America's Cup: Life after Cahn. What happens next?

Lawyers, bench at the latest New York Supreme Court hearing
Event Media
The America’s Cup again made it to Court on Thursday (NZT). This time one the question of when the Match should be sailed. The arguments have been gone over many times by the PR and legal teams for both sides. However the tough question is what will happen next?

Justice Herman Cahn seems to be sticking closely to the Mercury Bay decision – in that the role of the Court is to interpret the Deed of Gift against the actions of the parties – and confirming or denying compliance.

Given that this Match is being conducted in the absence of Mutual Consent on any point, the America’s Cup could be headed for some bizarre twists.

Out of the courtroom, Alinghi probably hold more cards than many give them credit.

The risk from the Challenger’s perspective is that Justice Herman Cahn will rule that the original Match dates of July 2008 are binding as stated in the original Notice of Challenge. That will give BMW Oracle Racing a little under three months to get their multihull from the building site in Anacortes to the yet to be named Match venue. October 2008 is a more comfortable date - while still cutting off the potential for Alinghi to start the design and build process for a similar sized multihull.

Currently BMW Oracle's multihull is still under construction and is yet to emerge into its assembly phase in the tent constructed outside the build facility. At that point the hulls must be assembled and fitted out. Then it will be interesting to see if the multihull is sea trialled in USA, but the chances are that it will not. Then it must be flown to a yet to be advised Match venue, assembled and put into sailing mode, sea trialled and then put into race mode. That is a lot of work to get through by early July - and barring mishaps, which are always on the cards with this type of boat - three months is a more comfortable sea trialling and work up period.

While the Deed of Gift is quite specific on many points that are critical to a Deed of Gift Match it is silent on stating a deadline by which the venue must be announced. Of course, Alinghi may well know where they intend to defend – maybe a very heavy air venue, but just aren’t saying for the moment.

Remember the key point from the Mercury Bay decision was that a Match doesn’t have to be fair – just in compliance with the strict interpretation of the Deed of Gift.

Cahn has followed this view all through his deliberations. Club Nautico Espanol de Vela missed the requirements on a couple of points and was struck out; Golden Gate YC did comply as a challenging club and had lodged a valid challenge – it was in; there was no requirement in the Deed for a challenging vessel to be described in worlds – so calling a 90ft x 90ft multihull a 'keel yacht' didn’t matter; Challenger gets to name the date of the Match and provide the required measurement of its yacht – again no problem, according to Cahn. But none of his decisions have shaped the event in any way - all just pure intrepretation.

For its part Alinghi can name the venue, and turn up in any yacht it likes, provided it is more that 44ft long on the Load Waterline and is built is Switzerland. Doesn’t have to be a multihull, could be a canting keelboat, doesn’t have to be a new boat.

There would seem to be a loophole in the Deed of Gift, in terms of the naming of the venue, since at the time it was registered, there were no motor vehicles, or aeroplanes, and it was simply not contemplated that a yacht could be built other than alongside the sea, and sailed to the waters of the Defending club. Schuyler and friends believed that the Defending Club would always do so on its own waters, and by definition this set the venue. Very simply, no venue announcement was necessary.

Turn the clock forward 120 years, where the America's Cup is held by a yacht club based on a lake in landlocked Switzerland; where juggernaut trucks are common and America's Cup yachts are routinely flown around the world in the bellies of jet aircraft; and the America's Cup venue is bid by various would-be host cities. Yes it is quite a different world, and it is easy to see how this loophole is created - which can only be filled with an outbreak of mutual consent.

BMW Oracle may well have come up with a boat that is very quick in a straight line, and in compliance with the Deed of Gift. However they also have to comply with a couple of maxims of yacht racing – namely to finish first, first you must finish. And with a muilthull constructed under tight timeframes, and probably sailing in a heavy air venue the chances of breakdown are high. As we saw in the 2003 America’s Cup with NZL-82, the event is very unforgiving of gear and boat breakage - and gimmicks.

The other edge held by Alinghi is that it can go counter cyclic. That is instead of trying to match a multihull with another multihull – inherently difficult to manoeuvre in the prestart – Alinghi could put up a feisty monohull and go after the Challenger in the pre-start, looking for a rule infringement.

Remember that under the terms of a Deed of Gift Match there is no requirement for mutual consent on anything – so the consequence of a rule infringement is disqualification.

Imagine trying to avoid being caught in a luffing match in a 90ft 'square' multihull against a souped up ACC yacht, that can spin on a dime, with a crack match racing team aboard?

The first phase of any America's Cup Match is a match racing event, only once the yachts have started can it become a speed contest.

Then of course there is the matter of organisation of the match – which is also the prerogative of the Defender – who is entitled to sail the races according to 'its rules and sailing regulations'. Nothing in those words, or the Deed of Gift, to say that the Match must be 'fair'.

And it would seem that Alinghi also get to chose the race officials and Jury, which gets us right back into the mid-sixties when Sir Frank Packer said of a New York Yacht Club protect committee 'it’s like complaining to your mother-in-law about your wife!'

With the next decision from Justice Cahn expected to set the America’s Cup on track for its 33rd showdown. Many expect an Appeal from Alinghi (they are entitled to one Appeal and with the leave of the Court, a second). If an Appeal is to be lodged, then the timing of that is unlikely until all the decisions have been made by Cahn, and Alinghi can cherry pick its arguments from the three decisions made to date.

While there would seem to be no tolling provisions in force, it may be that tolling, or delay, of the Match dates can be invoked as part of an Appeal process, by either party.

Currently there is no doubt that BMW Oracle hold the high ground in the Courtroom, when the America’s up moves to the water, the advantage will swing Alinghi’s way. Just how far remains to be seen – but rest assured there are plenty of twists left in this game.