ETNZ Protest

[Island Time 1,235]

APPLICATION

1. On 3rd September 2013 the Jury received an Application from Emirates Team

New Zealand (ETNZ):

2. ETNZ seeks a ruling from the Jury „that the Measurement Committee

effectively amended rule 19.1 of the AC72 Class Rule (“Class Rule”) and

therefore exceeded its jurisdiction when it issued Public Interpretation 54

(“PI 54”).

3. In view of the short time remaining before the commencement of the Match,

ETNZ requests that „the Jury in the first instance instigate a mediation

under Article 15.4(j) of the Protocol.‟

MEDIATION

4. The Jury‟s preliminary view is that this Case is not suitable for mediation.

DIRECTIONS

5. The Jury invites Parties to submit a Response to the Application. Responses

shall be e-mailed to all those on the Service Address List via

jurycomms72@americascup.com by no later than 18h00 PDT on Wednesday

4

th September 2013.

HEARING

6. The Jury envisages holding a hearing on Thursday 5th September 2013.

 

That bit is all fact. ..

 

Here is my current understanding of what is going on (could be completely wrong!!)

The ETNZ protest is about Oracle's foil control systems. Apparently Oracle can set the required angle of attack for the foils, and that is maintained automatically by the hydraulic control systems. ETNZ beleive this breaches the Automation rules.

 

Also,

 

Oracle still have no boat for Sunday’s race 1. Neither of their boats have measurement certs, and are therefore not eligible to compete.

 

The main issue for them for boat 2 (their primary race boat) is a protest by ETNZ on the 3rd Sept re the control mechanism for the primary foils. ETNZ believe that the Oracle system breaches the automation rules, and therefore excludes the boat from measuring. This is a critically important aspect of vessel safety and control. If Oracle are forced to change it at this stage, it will make their boat less safe, and more probe to a catastrophic event.

 

Jury decision due tomorrow...

 

All IMO, info via various sources, none of it substantiated. But it seems logical...

[Guest]

Wonder if we will see a Red Flag straight after the start?

[Guest]

Not sure if this is actually an issue with ETNZ systems. PI 54 actually ends with an answer to a very technical question as 'No', the particular system is not allowed, which to me indicates that ETNZ may be using a system that has been ruled out, otherwise why protest. If OTUSA were using the system then the protest would be against them at race start time.

[Mothership 6]

Or as Sailing Anarchy refer to them as: Whoracle

[Romany 162]

What is the content of PI 54?

[Island Time 1,235]

yep, on further consideration, it appears the issue may actually be referring to a system on ETNZ...

But etnz has a current measurement cert, oracle does not.

PI 54 does Not allow a system that was previously allowed...in pi 47 and pi 49. to protest pi54 to try to make that item allowed, must mean you want it? or, perhaps to get clarification to confirm its not allowed... if opposition is using it?

 

too complex - does my head in. need more info!

[Guest]

What is the content of PI 54?

 

Hi Romany, the docs are all here;

 

http://noticeboard.americascup.com/

[Romany 162]

Thanks. looked but could not find earlier.

[Chewing Gum 17]

From the Herald:

 

Just when you thought we were ready to go racing, yet another America's Cup jury hearing is under way in San Francisco.

 

Team New Zealand are seeking clarification from the jury over the America's Cup measurement committee's interpretation of one of the class rules.

 

The Kiwi team believe the measurement committee effectively altered the class rule when it issued a public interpretation notice last week, in response to questions Oracle Team USA asked of the committee.

 

The rule in question relates to the use of stored energy and non-manual power. It is believed Oracle's daggerboard rake system has some level of automation to it and Team New Zealand have asked the question of the jury whether it is within the original intent of the rules.

 

In an obvious show of gamesmanship, Team NZ filed the papers with the jury on Wednesday shortly before they released their decision on what penalties OTUSA would incur for making illegal modifications to their boat.

 

 

Should the jury rule in favour of Team New Zealand it would be yet another massive disruption for Jimmy Spithill and his team as they prepare for their Cup defence, leaving them with 24 hours to make changes to their boat.

