Sunday, May 11, 2008

Swiss skew poll results

Apparently the America’s Cup defender Alinghi felt sufficiently threatened by last week’s Scuttlebutt poll regarding a Deed of Gift interpretation, that they initiated an email campaign to skew the results in their favor. Surely, they are not the first to influence a survey, however, it was gutsy for the source of the email to be Alinghi’s club, the Societe Nautique de Geneve. Here are some of the lowlights:

* They told their members how to vote, not to review the information.
* They told their members that the issue contradicts the rule from previous events, without telling them that this next event is bound by the Deed of Gift, wherein previous events could modify the Deed of Gift.
* They told their members that Scuttlebutt had organized the survey to prove that its readers support the idea that Alinghi must build the whole boat in Switzerland, which if true, would damage their defense.

It is this last point that really shook the hallways of Scuttlebutt World Headquarters. Sadly, the Swiss find Scuttlebutt as being a propaganda tool of the BMW Oracle Racing campaign. Nothing could be further from the truth, and we take offense for being blamed for their problems. Interestingly, this issue regarding boat construction got started in Seahorse magazine by columnist Paul Cayard, who is the Sports Director for the Desafio Espanol team. Remember them? They are the Spanish syndicate that Alinghi had enlisted as their Challenger of Record to present the much disputed Protocol for the 33rd event, and the team the courts later rejected for not fulfilling the terms of the Deed of Gift. Guess it is true… what comes around, goes around.

SNG email:
Poll results:

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At 11:12 PM, Anonymous Anonymous said...

What a great pity that Allinghi feel so threatened thay they needed to take such action.... An even greater pity that their influence seems to have spilled over into the Farr 40 and influenced Joe Fly's regrettable outburst... It surprises me that no-one has suggested further action against the Joe Fly team for their rabid degradation of some of the sport's finest judges.

At 4:55 AM, Anonymous Anonymous said...

The software which records votes tracks which "computers" have voted so that they can only vote once. Presumably this means that the votes are recorded along with their ip addresses. It can't be that hard to re-tally the votes by country, can it?

At 5:39 AM, Anonymous Anonymous said...

To be fair with all concerned, please check the facts of this blog: you may have mixed Desafio Espanol (which has been sailing in previous AC regattas) and their sailing club with "Club Nautico Espanol de Vela" which was propably put up for being the 33rd Challenger of record.

At 6:10 AM, Anonymous Anonymous said...

If true, this has simply all become too Fu-----ed up in every way possible. I'm now boycotting every news piece on the AC until further notice (actually have been for awhile).

At 6:41 AM, Blogger Scuttleblog said...

The connection between Desafio Espanol and CNEV is the team formed the club so as to be the COR. The 2007 Cup was the Spanish team's first dip into the ACUP pool, and for that event they were permitted to challenge without a club, but rather as aligned with the Spanish Sailing Federation (another odd issue). While Cayard joined the team well after the team formed the club, it is unknown whether his article in Seahorse has any anti-Alinghi strategy behind it. We doubt it, but felt obligated to point out the connection.

At 6:47 AM, Anonymous Bob Kaufman said...

It was noted at the close of the Farr 40 Worlds that Ernesto Berterelli had contacted the class secretary for the cell phone number of the Joe Fly owner. What a coincidence then that soon thereafter, the Joe Fly owner makes a complete ass of himself, and trys to bring shame to the class, the event, and the jury, saying that there was an Americas Cup alliance that led to his DSQ.

Word of advice, if EB gives something to drink, throw it away. DON'T DRINK THE KOOL-AIDE

At 9:20 AM, Blogger timmy said...

You cannot begrudge anyone from defending his or her position. It is unfortunate that your poll question was most misleading for the uninitiated, and that even the GGYC, the SNG and several Buttheads seem to have fallen into the trap you inadvertently posed when you asked.

“Do you believe the Deed of Gift requires the entire boat to be constructed in the country of the club being represented, or just the hull?”

It is not a question of what anyone believes! The Deed of Gift states quite clearly that both the challenging and defending yacht or vessels must be constructed in their respective countries, and please remember this dates from a time when the challenger had to sail ‘on it’s own bottom’ to the match. The point is that constructed does not mean all the raw materials and components also have to originate in those countries. The dictionary definition of “constructed” is: “To put together in their proper place and order the constituent parts of;” So what it does mean is that the whole boat has to be ‘constructed’ or ‘put together’ but not ‘manufactured’, which is of course a completely different thing.

