaches from Sail-World to BMW Oracle Racing as to even general areas of their issue with the agreement, Sail-World has been declined with a 'no comment' response each time.
So why would there be specific reference in the Willis affidavit to Racing Rules 62 and 64 if they were not contentious to BMW Oracle Racing?
Did he provide this comment unprompted?
Of course not. So it is reasonable to conclude that the questions were asked of Bryan Willis, by a member of the GGYC legal team who had seen the confidential agreement and needed information on those areas of contention.
Those specific areas Rules 62 and 64, cover the granting of Redress, which include an improper action or omission of the Race Committee, and how an International Jury handles such redress (which can include that races be re-sailed or competitors disqualified or results amended), and there is no limit to the powers of the Jury.
Rule 64 also deals with how an International Jury will deal with measurement processes and issues and provides some options as to how these can be resolved. Again these powers are wide ranging and the Jury has substantial discretion including referral of measurement 'questions together with the relevant facts, to an authority responsible for interpreting the rule. In making its decision, the committee shall be bound by the reply of the authority.'
As there is no rule authority for the measurement of Deed of Gift America's Cup yachts, SNG have, on the basis of the GGYC legal questions, obviously put in place some restricting mechanism as to the Jury's powers and process to determine Redress issues.
It may be that SNG may have taken it on themselves to be the final arbiter of measurement rules, as it is also the current America's Cup Trustee.
Bryan Willis in his affidavit covers this issue:
'When the International Jury is satisfied that the claim meets the requirements that allow redress to be considered, it is broadly empowered to craft appropriate relief. There are no limits to the redress or relief that can be given; it is required to make as fair an arrangement as possible for all boats affected. This might include changing or amending the rules of the match.
'If an ISAF International Jury's authority, in particular that which is provided in RRS 62 and 64, were to be abrogated by an organizing authority, then the International Jury would be without power or authority to remedy a claim of prejudice by a competitor against the organizing authority. This would significantly alter the carefully-considered structure of important ISAF-governed international events such as the America's Cup.
'To abrogate, or even limit, the RRS rules 62 and 64 would be wholly inconsistent with ISAF's objective of providing an independent on-site International Jury with power to resolve disputes between boats and between a boat, or boats, and the organizing authority. Without such a dispute resolution body in place, the concept of fair competition, a cornerstone of ISAF's existence, would surely be missing and the sport could be brought into disrepute. '
In short, the impartiality and independence of ISAF, which has been the very altar of its existence, could have been compromised by the confidential agreement and the powers that have been assigned to SNG in the agreement.
It is a simple matter for ISAF and SNG to ask the New York Supreme Court to lift the confidentiality cloak on the agreement, and for its contents and implications to be open for scrutiny, and for sailors to know whether its contents are reasonable and fair.
By the same process of legal questioning, leading to the production of an affidavit, it is apparent that BOR90, the trimaran constructed by BMW Oracle Racing, exceeds the 90ft Load Waterline Measurement allowed in the Deed of Gift.
It is obvious from statements provided to the Court that if the rudder is included in the Load Waterline Measurement, then BOR90, which will evolve into USA, the yacht named in the Notice of Challenge lodged with SNG in July 2007, is over length. Why else would such statements be provided?
Justice Shirley Kornreich, stated in a previous Hearing on the Customs House Registry issue, that USA will be disqualified if she exceeds the measurement contained in the Notice of Challenge. So clearly BMW Oracle Racing have a problem.
America's Cup authority, Halsey Herreschoff, states that 'I estimate that I officially measured over one hundred yachts during that time (1961 - 1975), which included measuring for length on load waterline. Consistent with universal practice, I at no time included the rudder in that measurement.
'Beginning in 1961, I designed yachts for Herreshoff Designs, the longest continuous yacht design service in the United States. I prepared many original yacht designs, which form the basis for construction of over ten-thousand boats. On none of those boats was any portion of the rudder included in the length on load waterline measurement. '
The point of contention with the Measurement Rules published by SNG, which are the same as those used by San Diego YC in the 1988 Big Boat vs the Cat Match, is that the fore and aftermost length measurement points are determined by the point of intersection of the yacht with the water. Obviously the aftermost point of the yacht can be determined to be a transom hung rudder. However the usual measurement practice is to measure the hull length only.
And turning back the Rule 62 and 64 implication, the 33rd America's Cup International Jury could be constrained as to how it determined the Load Waterline Length.
Obviously BMW Oracle Racing can move the rudder back under the boat and within the 90ft LWL measurement points, however the two rudders on the amas or outer floats could also be outside the 90ft LWL limit, which would require a substantial redesign, to accommodate what many would regard as a non-standard measurement interpretation.
A hearing date has yet to be set for the latest motions. SNG has until 11 September to respond, followed by a further response by GGYC. At that point Justice Shirley Kornreich will consider the papers and will set a Hearing date.
Motions are expected to be file later relating to the choice of venue for the 33rd America's Cup, and Kornreich is yet to rule on the Customs House Registry issue raised by SNG.
The full affidavits can be viewed at
www.ggyc.org
by RG
|
Frederick Reef, QLD
Stand Up Paddle - Wave & Cruising Boards
Foiling - Wind Wing Foilboards
