The battle for the 33rd America's Cup is playing out in court again instead of on the race course, where the contest between BMW Oracle Racing's 90-foot trimaran and Alinghi's 90-foot catamaran surely would be a lot more exciting.
Two weeks before the Cup's Feb. 8 start in Valencia, Alinghi and BOR were in New York Supreme Court, arguing now about what the Deed of Gift says about making a Cup boat's sails in the country of its sponsoring club. BOR says the Swiss team's sails violate the Deed of Gift because they were built in the United States instead of Switzerland. Alinghi says the deed's "built-in-country" rule applies only to the boat, not the sails, and anyway its sails were built at home.
"[Alinghi'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," Alinghi says in a Jan. 22 response to BOR's suit.
While acknowledging in his affidavit that North molded the sections of 3DL sail for Alinghi at its plant in Minden, Nev., Whidden says those sections were pieced together in Switzerland at Alinghi's loft and finished off there with "traditional sailmaking methods."
Alinghi also has enlisted renowned Cup historian and author John Rousmaniere in its defense. "The donors of the original Deed of Gift never contemplated limits on foreign sails or foreign sail technology," Rousmaniere says in an affidavit. "Those donors, in fact, hoisted British sails in first winning the Cup with the schooner America."
"In adding the CIC [constructed in country] clause to the Deed in 1882, George Schuyler, the last surviving donor, sought to ensure that the Cup remain 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."
BOR doesn't buy it.
"The Deed of Gift, the trust instrument that governs the America's Cup and dictates the terms and conditions of the upcoming America's Cup, clearly states the defending club must race in 'any yacht or vessel constructed in the country of the club holding the Cup,' " BOR says in its Jan. 12 court filing.
"In recent months, [Alinghi's] excuses have been, literally, all over the map," BOR elaborates in a Jan. 22 statement. "First, it was, 'Sails aren't part of a sailboat.' Then, 'It's not an issue until we race.' Next, 'Our sails were built in the USA but assembled in Switzerland.' Yesterday it was, 'If we can't use our 3DL sails we'll forfeit.' Now, in their latest court papers, '[BOR's] boat is a French design.' "
In its filings, Alinghi says that if BOR prevails on the sail issue, Alinghi will claim that BOR's trimaran is not deed-compliant either because it is a French design and has both foreign-made components and a rigid wing that is not a "sail" as described in BOR's challenge, which reveals the broad outlines of its boat.
"Making a modern sail is like baking a cake," BOR concludes. "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, Nev., where Alinghi's sails were constructed. Shipping that cake to Switzerland and adding some candles does not make it 'Swiss-made.' "
— Jim Flannery