Tom Ehman: There are indications Alinghi aren't building all of the yacht's major parts in Switzerland

With less than two weeks left until Alinghi officially unveil the venue of the 33rd America's Cup we talked to Tom Ehman, spokesman of GGYC, the Challenger of Record. Our conversation touched the issues of last Tuesday's court hearing, the venue of the match as well as a revelation that, according to Ehman, there are indications that Alinghi are not building all of their yacht's major parts in Switzerland, something that would be against the requirements of the Deed of Gift. Although he hopes there will not be any further litigation, Ehman states that Alinghi "just can't disregard the Deed of Gift time, after time, after time and expect not to have any consequences."

Valencia Sailing: Can you give us a brief update on last Tuesday's court hearing? In your press statement you say you are "pleased" but one could think that Alinghi scored a victory on the issue of racing rules.

Tom Ehman: The reason we are pleased is that we have certainty on the rules. We haven't seen Justice Kornreich's decision yet and those of us that were in court would expect the assurances their lawyer has given the court, at the court and afterwards, they will waive, they will not try to put in Racing Rules 49 to 54. My great fear was that they could use the rules to their own purposes, cherry pick the rules and use the ones that were good for them and waive the ones that were bad for them. Their lawyer was told pretty firmly by the court, Justice Kornreich said "Mr Ostrager you are going to waive those rules, right?" and he said "Yes, we will." That means that none of these rules will apply, 49 to 54.

As a result, we now have certainty as to what the other rules are, the so-called other rules of sailing, part of the racing rules. So far Alinghi was saying, "Oh, we will tell you what the rules are when we get around to it and we will even change them as we feel like it going forward", something that is totally unfair, totally outside the Deed of Gift. To that extent we were very happy with the court's decision.

We were not happy, assuming she rules in favor of the engine, although we don't know for sure she will, she might come back and have a different theory. If she says that the engine is legal because in her view there are no court rules that can prohibit it, then we see what Mr Bertarelli's vision for the America's Cup is, to take the sailors off the boats and have engines running anything on the boat, including the possibility for computers to run the steering. This is push-button sailing, it's joystick sailing and I don't think that's what the Deed of Gift, what the America's Cup is about or should be about.

Valencia Sailing: Don't you think this is too radical a statement you make?

Tom Ehman: I don't think it's a radical statement, I think it's a radical step to have an engine on an America's Cup boat for the first time in the history of the event, and if that comes to pass, but we'll first wait to see if that happens, if Justice Kornreich decides the racing rules of sailing do not apply, this is what we're going to have. We will at least have certainty with her decision, something way better than what we were going to have because Alinghi kept saying they could put whatever rules they wanted and then amend them as they saw fit going forward. That's why I was happy.

If Alinghi gets the engine, if that's the decision of the court, we will certainly not be happy and it's going to be very sad situation to have engine power running America's Cup sailing boats.

The Racing Rules of Sailing, since way before any of us was involved, going back hundreds of years, have never committed non manual power except in certain classes where the owners got together and allowed non-manual power for kanting keels.

Part of Alinghi 5, Alinghi's new catamaran, under construction. According to BMW Oracle there are indications Alinghi aren't building all of her major parts in Switzerland. Photo copyright Carlo Borlenghi / Alinghi

Valencia Sailing: The VOR70 yachts have such kind of systems. Why couldn't the America's Cup boats have them as well?

Tom Ehman: The VOR70 yachts have such systems because all the teams agreed it was something they should do. Whether that is a good development or not is debatable but certainly we never had powered sailing in the America's Cup. Even in the Volvo Ocean Race you don't have the engines running the winches, you don't have the engines replacing the sailors. That happened already in Formula 1. Those of us living in Europe and following Formula 1 certainly remember what happened when they had the computers running the cars instead of the drivers. It only lasted one season because it was a computer race, not a driver race.

That's what will happen in the America's Cup if that's what the decision of Justice Kornreich says. We will obviously respect her decision. Again, we have certainty about what the rules are and it's a fairer playing field.

