Cape Horn Tales

I didn't want to tempt fate previously, but now the Volvo Ocean Race fleet are as good as round Cape Horn, I thought I might tell my favourite Cape Horn story. It dates back to the first Jules Verne season in 1993. Both ENZA (Peter Blake and Robin Knox-Johnston) and Charal (Olivier de Kersauson) had hit Unidentified Floating Objects south of Cape Town, and returned to South Africa manning the pumps.

And that left Commodore Explorer – the old Jet Services V, a 23 metre catamaran - the last man standing in the Southern Ocean. Skippered by Bruno Peyron and assisted by, amongst others, Cam Lewis. I first came across Lewis’ account of their circumnavigation in a Seahorse article written shortly after they got back. He later published a book about it, Around the World in 79 Days, which I read way back in the day, and dug out again recently to get myself in the mood for the Volvo Ocean Race.


Back in 1993, Cameron Carruthers Lewis was the kind of character I wouldn’t have dared to make up for a novel. He was a blue-blooded WASP with a Ford agency model for a girlfriend. The ancestral line included Revolutionary War generals; the explorer, Admiral Richard Evelyn Byrd; and good ol’ great-uncle Leverett Saltonstall, the Governor of Massachusetts during the Second World War.

Lewis had an undeniable talent for racing sailboats. He won back-to-back World Championships in 1979 and 1980 in the single-handed Finn – an Olympic boat then as now – and he was more than just a favourite for the gold medal in Moscow. It wasn’t to be; the Russian invasion of Afghanistan intervened, the US team stayed at home and a disillusioned Lewis started to look elsewhere for a buzz.

It wasn’t a half-hearted search either, when Cam Lewis wanted excitement, he wanted it spelt in capitals with lights and bells on. He had always had a whiff of the six-shooter about him – back in my Mirror sailing days, I remember hearing that after crossing the finish line to win one of those Finn titles, he’d returned to the sailing club as naked as the day he was born - another story that’s too good to spoil by establishing its truth, or otherwise.

So for followers of Lewis’ career, it really wasn’t that surprising to find him as watch captain and cook to four Frenchmen on an old catamaran, mortgaged to the hounds and trying to beat an imaginary English gentleman in a race around the planet. But with Blake, Knox-Johnston and de Kersauson out of the game, by March 24th all that stood between Lewis, his mates and glory was the 28 and a half days of sailing they had left to complete the 80 day lap - and Cape Horn.

Commodore Explorer was closing on the great cape from the west, with Chile to leeward and a perfect weather forecast – eight to twelve knots from the south-west. But when Cam Lewis came on deck for his watch at 2.00 am, it had already built way past twelve knots. They changed down through the sail plan like a driver going through the gearbox at the end of the straight. No sooner had they reduced sail than the wind increased and they had to peel off some more. Peyron was on the radio trying to figure out where the hell all the wind was coming from. The most likely explanation was that a powerful new low pressure system had unexpectedly spun off the Antarctic continent. And with the wind building to 55 knots and the barometer in free-fall, the weather system was heading their way.

Their options shut down quickly. Even with all the sails on the deck, the boat was still being driven forward at 25 knots by the 31 metre tall wing-mast, with its 22 square metres of wind resistance – that’s about the same as the sail area on a nice little cruising boat. The waves and wind would let them steer just one course with any safety, and that heading was taking them closer to the coast – evident from the way the continental shelf was reaching up to the 40 foot waves and starting to lump them into 60 footers. Lewis was below making pancakes (seriously – when in trouble, cook) when Peyron realised that ‘parking this beast’ was the only remaining option.

If they’d been aboard a nice little cruising boat it would have been a piece of cake. Sails down, lash the tiller to keep her head up into the wind, then retire below and keep your fingers crossed. But they weren’t, and no one had ‘parked’ or heaved-to in a 26 metre catamaran in a Southern Ocean storm before, or in any storm of this magnitude, anywhere, ever.

With the wind now shrieking across the deck at 65 knots, they started work. With one man on the helm, it took all of the rest of them to drag the headsails aft, one at a time, moving the weight to the back of the boat to keep the bows up and out of the waves. Then Lewis went forward and retrieved a halyard, took it to leeward and fastened it to the daggerboard. It sounds simple, but even if you ignore the waves, the motion and the spray, then just the windage on the rope was enough to drag Lewis off his feet, off the boat and into the torrent flushing by to leeward at 25 knots.

But he got it done - albeit with the halyard twisted around another part of the rigging. Once it was fastened, they hoisted the daggerboard out of the water, and then repeated the process with the board in the windward hull - the idea was to reduce the catamaran’s resistance to wind and waves, allowing it to slide sideways, going with the flow, rather than fighting the storm’s energy.

There was one final preparation before they tried to turn the boat into the wind. Everyone got their knives out, so they would have a chance to cut their lifelines and swim out from under the wreckage. Then, after studying the waves, Bruno Peyron called the moment and Marc Vallin swung the wheel.

There were many possible outcomes - a straight-forward capsize was most likely, which in a catamaran almost 14 metres wide is an event of considerable violence for anyone standing on the top hull. But they could have ended up going backwards down a wave, snapping the rudders off, and then maybe pitch-poling with a reverse summersault for the full ten-point manoeuvre. None of that happened, Commodore Explorer turned towards the wind and slid gracefully to a halt, waves washing harmlessly past.

Leaving a man on deck on watch, everyone else retired below and got ready for a capsize. It would take just one rogue wave. Now they were the fish in the pork barrel; the mighty catamaran helpless before the non-linear maths of wave generation. The crew dressed in survival suits, stowed away anything made of glass or with a sharp edge, and dug out the emergency gear. Then they sat and waited it out – except for Jacques Vincent, who, in what might easily have become a Captain Oates moment, went back outside and proceeded to untangle the halyard that Lewis had left wrapped around the rig.

When the halyard was released, the daggerboard was able to slip back down into the water. Immediately the resistance allowed the waves to start breaking aboard, rather than washing past. If Jacques Vincent allowed too many of those carbon-jarring impacts, the boat would just break up. It took him three hours to do a job that would have taken a couple of minutes under normal circumstances. And Lewis had to watch the whole thing from the inside of his cabin.

But that was only one danger in circumstances of multiple jeopardy. If you look up desperate in a sailing dictionary, I think you’ll find: Commodore Explorer, Cape Horn, 24th March 1993. The five men were as isolated and exposed as a climbing team camped in the death zone on Everest, pinned down and waiting out a storm. The ticking clock was no less lethal than a lack of oxygen - the remorseless drift towards the rocks and crashing surf of Tierra del Fuego would kill them just as effectively. They had reached a point where the choices were all made, and there was nothing more to be done, except wait.

Bruno Peyron and his team were some of the best big-cat sailors on the planet. But they had no more control over their fate than a gladiator in the coliseum, waiting for the imperial edict - the thumbs up or the thumbs down. The storm would abate in time and allow them to sail clear, or it wouldn’t. A rogue wave would capsize and crush them, or it wouldn’t.

The wind stayed over 60 knots for the rest of the 24th March, with one gust topping the anemometer at 85 knots. That’s well in excess of the 64 knots required to officially register as hurricane strength - Force 12 on the Beaufort Scale. In his book, Lewis described it as the longest day of his life. But finally, 24 hours after he had first come on watch to find they needed to reduce sail, it started to ease, and by 3.00 am on March 25th it was down to an average 45 knots.

They hoisted the storm jib, started sailing and reached the Horn a little under 12 hours later. And on April 20th 1993, Commodore Explorer crossed the finish line off Ushant in 79 days, six hours and 15 minutes to set a new circumnavigation record – and win the Jules Verne Trophy.


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Rogue Waves

So that last story, not to mention all this Volvo Ocean Race writing, got me thinking about, and researching, this whole rogue wave thing.

When Miles Smeeton published his book, it joined a building folklore about rogue waves. No less a ship than the Queen Elizabeth had her bridge windows taken out by a wave in a North Atlantic storm in 1943 – they were 28 metres above the waterline. In 1995, her successor, the QE2 took what was estimated to be a 29 meter wave over the bow. Then there was the Esso Languedoc, caught in a storm off South Africa in 1980.

Philippe Lijour, the first mate aboard the oil tanker, was fortunate enough to have a camera handy (fifth picture down) when the breaking crest of a wave roared past, just short of the top of the ship’s cranes some 25 metres above the waterline. At the time, Lijour reckoned the average wave height to be somewhere between five to ten metres from trough to crest.

But despite the stories and even despite Lijour’s photo, oceanographers and meteorologists refused to believe these freak waves existed in any number – their theories simply didn’t predict them. Conventional, linear mathematics states that waves should vary in a pattern around the average, called the significant wave height, defined as the mean of the largest third of the waves recorded. According to this analysis, in a storm sea of 12 metres, a 15 metre wave will pop up about once every 25 years.

A rogue wave - one defined as twice that of the significant wave height - is theoretically possible, but you’ll have to wait about ten thousand years to see one. It seemed to the seafaring community that they were appearing a lot more often than that, but the scientists were about as interested in the anecdotal evidence as they were in reports of the Loch Ness Monster. And that’s how things stood, when on New Year’s Day 1995, the equivalent of the dead bloated body of Nessie floated up on the shore of the Loch.

The winds howling down the North Sea had peaked at hurricane force that afternoon, and the captain of the ferry Colour Viking later described going eyeball to eyeball with wave crests from his bridge, 30 metres above sea level. It would have gone down as just another account, if what’s become known as the New Year Wave hadn’t roared under the Draupner oil platform just after three o’clock that afternoon.

It was measured by a laser wave sensor at a maximum height of 25.6 metres – twice the size of the average wave at the time. If that wasn’t enough, five years later, a British oceanographic research vessel in the Rockall shipping area, to the west of Scotland, used an onboard recorder to measure a wave 29.1 metres from the crest to trough. Suddenly, the accounts of walls of water approaching at twice the height of the waves around them were no longer quite so unbelievable – even to the scientists.

The implication for the safety of ships and oil platforms was not good – their design had always been based on the assumptions of linear mathematics. But the maths was flawed and the theory shot to hell, so the science community went back to its other mainstay – observation. The European Union started up a project called MaxWave, which used images from satellite radar to ‘measure’ wave height across broad swathes of ocean.

I’ve used quotes, because there’s a fair bit of theory between the radar images and the computed wave heights. Nevertheless, from three weeks of images taken from a period and place when two cruise ships had almost been sunk by rogues, the project measured ten waves bigger than 25 metres – and that kicked the linear maths model into touch once and for all. A subsequent project called WaveAtlas used radar images to measure rogue waves across the globe, and provided maps of size and frequency. The latest plan is to provide the radar images in real-time, allowing dangerous swells to be tracked and forecast.

But we still don’t have an explanation of why these waves occur. Counter currents and the sea bed provide known mechanisms for throwing up bigger waves, but that explanation only works in areas like Cape Horn, where an easterly gale can meet the westerly Antarctic circumpolar current across an area of shoaling water. It doesn’t tell us why some waves roar under North Sea shipping platforms at twice the height of all those around them.

