America's Cup- ISAF report 'applauds' Bennett's unilateral actions

by Richard Gladwell on 28 May 2010
The International Sailing Federation's Race Officials Committee has 'applauded' the actions of Principal Race Officer, Harold Bennett, in starting the second race of the 33rd America's Cup, against the wishes of the Defender appointed Race Committee, and in the face of a subsequent 'mutiny' from three of the members of that Committee.

In a 46 page report, the 10 strong committee led by Charley Cook (USA), did not recommend that any action be taken against the three 'mutineers' - Fred Meyer, Marcel Beauvard, and Nicolas Grange - all members of the Societe Nautique de Geneve, then Defender of the America's Cup, and organiser of the 33rd Match as required by the 19th century Deed of Gift that governs the America's Cup.

The reason for the lack of action, would seem to be the fact that none of the three are ISAF certified officials and the ISAF, under its regulations, did not have the authority to act against the three 'mutineers'. Had they been certified ISAF Officials, then their treatment could have been very different.

After waiting for several hours for the breeze to build and settle, and for the large overnight northerly swell to die down, Harold Bennett made a decision at about 1600hrs that racing would start at 1625hrs, just five minutes before the deadline prescribed for racing on Friday 12 February, 2010.

That decision was not welcomed by three members of the Race Committee appointed by the Societe Nautique de Geneve (not ISAF), who believed that the decision to start a race lay with the Race Committee and not the Principal Race Officer.

(Although the Committee comprised four members by prior arrangement that had five votes, with Bennett holding two votes, to avoid any 2-2 vote decisions, indicating that maybe the SNG officials were acting under the impression that they did have the option to vote on key decisions.)

After Bennett had made his decision that the race would take place, the three SNG officials went below decks and did not perform their duties to start the race. Such actions are very unusual in the sport, and are unprecedented at this level, where normally all officials would be certified by the ISAF and appointed by that body.

Bennett was forced to second others on the boat to assist and the race got underway at the designated time of 1625hrs.

USA-17 went on to win the race and won the America's Cup from Societe Nautique de Geneve, ending the Swiss club's seven tenure as Defender of the America's Cup.

The initial report from the Principal Race Officer to the ISAF said in reference to the incident: 'It has been widely reported that an incident took place on the Committee Boat during the 2nd Race of the 33rd America's Cup.

'An incident did take place where three members of the Race Committee voted 3 to 2 (as I had 2 votes) not to start in 7 knots with a wave state of approx 0.8m — 1 m swell. I weighed up all the facts and decided to continue with the start and the race.

'The other IRO on the Committee Boat Pascal Monet (SNG) but not a member of the Race Committee agreed with my decision.

'The race was sailed in 7 - 10 knots of wind with a slight swell and took a little over two hours to complete the 39 mile triangular course.

'The reasons for the three members disagreeing with my decision are purely speculation as I was not part of any other conversation taking place. I have no interest in pursuing this matter any further,' Bennett concluded.

In a separate report to the ISAF, International Jury Chairman, David Tillett (AUS) commented on the nuances of organisation of the America's Cup Match, and how these are not aligned with the provisions of the ISAF's Racing Rules of Sailing, which govern the conduct of the America's Cup races.

'Significant issues arise in the context of the America’s Cup,' said Tillett, 'because the Trustee[under the America's Cup Deed of Gift] (SNG) being the Club that holds the Cup is also a competitor.

'In this case, SNG appoints the Organising Authority and the Race Committee. ISAF appointed the Principal Race Officer, Harold Bennett (NZ), and he was contracted with ISAF. He was also a member of the Race Committee. The Race Committee also included three other members, all from SNG who were also present on the Committee Boat and saw their role as ‘active'.

'At an earlier hearing in New York [under the jurisdiction of the New York Supreme Court] a question was posed by the New York Supreme Court to an expert panel of myself, Bryan Willis and Graham McKenzie, 'Is it safe to race in Valencia in February?' The panel was advised in the hearing conducted in New York by SNG’s representative that Harold Bennett would be the Principal Race Officer and would make that call and that he was experienced and was capable of making that call.

'The panel adopted that approach, found it safe to race in Valencia in February on that basis, as did the Court,' said Tillett.

Turning to the event itself, Tillett continued 'a situation arose at the start of the last race where the Principal Race Officer determined that the race was safe and suitable to sail (wind strength approximately eight knots, wave height approximately one metre) but the other three members of the Race Committee expressed the view that they did not consider it was safe to do so and endeavoured to prevent the race from proceeding.