 

A decision is expected to be released later today

[Romany 162]

Good, old fashioned sh*t stirring - or 'gamesmanship' - IS legal.

 

Good on ETNZ and I hope the jury stick it up Oracle. Once a cheating pack of bastards always a cheating pack ..

[ScottiE 174]

Where did this end up?

[otto 31]

Scottie, here's a mouthful for ya.

 

JURY CASE AC16

JURY NOTICE JN051

EMIRATES TEAM NEW ZEALAND

and the

MEASUREMENT

COMMITTEE

DECISION

1. On 24th September 2012 Emirates Team New Zealand (ETNZ) filed an Application,

replacing an earlier Application filed on 21st September 2012.

2. In the Application ETNZ sought a ruling from the Jury that the Measurement Committee

(MC) effectively amended the AC72 Class Rule (Class Rule) and therefore exceeded its

jurisdiction when it issued Public Interpretation (PI) 22. They proposed that the Jury

replace PI 22 with a determination, for which ETNZ provided the wording in their

Application.

3. On 24th September 2012 the Jury issued Jury Notice JN050, which included: “On 21st

September 2012 in order to ensure that there was no doubt that ETNZ complied with

Article 15.10 of the Protocol, and in consideration of the sensitive and then confidential

nature of the matter, ETNZ sent an Application to the Jury Chairman. Such Application

was held pending the outcome of discussions between relevant parties to see if a

resolution could be found. The matter was not able to be resolved. The Jury is satisfied

that ETNZ has met the fourteen-day time limit for filing in Article 15.10 of the Protocol.”

4. The Application was distributed to all Parties via the “jurycomms” distribution system.

Any Party wishing to submit a Response was required to do so by 30th September 2012

with ETNZ being entitled to submit a Reply by 2nd October 2012.

APPLICATION BY EMIRATES TEAM NEW ZEALAND

5. ETNZ claimed that “PI 22 is not in accordance with the wording of the Class Rule. It

applies what the MC considered was a logical rationale, but in doing so they have not

followed the clear wording contained in rule 25. The interpretation effectively amends

the wording of the Class Rule.”

6. ETNZ also submitted that “measurement condition” is a defined term and “therefore

there can only be one measurement condition under the Class Rule”.

7. ETNZ further submitted that “Rule 25.1 requires the yacht to be brought to

2

measurement condition to determine measurement weight and says that measurement

condition includes everything aboard the AC 72 yacht during a race except........ (in

effect this is the definition of measurement condition).”

8. ETNZ also submitted that “Rule 25.2 follows on to say that MWP shall be determined

when the AC 72 yacht is ‘floating in measurement condition and’ ..... items (a) to (d).

The clear wording of this clause is that the requirements of (a) to (d) including the

requirement to have appendages in their lowest possible position are in addition to the

primary requirement to be ‘floating in measurement condition’ and apply only to the

determination of MWP. The way the rule is worded these requirements are not included

as part of the requirements for measurement condition, they are additional items.”

9. ETNZ submitted that “If the requirements of 25.2 (a) to (d) were to be part of the

definition of measurement condition then those requirements would also have to be met

when determining measurement weight, but PI 16 confirmed they do not apply to the

determination of measurement weight.”

10. ETNZ further submitted that “Rule 1.4 (k) defines hull as ‘a canoe body part of which

displaces 45% or more of the AC72 Yacht’s displaced volume when floating in

measurement condition’. There is no reference to the additional items on top of

measurement condition specified in 25.2 (a) to (d), by saying they are required when

calculating the volume of the hull PI 22 is therefore effectively amending both rules 25

and 1.4(k).”

11. In ETNZ’s view “the only possible interpretation of the wording of the Class Rule is that

measurement condition referred to in rule 1.4(k) is as specified in rule 25.1, the

additional requirements listed in 25.2 only apply to the determination of MWP, and

therefore daggerboards may be retracted when calculating the percentage of displaced

volume of the canoe bodies to determine compliance with the definition of hull in rule

1.4(k).”

12. ETNZ claimed that the “effect [of PI 22] is an unintended consequence, as the intention

of Class Rule 1.4(k) was never to limit daggerboard volume but to prevent circumvention

of the hull rule with ‘hula’ type rule bending appendages. It has only become significant

because in later versions of the Class Rule the Wing was separated and the arbitrary

percentage not altered.”

