Friday, January 22, 2010

America's Cup Defender submits 'constructed in country' opposition papers and a counter motion

Related documents and court filings:- Opposition papers
- Notice of Cross Motion
- MOL Cross Motion
- Declaration of John Rousmaniere
- Alinghi Sails Certificate of Origin
- Whidden Affidavit
- Vrolijk Affidavit
- Tournier Affidavit
- Sahli Affidavit
- Pattison Affidavit
- Masmejan Affidavit
- MacLane Affidavit
- Irens Affidavit
- Giuffra Exhibits

[Source: Alinghi] Société Nautique de Genève (SNG), the 33rd America's Cup defending yacht club, today presented its opposition arguments to the New York Supreme Court in response to Golden Gate Yacht Club's (GGYC) ninth lawsuit; a misguided interpretation of the ‘constructed in country' (CIC) requirement of the Deed of Gift, the event's governing document. SNG's comprehensive set of papers reaffirms its interpretation that only the ‘yacht or vessel' has to be constructed in the country of the club holding the Cup, and that sails do not.

SNG's affirmations are supported by historical precedent, as reflected in the expert declaration of John Rousmaniere, a leading America's Cup historian, ‘the donors of the original Deed of Gift never contemplated limits on foreign sails or foreign sail technology. Those donors, in fact, hoisted British sails in first winning the Cup with the schooner America. In fact, in adding the CIC clause to the Deed in 1882, George Schuyler, the last surviving donor, sought to ensure that the Cup remained a genuinely competitive event, while preserving the Cup's international character. He thus struck that balance by limiting the CIC requirement only to a competing vessel's hull, but not its sails.'

Additional documents presented to the court confirm that GGYC's CIC claim is factually wrong: SNG's sails were constructed in Switzerland and this fact is supported by an affidavit from Tom Whidden, president of North Sails, and an official certificate of Swiss origin from the Swiss Chamber of Commerce.

“SNG is certain of our yacht's Deed compliance, including the ‘constructed in country' provision and our interpretation is supported by the language of the Deed, historical precedent, and by the Cup donor's intentions,” said Fred Meyer, vice-commodore of SNG. “In any event, GGYC's CIC claim is factually wrong and we have submitted to the court substantial evidence proving that our sails are Swiss made. It is our view that we should go racing on 8 February. GGYC should end their legal strategy to try to delay the Cup and to try to gain competitive advantage over the Defender and should proceed with the competition on the water. If they wish, however, to pursue their latest lawsuit, then the judge should have a close look at BMW Oracle's yacht, which does not comply with GGYC's own interpretation of the Deed,” he concluded.

‘Constructed in country' counter motion

In parallel to the opposition papers, SNG has presented a counter motion stating that, should GGYC's interpretation of the CIC in the Deed of Gift be validated by the Court, then its own boat would be illegal. Affidavits from a number of leading experts in the field of yacht design, such as Duncan MacLane and Nigel Irens, support the fact that GGYC's trimaran is in fact a French-designed boat and not American, as supported by photographic exhibits the boat also includes a number of non-American constructed elements. In addition, BMW Oracle's yacht is not even a sloop, propelled by sails, with a main and a jib, as declared in the American club's certificate of challenge, but a wing-mast rig.

SNG's set of documents showcases how this latest motion by GGYC is in contravention of the spirit of the Deed of Gift and how Larry Ellison's yacht club has forgotten the call for friendly competition between nations.

Excerpts from expert affidavits:

Excerpts from the declaration by John Rousmaniere (USA), America's Cup historian:
”For more than a century of America's Cup competition, nationality concerned only yacht clubs and yacht hulls. There were no nationality restrictions on sails in the first race in 1851, when the American donors of the America's Cup used English sails. The first formal restriction of international exchanges of sail and other technologies was not established until after the nineteenth cup regatta in 1962. That was when the then trustee, the New York Yacht Club, issued what it would call an “interpretive resolution” limiting access to technology across national borders. Subsequently other, sometimes conflicting restrictions were imposed until all interpretive resolutions were rescinded by SNG and GGYC before the most recent cup races in 2007.”