The most likely explanations use the same equations as the ghostly world of quantum mechanics – so-called non-linear mathematics. It seems that somehow, the energy from several separate waves is being focused into just one or two of these monsters. But until these theories are better refined and established, our best chance of predicting these waves is the up-coming radar tracking. In the meantime, if you’re in the wrong place at the wrong time, you’ll need all the luck and all the determination of the Smeeton’s, Guzzwell and the Tzu Hang to come back and tell the world about it.


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The Smeeton's and the Horn

The trip to Alicante for the start of the Volvo Ocean Race turned out to a little busier than I hoped, what with my triple role as official author, website race commentator and some-time Data Centre worker. As a consequence, I didn't manage to extract much in the way of sailing stories from the book interviewees, but hopefully I tee-ed up a couple of people to get some good ones down the track.

So I'm going to have to fall back on one I prepared earlier, while I was doing a bit of background reading for the upcoming race this past summer. I didn’t want to just read all the other official accounts, so I did a bit of digging on abebooks.com and came up with (amongst others) Miles Smeeton’s book about an early attempt to round Cape Horn in a small cruising boat. And this is one of those tales that's almost been lost - but shouldn't be...

Conor O’Brien’s Saoirse had already been first - the 42 foot ketch departed from Melbourne and successfully rounded the Cape as part of a solo circumnavigation, and O'Brien's book, Across Three Oceans, records his 1923 achievement. It was 35 years before another yacht would clear customs in Melbourne with Montevideo in mind. The Tzu Hang was owned by Beryl and Miles Smeeton. They were the kind of redoubtable British adventurers that belong in Boy’s Own annuals.

Nevil Shute wrote the foreword to Miles Smeeton’s account of their voyage to Cape Horn, Once is Enough. Shute picks out a telling story - when asked if they had had any trouble crossing the Atlantic, Miles allowed for a three day period in bad weather when the damnedest thing had been keeping their eleven year old daughter, Clio, at her lessons. Tsk, tsk, children, really - no discipline these days…

Even before she met Miles, Beryl had done her share of adventuring, travelling on four continents, as likely on foot or horseback as in the comfort of a railway carriage – think rainforests with a pith helmet and an umbrella and you’ll get the spirit if not the letter of Miss Beryl Boxer’s endeavours. Once they had teamed up, they attempted Tirich Mir - a 25,263’ peak in the Hindu Kush - with a young Sherpa called Tenzing Norgay, who went on to greater things.

They didn’t get to the top, but it was the highest altitude achieved by a woman at the time. Miles was a career Army officer, and it was after his service in the Second World War that they took up sailing, beginning with that voyage back across the Atlantic in which Clio had tried to play hooky. They had just bought the Tzu Hang in England - a 46’ ketch, originally built in Hong Kong from teak and copper fastenings - and were sailing her home to Canada. Four years later, in 1955, they sold the farm in British Columbia that had been their home since the war, and took off in the boat. Like so many people before and since, they set off across the Pacific. Unlike many others, on reaching Australia they turned back east, sailed down into the high latitudes and attempted to round Cape Horn.

It all started well enough, Miles Smeeton’s descriptions of life on board are idyllic to anyone familiar with the privations of a modern racing boat. They had the fire stoked up like a country pub on a winter weekend, with the cat curled up in front of it. Beryl Smeeton had taken to knitting jumpers, and her breakfasts of porridge, bacon and eggs, toast and home-made marmalade all washed down with tea, would have shamed most British bed and breakfast hotels. The bunks were real beds, oatmeal cakes were baked, pudding was cooked at any excuse and the England versus Ireland rugby match was on the radio - blissful really, until the 12th February, 1959.

The Tzu Hang was a very slow boat to Cape Horn by today’s standards, where even the mono-hull racers of the Volvo can reel off one 500+ mile day after another – fast enough to almost pick and choose the weather. The Smeeton’s were hoping for an average of little more than a hundred miles a day. At that speed, they were the proverbial fish in a pork barrel - whatever weather came along rolled right over the top of them. And two days before Valentine’s Day, things had been deteriorating for a while.

They had got down to a reefed mainsail and mizzen only, with 60 fathoms of three inch hawser trailing out the back to slow her down and help keep her stern to the breaking waves. The swell was bigger than they had ever seen before – Miles Smeeton described a seascape that was as different from a normal rough ocean as a winter landscape is to a summer one. There was white foam and spume everywhere, showered like confetti by the breaking crests of the huge waves, it lay over the ocean like Christmas snow. And for the first time since the Tasman Sea, the albatrosses had disappeared – this, it turned out, was ominous.

Miles was in his bunk reading when it happened, his wife on deck at the helm. He described what she saw in Once is Enough; ‘Close behind her a great wall of water was towering above her, so wide that she couldn’t see its flanks, so high and so steep that she knew Tzu Hang could not ride over it. It didn’t seem to be breaking as the other waves had broken, but water was cascading down its front, like a waterfall.’

After that, Beryl Smeeton remembered thinking that she could do nothing else with the helm, then the sensation of falling and no more, until she found herself floating alone, in the Southern Ocean, with just the broken tether of her lifeline for company. It was only when she was lifted by the following wave that she saw the boat just thirty yards away, both masts gone and very low in the water - which was unsurprising, when you consider that the deckhouse had been ripped off.

It’s arguable whether Miles Smeeton and their crew mate, John Guzzwell, were any better off down below. They were hurled around the cabin along with everything that wasn’t tied down and quite a bit of what had been. Until the vanishing deck house had allowed the cold black sea to pour in, as the Tzu Hang was rolled over and under that huge wave. They both surfaced into waist deep water, awash with cushions, mattresses and books - and one seriously unhappy cat. Miles made it on deck in time to see his wife swim to the remains of the mizzen mast, from where she pulled herself to the boat on the still attached rigging, and was hauled back on board by the men.

It seemed that they had only saved Beryl for a few minutes – both men felt the Tzu Hang would sink at any moment. Their home was full of water, and there was a two square metre hole where the deckhouse had been. Both masts were gone, as were the rudder, dinghies and the cabin skylights. The rigging, guardrails and stanchions were a mass of twisted metal. There was no liferaft, and no hope of rescue. The men just stood and stared in despair, but Beryl went for the buckets.

She galvanized them all, and their energy was rewarded with luck. John Guzzwell quickly found nails, a hammer and wood in the chaos below. He worked like a demon to make the Tzu Hang watertight again, before another wave took her down for good. Meanwhile, Miles and Beryl bailed, and bailed, and bailed. It took twelve hours to get the water down to the level of the floor boards – had there been any floorboards left. Then, exhausted, they managed to heat some soup, and slept.

The storm abated the following day, and they were fortunate that the sturdy teak hull had not sprung a leak. Slowly, the chaos was cleared - amongst the casualties was the stuffed blue bear they carried as a lucky mascot. Headless, he was thrown overboard, judged to have been no help at all. The boat had been pitch-poled, somersaulted end-over-end. The evidence was a tin of make-up that had slid down a bulkhead as the boat sat on its nose, then slipped into a gap between the deckhead and the bulkhead that had opened with the force of the masts hitting the water. As the masts had sheered off at the deck, the load had disappeared and the make-up tin had become trapped. And there it stayed, proof of their experience.

They built a jury rig and a steering oar, although mostly the Tzu Hang sailed herself, with just changes to the trim of the sails to keep her going in a straight line. Enough navigational equipment had survived for them to take position fixes, along with a pilot book for South America and twenty three unbroken eggs. It took almost a week for the cat to dry off and recover her good humour.

They made a landfall near the Chilean naval yard in Talcahuano, and with a great deal of effort and patience the Tzu Hang was rebuilt. Then the Smeeton’s – alone this time – went back to the south, intending to run into the Chilean Channels and round the tip of South America through the Magellan Strait. There was also a sense that they had some unfinished business down south, and Miles allowed for the possibility of another crack at the Horn if the opportunity appeared. So they sailed west, offshore, to clear the southerly wind and northerly current that tore up the coast of Chile. And they found another storm. This time, they let Tzu Hang lie a-hull – that is, all the sails down and the tiller lashed to keep her bow up into the wind. It was a technique that they had used many times previously, but not in the Southern Ocean.

After ten hours of riding out the worst of the storm, the boat was hit by another monster wave and rolled – this time on its beam ends, tumbling through a full circle with both the Smeeton’s down below. Despite the stove breaking free and being thrown around the cabin, neither of them was badly hurt in the carnage. And so, a year after their first crushing defeat by the Southern Ocean, they found themselves in remarkably similar circumstances – a little further north, but a lot closer to the coast.

The radio, chronometer and barometer were all gone, and so they had much less in the way of navigation aids. Otherwise, the damage was not as bad, the new deckhouse – built by John Guzzwell in Chile - was cracked and crushed, but still in place, and a stump remained of the mizzen, along with the rudder. Their new dinghy, which they had never even used, was gone, but at least the cat seemed a little less disgusted than the first time. They built another jury rig, and once again turned back to the north. This time they were insured, and used the favourable wind and current to reach Valparaiso, from where the Tzu Hang was shipped back to England to be repaired.

When it was all done, Miles Smeeton described the encounters with the rogue waves in his book, and then put himself at odds with received wisdom when he concluded that there are some waves that a yacht is simply not going to survive – ‘whatever she does’. These days, such an opinion is mainstream, but prior to the Tzu Hang’s experiences, yachtsmen had believed that a well-sailed, well-founded yacht was safe in any deep water sea. They were wrong. There are rogue waves out there that don’t seem to belong to any ocean or storm, monstrous waves created by some unknown collusion of the elements. By that story will have to wait for another day…


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A New Theme and Michel Desjoyeaux

It’s been a busy summer getting ready for the Volvo Ocean Race (and have we got some cool stuff coming for you in the Race Data Centre), but here I am, finally, back on the blog…

Sadly, nothing that’s happened since I wrote the last Cup report has convinced me that the AC’s immediate future is any brighter than the interior lighting of a New York Court room. So, I’ve been casting around for a new theme, and I think I’ve found one – it’s time to pull up a stool, crack open a beer and tell a few stories…

There are so many good tales that will never make a book of their own, often about people that will never make headlines, but who, when their moment came, were more than up to the challenge. Together, these stories form the mythical backdrop to the world of sailing – for Gordon Banks’ save from a Pele header in the 1970 World Cup, read Cam Lewis and Bruno Peyron’s 1993 rounding of the Horn.


These stories are the new theme for this blog - I’ll be trying to dig out a few contributions (stand up, Jerry Kirby) over the next ten months, going around the world with the Volvo Ocean Race. I’m after stories as told and as remembered - be it badly, inaccurately (and preferably not libelously) but, I hope, entertainingly. Remember – never spoil a good tale with the truth…

In the meantime, I’m going to kick if off with a few personal favourites. And the first one demonstrates very sweetly that this round the world racing thing isn’t just about who’s got the biggest cojones on a black night in the Southern Ocean. I originally heard it when I was writing daily reports on the 2000-01 Vendee Globe for a website called madforsailing.com – now The Daily Sail. And this is how I remember it…

That Vendee was the race that made Ellen MacArthur famous. It would have been hard to believe if you’d read the British headlines at the time, but she didn’t actually win. She came second behind a yacht called PRB, sailed by Frenchman Michel Desjoyeaux, also known as Le Professeur for his analytical, intelligent approach to the sport. But it was a close run thing, and it was never closer than on the approach to Cape Horn, when PRB reported that the starter motor on the Professor’s generator had given out.