'Issues arise in relation to the authority of the Principal Race Officer in light of RRS 90.1 which provides, The Race Committee shall conduct races as directed by the organising authority as required by the rules'.

'The normal practice (which becomes particularly relevant where ISAF appoint the Principal Race Officer) is that the Principal Race Officer would be making the decision on whether or not it was safe to race — not the Race Committee (which of course was not independent in this case), In this case the Principal Race Officer proceeded and conducted the race notwithstanding the Race Committee not supporting that decision. There were no subsequent requests for redress from either competitor,' Tillett concluded.

Then in a second report to the International Sailing Federation, David Tillett who is a respected lawyer, Chairman of the ISAF Racing Rules Committee, and Jury Chairman for the 2008 Olympic Games, plus Jury Chairman for the 2007 America's Cup expanded on his earlier report, and commented on how the mixed authorities occurred. Tillett also commented on several other incidents that occurred during the regatta.

Tillett: The Race Committee was made up of Harold Bennett (IRO), Fred Meyer, Marcel Beauvard, Nicolas Grange, the latter three being SNG appointments.

It was never really clarified as to who actually was the Chairman of the Race Committee with Harold Bennett believing he was and Fred Meyer asserting that he was, but it was accepted that Harold Bennett would have two votes. The issue was therefore not pursued since that was agreed!

I believe Harold Bennett exercised his responsibilities professionally during the event and gained significant credibility for his decisions and exercised his role independently.

The other Members of the Race Committee from SNG were also present on the Race Committee boat. I had discussions with Harold Bennett prior to the event concerning a BMW Oracle and Alinghi representative being permitted on the Race Committee boat as observers and encouraged this sensible suggestion from Harold Bennett. SNG were aware of this several days before the event.

Shortly prior to the Race Committee going on the water for Race 1, Tom Ehman attended at the Race Committee boat as the BMW Oracle representative and SNG representatives indicated that it was unacceptable to have him on the Race Committee boat. Following several telephone discussions, and with the Jury Chairman and Harold Bennett maintaining that Tom Ehman was quite acceptable being BMW Oracle’s nominee, Tom Ehman took his place on the boat along with Lucien Masmejan representing Alinghi. Such a situation should never have occurred.

The 'Mutiny'
The 'mutiny' in Race 2 has received extensive commentary in the press and has been reported to you in Harold Bennett’s report. The issue of wind limits and wave limits was a topic the subject of a hearing before the Jury (refer request 01-4 Jury Decision where the Jury found that for SNG to impose wave limits and wind limits was in breach of the Deed of Gift and request 01-3 which dealt with the failure to mutually agree on a starting time for races which is also linked into anticipated weather conditions at the time).

As Harold will outline the circumstances being on the boat at the time, I will not repeat those other than to note the following:

1. SNG in its submissions to a question posed by the Court in New York to the Panel, asked whether or not it was 'safe' to conduct racing in Valencia in February. SNG submitted to the Panel that Harold Bennett an experienced IRO appointed by ISAF was well equipped to decide such issues and that it was safe. The Panel and the Court adopted that approach. GGYC had always maintained it was 'safe' to race in Valencia at that time with appropriate race management and application of the Racing Rules of Sailing.

2. RRS 90.1 provides 'the Race Committee shall conduct races as directed by the Organising Authority and as required by the Rules'.

The normal practice is, of course, for the Principal Race Officer to make these decisions on the water. In this case Harold followed the normal practice and that is the very reason he was appointed (to make such decisions) not to mention being independent. It is interesting to note that Harold reported that no real discussion took place regarding the three other members opposing conducting the race, and he is not aware as to why they disagreed with his call. SNG (although they didn’t say it at the time!!) effectively rely upon RRS 90.1, and ignore their representations to the Panel.

I have referred to the Racing Rules Committee Working Party this issue and whether or not the Rules need to be changed to make this clearer. The issue is not simple as it could be argued the Race Committee and not one individual should make such decisions, unless the Race Committee has delegated that authority. It is also apparent that the Race Committee did not try to stop him conducting the race. I believe if this matter had come to the Jury there is little doubt Harold’s decision would have been supported. I also believe Harold’s strong approach added credibility and independently reinforced the standing of ISAF officials.

The America’s Cup provides, due the benefit of persons working full-time as the Rules advisers to syndicates and the professional nature of the event, the opportunity for various issues to arise that perhaps would not have otherwise have been considered.

