The week when Alinghi took control of the situation
A couple of weeks ago, the New York Supreme Court ruled in favor of the Defender Alinghi by determining a ‘tolling period’. The Judge has effectively started the clock and set the beginning of the 10 months notice period from mid May 2008 pushing the 33rd America’s Cup Match to mid March 2009 at the earliest. On top of that a second blow to the American strategy came a couple of days later when Alinghi was successful in consolidating its appeal on the date issue with its previously filed appeal, contesting the validity of the Challenger of Record. All issues will be heard by the Appellate Division on 5 June 2008 with a decision expected towards the end of June at the earliest or most probably in July 2008. The logical outcome is a further delay for the 33rd America’s Cup Match given that the legal system has to accept the fact that a tolling period has been enforced.
What does this mean to the Challenger BMWOracle’s Team?
The fact that the judge has ruled for a ‘tolling period’ is the biggest setback in BMWOracle’s strategy. They started to build their boat with an October 2008 regatta in mind and the American ‘missile’ should be launched around 15 June 2008. BMWOracle has designed and built their ‘DoG Monster’ whilst Alinghi took a risk in waiting for the final decision in the legal warfare. Should the judge have ruled for an October 2008 Match, BMWOracle would have won the race with virtually no competitor as Alinghi would not have had the time to build their own boat. This strategy could have paid handsomely for BMWOracle however this is sadly not the case.
Custom House Registry Certificate – A crucial document
The founding donator of the America’s Cup, George Shuyler was very clear when he wrote in the “Deed of Gift” : ‘the challenged party has a right to know what the yacht challenging is like, so it can meet her with a yacht of her own type if it so desires’. The Deed of Gift also adds that the Challenger should send the ‘Custom House Registry Certificate’ of their competing vessel ‘as soon as possible’ to the Defender.
Although ‘as soon as possible’ does not set a firm date, it is important to note that BMWOracle’s Notice of Challenge was sent almost a year ago on 11 July 2007 and they are yet to provide the Defender with the Custom House Registry Certificate. Therefore are we now beyond the ‘as soon as possible’ date ?
As G.Shuyler stated ‘the challenged party has a right to know’, it appears the Defender has requested it for several weeks and is now claiming that BMWOracle should have provided this certificate prior to Christmas. It is believed this delay is solely for competitive reasons and in clear contradiction of the deed. Furthermore, Alinghi is also claiming contradictions between the public made information on the American vessel and the boat certificate presented in the appeal filed with the Appellate Division. Everyone understands BMWOracle’s boat is a trimaran but no one is certain. This is one piece of minimal information the Custom House Registry Certificate would reveal.
A trap for the American Challenge?
Alinghi should have started building their boat by now however they maintain to not have enough information about BMWOracle’s boat to know exactly what to build to match them. Up until now, Alinghi has been forced to basically design and build a DoG Match boat blind (or partially blind). The Custom House Registry Certificate could become a trap for the American’s and if they are building a second boat then they will be very nervous to launch the first one since they will run a real risk in that they will be forced to race the first one...
Will BMWOracle’s argument be ‘we can build as many boats as we like that match our challenge certificate ( which is very broad ) and then when we decide which one we want to use we will give you the Customs House Registry Certificate? Could this be their interpretation of ‘as soon as possible’ meaning when they are ready?
End of Part One ... Following this analysis, we will study tomorrow some possible strategies for both protagonists.