“Unlike hulls, sails were not regarded as subject to nationality restrictions – not by sailors, not by sailmakers, and not by the donors and the trustee New York Yacht Club.”

“Had a stringent “constructed in country” rule – like the one proposed by Golden Gate Yacht Club in this action – been in place and enforced, in most of those nineteen regattas either the challenger or the defender (and sometimes both) might have been disqualified.”

“Since the complaints about Atalanta concerned how identical her “model,” or hull shape, was to U.S. yachts, “constructed” can only have meant “designed and built.” Nothing was said or even implied in the “Second Deed” about sails, scantlings, or other construction standards.”

Excerpt from the affidavit by Tom Whidden (USA), president of North Sails:
“In Switzerland, I understand that the Alinghi team constructed the sails for Alinghi 5 by (1) joining the 3DL pieces/sections to construct the body of the sails; (2) finishing the sails by traditional sail-making methods; and (3) transporting the constructed sails to the location of Alinghi's yacht.”

Excerpt from the affidavit by Nigel Irens (GBR), multihull designer at Irens-Cabaret:
“In my view, the BOR yacht represents an extrapolation and adaptation of other current racing designs of the French firm, VPLP.”

Excerpt from the affidavit by Duncan MacLane (USA), multihull designer:
“Over the last ten years, there has been very little development of large performance multihulls in the United States. The larger racing multihulls have been concentrated in Europe, with European designers. The BOR 90 foot trimaran is clearly the offspring of European racing trimarans, particularly the ORMA 60's and their development programs.”


- Rousmaniere quote: SNG MOL in opposition to GGYC improper motion to ‘enforce' the April 7, 2009 order and judgment, page 3.
- Rousmaniere excerpt 1: Rousmaniere affidavit, pages 2 & 3
- Rousmaniere excerpt 2: Rousmaniere affidavit, page 6
- Rousmaniere excerpt 3: Rousmaniere affidavit, page 7
- Rousmaniere excerpt 4: Rousmaniere affidavit, page 15
- Whidden excerpt: Whidden affidavit, page 4
- Irens excerpt: Irens affidavit, page 2
- MacLane excerpt: MacLane affidavit: page 2

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At 4:50 PM, Anonymous Anonymous said...

Well done, Alighi TEAM, wish you success on court. Your papers are almost as elegant as A5!!!

At 5:08 PM, Anonymous Anonymous said...

back to court! the most boring, annoying, useless america's cup so far.

At 5:56 PM, Anonymous Gareth Evans said...

You've gotta love it. A French designed boat and a Dutch designed boat, with American sails, being sailed by Kiwis.

This is going to run and run...

At 6:45 PM, Anonymous bored as hell said...

I have a feeling that this 33rd AC will not end in the water. This guys are so entangled in their personal battle that none will acknowledge the other's victory. Too bad.

At 7:20 PM, Anonymous Anonymous said...

About as solid a case as they could put forward. Just read the forums over at sailing anarchy and theyre very flustered.
If Alinghi don't win this case then it's a clear sign that no team will ever beat an american team if they decide to take it to court, bent as a two bob note.
Go Alinghi!!!!

At 7:29 PM, Anonymous NVS said...

New definition of The America's Cup:

The Oldest Sport Trophy in the world


The Oldest Court Trophy in the world.

Well done Guy's

At 7:30 PM, Anonymous JamieF said...


At 8:21 PM, Anonymous Anonymous said...

Para mas datos ver

At 9:01 PM, Anonymous Anonymous said...

"Well done, Alighi TEAM, wish you success on court. Your papers are almost as elegant as A5!!!....."

It might be me but the 12 previous "elegant" presentations give me a pretty good idea of how this case is going to be resolved by the judge...

At 9:43 PM, Blogger Renaud said...

Mince alors .. Alinghi devient aussi bon qu'Oracle en matière juridique ..

