Aug 17, 2009, 1:45 PM
Post #1 of 1
As soon as the one-on-one America’s Cup Match between the Swiss and American clubs became a reality, and that the Deed of Gift would be the tool used to organize this event, attention toward a simple line in the Deed has frequently bubbled to the surface:
America's Cup - Constructed in Country
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“… a yacht or vessel propelled by sails only and constructed in the country to which the challenging Club belongs…”
The American team, BMW Oracle Racing (BOR), with all the technology in the U.S., believed they had the Swiss Alinghi team on the ropes. BOR has opined that any unique and custom built part must be constructed in the country of origin, such as the hull, the spars, the sails, etc. While BOR could rely on Boeing, Hall Spars, and North Sails, who would the Swiss leverage? The only opening that BOR has allowed is in regard to commercially available parts, such as fastners or building materials, as those such items can be purchased from any country.
BOR has already contended that the Alinghi team has not been faithful to the Deed, but has the BOR team also crossed the line? Yes, Tim Abady emphatically says, the BOR interpretation of the Deed is off base. Here he explains:
“This is pretty simple really. The Deed of Gift says ‘constructed’ and as I have the 1887 edition of Webster’s Dictionary (the year of the Deed), it defines the word ‘construct’ as follows:
“‘To put together in their proper place and order the constituent parts of; to build; to form; as, to construct an edifice.’
“There are no conditional limits or riders on ‘constructed’ in the Deed. So we can deduce from the ‘simple language’ of the Deed - that Mercury Bay and the Courts say they must follow - that it really does mean ‘constructed’, no more, no less.
“So the commercially available fasteners, etc you mention cannot possibly be suddenly construed as okay to attain out of country when other things are not. This is just a ridiculous interpretation. It could lead to court case after court case, from all sides, on the ‘commercial’ availability of an item, the meaning of ‘commercially available’, the provenance of a raw materials, etc. etc.
“Let's face it, the boats just have to be ‘put together’ in the country of their Yacht Club, as they always have been, get to the venue, race on the water and let the best man win. Full stop.
“If BOR, or anyone else for that matter, try to put that one over the Courts, I shall be most inclined to file and Amicus brief.”
The bad news is that any protests on this issue would not surface until AFTER the racing begins. Additional information: http://www.sailingscuttlebutt.com/news/09/construct.pdf