13. ETNZ stated that they appreciated that in issuing PI 22 the MC acted in good faith.

ETNZ also understood “that the MC were under the misapprehension that no

Competitor would be detrimentally affected by the constraints of the interpretation”, but

that “they overlooked the clear and unambiguous wording in rules 25.1 and 25.2 and in

doing so exceeded their jurisdiction.”

RESPONSE FROM THE MEASUREMENT COMMITTEE

14. The Measurement Committee (MC) filed a Response signed by all three of its members

on 30th September 2012.

15. The MC submitted that PI 22 had not amended the AC72 Class Rule and they had

acted within their jurisdiction when issuing it.

16. The MC submitted that “the only reasonable interpretation of rule 1.4(k) is that it

anticipates that appendages are immersed below MWP, and therefore displacing

volume, with the yacht floating in measurement condition.” They also submitted that rule

1.4(k) is an explicit limitation on the volume of immersed appendages and “to interpret

3

the rule in a way that renders this limitation meaningless [....] would be inconsistent both

with the original intent of 1.4(k) and the words as written.”

17. The MC further submitted that rule 25.1 relates to establishing the weight of the yacht.

The MC stated that rule 25.1 does not require that all components be installed and they

only need to be aboard. They submitted that if the requirements of rule 25.1 were

applied to rule 1.4(k) in isolation then the yacht could be floated in measurement

condition with the appendages removed, the effect of which would be “each hull would

always displace 50% of the total immersed volume.”

18. The MC submitted that they “determined that the most reasonable interpretation of the

Class Rule is to apply rule 25.2 for the purposes of ‘floating in measurement condition’

as required in 1.4(k). This requires the appendages to be in their lowest possible

positions.” The MC stated they “incorporated into interpretation No. 22 the approach

which best gives effect to the rule as a whole.”

19. The MC provided some background to the creation of the Class Rule and stated “Rule

25 is not clear in that it doesn't explicitly state which parts of that rule are to be applied

for the purposes of rule 1.4(k).” The MC found that the “limits ultimately incorporated into

rule 1.4(k) were not changed to take into account the separation of the wing from the

platform weight that occurred during the development of the rule”. When the MC

became aware that some designs might not comply with the relevant Rules, the MC

proposed a change to the Class Rule but “Competitors who had designed and built their

yachts in compliance with the published rule declined to support such an amendment.”

20. The MC also submitted that “to interpret the rule in a way so as to nullify the constraints

contained in 1.4(k) would… in… itself constitute a Rule amendment, adversely impact

on those who have relied on the Rule as written, and be inconsistent with what the

Measurement Committee believes was the intention of the original authors (i.e. to place

a limit on appendage volume).”

RESPONSE BY LUNA ROSSA CHALLENGE 2013

21. Luna Rossa Challenge 2013 (LR) filed a Response on 30th September 2012. They

submitted that the Class Rule is not precisely written and they provided examples of

amendments that were just corrections. They submitted that there are several

measurement conditions as provided for under rules 25.1, 25.2, 25.3 and 25.4. They

submitted that PI 22 ignored the plain language of the Class Rule which recognises

there are several measurement conditions.

22. LR further submitted that PI 22 had the effect of modifying the Class Rule, that it was

arbitrary and was contrary to PI 16.They stated LR had interpreted that to comply with

the definition of measurement condition as it was established in Class Rule 25.1 and

that Class Rule 25.2 does not apply to the definition of hull because it is not the

“measurement condition”, but an additional set of requirements for MWP.

23. They submitted that there is no requirement in the Class Rule to determine compliance

with the definition of “hull” with the daggerboards fully down and that PI 22 had modified

the Class Rule.

RESPONSE BY ORACLE TEAM USA

24. Oracle Team USA (OTUSA) filed a Response on 30th September 2012. They submitted

that “ETNZ have built boards whose volume is greater than what is allowed in rule

4

1.4(k). It seems that after failing to have the measurement weight of the yacht increased

for calculating displacement to make their hulls and appendages legal, they are now

trying to create compliance by having the weight of the appendages count but the

volume of the appendages set aside. The rule does not provide for this and the proposal

in paragraph 31 of the ETNZ application would result in making the definition of Hull

meaningless.”