It is however important that it is recognised that the Racing Rules of Sailing are written for the whole of sport and not for simply the professional end of the sport.

In this particular case I support the position taken by Harold Bennett in running Race 2 as I believe that conditions were clearly appropriate. I have also been told that Fred Meyer indicated to Harold Bennett half way up the first beat of Race 2 that he was correct in proceeding to run the race. (SW: Alinghi was ahead at this point in the race.) It should be noted that Alinghi flew a red protest flag close to the weather mark in Race 2. Alinghi did not proceed with a protest nor request for redress and I understand the reason for the red flag related to other issues which were not pursued.(SW: Spectator boats being in the start box and impeding Alinghi 5 which had been penalised for being inside the start box as she tried to get to her designated end of the start line.) I also contacted Alinghi’s rules adviser approximately 10 minutes after the race was completed to confirm that no protest or request for redress was being lodged to ensure that the 'all clear' could be given. I comment on this since SNG in a recent letter to its Members, which has received substantial press coverage, have questioned whether there was truly a race or not on that day.

Race Officials Committee Decision
In its six page dissertation on the facts and other considerations, the Race Officials Committee, the ISAF body charged with considering reports lodged by its officials after any international event, noted that 'ISAF Regulation 34 permits the ROC to investigate and take action when an ISAF Race Official’s conduct or competence is called into question. An ISAF Race Official is defined as 'a race official appointed by ISAF pursuant to Regulations 33 and 18.12.' Harold Bennett and Paco Quionero were the only ISAF Race Officials aboard the signal boat during Race 2.

'The Racing Rules of Sailing, the relevant portions of the International Jury Decision in AC33/01 relating to Request 01-4 and the relevant portion of David Tillett’s report to the ISAF Executive Committee make it clear that the decision to start, postpone or abandon a race is to be taken by the race committee. This is at odds with recent developments in race management practices and ISAF’s expectation when it appoints a PRO: that the ISAF-appointed PRO will be responsible for making all decisions relating to the conduct of racing, including the decision to start, postpone or abandon a race.

'The race committee decided. on a vote of 3 to 2. that race 2 should not be started on 14 February 2010, Despite the vote of the race committee, the PRO proceeded to start race 2. In light of ISAF’s practices and expectations concerning the role of ISAF-appointed PROs and the assurances made by SNG’s representatives in New York to the panel of experts. Harold Bennett had good reason to conclude that he had the authority to start Race 2', the Race Officials Committee Decision noted.

'While Harold Bennett’s actions to start Race 2 may have been inconsistent with a strict reading of the Racing Rules of Sailing and the voting and decision-making system to which he had agreed with the Organising Authority, his decision to start Race 2 was sound. and his conduct was consistent with his obligation to conduct racing in a fair manner. The ROC applaud his conduct and independent actions, and find no reason to take action under Regulation 34.

'Paco Quinonero performed his duties as expected, and is commended for his actions. There is no reason to take action under Regulation 34.

'The remaining members of the SNG-appointed race committee are not ISAF Race Officials, and are not subject to action under Regulation 34. Their conduct would not, in any event, merit action in light of (i) Harold Bennett's agreement with respect to the race committee voting and decision-making process. (ii) Harold Bennett's conclusion that any discussion concerning their conduct would be ‘purely speculation and (iii) the provisions in the Racing Rules of Sailing that require the race committee to conduct the races (including the decision to start. postpone or abandon a race).'

Full credit should be given to Pascal Monet (SUI) a recently lapsed ISAF International Race Officer (did not renew in 2009). Monet was probably in the most difficult position of the three who did continue with the PRO-ordered start. As he was no longer subject to ISAF sanction, it would have been easy for the Swiss national to side with his compatriots in stalling the start for beyond the 1630hrs deadline, but did not do so. While he may face some opprobrium back in his home country as a result, in international sailing circles at least, Monet as with the other two, can walk with his head high knowing that he acted correctly and honorably in a very difficult situation.

The Race Officials Committee conclude their report by recommending that the ISAF's Racing Rules of Sailing be considered by a working party so that it is clear that the PRO, rather than a Race Committee is responsible for making all decisions relating to the conduct of racing. including the decision to start, postpone or abandon a race.

The full report can be read by http://www.sailing.org/tools/documents/ROCFindingsandReport-%5B8925%5D.pdf!clicking_here