Valencia Sailing: Still, in a letter you sent Michael Fary, almost 22 years ago, being the COO of the then Defender you had stated...

Tom Ehman: Yes, I know what the question will be. That was in December of 1987, right after the court hearing that said that the challenge from the Mercury Bay Club was legal. We immediately afterwards went into mutual consent discussions and we all agreed that the normal rules of sailing should apply, which the yacht club had used in all their annual regattas and which SNG used at least up to 2007, and including their 2007 regatta used the standard sailing rules. These are the rules under which we challenged, these are the rules which it was widely believed, not just by us but by everybody, should apply.

In 1988 there was no contention about the rules, there were no discussions other than mutual-consent discussions and that letter was completely appropriate. We never tried to use the rules for our own purposes and that certainly is bore out by there not being a single contention, a single letter, a single anything anywhere. Trying to say that letter is relevant to today's situation is apples and oranges.

The next big issue is the venue of the match and their lawyer wrote the court again after Tuesday's hearing, saying that they would be announcing a northern hemisphere venue. This shows yet again, as far as we Golden Gate Yacht Club is concerned, SNG's reckless disregard for the Deed of Gift. They seem to have no respect for the Deed of Gift whatsoever. The Deed says that the venue must be suitable for yachts of 22 ft draft, free of headland AND in February it's got to be in the southern hemisphere.

For a year and a half, Alinghi argued, both in their court papers AND their PR, that if the race was to be in February it would have to be in the southern hemisphere. Absolutely nothing has changed, not the court order, because it is the same one. The order says that the race can be in Valencia or any other location, obviously meaning any Deed-compliant location. A Deed-compliant location includes the hemisphere and if they want to run it in the northern hemisphere they must get our mutual consent.

Valencia Sailing: In less than 2 weeks they will announce the venue. What will happen if it's in the northern hemisphere and it's NOT Valencia?

Tom Ehman: If it's not Valencia and they do not seek our mutual consent we will not sit idly by and let them show reckless disregard for the Deed and the court's decision. I don't know what we will do but we are certainly thinking about it now because there seems to be another indication they will violate the court's order and choose a northern hemisphere venue.

Valencia Sailing: Have you had any talks with Alinghi on the issue of the venue?

Tom Ehman: Yes we have but only to the extent they say they will choose a northern hemisphere venue.

Valencia Sailing: Have they indicated any possible venue in order to seek your consent?

Tom Ehman: No. As you know, we feel strongly there is absolutely nothing wrong about Valencia, it is a perfect venue year around and we have all trained here. Alinghi trained last January for the Louis Vuitton Pacific Series in Auckland. There is no reason why it can't be Valencia. It has all the infrastructure and as far as we are concerned it is the only location in the northern hemisphere that the match can be held in February, unless we reach a mutual agreement on another location.

Valencia Sailing: Does that mean you are willing to consider other northern venues?

Tom Ehman: Yes, and we have always said that. Russell and I said that in the press conference in our base a few weeks ago. We have always said we are completely in favor of mutual consent on ALL topics. The America's Cup works because of mutual consent. That's the beauty and the magic of the Deed of Gift. It's as simple as sitting down and proposing a venue.

We are not going to give them carte blanche, telling them "Oh, we would like you to choose a venue in Greece, Turkey, Italy, the UAE and 15 other countries". We will certainly not give them carte blanche but if they come to us and propose one northern hemisphere venue that makes sense logistically, from a sailing standpoint, financially and so on we will certainly hold discussions. We are very open to holding such discussions, we always have been and we will always be.

Valencia Sailing: It is obvious Valencia Sailing strongly supports Valencia as a venue for the 33rd America's Cup, more than anyone else and we would be stupid not to do so. But what problem does BMW Oracle have in racing the match in Greece, Italy, Dubai or Abu Dhabi, to name the places you mentioned?

Tom Ehman: There is no problem, provided as I said the venue is suitable, has excellent sailing conditions as well as infrastructure, all the things Valencia has proven to have. If there is another venue Mr Bertarelli thinks is, for some reason, better or as good, and is not just a matter of trying to choose a venue to put money in his pocket or that suits particularly their boat. Remember, in the past, the yacht club hosting the Cup always ran it at the venue where they ran their annual regatta. This is not a requirement of the Deed of Gift but they ran it at the venue where they traditionally ran their races.