As you may (or may not) know, the generator is absolutely essential aboard these boats, as they don’t carry enough water to complete the voyage. Instead, they carry a desalinator to make the water as they go along. These machines are run off the electrical power in the batteries, and the batteries are charged by the generator or engine. No generator or engine means no water, and since pretty much all the food on board is freeze dried and needs to be rehydrated, nothing to eat either. And that’s before we’ve got started on all the other systems that go down when there’s no power on the boat – navigation, communication, lights... although the toilet should still work.

And the Vendee is non-stop, no assistance – for Desjoyeaux, a stop at Cape Horn for spares meant that he was out of the race, handing our Ellen (or l'anglais, depending on your viewpoint) the lead. As the hours ticked by, Desjoyeaux and his support team ashore racked their brains for a way to repair the motor with what was onboard. The boat held north, heading for Chile and retirement, while everyone watching (via the internet) held their breath.

Then, PRB dived south towards the Horn - alone in the Southern Ocean, Le Professeur had worked a fix. How did he do it? It was breathtaking in its ingenuity. Desjoyeaux had a hand crank for his generator, at first glance useless, because he wasn’t strong enough to turn the engine over… but there are other sources of power aboard a sail boat.

Desjoyeaux had set PRB up on a beam reach, then pulled the mainsail in as hard as possible, making it fast with the sail ridiculously over-sheeted on the centreline of the boat. He then guided the rest of the mainsheet down below, through a series of blocks, until he could wrap it around a drum fastened to the hand crank on the starter motor. The set up was just like the starting cord on a manual outboard engine, or petrol lawn mower.

With everything in place, Desjoyeaux climbed back on deck and, warily I suspect, let the mainsheet go. The load on the over-sheeted sail pushed it out at huge speed, hauling the mainsheet through the blocks all the way back to where it was wrapped around the hand crank on the starter motor, spinning the drum and… Bingo. One engine, running – this was creative genius on the level of the guitar riff out of the instrumental in Led Zep’s Whole Lotta Love. And it saved the race for Michel Desjoyeaux.


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Over It…

A fair bit of water has flowed past the becalmed America’s Cup since my last post, a few weeks back. Alinghi's skipper Brad Butterworth had a go at Team New Zealand's Grant Dalton, but Dalts refused to bite.

Alinghi’s head honcho, Ernesto Bertarelli, went to Valencia looking to cut a deal for the venue of the 2009 America’s Cup match, even though Justice Cahn of the New York State Supreme Court (in whose hands the matter rests) has still to decide the date.

BMW Oracle announced officially what we’ve all known for a long time - that they are building a boat for the Deed of Gift match. And Alinghi followed up with an announcement that it’s going to take fifteen months to build their boat for a race that Justice Cahn may well schedule for this October. Perhaps they started ten months ago, and perhaps they didn't...

There was another predictable legal volte-face from Alinghi, when they returned to the courts in their efforts to stave off the Deed of Gift race until they have a boat ready for it – Noah should be so lucky as to have had recourse to the New York State Supreme Court Appellate Division.

Fortunately, the inestimable Cory Friedman was there to make sense of it all in Part 21 and Part 22 of his Scuttlebutt oeuvre. Or not, depending on how you good you are at following tediously complex legal cases. I think his conclusion was that it's about to start raining on Alinghi's parade, and they need a little more Old Testament sense of urgency when it comes to boat building.

To all of which, my response was… yeah, well, yada, yada, whatever…

So it’s been hard to summon the enthusiasm to write something that might be worth reading. But eventually, guilt and/or a misguided protestant work ethic kicked in and I sat down to have a quick scout around the usual suspects on the interweb, to see if there was anything I'd missed. But when I turned up at the ever reliable Mariantic, I found this…

Mariantic is taking a break. Thanks for your support. More later.

I thought… maybe I’m not the only one with Cup fatigue.

And then I thought… what a great idea.

Enough already.

I have no fear for the future of the Cup. George Schuyler’s Deed of Gift and the desires that it inspires have always proven to be bigger than the shabby behaviour (and there’s a long, long history of it) that those very same desires can provoke. It’s the nature of the thing - the peaks of Fremantle’s liquid Himalayas were followed by the troughs in the swells of San Diego's 1988 mismatch - boom and bust, recession and bubble…

The Cup will get back on the water and put this shambles behind it, and that’ll be a good time to start taking an interest again. But I don’t need to follow every memo, motion, argument, appeal, order, stay, toll and cross-motion in the meantime, not least because Cory Friedman is doing a vastly superior job of it.

But also because I can see a whole lot more golf in that particular hole - given the attitude of the protagonists - and frankly, I’d rather write about sail boat racing, or travel, or just about anything other than two or three (four, five?) more years of arcane legal procedures in a New York court, accompanied by Alice in Wonderland press releases and briefly interrupted by three days of (albeit spectacular) but very one sided yacht racing.

So this blog will be back with a new brief, just as soon as I’ve figured it out. And if nothing inspires before then, the Volvo Ocean Race is coming up at the end of the northern summer, and that is going to be worth watching.

In the meantime, so long, and thanks for all the fish.

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Mark Chisnell ©

Another Busy Week Going Nowhere…

Everyone who had no idea what a Tolling Agreement was until this week raise their hands. I guess that’s most of us. Since we left our sailing soap opera with a post last Friday, Tolling Agreements have gone from a dinky little new phrase to chuck around in the pub, to being central to any likely settlement of the future of the America’s Cup.

A Tolling Agreement, it turns out (I’ve been reading Cory Friedman Part 19…), is the legal way of stopping the clock on an event (building a nuclear plant, flooding a valley to build a hydro-electric dam, running the America’s Cup… all the normal stuff) while the legal action proceeds to a conclusion. Such an agreement was suggested by Justice Cahn way back in September last year, at the first hearing in the New York State Supreme Court. Both the Golden Gate Yacht Club (GGYC) and the Societe Nautique de Geneve (SNG) were in general agreement on the idea at the time – GGYC apparently even did the subsequent paperwork and signed an offer that... SNG rejected. So nothing exists in print, and as we all know, a verbal agreement isn’t worth the paper it’s written on.

Or maybe not…

The parties met before Justice Cahn on Wednesday, April 2nd, to try and settle the matter of the date of the 33rd America’s Cup match. And the account of that hearing forms Part 20 of Cory Friedman’s opus (odds on Cory laying down Part 60 around this time next year?). It does seem from reading this that GGYC have turned the straight-forward absence of a tolling agreement into a dog’s dinner of an argument about why the match should be in October 2008. The only motive for this that I can think of - rather than going for the jugular and insisting on a match according to the original challenge dates of July 2008 - is that they won’t be ready by then either. As to the rest of what went on at the hearing… Read Friedman’s account.

At the end of it all, Justice Cahn decided that he couldn’t decide at the hearing, and I’m not surprised, given the plethora of arguments and rationales for the various dates/hemispheres. There’s a rumour going round that he will issue a judgement in a week or two, but whether that gets us any closer to the 33rd America’s Cup (never mind the 34th) remains to be seen. There is still plenty of legal golf left in this hole. SNG can still drag the whole damn thing down to the Appellate Division although, as in 1988, that may not stop the Defender having to sail a match in the meantime. But the venue of that match, the rules that apply to it, the legality of the Challenger’s boat could all still be the subject of further court action… This is getting old isn't it?

If you want to read the reactions of either Alinghi or GGYC/BMW Oracle to all this, click on the links. But frankly, you’ve got better things to do, like... oh, you know... going sailing?

Meanwhile, the sailing team training that we reported on last week proceeded less than smoothly for Alinghi, who managed to flip Alain Gautier’s trimaran, Foncia, over in the Atlantic. The sound of hollow, Schadenfreudean chortling echoed around the world (discreetly - as two of the guys were airlifted ashore to hospital – no serious damage). But Alinghi fronted up with a decent press release (this one is worth reading), in which Ed Baird talked through the capsize, which happened while they were bearing away. Thierry Martinez was there to record the event in glowing colour.

If I were a crueller man, I would have found a picture of Ed standing on the upturned hull of Foncia and captioned it… ISAF Sailor of the Year. Then I’d have found a picture of Rohan Veal going Mach Ten in his foiler Moth and… And you can guess the rest, but it’s a way cheap shot. None of this is Ed's fault. As far as I know.

BMW Oracle Racing were having a more successful time of it, training on Groupama 2 with Franck Cammas. The Groupama website told us that Russell Coutts, John Kostecki and Jimmy Spithill had all been sailing with Cammas' and some of his crew. They kept it upright, and will move onto match racing in 60 foot multihulls next week…

Times are less entertaining for all those other teams that announced their planned participation in America’s Cup XXXIII way back in the halcyon days of last summer. The sound of slamming doors and keys turning can be heard all over Valencia. There are rumours of another round of retrenchment at one of the teams, while United Internet Team Germany shutdown on schedule on the 31st March with the somewhat mixed message that they plan to… ‘continue its previous, trustful and successful work in the 34th America's Cup on a basis of a new protocol / rule’. While simultaneously… ‘The contracts of all team members are discontinued and the base in Valencia will be closed for the time being after March 31 2008.’

This is presumably the death of the circuit of regattas proposed for this summer (in the old version five boats) that the German management had been working hard on. You can draw a couple of conclusions from this: if it doesn’t have official America’s Cup racing stamped on it, sponsors aren’t interested. In which case you can forget all those ideas about telling Alinghi they can keep the trophy and starting up the Louis Vuitton Cup instead. Or maybe this credit crunch thing is making life a little tough for the sponsorship hunters right now. In which case, perhaps it’s good that we’ve got an excuse to keep everyone off the water for a couple of years (decades?) till the good times roll again…

Meanwhile, the sailing teams are sticking together as much as they can, we’ve previously mentioned that the core Team Germany squad will be racing the TP52 Platoon (renamed Platoon powered by Team Germany). And on Wednesday, Valencia Sailing reported a press conference at Desafio Espanol, where they announced that they too would be sailing TP52s, along with a GP42 campaign this year. If there isn't some light at the end of the Cup tunnel soon, where might these teams turn next for some action?

And it seems that on the same day that CNEV’s (remember them, they used to be Desafio's yacht club and the Challenger of Record) lawyer was apparently up before Justice Cahn, Desafio were also announcing that they will now be representing Bilbao’s Real Club Maritimo del Abra. There is a lot more on this if you follow the Valencia Sailing link.

But that’s plenty enough for me…

www.markchisnell.com

Mark Chisnell ©

Groundhog Day

Out of court, and straight back into court, sounds familiar, right? Ernesto Bertarelli’s promise to get the America’s Cup show back on the water turned out to be about as reliable as England’s so-called ‘golden generation’ were on Wednesday night… No, sorry, that’s not a good metaphor; the over-paid, over-rated bling merchants are reliably awful.

The week started with another exchange of volleys in the press release/letter war. You may recall that when we left things just over a week ago the warring factions were primarily engaged in a skirmish over the date of the Cup match – July 2008 (as specified in the Golden Gate Yacht Club’s (GGYC) original Deed of Gift Challenge), October 2008 (the date GGYC say they subsequently agreed to with Societe Nautique de Geneve (SNG) last November) and July 2009 (the date that SNG are claiming for the match).