25. OTUSA submitted that the Application should be dismissed and PI 22 should remain as

published by the Measurement Committee. In their view “the Measurement Committee

correctly interpreted the language of the rule and as the authority responsible for the

interpretation of the AC72 Class Rule they have acted within their jurisdiction in issuing

interpretations of the rule as it is written.”

26. OTUSA further submitted that it follows from the definition of MWP (rule 1.4(v)) that “the

yacht can only be floating in measurement condition when it is floating on its MWP

floatation plane. Therefore the floatation plane for measurement condition must include

the appendages in their lowest position (and other requirements specified in rules 25.1

and 25.2).”

27. OTUSA also submitted “ETNZ try to argue that there is only one measurement

condition. What the rule actually provides for is one condition used for determining

weight (rule 25.1); one condition when determining issues related to it’s water plane

when in measurement condition, be it MWP and the 15 rules that relate to MWP (rule

25.2); a condition that the wing must be in when measured (rule 25.3); and finally a

catch all to ensure all items are accounted for in the measurement process (rule 25.4).

Rule 25.1 defines the measurement condition (non exclusive) used to determine

measurement weight; it does not say this is the only measurement condition. It simply

includes a list of requirements (a) through (f) for determining the measurement weight.”

28. OTUSA submitted that they did not agree with ETNZ’s statement in paragraph 27 of

their Application that “f there is ambiguity in the wording then the intention of the rule’s

authors may become relevant”. In OTUSA’s view the Jury in Case AC06 provided

advice in Jury Notice JN024, paragraph 23, as to how rules are to be interpreted, when

the Jury stated “when a text is ambiguous, the Jury must interpret the words as written,

even if they may not always deliver the apparent intent of the author. Therefore, the Jury

must not consider, after the Protocol is in place, views expressed regarding the

intentions of the authors for the purpose of departing from the text as written. To do so

could result in significant uncertainty. Competitors are entitled to rely upon the words of

the Protocol as written.”

29. OTUSA also submitted that ETNZ “had from October 2010 to ask the questions in PI 16

and PI 22. Furthermore, the Measurement Committee interpretation of measurement

condition including what is specified in rules 25.1 and 25.2 was clear in PI 7 that was

published in November 2011 and ETNZ voted for language that included rule 25.2 as

part of measurement condition in March 2012. Delaying asking such questions until after

they have ‘...designed and built at considerable expense...’ daggerboards is simply an

ETNZ error.”

30. OTUSA concluded: “the Measurement Committee have relied on the text as written in

the whole rule. The Measurement Committee has consistently applied the same

interpretation of the rule in interpretations up to and including PI 22. It is the

Measurement Committee who is the authority to interpret the AC72 Class Rule and they

have correctly done so in regards to PI 22.”

5

RESPONSE BY ARTEMIS RACING

31. Artemis Racing (AR) filed a Response on 30th September 2012. AR strongly opposed

the ETNZ Application. They submitted the AC72 Class Rule is two years old and

Competitors have been designing their Yachts and wings based on such Rules as

written and on previous interpretations made by the MC.

32. AR submitted that “Class Rule 25, in its entirety, sets out measurement conditions for

AC72 Yachts hulls and wings” with rule 25.1 not being a full and complete definition of

measurement condition. To determine compliance with rule 1.4(k) “the only rational

interpretation is to require both AC72 Class Rule 25.1 and 25.2 to be adhered to.”

33. They also submitted that measurement condition had already been addressed in PI 7

and voted on in favour of in Amendment No 5 and that ETNZ misunderstood PI 16.

34. AR considered that the ETNZ view was not logical and it would make rule 1.4(k)

meaningless. “ETNZ is essentially arguing that there are two floating measurements to

take, one to determine MWP (…) and another one to determine whether the hulls have

sufficient volume. This ignores the clear link between AC72 Class Rule 1.4(v) and 1.4(k)

and makes no sense.”