Troubles ahead this time for BOR !

At 9:56 PM, Anonymous Anonymous said...

This is a very compelling argument by Alinghi. Their case is water tight. Even you BOR whingers have to accept that when Tom Whidden himself says Alinghi made their own sails, then they did. Ian Pattison clearly outlines the contsruction process for those of you who have no idea how a 3DL is made for Cup teams.

Nevada didn't make the sails, they made the panels, which is considered a raw material. They did not do design work, they don't even ship them in one piece!! And BOR knew that. I can't believe they have tried this on.

At 11:49 PM, Anonymous Anonymous said...

Sport is older than the AC....(Olymics?) acknowledged individual and team effort.....then came money!!..(and in this case 'design') but most sports stayed clear of this issue...can anyone tell me of another sport with CIC rules? ski's? tennis raquets? F1 cars? footballs? the costumes of synchronised swimmers?? the origen of water for ice skating???cos that's where we're at. PATHETIC!!!
Change the rules, get real, change the name 'Americas Cup' does seem to give one team an idea that it is theirs by name only and not by fair competition. from David Valencia

At 12:12 AM, Anonymous Anonymous said...

suggest an ' Americas Cup ' Big Brother, cos that's what this is becomming and you greedy guys would make more money!! let the public decide on your egos

At 12:24 AM, Anonymous Anonymous said...

Football...a gentlemens game played by hooligans. Rugby...a game for hooligans played by gentlemen.
Americas Cup...a game currently for the wealthy played by egos, money and the lack of concern for Joe Public!!!

At 1:05 AM, Anonymous Anonymous said...

GGYC states - Making a modern sail is like baking a cake. You gather the ingredients, put it
in a mold of a shape and size designated by your design team, and literally
cook it. That's what takes place at the 3DL plant in Minden, Nevada, where
Alinghi's sails were constructed. Shipping that cake to Switzerland and adding
some candles does not make it "Swiss-made."

At 1:18 AM, Anonymous Anonymous said...

9:56 PM - pls read Pattison affidavit -

He has not experience with molding of 3D.

Note this says "can" & not is. "At this stage the desing shape of the sail can be altered if required...."

The arguement is that the flying shape of 3D's is achieved by the molding done in Minden. As Whidden states "North Sails then finishes the sail by traditional sail-making methods..." Remove the molding & the construction method doesn't work.

Ever try to bake a cake without a cake mold? Good luck

At 3:38 AM, Anonymous Anonymous said...

I was very surprised to not see an affidavit of Luc Dubois, since he is after all one of the inventors of 3DL.

At 6:04 AM, Anonymous Anonymous said...

Gareth Evans states: .. "a Dutch designed boat", what nonsense. Multihull sailing on Lake Geneva has existed for over 20 years without any Dutch involvment. Alinghy 5 is based on this experience with the D-35 and the Black 41-ft-Cat as predecessors. The USA-17 however is a VPLP, Paris/France product, entirely developped in France, based on its vast multihull experience (ORMA). Have a look at Look also on the description of the "Firm". ... offices based in Paris and Vannes France.

At 7:14 AM, Anonymous Anonymous said...

Michel Desjoyeaux plans to join multihull racing with the new Multi One Design Championship (a Swiss Company: ( ). Where is the new one-design 70-ft-multi coming from? Read the above website: "Combing French and Swiss knowhow, the three world famous shipyards will give birth to the first MOD70'" Switzerland has the knowhow, USA dont!!

At 7:38 AM, Anonymous Anonymous said...

looks like Russell`s nose is getting even longer.
TE will probably put that to some good use.

At 11:44 AM, Anonymous Anonymous said...

Amazing the amount of sailmakers coming out of the wood work.
Leave these details to real sailmakers!
Not armchair experts

At 5:18 PM, Anonymous Anonymous said...

@ 11:49 PM anon
This is almost amusing.
"Change the rules, get real, change the name"

Well, if you want to change the rules and the name, I guess you could just as well start a new event...

Man, use your brain!!!


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