After that story was posted, things really livened up, with a flurry of letters, claims and counter-claims. There might have been a time when I’d have sifted through these, and summarized each missive with a link… though I prefer to think not. Anyway, now I have a life. If you don’t, you can find them all in the usual places – the GGYC and Alinghi websites.

When you stick it on high heat for a while, all these words boil down to the usual: both sides blame each other for the current impasse, and neither will shift from their position.

They eventually got the opportunity to tell each other this in person, with a meeting on Wednesday 26th March in Geneva. The outcome was soooo predictable… Alinghi’s press release was entitled - SNG frustrated with meeting outcome. Oh really? I never would have guessed. GGYC were more guarded, but it made no difference. Alinghi followed up in short order with an announcement that they were returning to Justice Cahn and the New York State Supreme court for a decision on the date of the Deed of Gift Match. Alinghi posted their letter to Justice Cahn for us all to read, and GGYC followed up with their own legal response.

Again, cutting to the chase, Alinghi’s case is all about the idea that the 10-month notice period stipulated in the Deed of Gift is suspended (or 'tolled' as Alinghi call it) by the legal action – as they claim GGYC have already agreed to, and GGYC vehemently deny (this is a good BYM News interview with Tom Ehman). I could harp on about this legal stuff, but frankly, Cory Friedman will do a better job on Scuttlebutt when he posts his latest missive on the opposing arguments on Monday 31st March…

Meanwhile, the good Justice (who would be well on the way to winning ISAF’s World Sailor of the Year if it wasn’t for the fact that our august governing body have given every appearance of siding with Alinghi) hasn’t wasted any time, and he’s set a date for the court hearing of Wednesday April 2nd - after which, we can all tune our sets to stand-by again (or switch them off, if you’re carbon neutrally inclined) until Justice Cahn pronounces.

Then what happens…?

My money has it that the court is more likely to set a date of July 2008 than July 2009 and if that happens SNG/Alinghi are in a whole world of hurt. Expect the toys to come hurtling out of the pram and Alinghi to either return the whole thing to the court with an appeal, or less likely but more entertainingly, try something like the forfeit/rechallenge strategy I outlined in the last post.

The October 2008 date is the more interesting, as Alinghi could make this one – whatever they may claim. They have time to build a boat even if they start now, never mind if, as Tom Ehman points out in the above interview and one of the GGYC’s many press releases of the last week, they started back in December ’07 (they have signed up Alain Gautier for multi-hull training).

So this one could go either way, SNG can still play the venue card – they get to decide whether the race is in 5 knots off the Island of Capri, or 25 knots of the island of Oahu (the word on the Valencian street is that the Oracle camp is fully packed and containerised and ready to go anywhere in the world). Not to mention that SNG/Alinghi can choose the rules (How about... no boat shall be penalized for a collision... take that one and ram it into your lightweight multi-hull, Larry). Alinghi might just decide that they really aren’t getting any joy from the court, and return to what they’ve demonstrated they are good at – winning tough yacht races. Or they might not.

And if it’s July 2009, I don’t think we’ll be hearing much from Alinghi except for the crowing. And although GGYC might make a fuss about being hard done by, if the rules and venue are something they can live with, I suspect they will also accept the date. They still have a headstart, and there’s nothing to stop them maintaining it by building a second multi-hull, based on the lessons they learn from the first. In fact, given that Alinghi’s Protocol limitations on two-boat testing won’t be applying to this regatta, they could conceivably crank up a full two boat programme between now and then, and wouldn’t that be fun to be a part of…

The other possibility is that Alinghi swaps horses mid-race and offers a multi-challenge event for 2011 (or even 2009) under the compromise Protocol (proposed by GGYC and backed by the other challengers) that they, SNG/Alinghi, had previously turned down last autumn. This one would really put the cat amongst the pigeons back at Oracle Towers.

Whatever their motives when they issued their Deed of Gift challenge back in July last year, I doubt that Oracle believed that Alinghi would so comprehensively sail themselves downwind into a narrow creek with a square rigger. But they have, and right now, Oracle have a hand on the prize. They are one court judgement away from going into a Cup match with a serious jump on their opponents. Would you give that up if you had the opportunity – even if, when you started out, you just wanted a fairer deal for the Challengers in a multi-team event? I didn’t think so… but that call ain't gonna make you look good.

And finally, there’s a peach of an article by Vincenzo Onorato on the Mascalzone Latino website, where Vincenzo gives it to Alinghi with both barrels, loaded with number ten shot (you don’t want to break the glass - I’ve been reading No Country for Old Men).

The story finishes by looking forward to a day where the 33rd Match is all over, and Oracle have won – clearly a glass-half-full kind of guy - but the ideas are rock solid:

If possible, get Louis Vuitton back on board – they define the event, as much as the name America’s Cup, and their presence will reassure other sponsors.

Use the old boats and limit new hull builds to one – there’s a need to cut costs at a time when all the teams are struggling for sponsors and cash. (And personally, I doubt the credit crunch/US recession is going to improve matters for anyone anytime soon.)

Race as soon as possible – like, you know, 2009.

You can’t argue with any of that – roll on the day…

And don’t worry, Vincenzo, we haven’t forgotten why this all kicked off in the first place.

www.markchisnell.com

Mark Chisnell ©

Laying Down the Law…

Justice Cahn has spoken… on the 17th March 2008, the New York State Supreme Court ruled in favour of BMW Oracle and the Golden Gate Yacht Club (GGYC), pushing aside the efforts of Alinghi and the Societe Nautique de Geneve (SNG) to overturn the 27th November 2007 judgement. If you haven’t been paying attention that was the one about the Club Náutico Español de Vela (CNEV) not being a proper Challenger of Record, substituting the GGYC in their place. So the judge read the wedge of ‘Keel Yacht’ papers provided by SNG, and dumped them in the trash where they belonged…

So much for the headlines, the detail is murkier, our gold standard in these legal matters has been Cory Friedman, writing in Scuttlebutt, and his latest take on the affair (Part 18, god help us...) makes it clear that he isn’t clear if this latest judgement is an actual court order, or not. If it is, then the you-have-30-days-to-appeal clock starts ticking. If it isn’t, then we’re still waiting for the order that has been pending since the end of November.

Still, that might not matter - Alinghi have declared that they won’t appeal in a statement posted on their website. But then, they said that before and then changed their minds, only to apparently change them back again.

Just as critical a part of the equation going forward is the date in Alinghi’s announcement – they are saying that they look forward to a Deed of Gift match with the GGYC in July 2009. But we know Oracle have in mind a date rather earlier – October 2008. In a phone call to Cory Friedman, quoted in the Scuttlebutt article, Ernesto Bertarelli tells our hero that…

‘SNG would not be ready to race in October 2008 if that turns out to be the date. He (Bertarelli) further confirmed that, if pressed to race in October 2008, SNG will forfeit.’

Friedman’s next action was to call GGYC and talk to Tom Ehman – who reckoned that as Challenger, they have the right to choose the match date and if SNG doesn’t like October 2008, then it’s up to them to do something about it. A later story in The Times online had a further explanation from Ehman on how the October date has been arrived at:

‘The Deed of Gift says that the Challenger chooses the date and must give ten months’ Notice of Challenge. So we challenged last July. We gave them not ten months, we gave them 12 months’ notice and chose dates in July 2008.

‘In December, after Justice Cahn’s ruling, we agreed with their attorneys then - they have since been excused by Alinghi - that we would race in October [2008]. So we gave them another 11 months’ notice from Justice Cahn’s decision and a total of 16 months’ notice [from the original challenge], and now they want two years’ notice. As far as we are concerned it is in October, we won’t go back now. Even though Justice Cahn makes it quite clear that the match could be in July [2008], we stand by our agreement.’

Are we headed back to court on this one? Justice Cahn has told them both that if they can’t agree a date for the match, then they can come back to him for a ruling, or use an independent neutral arbitrator.

So this looks like the next front in the battle, but I’d been reading the whole Keel Yacht affair as part of that same rearguard action on the part of Alinghi: namely, using the courts to stall because they had started the multi-hull design and build process after Oracle and were playing for time to catch up.

On the face of it, it’s hard to see how SNG are going to bring about a Cup match in 2009 without using the court to further this same strategy. But when you read the order, you can see how Alinghi might have decided that the legal route was not getting them anywhere – despite two sets of extremely expensive lawyers.

So their next move has been to send a letter to the GGYC, which is posted on their website, to explain why they think that the earliest date a match could happen would be 1st May 2009. This argument is largely based on the idea that the ten month notice period is interrupted by the litigation. This notion is discussed in Justice Cahn’s decision where he states, ‘Contrary to SNG’s assertion, that the parties wound up entangled on legal proceedings, which “interrupted” the 10-month period, does not invalidate the Notice of Challenge’.

Although Justice Cahn is not expressly dismissing the idea of an interruption to the 10-month notice period, given those quotations marks I’m not sure I’d want to be stepping up in front of him and trying to argue its validity in order to postpone the event to 2009…

So… perhaps… Bertarelli’s declaration that Alinghi would forfeit the Cup rather than be forced to race in October 2008 is the first shot in a new gambit – calling the court and Oracle’s bluff. Would Larry Ellison accept the Cup as a forfeit, and collect the opprobrium of the world along with it?

And there’s another angle here (since we seem to have started a game of what if...), which is that the time and place of the forfeit would presumably be at Ernesto Bertarelli’s choosing, by delivering a letter to that end to the GGYC - no prizes for guessing what might well be delivered a couple of seconds later… no, not a pizza… another Deed of Gift challenge for the next America’s Cup.

Once SNG’s challenge was placed with the newly minted Cup holders (by forfeit) at the GGYC (for the summer of 2009, presumably), they would have to accept it. The circle would be complete and the rest of the challengers would be just as locked out as they are now… And the Deed of Gift match goes back to July 2009 anyway.

This idea has some traction (hey, I’m speculating, but who isn’t?), given how hard it is to tune in a picture of Bertarelli just handing the Cup back… It might be the best leverage he has for getting the Deed of Gift match when he wants it – and short of having a representative of the GGYC’s preferred Challenger of Record accommodated in the entrance hall at the San Francisco yacht club 24/7 to shadow all arrivals of mail and couriers, I don’t see quite what Oracle can do to counter this play…

There are various responses to all this posted around the net, if you haven’t caught up with them yet, then Dalts response for Emirates Team New Zealand (ETNZ) is on their website, and the K Challenge reaction is on BYM News…

Meanwhile, sailing preparations continue unabated at BMW Oracle. It looks like the latest to sign up to the Coutts juggernaut are former ETNZ sail designer, Robert Hook, and Craig Phillips. Phillips has long been Hooky’s right-hand man, joining him at OneWorld in 2003, and then moving to ETNZ for the 2007 Cup - I can’t remember any further back than that…

The rest of the BMW Oracle sailing team were also announced this week, along with a training programme that spans Extreme 40s to TP52s. Joining Coutts at the back of the boat are John Kostecki (tactician), Jimmy Spithill (helmsman), Hamish Pepper (strategist) and Michele Ivaldi (navigator). There are plenty of names from the 2007 Oracle sailing roster, but there are more from the old Luna Rossa sailing team that Spithill led to a Louis Vuitton semi-final in 2007. What there aren't are any multi-hull specialists - these guys all have America's Cup stamped through them like rock... check out the recently resuscitated BMW Oracle website (bring back the BOB!) for the full list.

