Thursday this week saw a hearing held in the Paris court to examine the action brought by the Kresk group against the Ultim 32/23 class, the two parties opposing on whether the SVR Lazartigue trimaran conforms to the exact rules of the class (see our article). During the process Samuel Tual, CEO of Actual, and Ronan Lucas, director of Team Banque Populaire, explained themselves during a telephone press briefing. Tip & Shaft looks back on the day.
It had the air of a race start Thursday at 2 p.m. on the sixth floor of the Paris courthouse, room 6.10, where the Paris Court was examining on a fixed-day proceeding brought by the Kresk group against of the Ultim 32/23 class. The courtroom was busy with five lawyers on François Gabart side and two representing the Ultim 32/23 class. The lawyers were notably accompanied by Gabart skipper of SVR Lazartigue and the president of the Kresk group, Didier Tabary, Cécile Andrieu, team manager of the trimaran, and Thomas Normand who is general manager of MerConcept.
The other side not come solo: representing the Ultim 32/23 class, we could see Cyril Dardashti, general manager of Gitana Team, Jean-Christophe Moussard, team manager of Team Sodebo Voile, Guillaume Neron Bancel, communication director from the Actual Group, Emmanuel Bachellerie, co-founder of Ultim Sailing, which runs the former Actual for Arthur Le Vaillant and Thierry Bouvard, director of sponsorship and patronage of the BPCE group, who has arrived at the end of audience.
The president opened with a reminder of the facts before ordering the lawyers for both parties to be brief and precise – 20 minutes each, no more. It was Diane Lamarche, for the Kresk group, who opened and we quickly realised that the two parties would be giving nothing away. “The funniest thing is that the person who carried out the project for Macif [Jean-Bernard Le Boucher, ex-director of Macif’s Marine Activity, Editor’s note] and actually sold the boat to us as an Ultim trimaran with all the characteristics that go with it, is now general manager of the class. And he comes to tell me today that my boat is not an Ultim trimaran!”
A “record of decisions”
at the center of the debates
The lawyer returned to the sequence of events, which Tip & Shaft had recounted on April 1: in particular referring to the appeal by the class at the end of 2021 to a panel of three experts to judge the compliance of the trimaran SVR Lazartigue with the famous OSR 3.11 from World Sailing. Quoting the report, Diane Lamarche continues: “To the question does SVR Lazartigue comply with OSR 3.11? The answer is yes, as it stands.”
In the process, the class’ monitoring committee, a body responsible for “ensuring compliance with the provisions of the Ultim class rules”, issued a report – which Tip & Shaft was able to consult in part -, in which it “issued a favourable opinion regarding the position of the sheet winches, in compliance with OSR 3.11 by the boat SVR Lazartigue”, before adding: “However, the monitoring committee strongly recommends that SVR Lazartigue reflect and try to find solutions to facilitate and optimize active and/or passive monitoring from the work area.”
Following this report, the Ultim 32/23 class decided to turn to World Sailing and all the parties ended up in a video meeting on February 16, an initiative of the French Sailing Federation to discuss the dispute and more broadly the operation of the class. This meeting which resulted in a “summary of decisions”, the fourth of which said in particular: “Following the request for interpretation of the class sent on February 9, 2022 to World Sailing concerning RSO 3.08 and 3.11, all boatowners accept the following alternative: a response from World Sailing arriving no later than March 4, 2022 applies to all. Then a response from World Sailing after March 4 results in a temporary exemption from OSR 3.11 in favor of SVR Lazartigue for its participation in the Route du Rhum 2022, the interpretation of World Sailing applying to everyone at the end of the Route du Rhum.”
Potential damages
at €18.5 million
It is the execution of this key point of the agreement that François Gabart (see our interview) and his sponsor are asking for, who believe that World Sailing’s response came on March 7, “backdated to 4, the fateful date, which is quite strange”, underlines Diane Lamarche. For the Ultim 32/23 class, World Sailing gave its opinion two weeks earlier: “The response from World Sailing arrived on February 23, it is an interpretation that defines the notion of the deck”, explains Alexandre Besnard, the attorney representing her.