35. AR also submitted that “rule 1.4(v) states that MWP is the flotation plane in

measurement condition”, and that “it is clear that obtaining an accurate MWP is the first

step in determining whether AC72 Class Rule 1.4(k) is complied with.”

36. They submitted that the Application was an attempt by ETNZ to change the AC72 Class

Rule to suit their own interest, that the MC had previously answered ETNZ's questions

and that the Class Rule is clear. AR considered the Application should be dismissed and

all costs paid by ETNZ.

RESPONSE FROM AMERICA’S CUP RACE MANAGEMENT

37. America’s Cup Race Management (ACRM) filed a Response on 30th September, 87

minutes later than the deadline set in JN050. Prior to expiration of the filing deadline

ACRM requested an extension of time due to difficulties in obtaining final instructions

from the Regatta Director, who was in a different time zone. OTUSA raised with the Jury

the late filing time and were given the opportunity to formally raise the issue but they

chose not to do so. The Jury has accepted the ACRM Response with no Party being

prejudiced by the Response being filed shortly after the specified deadline.

38. ACRM submitted that the case had “arisen due to inconsistencies in the drafting of the

Class Rule.” They submitted that “when drafting the Protocol it was considered

important the competitors be able to rely completely on the Class Rules as drafted ......

and not to be prejudiced by new rules unless they have consented to them, even if the

outcome of applying the plain language used in the Class Rule has an unintended

outcome.”

39. ACRM also submitted that the history of the America's Cup had many examples of

technical innovations exploiting provisions of the Class Rule not considered when it was

drafted “and is often accompanied by determined efforts on the part of other competitors

to outlaw the innovation. Innovation of one competitor is rule breaking to another.”

40. ACRM noted that in issuing PI 22 the MC had “acted in good faith and endeavoured to

6

interpret the AC72 Class Rules in accordance with their view of the intent of the Rules

and avoid an outcome that was not intended.”

REPLY BY EMIRATES TEAM NEW ZEALAND

41. EMIRATES TEAM NEW ZEALAND (ETNZ) filed a Reply on 2nd October 2012. They

stated that the submissions made by Competitors reflected where each Team “is

currently positioned design wise in relation to this issue.” They noted that both the MC

and ACRM as independent bodies had alleged there are defects in the drafting of the

Class Rule.

42. ETNZ submitted that in the MC confirming in paragraph 1.24 of their Response that in

providing PI 22 they had considered what gives best effect to the Rule they had “looked

past the plain wording of the rules and exceeded their jurisdiction.”

43. They submitted that the MC are not correct to read into rule 1.4(k) that “a yacht must be

in MWP for the purposes of determining compliance”, which they submitted was

inconsistent with the words of the rule, which does not mention MWP. They submitted

the only part of rule 25 that specifies requirements for measurement condition is rule

25.1, and that rule 25.2 does not provide measurement condition requirements.

44. ETNZ further submitted that there are not multiple measurement conditions under the

Class Rule. To interpret otherwise would be in conflict with the plain wording of the

definition of measurement condition of rule 1.4(s), which is singular. They submitted that

measurement condition is as specified in rule 25.1 and not elsewhere.

DISCUSSION

45. Class Rule 5.1 requires an AC72 Yacht to include two “hulls”: “The AC72

Yacht

shall be a

vessel, generally known as a catamaran, with two hulls

connected …”.

46. A hull is defined in Class Rule 1.4(k) as “a canoe body, part of which displaces 45% or

more of the AC72 Yacht’s displaced volume when floating in ‘measurement condition’.”

47. “Measurement Condition” is a defined term. Rule 1.4(s) says: “measurement condition

means the condition of the AC72 Yacht as specified in rule 25.” Included in rule 25.1 is:

“The measurement condition includes everything aboard the AC72 Yacht during a race

except [wing, people, soft sails, etc]”. It is the opinion of the Jury that this definition

stands alone and is unequivocal. The words are not ambiguous. If they do not reflect the

intent of the Class Rule authors, that is not a matter the Jury can correct.