Also away from the courts, Team Shosholoza has been forced to deny reports that it’s folded (just like most of the world’s investment banks then). The head honcho, Captain Salvatore Sarno commented that they still had staff at the base in Valencia and, ‘In South Africa, our naval architect Alex Simonis and his team is working on our new AC 90 campaign yacht. We are going ahead even though the rules and dimensions might change.’

And there was a Paris presentation by Marc Pajot, head of the new French America’s Cup challenge, French Spirit. I think (it’s all in French) that Pajot announced that he will be joined by Philippe Presti as skipper and Bertrand Pacé as helmsman – a pretty tidy starting line-up. Presti was the back-up helmsman with Luna Rossa in 2007, and Pace is a former ISAF number one ranked match racer. This is of course for the 34th Cup, as the 33rd will be invites only to Oracle and Alinghi…

www.markchisnell.com

Mark Chisnell ©

Cup, what Cup?

I’ve just checked the date on my last blog post, and it was six weeks ago. But I guess that’s about the level of attention that the America’s Cup deserves right now - just the occasional glance over the shoulder towards the court room… yup, still there, bickering away…

BBC correspondent Robert Peston has just written a book (Who Runs Britain?) on the rise and rise of the super rich, the market failings that have allowed this to happen and the distorting impact that it has had on British society and the economy - hey, Robert, over here, you missed a bit…

It’s a shame we don’t have the collective will to start Rule 69 proceedings, chuck a couple of people out of the sport for five years and see how the dust settles on that. In fact, if Team New Zealand wanted to go down the legal route, it might have been just as profitable to turn up at the next Farr 40 regatta and slap a Rule 69 report on the desk of the protest committee. The rule is ambiguous - as far as I can see - on whether bringing the sport into disrepute has to be done at the actual regatta in question…

But hold on, I’m getting ahead of myself - back at the ranch house the court room affairs have (as always) been best reported by Cory Friedman for Scuttlebutt, and there have been four additions to the oeuvre since we last posted – someone is sticking with it, at least...

Part 14 was on the January 23rd hearing in the New York State Supreme Court before the venerable Justice Cahn. Nothing much happened, except the Société Nautique de Genève's (SNG) new lawyer, Barry Ostrager, managed to obfuscate and stall sufficiently that the GGYC team couldn’t get the killer blow in. Come back later.

And so they did, on January 28th, when the hearing was covered in Friedman’s Part 15. This was mostly about the whole ‘Keel Yacht’ issue that SNG are using to try and establish that the Golden Gate Yacht Club (GGYC) challenge is invalid. Friedman covers where the issue came from (the words were copied from the 1987 Kiwi challenge that led the Cup into court last time), and why it threatens GGYC when they are so close to getting a ten count on SNG…

Personally, like Friedman, I think the use of ‘keel yacht’ in the challenge paperwork is irrelevant and have said so before – GGYC provided the dimensions in their challenge, and SNG can sail what the hell they like anyway, as evidenced by the court’s decision in 1988. In that case, the court allowed San Diego’s multihull to race against New Zealand’s monohull behemoth. But whether or not this judge, Justice Cahn, will see it that way once he’s waded through the blizzard of paperwork that SNG have presented to murk up the case remains to be seen.

GGYC finally got around to making this fundamental point in a letter to the Judge, sent after the January 28th hearing. It was the subject of Freidman’s Part 16 which finished with a nice summary of the state of affairs that still pertains (in this court case), at this point in time:

‘GGYC argues that Justice Cahn should sign its proposed order, dated December 11, 2007 (an October 2008 match), and send the case to the Appellate Division, First Department, if SNG, as promised, appeals. SNG argues that Justice Cahn should DSQ GGYC or refer the matter to ISAF, without, however, citing any provision of the New York Civil Practice and Rules that would authorize Justice Cahn to make such a referral, or provide a mechanism to do so.’

And so, the teams continue their preparations for the DoG fight in Cats...

Not a lot else has happened in the intervening six weeks, or even in the two months since the last full update. There was talk in an Italian newspaper, Fare Vela (and reported in English here) that a race circuit might be set up for the Version 5 Cup boats, with the possible venues including Cowes, Kiel, Trieste, and Valencia, with Alinghi, United Internet Team Germany, TeamOrigin, Shosholoza, Victory Challenge, Desafìo, one of the two French Teams, Emirates Team New Zealand and one team from China all supposedly involved.

And the Brits, in the shape of the Royal Thames Yacht Club (RTYC) and Team Origin, filed a Deed of Gift Challenge with SNG. This seemed to be something of an ass-covering exercise, just in case a vacuum should open up with the judge throwing out the Golden Gate Yacht Club’s challenge (on the basis of the keel-yacht), along with the earlier first challenge from Club Nautico Espanol de Vela (CNEV) that’s been the bone of contention all along. But until both of these things happens, I don’t think we have to worry too much about this one…

Each of the putative challenging teams is responding in a different way to the circumstances. Team Germany will begin laying off its sailors at the end of the month (but they may get new contracts if they race in the proposed Version 5 series, which they seem to be prime motivators behind). That includes Sport Director, Joechen Schuemann, who must be dead pleased he left Alinghi for the German challenge. Michael Scheeren, the team’s owner, was quoted by German magazine Focus as saying, ‘A certain number of contracts, including Jochen Schuemann's, expires on March 31 and we will not be extended. We cannot continue to finance a large team without knowing more about where the America's Cup will take place in 2011.’

So Schuemann and his mates have headed off to race TP52s with Harm Muller-Spreer's Platoon. Muller-Spreer has gone from steering his own boat and racing with a few mates, to a fully cocked pseudo-Cup programme in the space of two seasons. And this quote from the Adonnante article gives you an idea of how those changes might play out in the wider TP52 class:

‘The only thing about the MedCup circuit that, honestly, bothers me is that- it is going to be very professional of course - we have to take care that is not taking off like the Formula 1 motor racing where one guy, Bernie Ecclestone, is dominating everything. The MedCup is a business for some, it is about earning money, but my feeling is that they have to ask the owners of the boats a little more, because without the owners and the teams there is no MedCup… At the end it is private owners who are pushing it forwards and these professional teams are coming forward. At the beginning it was the King of Spain, and guys like this, and you have to keep asking them as well.’

I talked about the possible impact the Cup hiatus might have on the TP52s back on January 2nd, and here’s evidence of the pressure it is putting the owners under. Watch this space.

But it’s the response of Emirates Team New Zealand (ETNZ) to their predicament that has caused the most excitement of late. They have also been laying off staff – nearly a third of the team so far. Then, at the beginning of March, the Kiwis lodged their own set of papers with the New York Courts, in two separate cases. In the first, SNG, Team Alinghi, Ernesto Bertarelli and America's Cup Management (ACM) are all charged in the New York State Supreme Court with breach of contract in not organising an America’s Cup in 2009 – for which ETNZ claim they had a binding agreement (Justice Cahn has been assigned to this case).

And just for good measure, there’s an anti-trust case in the US District Court for the Southern District of New York, against the same group, over the way they have handled organizing the Cup so far, and the pretty pass to which it has brought us all. Dalton and co want damages in excess of US$12 million - Alinghi were quick to respond and Dalton explained the background in an interview in which the - previously very pro-Alinghi and partisan - BYM website agreed that CNEV was not a valid yacht club....

Once again, Cory Friedman waded into the breach, with Part 17, and Friedman’s conclusion was… don’t hold your breath. None of this is going to get settled any time soon, and almost certainly not before the main GGYC v SNG case. If you want to know why, I’ll refer you to Part 17, 'cos I’m going to leave it right there. Hell will freeze over before we see another Cup match at this rate of progress...

But come October, there will be guys racing around the planet at Mach 3 with their ass on fire, and it’s going to be a whole lot more interesting than this - did I mention I’m going to be writing for the Volvo Ocean Race? Now that is something we can all get excited about....

www.markchisnell.com

Mark Chisnell ©

Same Old, Same Old...

The action continues unabated in the Americas Cup court case, but frankly, from the beaches of Northern Peru and the cloud forested flanks of Machu Pichu, its pretty hard to get excited about the to and fro of the legal arguments, which are no closer to being resolved. I keep thinking I should do a proper blog update, but, well, the surf is looking pretty good...

For those who want to follow the latest court wrangling, then I can point you to the ever reliable Cory Friedman, writing for Scuttlebutt...

Normal service will be resumed as soon as I return to the frozen north, but at this rate of legal progress I very much doubt there would be anything significant to report if I stayed here till the end of the southern summer...

www.markchisnell.com

Mark Chisnell ©

A DoG fight between CaTs…

It’s been sliding this way for a while, but events in the last couple of weeks confirm that the America’s Cup has slipped off the edge into a looking glass world where nothing is as it seems, or as anyone says it is…

Exhibit 1

Posted on the Alinghi website, where Tom Schnackenberg gave his views on the 90’ long barge that he (apparently) believes Oracle will be using in the Deed of Gift challenge. We talked in the last post about Alinghi’s latest legal contention to the New York State Supreme Court that the Golden Gate Yacht Club’s (GGYC) challenge is invalid. The Société Nautique de Genève (SNG)/Alinghi argument is that an error on the GGYC boat certificate forces the club to turn up with a 90 foot wide mono-hull, and that the boat would be so unseaworthy as to be unfit for the race course, thus invalidating Oracle’s challenge. Or something like that. Next thing we know, Schnackenburg appears on the Alinghi website discussing how little Rolf Vrolijk (Alinghi’s head designer) knows about the sailing barges of his Dutch homeland, and how this puts Alinghi at a disadvantage.

It’s a joke, Jim, but not as we know it.

Exhibit 2

Posted on the BYM website, a story all about how the word ‘keel yacht’ can’t be applied to a multi-hull, despite the arguments of the GGYC, posted on their website. At least, I think that’s what it’s about as my eyes started to glaze over half way down…

Then came the day in court - January 14th you will recall was the day that Justice Cahn was going to make the order from the November decision in Oracle’s favour, which would give us a date for the next America’s Cup - a race between Oracle and Alinghi under the basic definitions of the Deed of Gift. A proper DoG fight. Or is it a cat fight? I know, it’s a dog fight between cats – as I said, it’s a looking glass world.

Not much happened in court, or rather a lot happened, but it got us no closer to a decision or a date for the match.

Exhibit 3

Posted on the GGYC website - their take on the court proceedings - they were happy that the Judge would soon sign an order to enforce the November decision and were pleased with the day.

Exhibit 4

Posted on the Alinghi website - their take on the court proceedings - they were happy that Justice Cahn had decided not to issue an order and were pleased with the day.