Trying to force such an interpretation, which I presume will be the next New York Court episode from GGYC, would be trying to preclude many smaller, honest, well meaning and sportsmanlike Yacht Clubs around the world from ever competing for the AC. My local Yacht Club, on the tiny Isle of Alderney, would fulfill ALL the requirements of the DOG mandatory requirements and could no doubt construct a challenging yacht but Alderney is too small to have the required industries to manufacture all the components of an AC yacht from scratch. Should they too be excluded?

At 12:02 PM, Blogger Scuttleblog said...

A reminder that the Deed of Gift must only be commpletely followed when mutual consent between teams does not occur. Any issue regarding construction is a non-issue when a challenging club and the defending club agree upon an event protocal, wherein they can rule however they wish regarding where boats, crew, etc. come from. We are only in this mess because mutual consent has not occurred.

At 2:05 PM, Blogger timmy said...

Sorry Skuttleblog, you are completely wrong about that. The Deed of Gift must ALWAYS be COMPLETELY followed. It is just that it allows for two different kinds of challenge and rules that apply to each.

At 6:03 AM, Anonymous Curmudgeon said...

"The Club challenging for the Cup and the Club holding the same may by mutual consent make any arrangement satisfactory to both as to the dates, courses, number of trials, rules and sailing regulations, and any and all other conditions of the match, in which case also the ten months’ notice may be waived." --

At 2:55 PM, Blogger timmy said...

Really glad you popped that quote into the equation 'curmudgeon'. This is exactly why the CNEV challenge WAS valid and IS valid today. They, that is to say the SNG and CNEV did "by mutual consent make arrangements satisfactory to both.." and so the Deed unreservedly allows them by this condition to be COMPLETELY within the meaning and Conditions of the Deed of Gift of the Americas Cup. CNEV IS the Challenger of Record by any measure, whether we like it or not.

At 9:34 AM, Anonymous The Curmudgeon said...

It is an interesting concept, that being that mutual consent can alter the requirements of the challenger. However, it would seem that before you can become the challenger, and thus begin to consider changing the deed with the defender, you have to first qualify as the challenger. That is where the courts found fault and deemed that CNEV did not qualify as the challenger, which led to the Protocal becoming void.

Kind of like when you protest a competitor. It doesn't matter how right you are and how wrong they are, if the protest flag wasn't flown, the protest is disallowed.

At 2:51 PM, Blogger timmy said...

Curmudgeon, you have to BE a competitor before you can lodge a protest, so I am afraid I don’t buy your analogy. And NO, mutual consent does not “alter the requirements of the challenger” which is an inherent part of the Deed, in George L. Schuyler’s own words.

The court found ‘fault’ because, in my opinion, Alinghi’s lawyers must have either failed to READ the Deed of Gift or did not understand it, nor did GGYC’s unless they did not want to mention that they had, and nor it seems did Justice Cahn – but then he was dealing with some really awfully misleading briefs which managed to ‘blur’ the real issues by agonizingly justifying the holding of ‘annual regattas’, when the Deed patently does not require that! It really is a question of READING and UNDERTANDING.

My “concept”, as you call it, does not alter in any way the requirements of the Deed of Gift either on the Challenger or indeed the Defender, who is also the Trustee. It is entirely based on the “four corners” approach to the text of the Deed, promulgated by both the Mercury Bay Judgment and by Justice Cahn in his judgment of the 27th November 2007. The text, the text and nothing but the text!

If you read the three simple pages of the Deed, rather than the hundreds of pages they have been engendered by lawyers recently, you will see that in order to guarantee as far as was possible in 1887 the ‘perpetual’ nature of the Cup, George L. Schuyler brilliantly created, de facto, TWO different classes of Challenger. The first, which he intended would guarantee the perpetual nature of the ‘friendly” competition and prevent the Cup from gathering dust in a locked Yacht Club showcase, was the class of Challenger WHO COULD NOT BE REFUSED. He stated:

“ANY organized Yacht Club of a foreign country, … shall ALWAYS be entitled to the right of sailing a match of this cup”

He gave us just four simple ‘qualifications’ to substantiate the right of “ALWAYS being entitled to the right”, his key to creating the perpetual right.

