Lawyers rule the waves: America’s Cup yachts in court less than 3 weeks before races in Spain

America’s Cup yachts still tied up in legal fight

The most contentious America’s Cup in 159 years is still in the hands of lawyers less three weeks before two powerhouse sailing teams are to begin their showdown in Spain.

Two-time defending champion Alinghi of Switzerland made two filings in New York State Supreme Court on Friday against American challenger BMW Oracle Racing. One defends the legality of the sails for its giant catamaran, Alinghi 5. The other questions the legality of the monster trimaran USA and said the craft should be disqualified if it doesn’t compete with a certain sail configuration.

The continued bickering between two of the world’s richest men has threatened to delay the nautical grudge match for the oldest trophy in international sports. It’s set to begin Feb. 8 off the Valencia coast in two of the fastest, most powerful sailboats ever built.

BMW Oracle Racing spokesman Tom Ehman said the syndicate hopes the issues will be clarified in time for racing to begin as scheduled.

“We don’t want a cloud to be hanging over the results of this match,” Ehman said Friday from New York, where the team is preparing its response papers that are due Wednesday. He said a hearing could be scheduled for early February.

The Swiss also hope the racing isn’t delayed.

The Americans “should end their legal strategy to try to delay the Cup and to try to gain competitive advantage over the defender and should proceed with the competition on the water,” said Fred Meyer, vice commodore of Alinghi’s backing yacht club, Societe Nautique de Geneve.

The latest chapter in the long, convoluted fight between American software tycoon Larry Ellison of Oracle Corp. and Swiss biotech mogul Ernesto Bertarelli centers on each team’s interpretation of the Deed of Gift, the 1887 document that governs the America’s Cup.

BMW Oracle Racing returned to court this month claiming the sails for Switzerland’s catamaran, Alinghi 5, must be built in Switzerland to conform with the Deed of Gift’s constructed-in-country clause. They said Alinghi was planning to use sails built at North Sails’ plant in Minden, Nev.

Alinghi countered Friday by saying the Deed calls only for the hull to be constructed in the team’s country of origin, not the sails and other components.

Even if the American team’s claim was legally viable — “and it is not,” the Swiss filing reads — Alinghi said its sails are constructed in Switzerland, using a template built in Nevada.

The Swiss back their claim with an affidavit from Tom Whidden, the CEO and president of North Sails who was Dennis Conner’s tactician in several America’s Cup campaigns.

Whidden said Alinghi provides a design and North Sails makes pieces of the 3DL sail — a patented process of laminating carbon and other fibers between two layers of Mylar — and ships them to the team’s loft in Villeneuve, Switzerland. The Swiss then join the pieces to form the body of the sails and add finishing touches, Whidden said.

“At North Sails, we consider the sail to be completed as a usable sail when the sail is in one piece and when the finishing process for the sail is completed,” Whidden wrote.

Ehman likened the 3DL process to mixing ingredients and baking a cake. “Shipping that cake to Switzerland and adding some candles does not make it ‘Swiss-made,’ ” he said.

The Swiss also filed a counter-motion in which they appear to be protecting themselves by saying that if the court finds the Swiss aren’t in compliance with the constructed-in-country provision, then it wants the court to look into the American boat, as well.

In that filing, the Swiss say the addition of a radical wing sail on USA means the trimaran is no longer sloop-rigged as stated in the challenge papers filed in July 2007 by BMW Oracle Racing’s sponsor, Golden Gate Yacht Club. A sloop-rigged yacht has a mainsail and a foresail, or jib. The Swiss argue that the wing is not a sail.

The Americans added the wing sail late last year while training in San Diego. Soaring 190 feet off the deck of the 90-by-90-foot boat, the wing has a front and a rear element separated by a spar. The rear element operates just like the flaps in an airplane wing.

The wing allows the trimaran to accelerate and maneuver better than with a traditional soft-sail rig, with a mainsail and foresail. USA is believed to have sailed at three times the speed of the wind.

Ehman said USA has sailed with both the wing sail and a jib. He called Alinghi’s argument “a red herring and complete rubbish.”

Alinghi said BMW Oracle Racing’s “procedurally improper and meritless” motion should be denied or considered after the racing. But if the court considers the motion now, the Swiss asked that it order the Americans to use a vessel sailing with a mainsail and foresail at all times, consistent with the challenge certificate.

“Otherwise, the court should disqualify GGYC, including after the race,” the motion said.