If there is any chance of sense on this matter, it resides in the writing of Cory Friedman, who continues to follow the case affidavit by memo of law for Scuttlebutt, with Part 12 posted before the January 14th court date. So far, Friedman’s writings on the matter have been a model of clarity and precision, even for us legal laymen. But such are the arcane details of this case that even he is now struggling to make it seem straightforward. But, on your behalf, I persisted with stuff like…

‘On or after the settlement date, now effectively January 14, 2008, Justice Cahn will enter an Order. Until he does so, there is no order to affect. Indeed CPLR 2221(d)(3) mandates that a motion to reargue “shall” [mandatory] be made within 30 days after the order in question is entered and served with notice of entry.’

Now, you would think that the issuing of an order is a kind of digital, one or zero, issued or not-issued sort of event. But no, it looks like we're in a grey, statistical world of order issuing a la Schrödinger's cat, with the state of the order depending on some quantum mechanical uncertainty - which is doubtless only right and proper in this looking glass Cup.

Anyway, essentially Friedman dismisses the SNG/Alinghi case in Part 12, not least because Hamish Ross (Alinghi’s general counsel) previously swore to the court, (supported by Fred Meyer, SNG Vice commodore) that the 90 by 90 foot boat in GGYC’s challenge could only be a multi-hull. So it’s tough for them to turn around now and say it sounds like an unseaworthy mono-hull. Friedman states, if this was a trial, counsel’s next question would be, ‘Were you lying then, or are you lying now?’

It makes the whole ‘keel yacht’ (or bargegate, if you like) issue moot, and Friedman reaches the conclusion – as this blog has previously - that the whole thing is just about delaying the sailing part of the game until Alinghi can catch up with Oracle’s headstart on multi-hull design.

Remember how one of the primary reasons this whole thing kicked off in the first place was because Alinghi had introduced a new boat for the next Cup, without any prior discussion with the Challengers, and was perceived to have got an advantage in the design race by doing so?

What goes around, comes around, even in the looking glass world.

Friedman then went to court to watch events on January 14th, and came back and posted Part 13 for us afterwards. And yes, the number does seem significant, as things have moved onto another plane of complexity, with different issues now before the court. But as I understand it, it works like this…

The issue of whether GGYC is a proper challenger (based on SNG’s arguments about the invalid boat certificate – bargegate – and others) will be heard on the 23rd January.

Then, if GGYC is still the challenger after that hearing (i.e. SNG lose on the 23rd), the court hearing to sort out the order pending from the November decision in GGYC’s favour (which should tell us when the Cup match will be) will be held on the 28th January.

After that, whatever the order says, SNG will appeal it anyway, and the whole thing gets carted off to the Appellate Division, where we all 'return to go' and the only people who 'collect £200' (or the equivalent) are the lawyers, anyone still on a salary at Oracle and Alinghi, and those who scored a retainer from any of the challenging teams that still have the money to pay them.

In the meantime, Alinghi get to work on sailing cats, while officialdom in Valencia is losing patience with the whole affair (much like the rest of us) and want their port back. Given that no teams, except Oracle and Alinghi, are likely to be sailing out of their bases in the short to medium term this seems entirely reasonable.

And finally (which seems appropriate in the week that News at Ten returned to British tv screens), it appears that Barry Ostrager, SNG’s new lead counsel, was… ‘lead trial counsel for Swiss Re in the highly publicized insurance coverage dispute involving the World Trade Center tragedy, which resulted in a unanimous jury verdict in favor of Swiss Re.’

So the man that litigated and won the insurance claims from 9/11 is now spending his (doubtless incredibly expensive) time, sorting out a sailboat race…

It’s a looking glass world.

But I’ll leave you with the positive note that Friedman strikes in his final ‘graf, after pointing out that Ostrager doesn’t believe the case should be in court, and knows the kind of top class mediator’s that might just bring Bertarelli and Ellison to a resolution…

‘A change of counsel can often have a positive effect on a case. Picking up the phone is a major change. Coming in after a loss on summary judgment, new counsel has to be candid with the client about how deep the hole they are in really is, if for no reason other than self-preservation. New counsel is also free from blame for the existing situation. New counsel is thus in a much better position to advocate for a reasonable approach to settlement. Of course, first he or she has to fight like hell to claw back into the race and bank some credibility with the client. Having bested Herb Wachtell in the mammoth World Trade Center Insurance Litigation, Barry Ostrager had the clout to get this gig and has the skills and resources to litigate for a long time, if he can convince the Appellate Division to grant him a stay of the order Justice Cahn will enter. That is not by any means a gimme. He also has the clout to get it resolved. The jury is out and we shall see how it unfolds.’

We can only live in hope. And if not hope, then that bit about Ostrager being able to litigate for a long time means it might be time to start looking for something else to write about...

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Mark Chisnell ©

Retrenchment...

Hope you all enjoyed a relaxing Christmas and New Year break – because the Alinghi lawyers certainly didn’t…

The Swiss team has followed up their pre-Christmas barrage of new legal issues with an appeal posted in the New York State Supreme court on the 27th December. The latest contention is that the Golden Gate Yacht Club’s (GGYC) challenge (on behalf of Larry Ellison’s Oracle team) is invalid, because it didn’t accurately describe the challenging yacht. The court documents have been posted on the America’s Cup website, along with a press release.

The GGYC’s challenge can still be found on their website and you’ll see that it describes a keel yacht of ninety feet length and beam. As soon as everyone saw this, they thought… multi-hull. But Alinghi are arguing that this assumption is at odds with the words ‘keel yacht’ which implies a mono-hull. They reckon the GGYC challenge should go the same way as that of the Club Nautico Espanol de Vela (CNEV), because a ‘keel yacht’ or mono-hull to those dimensions would be so misshapen that it wouldn’t be fit for the race course.

This is what Lucien Masmejan, lead counsel for Alinghi’s challenging club, Société Nautique de Genève (SNG), had to say – ‘The purpose of the boat certificate is to give the Defender a precise idea of what the challenging boat will be in order to prepare its Defense. The history of the Cup has shown how important was the adequacy of the certificate with regard to the validity of the challenge… We want to make sure this is the boat they would show up with and not a multi-hull, or their challenge would deem to be invalid.’

But my reading of the recent history of the Cup would indicate the opposite – the New York State Supreme court had no problem with Dennis Connor defending in a catamaran when Michael Fay turned up in his 135 foot mono-hull in 1988. So if the defender can use whatever type of boat comes to hand, then why do the semantics of the challenger’s boat certificate matter? I suspect they don't, and I also suspect that many at Alinghi know this - as we've suggested before, they're just stalling. They need to put the date of the Cup back as far as possible to catch up with Oracle's multi-hull programme, and this is just a legal tool to that end.

Understandably, the GGYC’s response was swift, posting comments on their website the same day, ‘If these arguments were valid they would have been presented months ago,’ according to Tom Ehman, Oracle’s spokesman. ‘But unfortunately they now look like a rather desperate measure by Alinghi's new lawyers. We are confident they will be rejected by the Court.’ Most observers are giving these arguments equally short shrift – for instance, Richard Gladwell does a nice job of taking them apart in a Sail-World article, and it will be interesting to see what Justice Cahn makes of them when the parties return to court on the 14th January.

In the meantime, GGYC and Oracle then followed up their initial response with a statement from CEO Russell Coutts, two days later. It told us what most people have expected for some time – that Oracle will compete for the next America’s Cup under the basic provisions of the Deed of Gift. Coutts reckoned, ‘We had hoped to negotiate a conventional regatta under the Deed’s mutual consent provisions. But the Defender has made it clear to us and the America’s Cup community that they will not negotiate. We are now fully committed to a multi-hull event in 2008.’ Someone, somewhere started laying up carbon fibre on a bloody great multi-hull at about the same time as that announcement was posted - if they hadn't already.

If nothing else, this clears the air – it’s now a straight fight between Ellison and Bertarelli and their chosen intermediaries, both legal and sailing. But it’s obviously not good news for any of the other teams, who can no longer pretend that they are doing anything other than standing on the sidelines, watching. Sir Keith Mills at Team Origin had already announced a retrenchment back in mid-December, ‘My principal goal now is to keep TEAMORIGIN together so as to be able to compete for the America’s Cup at some time in the future. Without any certainty today as to when, where and how that will be I am reluctantly forced to slow things down and stand the team down from full operational mode.’ There are similar noises coming out of Team New Zealand, United Internet Team Germany and Desafio Espanol.

So it’s a wintry New Year for the America’s Cup community, although in reality, things aren’t that much worse than last time. There’s still every chance that there will be a multi-challenge Cup in 2011 – a four year gap, as there was between 2003 and 2007, and shorter than the endless wait between 1995 and 2000, when the Kiwis defended for the first time. But it could have been so different, and so many plans have been laid and lives altered, only for this to completely derail it all…

From the sailor’s point of view, the great thing about the Cup has always been the vast sums of money that some people are prepared to spend to win the thing. It doesn’t just mean good salaries; it means money for research and learning stuff about boats that doesn’t happen anywhere else. But the billionaire bloated budgets come at a price – the whole game is played at the whim of the owners, and every so often, something like this is going to happen.

But there is a danger that the influx of out-of-work Cup sailors into other areas of the sport – like the TP52’s for instance – might have the same impact as during the last Cup hiatus in 1988-90. There was a marked increase in professionalism in the old International Offshore Rule (IOR) boats, as the AC class of ’87 looked around for somewhere else to cut their competitive teeth. And the 1989 Admiral’s Cup turned out to be the beginning of the end for both that regatta and the IOR (guilty as charged, m’lud).

But I think things are different now – the Fremantle America’s Cup was a step change in the numbers and outlook of professional sailors. And while both the numbers and the professional standards have been growing steadily ever since then, I don’t think the 2007 Cup had a comparable, paradigm-shifting effect like the event twenty years earlier. So while you can expect to see the TP52 fleet gear up another level this summer, with Cup sailors and some teams focusing on it as an alternative outlet for their activities, hopefully the class and the sport have developed sufficiently for that to be a good thing, not a bad one.

And things are still bright-ish from the perspective of the America’s Cup spectator. I suspect a catamaran challenge is going to be well worth watching. Not for very long, mind you, but for those first few minutes of the first race, it’s going to be must-see, water-cooler entertainment of the highest order…

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Mark Chisnell ©

Déjà Vu

I’m getting that 1987 feeling all over again. In the summer of that year there were syndicate heads queuing at the docks to hire sailors at the 12 Meter Worlds in Porto Cervo. Just months later it was all so much smoke as the Mercury Bay Challenge got underway and events inexorably slid into the hands of the lawyers and took on a momentum of their own.

Back in 2007, the latest round of legal bickering has taken the whole thing to a new level and my own interest is sitting right on the edge here… Can I be bothered to sift through this to figure out what’s going on? Just about...

To recap – the New York State Supreme Court, in the person of Justice Herman Cahn, previously decided that the Club Nautico Espanol de Vela (CNEV) was not a valid Challenger of Record, and that they should be replaced by the club that brought the legal challenge – Oracle’s Golden Gate Yacht Club (GGYC).

Contrary to the impression I may have given you at the end of the last post, it seems that we have subsequently been waiting for the good judge to deliver an order which would tell us all where and when the next America’s Cup would be held. The GGYC were pushing for a match at the end of next summer, while Alinghi’s yacht club, the Société Nautique de Genève (SNG), were trying to get it put back to July 2009 - all of which you can find explained with great clarity and some detail by Cory Friedman, in his Scuttlebutt stories Part 10 and Part 11.