The Yacht Club had to be; “ANY Yacht Club..”. Not specified as old established, or, having been established at least five years`, or, having already held 3 annual regattas on ocean water courses on the sea, or, having a smart Clubhouse, or, wearing yellow t-shirts, or having held “ongoing’ regattas, or anything else. Get the point? No, quite simply; ANY Yacht Club. If he had meant otherwise he would have said so.

The Club had to be “organized”, and he describes what he means by that straight after the first comma; “ incorporated, patented, or licensed by the legislature, admiralty, or other executive department” bearing in mind he could have no idea of what the Yacht Club legislation might be in Tuvalu 200 years on when they wanted to Challenge. He meant, of course, quite simply officially recognized in its “foreign” country.

The Club had to be “of a foreign country”. I guess we all understand that.

And finally the club had to have an ocean water course on the sea; “having for its annual regatta an ocean water course on the sea, or on an arm of the sea, or one which combines both”, because he wanted this to be raced on ‘ocean waters on the sea” and not in dinghies on a lake.

If it fulfilled these tests, then it could not be refused.

Next he tells us that, notwithstanding these conditions that I will call “Mandatory Challenge conditions”, that if the “The Club challenging for the Cup and the Club holding the same may, by mutual consent, make any arrangement satisfactory to both as to the dates, courses, number of trials, rules and sailing regulations, and any and all other conditions of the match, in which case also the ten months' notice may be waived.” Thus he created the SECOND CLASS of challenger, who could be accepted or refused by the Defender.

And so he laid down a set of rules to stop the Defender simply refusing all challenges by creating a challenge they cannot refuse and in the same document encourages the “Friendly Competition”, stated as a principle condition of the Deed of Gift, by giving the Defender and Challenger complete leeway to organize what they want how they want it – IF they agree.

Finally, he foresees the situation that they cannot agree and lays down a set of rules to be imposed for what is presently called a DOG match, intended to guarantee the perpetuity of the competition and encourage “friendly competition between foreign countries”.

At 6:37 AM, Anonymous The Curmudgeon said...

Is the question whether "mutual consent" refers to only the terms of racing, or the entire four corners of the deed? I see your logic, though hasn't this issue already be reviewed in the courts? I thought the deed had to be revised by the NY Court to accept the Canadian challenge, to add the "arm of the sea" clasue, which is how the Swiss challenge must have originally gotten in.

It would be handy if somewhere the deed said that "upon acceptance of the challenge, 'the Club challenging for the Cup and the Club holding the same may by mutual consent make any arrangement satisfactory ...'."

However, it doesn't. In fact, I believe that the 33rd ACUP Protocal provided the means to NOT accept challengers. This was one of the features of the Protocal that had many worried, that it provided a seemingly arbitrary means to block entry. Like you say, not exactly what the deed had intended.

At 11:09 AM, Blogger timmy said...

Curmudgeon you have hit the nail on the head as to the key question: what does the 'mutual consent' clause mean in the context of the whole Deed? It has not yet been tested in the courts and I put it to you that with a straight and careful reading, George L. Schuyler gives us the simple answer in the ‘four corners’ of the Deed itself.

In simple terms, if you accept that the Deed as a whole is setting out CONDITIONS for an AC Match (to create perpetuity and lay down basic rules whatever happens) then the paragraph in question: “The Club challenging for the Cup and the Club holding the same may, by mutual consent, make any arrangement satisfactory to both as to the dates, courses, number of trials, rules and sailing regulations, and any and all other conditions of the match, in which case also the ten months' notice may be waived.” is telling us that once in agreement the two Clubs in question can do what they like. The key 'condition' being: “may, by mutual consent, make any arrangement satisfactory to both…..AND ALL AND ANY OTHER CONDITIONS OF THE MATCH”

It really is as simple as that. And it is on this basis that the SNG, GGYC and all the other Challengers gave the world such a fabulous competition lasts time out!

I would like to finish with two proposals. I would like to see the Deed of Gift altered with the object of preventing a defeated Challenger of Record (COR) from challenging again until at least one further Match for the Cup has been completed with a different COR.

And, why not start an AC Blog on, I would be happy to moderate that, to garner other people’s opinions and see if together we cannot contribute to the future of an undisputed Deed of Gift and fabulous AC competitions – in perpetuity?


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