Last time, with our support, they put the venue out to bid. We could have actually consented to run it on Lake Geneva but I don't think anybody would have thought running in shallow waters not free of headlands was a good idea. Putting the venue out to bid was a good idea and it wasn't put out to bid for furthering their own competitive or financial interest. It was something that helped everybody, at least on surface. That's the way the venue should be chosen, not to support the competitive aspects of a particular boat or team or for the financial benefit of one of the two parties who happens to be the Trustee and is supposed to be looking out for all the beneficiaries of the Deed.

According to BMW Oracle all sails of Alinghi's yacht must be made in Switzerland. Photo copyright Carlo Borlenghi / Alinghi

Valencia Sailing: Talking about giving their boat an advantage what is your first impression of their catamaran?

Tom Ehman: Well, it's too early for us to tell. Certainly, we have watched the boat sailing, we have been looking at all the nice photos and videos and studying it carefully. It's a little hard to tell because they haven't had many sailing days due to the poor weather on Lake Geneva. Once they get it to Genoa I think we will all have a better idea of what their boat is like. Obviously, it's a big, impressive, fantastic-looking boat and the idea of these two boats going at it in a match next February is very exciting but again, the saddest part of that is that we are going to use engines that replace the sailors. That's fly by wire, joystick sailing and it's completely against the tradition and the history of the Cup and in our view the general sailing community is strongly against it.

The other thing about the boat that baffles the mind is that, by all records, Alinghi are showing again reckless disregard for what we call the constructed-in-country rule, or CIC. The Deed of Gift says that the vessel shall be constructed in the country of the club it represents. The idea that you can build sails or other custom pieces in other countries flies completely in the face of the Deed. The idea that you can take bits and pieces from various places, including Switzerland, and then assemble them in another country again flies completely in the face of the Deed. If this is what Alinghi is attempting to do, and there are many indications from what we hear within the industry that that's not only what they attempt to do but what they are doing, this again will create another furor, another huge dispute because it flies again totally in the face of the Deed.

We probably won't know for sure until they show up on the day of the first race what they have, what yacht they are using because they are not required to tell us, although they will have to get it measured at some point they way we will.

Valencia Sailing: Let's be more specific on that point. Do you claim that Alinghi's yacht has not been entirely constructed in Switzerland?

Tom Ehman: No, I don't claim that. I draw the attention, your attention, to what we call the CIC rule, constructed-in-country. It is a long-standing well-understood rule that can only be modified by mutual consent which started to happen in the late 1970's. There was mutual consent and last time it was the most liberal, loosest interpretation, again by mutual consent, where you basically had to build just the hull in your country.

Still, the rule goes beyond that. The Deed is quite clear that the vessel, and that means the mast, the sails, the entire vessel and any of the custom bits have to be built in the country of the club it represents. There are indications within the marine industry, and as you know it's a small world and there are only so many sailmakers, so many winch makers and so many hydraulic pump manufacturers and these people all talk. We, BMW Oracle, have taken a very straight stance from day one on CIC, constructed-in-country, and will continue to do so and if SNG/Alinghi do not, and there are indications they are not building all of the major parts in Switzerland, then there is going to be another problem.

They just can't disregard the Deed of Gift time, after time, after time and expect not to have any consequences. They found out that when we won 6-0 in the Court of Appeals.

I honestly hope there won't be any further litigation. As you know, we will go back to mediation, I have done business with Lucien Masmejean, I respect him and I hope we cut an agreement as we did in the last Cup. Basically, Lucien and I wrote the 32nd America's Cup protocol after a long negotiation and we can avoid court, we should avoid court this time and the only way to do it is sit down and talk turkey on all these topics just like we did in 1988. There was no contention over the rules back then and all of that blatter by their lawyers last Tuesday was just that. They tried to compare apples and oranges.