SNG have now got themselves some shiny new laywers, and they have gone into battle on as many fronts as they can open. They have challenged the court’s authority to decide that GGYC is in fact the valid Challenger of Record, as well as the court’s authority to decide when and where the America’s Cup match will be held. Justice Cahn seems to have agreed with some or all of these points, and to settle them has called a new hearing for the 14th January.

So the court order will not be issued prior to this – and even when it is, there is still a 30 day window for either CNEV or SNG to challenge the order and appeal. There is plenty of evidence that either CNEV or SNG, or even both clubs plan to appeal – and that would kick the whole thing into the long grass for er… maybe not that long. Or perhaps longer. Who knows? Who cares?

We don’t even know what we don’t know until sometime in late January or early February. But from the way it’s shaping up, SNG want a Deed of Gift match in catamarans, but they don’t want it till 2009 – and it appears that they have plenty of tools to delay it until then. And all that despite the fact their PR people are still saying they won't appeal...

As to the negotiations over longer term changes to the Deed of Gift that Bertarelli started up last week (covered in the last post, whose title End Game now stares mockingly back at me), they appear to be going on somewhere, and I would point you back to Cory’s Scuttlebutt story - if you didn’t read it all the first time – for an analysis of that issue. Suffice to say here that there are serious issues to be overcome for any change to take place.

Hard to credit then, but new challenges are still emerging – there’s another from Spain – just like buses, nothing for ages, then two or three all at once. This one is called Decision Challenge, and comes out of the Reial Club Maritim de Barcelona and Real Club Nautico de Madrid – do these people read the newspapers?

Based on the 1987 experience, now is a very good time to pull your horns in, go and do something else and come back when the lawyers have exhausted their armory and the whole thing once again involves some sailing. Volvo Ocean Race anyone? Former GBR Challenge and Plus 39 sailor Ian Walker certainly thinks so, he was announced as skipper of the Irish Green Team this week.

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Mark Chisnell ©

End Game?

I promised myself that I wouldn’t post another blog update until Ernesto Bertarelli and/or his various intermediaries at America’s Cup Management (ACM), Alinghi or Société Nautique de Genève (SNG) had made a response to the dilemma he was posed after the New York State Supreme court’s decision ten days ago.

Essentially, Bertarelli’s choices were to appeal the court’s decision, and they have thirty days to do that once the actual court order is issued in the next week or so. Or they could meet with the new Challenger of Record, the Golden Gate Yacht Club (GGYC) and its Oracle Racing team, and negotiate a new Protocol for the 33rd Cup, by mutual consent, that would give us the kind of event we’re used to seeing – with multiple challengers.

Or Bertarelli could simply decide to meet the GGYC in what might be called a Deed of Gift Challenge – one where mutual consent could not be reached on the form of the 33rd America’s Cup, so the races have to be sailed under the basic conditions that the Deed of Gift specifies for such an occasion. Essentially, this means a three race series in big multi-hulls, either at the tail end of next summer, or early in May 2009.

And for most of last week, there was a collective holding of breath (at least amongst those of you still following this), and much sucking of teeth while Bertarelli made up his mind. I found it a little odd that he hadn’t already decided in advance on his response to all the possible outcomes - but then, maybe he wasn’t kidding when he said he couldn’t lose the court case because he had the best lawyers.

In the meantime, the GGYC held a meeting with the other challengers, which resulted in a letter to the SNG from the head of Oracle Racing, Russell Coutts, explaining what they wanted changed in the current Protocol to achieve mutual consent for a match. Meanwhile, Russell was stonewalling the tricky questions in a way that would make any Presidential contender proud, and commentators were trying to figure out what it all meant...

Until finally, last Friday, Bertarelli appeared to have decided to negotiate – but being Bertarelli, he's not talking about just negotiating a solution to the impasse of the 33rd America's Cup. He’s thrown all the cards on the table, insisting that the Deed of Gift itself is changed to completely reformulate the Cup for his vision. And if he can’t get agreement on this, he’ll chose to race in cats, saying: ‘If this revision of the governing documents of the America's Cup cannot be achieved, we will have to accept the GGYC challenge under the Deed of Gift.’

The statement is here and asks three questions – they are fundamental to the nature of the America’s Cup:

‘Should the Defender automatically be qualified for the final AC Match or should all teams start on equal footings?

‘Should the schedule of venues and content of regulations be announced several cycles in advance allowing planning and funding?

‘Should the governance of the Cup become permanent and be managed by entities representing past and current trustees as well as competing teams?’

For a more extensive outline of what these ideas might mean for the Cup, there is also an interview by Alinghi’s Grant Simmer with BYM News, who appear to have become the team's news outlet of choice. Or maybe it's just because few of the rest of us can actually be bothered to pick up the phone and ask a few questions - and I include myself in that. Anyway, Bertarelli also says that he’s spoken to Larry Ellison about these ideas, and reckons that he is supportive. The New York Yacht Club (NYYC) – the original trustees – have also confirmed that they are willing to join discussions on the basis of Bertarelli’s three points.

Charles H. Townsend, the present NYYC Commodore said, ‘We were approached earlier in the year by Mr. Ernesto Bertarelli of Societe Nautique de Geneve (SNG), the current holder of the Cup. We concluded that given our club's founding association with the competition we can work impartially to assist in the development of initiatives to preserve and build competition for the oldest international trophy in sport, and ensure that it will endure as a premiere global sporting event for generations to come.’ The NYYC’s full statement is here.

As you’d expect, the response from the sailing community has been mixed. Leading the charge against is Bob Fisher, with an open letter to Bertarelli in the sailing newsletter, Scuttlebutt. Others are a little skeptical about Bertarelli’s timing – over at Sail-World, Richard Gladwell was wondering why Bertarelli had chosen to do this now, rather than when he won the Cup back in July.

The answer would appear to be that it’s either a last, desperate effort to bring his vision of the America’s Cup future into being. Or a misdirect – as suggested by Oracle’s spokesman, Tom Ehman in a New York Times story, ‘We just hope that this letter is not intended to distract from the important question of getting A.C. 33 and our challenge on track.’

I suspect that it’s a little of both – Berterelli has been persistent on this theme of modernization of the Cup since he started to get involved. But it also gives him a let out from the current circumstances, where he is being blamed by everyone - from the other Challengers through the spectators to the burghers of Valencia - for the hold-ups in getting the next Cup organised. If this final toss of the chips onto the table works, then Bertarelli gets what he’s always wanted. If it doesn’t, then he can hold his hands up, tell everyone he tried his best, but well, we’re just going to have to settle this in catamarans…

And Alinghi should have the advantage in a catamaran match – if I remember rightly, they don’t have to announce the venue until a month before the event. Oracle will be building a boat to perform in anything from 5 knots to 40, while Alinghi can tailor it to the windsurfing breezes of Tarifa or the light air of Capri. With this edge, Bertarelli may well fancy his chances in multi-hulls, after all that sailing on the Swiss Lakes. And another win would allow him to pass go, collect £200 and start again with another, watertight, Challenger of Record and his Protocol of choice.

But it’s an advantage that money – which Ellison has plenty of – can overcome. Why build one catamaran, when you can build three or four…?

www.markchisnell.com

Mark Chisnell ©

The Fur Flies

Back from the surf trip after a double-overhead session at Harlyn Bay yesterday...

And the fall-out continues to land in the America’s Cup, following the decision by Justice Cahn of the New York Supreme Court to remove Club Nautico Espanol de Vela (CNEV) as Challenger of Record, and replace them with the Golden Gate Yacht Club (GGYC) and Oracle Racing.

Next out of the blocks was Desafio Espanol, with a statement posted on the Valencia Sailing blogspot saying that they challenged through CNEV in good faith, having consulted with renowned legal advisers, and only ever wanted the best for the sport of sailing, Valencia and Spain… yada, yada, yada. Sigh.

Bruno Troublé broke the silence that he has maintained since Louis Vuitton pulled out of their quarter century of America’s Cup sponsorship. He penned a piece for Scuttlebutt, which pretty much blasted everything to do with the 33rd iteration that America’s Cup Management (ACM) had been trying to organize…

‘I am shocked to see the defender sailing WITH the challengers (no more of this great mystery at the start of the first final race) and at ACM naming the judges, umpires, and committees with no reference to ISAF...

'I am furious to see the 90-foot box rule. Anyone involved in the America’s Cup knows that the best match racing boats do NOT accelerate from 10 to 20 knots when luffing 10 degrees downwind. They are STUCK in the water the same way the 12s and the IACC were. Do not confuse these fast-accelerating sleds with the impressive looking J’s boats, as the defender has stated.’

Over at Team New Zealand, Grant Dalton reckoned the court judgement was ‘the outcome he was waiting for…’ according to an article in the New Zealand Herald. Tim Jeffrey then broke a story in the Daily Telegraph that Dalton and Team New Zealand had demanded compensation from Alinghi and Ernesto Bertarelli for the postponement of the America's Cup. The article reckoned, ‘Dalton's estimate of losses to his Kiwi team of £12 million if the America's Cup is put back to 2010, and £17 million if it is 2011…’

Sail-World subsequently confirmed the story with a statement from Dalton...

'The report in the Telegraph is substantially true.

'Before Emirates Team New Zealand entered the 2009 America’s Cup we sought from Ernesto Bertarelli the security of a side agreement that the event would indeed be held in 2009.

'Bertarelli was adamant the Cup regatta would go ahead as scheduled and entered into a binding agreement on July 25 2007.

'Emirates Team New Zealand entered into the agreement in good faith. The contract provided the assurance we needed to plan for 2009. For Ernesto Bertarelli the agreement with Emirates Team New Zealand ensured another entry for 2009.

'On November 22 2007 AC Management announced that the America’s Cup had been postponed.

'All challengers including Oracle are still adamant they want an event in 2009. This can be achieved easily now as a result of the New York Supreme court decision in favour of Oracle. The decision allows for a mutually agreed document as the basis of the next America’s Cup.

'Such a document has already been formulated between Oracle and the challengers.

'None of the nine points in this document can be construed as onerous for Alinghi.

'As far as Emirates Team New Zealand is concerned the agreement entered into is a simple contract. Therefore we are surprised that Alinghi has seen fit to put this letter in the public domain.'

Meanwhile, BYM News is running a story that backs up the notion that GGYC/Oracle are working hard towards a 2009 Cup, with leaked letters coming from Tom Ehman and Russell Coutts to interested parties – they have links to the letters and the story here which outlines Oracle's efforts to get Alinghi and Bertarelli to the table to sort out the next event.

But so far, there’s been a deafening silence from the Swiss, and the Detroit Free Press is quoting Tom Ehman (Oracle’s spokesman) as saying that Brad Butterworth didn’t show up for a meeting with Russell on Friday. A subsequent phone call to Alinghi by the paper has been met with the response that they’re still assessing their options. So we’re still left wondering what Bertarelli’s decision will be – negotiate, appeal or race in cats?