Except that for the opposing party, this opinion is not valid because it is actually based on an inaccurate drawing of the boat. Guillaume Virtich, Kresk’s lawyer, thus showed the judges the drawing sent by the class to World Sailing in support of its request as well as the actual plans designed by VPLP architects of SVR Lazartigue: “It’s as if you were submitting to the town hall a drawing of your house made by your child to ask if you can make an extension. We were not out to deceive World Sailing and we would not have taken it otherwise.“
At the end of their pleading, Kresk’s lawyers request the execution of the memorandum of understanding of February 16 and therefore that the class grant François Gabart a new exemption to race the Route du Rhum. And in passing, in the event of non-participation, filed a claim for compensation for material damage valued at 18.5 million euros, linked to “a loss of media coverage and reputation.”
Safety and fairness are in question
Anne-Cécile Bannier-Mathieu and Alexandre Besnard, lawyers for the Ultim 32/23 class, first put forward “two guiding principles of the class being safety and sporting fairness.” The first, for which “the OSR 3.11 says that the majority of operators must be above deck for obvious visibility issues” -, and then produce photos of Banque Populaire XI, Sodebo Ultim 3 and SVR Lazartigue, to show that 360 degree visibility is not guaranteed on François Gabart’s trimaran.
Before quoting an excerpt from a boatyard visit report of the Class Supervisory Committee of May 10, 2019 (which will be repeated after a visit dated December 10, 2020): “It seems necessary to control access to the exits and the ability to have peripheral vision to maneuver safely.“ For the lawyer, who recalls two past accidents with semi-rigids involving Pierre 1er (Florence Arthaud) in 1991 and Spindrift 2 (Yann Guichard) in 2015, “the major risk is the collision”, before d’ assert: “Ocean racing is not a game.“
Then shifting the debate to the field of sporting fairness, she adds: “Beyond security issues, SVR Lazartigue has no coachroof (cap) and without a cap, you have a ‘flush deck’ boat, so one which has less wind resistance, which means aerodynamic gain and improved performance; likewise, the more the center of gravity is lowered by lowering the winches and the men, the more the performance of the vessel is improved.”
“The class cannot offer equable sport with cheating“, proclaims his colleague Alexandre Besnard, referring to the “cheating” of the opposing party. He concludes his argument by asking the court “to declare the claim inadmissible”, considering that Kresk Development “cannot act for the personal prejudice of its subsidiary”, in this case Kresk Development Ultim, owner and shipowner of the trimaran, and, “Failing that to reject all requests from Kresk Development.“
“We are not
agressors”
While hoping that the parties agree by then, the president advances for a judgment on July 21 under advisement. “It’s the earliest we can get, it will allow us to have an answer relatively quickly”, estimates Maître Guillaume Vitrich outside the court, accompanied by Didier Tabary, who then agrees to speak (see our interview).
First to comment on the 40 million euros invested in the project, mentioned by his lawyers at the hearing: “This is the sum of the purchase of the boat and all the operating and activation costs over four years.” Then to return to the dispute: “No one would understand if we are not at the start of the Route du Rhum. We trust the justice system to repair this injustice that we have suffered for more than six months now.” And the interested party wonders: “Which other boat owners of tomorrow would now invest so much money in projects of this type? This could be the end of the Ultimes in the long term.“
After the hearing, the Ultim class sent Samuel Tual, CEO of Actual out front– its president Patricia Brochard, who did not speak on the subject of the March 27 press release and was joined by Ronan Lucas, to answer questions from the press. “This trial is the exact opposite of what we want to convey as an image“, commented Samuel Tual in the preamble. Asked about the documents produced – favorable opinion from the experts and the supervisory committee – the sponsor of Yves Le Blévec replies: “There is a part that you are not seeing which is the exchanges at class level during the construction period with the rules, information that was passed on to us… There are the elements that troubled us.“
And like Ronan Lucas they regret the “radical position” of the SVR Lazartigue team: “The feeling it gives is that there is a good guy and there are bad guys who want to prevent him from racing but we are not aggressors.” Will the class appeal if the judgment rendered on July 21 is unfavorable “I cannot answer this question today”, replies Samuel Tual, before adding: “The question will not be fully processed anyway, because there will be changes to be made on SVR.” In other words, whatever the decision, the case is far from over…
Photo: Gilles Martin-Raget