48. Rule 25.2 deals with a separate and distinct matter, namely the determination of MWP.

For this purpose alone, the definition of “measurement condition” in rule 25.2 is used

with the addition of further requirements such as daggerboards being down and casings

being flooded.

49. The Jury therefore concludes that for the purposes of determining that a hull is “a canoe

body, part of which displaces 45% or more of the AC72 Yacht’s displaced volume when

floating in measurement condition”, the daggerboards need not be down.

50. To test whether a hull is indeed a hull according to the definition, it must be floated in

“measurement condition” (the definition for which is in rule 25.1) to determine whether it

7

displaces 45% or more of the AC72 Yacht’s displaced volume.

51. In PI 22, the MC “interpreted” the wording of the Class Rule as if the amendment had

been made. The MC acknowledged in 1.36 that its interpretation was “our perception of

the intention of the original authors”.

52. In its Response, the Measurement Committee said (in para 1.28) it “was made aware

that some designs might not comply with this rule” (presumably after issuing PI 22) and

that it had “proposed the following amendment to the Class Rule that would have

effectively re-instated the appendage volume limits as contained in the earliest draft of

the rule”.

53. The MC’s proposed rule amendment was: “1.4(k) hull means a canoe body, part of

which displaces 45% or more of the AC72 Yacht's displaced volume when floating at

sailing weight, but with the yacht otherwise configured as specified in rule 25.2.”

54. The proposed rule amendment not only added the wing to the weight (“sailing weight”

being with the addition of the wing) but also included the phrase “but with the yacht

otherwise configured as specified in rule 25.2”. It is the Jury’s view that without this

phrase included in the rule it cannot be said that the additional requirements in rule 25.2

would apply when determining the 45% requirement.

55. The MC went on to say (in 1.29) “Competitors who had designed and built their yachts

in compliance with the published rule declined to support such an amendment, as is

their right, and the proposed change was not adopted.”

56. The Jury accepts that the “45%” limitation was to allow a maximum of 10% for

displacement of all the foils, and that this Decision will remove this limitation.

57. In their Responses both OTUSA and AR referred to the Jury’s Decision in Jury Case

AC06, as to how rules are to be interpreted. The Jury affirms that it will not consider the

perceived intentions of an author.

58. The MC should not have considered the intentions of the original Class Rule authors in

issuing PI 22. Upon finding flaws in the Class Rule the MC was faced with a difficult

situation, given their view on what was the intent of the Class Rule. There is no question

that they acted in good faith and as measurement experts sought to resolve the issues

resulting from deficient wording in the Class Rule.

DECISION

59. The measurement condition referred to in Class Rule 1.4(k) is as specified in Class Rule

25.1, and excludes the additional requirements specified in Class Rule 25.2, which are

additional requirements required only for the determination of MWP.

60. Under Protocol 15.4(f) the Jury determines that the Measurement Committee has, in PI

22, amended the Class Rule and therefore exceeded its jurisdiction. PI 22 is an invalid

interpretation and the Measurement Committee is directed to withdraw it.

61. The Jury determines pursuant to Protocol Article 15.4(f) that daggerboards may be

retracted when calculating the percentage of displaced volume of the canoe bodies

when determining compliance with the definition of “hull” in Class Rule 1.4(k).

8

COSTS

62. ACRM submitted that “in the circumstances of a drafting oversight, the Jury’s costs in

determining the Application should not be directly borne by any individual Competitor

and should lie where they fall”. The Jury concurs with this view.

63. In accordance with the Jury Guidelines for the Award of Costs and Expenses published

on 13th August 2011, the Jury considers that the Decision is of universal application and

for the benefit of a significant number of AC72 Competitors. Therefore there will be no

Award of Costs.

David

Tillett

JURY:

David

Tillett

(Chairman),

John

Doerr,

Josje

Hofland,

Graham

McKenzie,

Bryan

Willis

[Battleship 100]

That's an old (2012) one referring to daggerboard volume.

The current issue is over the Oracle daggerboard controls.

[Island Time 1,235]

ETNZ protest was denied, as they said it was really a protest over PI49 (or maybe PI47, can't remember) and was therefore posted outside the 14 day period. So they got nowhere....

Jury also said they most likely would have rejected it anyway.