And finally, Sebastien Destremau outlines why Russell and Oracle might not be that heart-broken should Alinghi chose the final option and meet a 2008 challenge in giant catamarans, in a story for Eurobutt (scroll down past Magnus) – sentiments which are echoed by a New Zealand Herald article which may owe something to Sebastien’s thoughts – or is it the other way around? Hard to tell on the internet…

When I started this blog at the end of the last Cup and tackbytack.com’s coverage, I made some rules for myself about only doing AC news. Stay away from other events and opinion pieces – otherwise the damn thing is going to take over your life (and unless you see any advertising around here, I need some spare time to try and earn a living…) just like madforsailing.com did in its day...

The last few weeks (Tornadoes out of the Olympics, Baird not Veal for ISAF World Sailor of the Year, not to mention the ongoing descent into self-destruction of the Cup itself), have sorely tried those limits. But I’m toughing it out – self-interest rules, even when venality is held at bay… why should sailing be any different?

Or maybe I've just got cynical...

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Mark Chisnell ©

Oracle 1 - Alinghi 0

Err…. What did I say on the last post? Hopefully there’s a wi-fi link in case there’s something worth reporting? Well there was - wi-fi and something worth reporting, that is… the Spanish yacht club Club Náutico Español de Vela (CNEV) have been eased from their position as Challenger of Record (COR) by Justice Cahn of the New York State Supreme Court. The new COR is the Golden Gate Yacht Club (GGYC) and Oracle Racing.

The court decision has been posted on the GGYC website, along with the club’s response, in which Oracle CEO, Russell Coutts, expresses a desire for a conventional America’s Cup regatta in Valencia. Their preferences are:

'1) Seek to agree rules with all competitors along the lines of the October 17 “nine points” compromise proposal and race a conventional America’s Cup competition in Valencia in 2009.

2) If a Deed of Gift challenge went ahead, the club would seek to race under the AC90 monohull rule already published. If Alinghi did not agree to that, in multi-hulls.

3) In all scenarios, GGYC would seek by mutual consent to have a Challenger Selection Series with as many challengers as possible. “We will immediately endeavour to meet with the other challengers to mutually agree a fair set of rules negotiated with all the other teams,” Coutts said. “We will be very happy if we can put the last few months behind us and get on with sailing.”'

So, what happens from here? Will Alinghi negotiate on that basis, sail in cats or appeal? Alinghi made a curt statement yesterday that has been filled out in an interview with Brad Butterworth on their website today, the 28th November.

Hard to judge how it’s going to go from that - Brad certainly doesn’t seem to think anything is going to be settled anytime soon. While the two sides didn’t seem that far apart when negotiations broke down a few days ago, we really don’t know how much mud is flying behind the scenes…

Meanwhile, as this is all over every news outlet – sailing and mainstream media – and is hard to miss (unless you're surfing in darkest Cornwall) I’m only going to point you in the direction of three of them, and the first two were kindly provided for me by John Whalen… First the New York Times and then the International Herald Tribune - both are luminaries of the global media, one is rather better than the other…

But for the real deal, I’d suggest you go straight to Cory Friedman, writing for Scuttlebutt – where he explains exactly why GGYC have won, and why the chance of reversal on appeal is unlikely…. It’s all to do with the word ‘having’ - and it means that you need to have had an annual regatta on an arm of the sea, as well as going to have one….

Whoever said precise grammar wasn’t important?

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Mark Chisnell ©

The AP is Hoisted…

The much flagged, smoke-signalled, rumoured and inevitable postponement has become fact - America’s Cup Management (ACM) have finally announced that the original date for a Cup defence of 2009 cannot be achieved…

‘The ongoing uncertainty around the conclusion of the New York court case brought by BMW Oracle Racing (BOR) leaves the organisers no choice but to delay the event, as many indicators demonstrate a lack of viability to stage the event in 2009 to the same standards as the 32nd America's Cup.’

Meanwhile they will await the result from the New York State Supreme Court, and…

‘If the New York Supreme Court rules that CNEV (Challenger of Record, Club Náutico Español de Vela) is valid and BOR chooses not to appeal the decision, ACM will endeavour to work with the competitors to adapt the existing rules and regulations and put in place a new framework for an event to take place at a later stage in Valencia.

‘Should the US Courts rule against CNEV, SNG will accept the Golden Gate Yacht Club Deed of Gift Challenge and meet them in a vessel, possibly a multihull, in accordance with the terms of the Deed of Gift.’

GGYC’s response was posted on their website as efficiently as ever. Tom Ehman saying that the delay was ‘Unfortunate and unnecessary...’ Presumably they are now working flat out on what that 90 foot cat might look like... unless Alinghi are bluffing about not appealing. What a game.

There's been plenty of speculation that ACM need the time to do things like find a sponsor for the Cup. And the Spanish media are alleging that there's a stand-off between the Mayor of Valencia and the Government over who holds the Chair of the organisation that will run the Valencia side of the event. Apparently the Government want it to rotate, and Mayor Barbera is insisting that it’s her privilege alone - meanwhile the organisation appears to be in some sort of limbo. Something else that perhaps needs a little time to sort out?

Another issue that will arise out of the postponement is the planned expansion of Valencia's port - I believe the work to double the port’s operational area was originally slated for 2010/11 – no problem under the 2009 scenario, but a bit tricky now.

It’s also interesting that ACM have left the entry deadline at 15th December - a little over three weeks away. It means challengers have to stump up a 950,000 Euro performance bond that they will lose should they not subsequently turn up at a series of events whose whereabouts and timing are completely unknown. Now I know a million Euros is not a lot of money in the greater scheme of an America’s Cup campaign, but it’s still the kind of dough that would buy you a pretty decent house around these parts. Just.

Nevertheless, there appear to be plenty of takers, perhaps driven by the declining number of shorebases in Valencia, and/or the need to enter to renew existing leases and maintain operations there. ACM stated in the press release that they now have eight entered challengers, with another couple doing the paperwork. Presumably Mascalzone is one of them, announcing their challenge through the Reale Yacht Club Canottieri Savoia (RYCCS) on their website, but with no detail. Or what might be interpreted as a marked lack of enthusiasm. They have been joined by the new Spanish syndicate AYRE Challenge, representing Real Club Náutico de Dénia (RCND) – more detail on this one at Valencia Sailing blogspot.

But who’s the eighth? An earlier announcement from ACM had stated that… ‘In addition to Ayre's entry, there is one other new team whose challenge has already been confirmed, but who has requested confidentiality pending its own announcement.’

Meanwhile, the uncertainty has forced Team New Zealand (TNZ) to issue denials of a Times story that Dalton would shut the operation down if the court case wasn’t settled by the end of the year. It might make sense to close the doors for a while till the dust settles, these teams burn money while they're operating, but TNZ has a much greater asset value as a going concern than as a fire-sale of pieces. I can't believe that Dalts would shut it down completely as anything but an absolutely last resort...

Team Origin have responded to the situation with some pretty direct language... 'If that (settlement and a 2010/11 event) doesn't happen we can only surmise the greed of one side is only matched by the belligerence of the other.'

While Sail-World have another interview with Hamish Ross, Alinghi's General Counsel, which doesn't - to be honest - tell us much we don't already know...

And as for the much maligned issue of CNEV’s annual regatta (which may or may not be at the heart of the court case), their third attempt to hold it is underway…

There’s an interview with Grant Simmer, Alinghi’s design team coordinator on their website…

And I'm off surfing next week, although the swell forecast is marginal at best, there comes a time when you just have to get in the water regardless. But hopefully there will be a wi-fi link somewhere should there be anything worth reporting...

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Mark Chisnell ©

No, Non, Nein…

The Golden Gate Yacht Club (GGYC) has reported on its website that Société Nautique de Genève (SNG) have rejected their settlement offer (detailed in the last post, which I can hear playing faintly in the distance). Although SNG/Alinghi themselves have issued nothing, there are stories of a press conference to be held at some stage…

Meanwhile, rumour control is buzzing with what this might mean – according to an interview with Brad Butterworth on NewstalkZB in NZ, on Sunday (transcribed onto 2007Ac.com’s forum with a short story on the NewstalkZB site, and the audio itself on Scuttlebutt), it looks like Alinghi’s response to an Oracle court case win could be to race in cats. But there are plenty of other issues bubbling, like Oracle’s occupation of their Valencia shorebase, now that Alinghi’s ultimatum has passed without the lawsuit being withdrawn. Not to mention Russell Coutts’ accusation in the most recent GGYC release that SNG want to postpone the event (till 2011 to avoid a clash with the World Cup according to Butterworth) for commercial reasons – namely there aren’t enough teams, or sponsors – and SNG is trying to scapegoat GGYC.

I think you can expect more fur to fly over the coming few days…

www.markchisnell.com

Mark Chisnell ©

Or an Ace?

Barely were the electronic dipoles lined up on Google's servers for the last story, when what might be an ace came fizzing back over the net towards Alinghi and the Société Nautique de Genève (SNG) (ok, ok... I promise, enough with the tennis metaphor already).

The Golden Gate Yacht Club (GGYC) have sent a final, all-points-covered-no-further-argument settlement offer to SNG, which the accompanying press release says has the backing of a majority (four, I think we can guess who's missing) of the Challengers. The deadline is the same as SNG's earlier demand for GGYC to drop the lawsuit - end of play today. And now we all know exactly what SNG/Alinghi are being asked to do, for GGYC to fold their hand on the court action.

In particular, the demand for two-boat testing has been dropped, which had previously been cited as the real deal breaker by Alinghi. And to an outsider observer, it's hard to see what's in this document that Alinghi can't agree to.... but have a look and see what you think. Meanwhile, the clock is ticking...

www.markchisnell.com

Mark Chisnell ©

Deuce...?

The ball has been flying back and forth across the net in the last couple of days (to lean heavily on my already overused metaphor). As you might have seen from the comments at the end of the last post, Société Nautique de Genève (SNG) and Alinghi responded pretty quickly to salvoes from Oracle and the Golden Gate Yacht Club (GGYC) in an interview with their lawyer, Lucien Masmejan, posted on their own website.

Masmejan stated, amongst other things, that the GGYC had decided at a late stage in the negotiations that they now wanted to reinstate two-boat testing. Unfortunately for Lucien, this issue appears to have been on the table for a while, and GGYC promptly posted an October letter to Alinghi to make the point.

Next came an interview with Hamish Ross, Alinghi’s general counsel, on Sail-World, where he pushed the idea that Oracle kept shifting the goalposts of the negotiations. To which Tom Ehman responded that Alinghi had just issued some pretty major new rules with the Competition Regulations (also check out Tom Schnackenberg explaining them here), and Oracle had been invited by Alinghi to comment.

The latest that I’ve seen is an interview on BYM with Lucien Masmejan, but I’m sure there will be more - it won’t be deuce for long. But I suspect some of these shots are being played with plenty of spin, in an effort to deflect blame over the way this whole thing continues to unfold...

I think most people have long ago made up their minds, and this to and fro is largely a sideshow to the main event – the court decision. That’s when things will get lively again. What will Alinghi do if they lose - call Oracle's bluff and sail in the cats, restart negotiations - or appeal? And if they win, will they try to shut Oracle out of the 33rd Cup altogether?

www.markchisnell.com

Mark Chisnell ©