For months, the sailing world has had a field day(s) with images of a Middle Eastern America’s Cup, as the defender, Ernesto Bertarelli’s charade YC, the Societe Nautique de Geneve (SNG), had hoped to hold the 33rd AC in the United Arab Emirates (UAE) nation of Ras Al Khaimah (RAK). Reportedly, the tiny nation, "conveniently" located precariously close to Iran, has spent hundreds of millions of dollars to prepare for an AC, building infrastructure and signing international deals. While RAK’s intentions were undoubtedly good, they chose the wrong bedfellow, as Alinghi (Bertarelli’s) syndicate, misinterpreted the Deed of Gift, a sacred document that governs how the Cup must be raced. The Deed explicitly says that any Deed of Gift Challenge (a two-boat affair that is a best-of-three match race sailed in large multi-hulls) that is to be contested in the winter months must take place in the Southern Hemisphere. In May of 2008 Justice Cahn, then a New York Supreme Court judge, allowed that the Cup, which must be held this February, could be raced in Valencia, Spain (home of the 32nd Defense), provided that both parties agreed to the venue. It remains to be seen if this will be the outcome.
Larry Ellison’s BMW/Oracle campaign successfully campaigned to the New York Supreme Court’s Justice Kornreich that the Deed explicitly states that the cup must be raced in the Southern Hemisphere in the winter, but they also argued that RAK was a potential safety hazard given the United States’ "strained" relationship with Iran. While Justice Kornreich did not consider this argument, she did write a coda saying that as a United States judge that she would not allow the Cup to be sailed in a place that would prohibit access to anyone. The UAE, remember, does not allow anyone to enter who has an Israeli stamp on his or her passport. Given the ethnicity of certain key figures in Ellison’s campaign, this could have been seriously problematic.
"Ras Al Khaimah has put enormous time and effort into this 33rd America's Cup project," said Lucien Masmejan, Societe Nautique de Geneve’s (SNG) legal counsel. "We thank them and feel sorry for this unexpected result out of the New York court. We are satisfied, however, as Justice Kornreich confirmed that the Deed of Gift Match will be conducted under SNG rules as she had already ruled in a previous court order.:"
Said BMW/Oracle in a press release: "We're pleased with the court's decision today. that Alinghi's choice of the venue for the 33rd America's Cup was not allowed under the Deed of Gift. We look forward to Justice Kornreich's decision later this week regarding two additional issues. First, we hope she will agree with our position that Alinghi cannot add additional ballast, equipment or sailors to the boat after it has been measured for compliance with the Deed of Gift's restriction on length along the load water line. Enabling any team to add additional weight after measurement - thus lengthening its load water line and increasing its speed - violates the Deed of Gift, decades of sailing practice, and the spirit of the rules that govern the America's Cup. Second, Justice Kornreich understands the need for a fair and impartial jury. Our position is that the sailing jury must have the normal powers to adjudicate. We remain motivated to negotiate all remaining issues with Alinghi to ensure a fair, competitive and successful America's Cup in February 2010. We took a big step towards this goal today."
Cup pundits have long hypothesized that Alinghi designed their magnificent-looking Alinghi 5 for the extremely light airs of RAK. This could throw a serious problem at the Swiss, as Ellison's massive trimaran seems to be a far more versatile boat when it comes to variable wind conditions. Still, given the fact that this puppet Cup will be raced (as of now) under Bertarelli’s "rules", it will be interesting to see how aggressive the defender is in forcing his hand, and if the final verdict of the 33rd defense will come via a gun at a finishing line or a gavel swing in a court room.
Given the massive amount of legal wrangling that has defined the 33rd Cup, the sailing world will breath easier when this joke of a Cup cycle concludes and sailboats that are powered by humans-not engines- return to the racecourse.