| AUCKLAND, NEW ZEALAND-(9-1-2003) The International Jury has determined the procedures for any team wanting to protest Team New Zealand’s controversial hula appendage and says clear and compelling evidence that it touched the hull outside of the permitted attachment zone during racing would be required.
Following the unveiling of Team New Zealand’s two yachts on Tuesday, the deadline for technical protests for the Louis Vuitton Cup Finals and the America’s Cup Match was 3pm Wednesday. That passed without either of the remaining challengers, Alinghi or Oracle BMW Racing, lodging any protest against the Defender.
But, Rule 78.1 makes it clear that a close hull appendage may not touch the hull outside of the permitted attachment zone at any time during racing, leaving open the possibility of a red-flag protest from the Challenger during the Cup Match.
That begs the question whether it would be up to Team New Zealand to prove there had been no contact, or whether the Challenger would have to prove there was contact.
The answer from the International Jury puts the onus of proof on the Challenger. In reply to one of five questions posed by an unnamed team, Bryan Willis, chairman of the International Jury, states that “clear and convincing evidence would be required to satisfy the jury that the appendage had touched the hull…”
In reply to other questions Willis also notes that it would be appropriate for a competitor using a close hull appendage to have to demonstrate that the appendage did not touch the hull during racing and says the Measurement Committee may require a monitoring regime to ensure compliance.
Willis says if there was a protest, the International Jury would be bound by the decision of the Measurement Committee. The jury’s role would be to find the facts of the case and would then refer the matter to the Measurement Committee in accordance with Condition 9.1.
“The Measurement Committee would determine whether or not the class rule had been broken and so advise the jury,” says Willis in his reply. “The jury’s decision would reflect the Measurement Committee’s advice…”
Team New Zealand rules adviser Russell Green said he was happy that it has been made clear that the onus of proof is with the Challenger.
Oracle BMW Racing’s Tom Ehman said the syndicate had reached no conclusions about the Willis reply. “We are still studying it.” A spokesman for Alinghi said the team was waiting to hear from the Measurement Committee before commenting.
The position adopted by the International Jury confirms the supremacy of the Measurement Committee in matters relating to the measurement of ACC yachts and the interpretation of and compliance with the Class Rules.
Article 21.2 of the America’s Cup Protocol states that “decisions of the Measurement Committee shall be final and shall not be subject to appeal, or be referred to any court or other tribunal for review in any manner”.
This is further strengthened by Match Condition 18.3 which says the Jury “shall not have jurisdiction to determine matters within the jurisdiction of the Measurement Committee”.
The two Team New Zealand yachts which carry hula attachments have both been given certificates of compliance by the Measurement Committee. If the Measurement Committee believes a yacht has moved out of compliance for any reason, it can notify the Race Committee which will then lodge a protest with the International Jury.
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