IN THE MATTER OF :
AN APPEAL BROUGHT BY THE FIA CONCERNING THE STEWARDS' DECISION IN RESPECT OF CAR NUMBER 3 AT THE SAN MARINO GRAND PRIX ON 24 APRIL 2005
SUBMISSIONS ON BEHALF OF THE
LUCKY STRIKE B.A.R HONDA TEAM
Hearing in Paris on Wednesday 4 May 2005
1 These Submissions are presented on behalf of The Lucky Strike B.A.R Honda Team ("the Team") in response to the appeal brought by the FIA against the Stewards' Decision to take no action in respect of Car No. 3 after the San Marino Grand Prix on 24 April 2005.
The background facts
2 The Technical Delegate's Report from Jo Bauer (FIA Formula One Technical Delegate) at 18.25 on 24 April 2005 (Document 47) stated that after the race, Car No. 3 and the driver (Jenson Button) were weighed :
|(1)||Jenson Button||:||73.6 kg|
|The car||:||532.5 kg|
(2) The car was drained of fuel (by lifted pump out and hoovering out of the fuel cell including the collector) and weighed again :
|Jenson Button||:||73.6 kg|
|The car||:||521.0 kg|
3 Having been informed by the Technical Delegate in Document No. 48 (at 20.55) that the weight of Car No. 3 complied with the Technical Regulations (a conclusion reached by the Technical Delegate after conducting all meetings and inquiries which the Technical Delegate thought appropriate), the FIA Stewards of the Meeting reported at 21.30 on 24 April 2005 (Document 49) that the Stewards "after hearing the explanation of the Competitor's representatives and studying all available documentation decided that the matter requires no further action".
The relevant rules
4 The 2005 Formula One Technical Regulations state :
"1.8 Event :
An event shall consist of official practice and the race.
1.9 Weight :
Is the weight of the car with the driver, wearing his complete racing apparel, at all times during the event.
1.10 Racing weight :
Is the weight of the car in running order with the driver aboard and all fuel tanks full
. . .
2.4 Compliance with the regulations :
Automobiles must comply with these regulations in their entirety at all times during an Event.
Should a competitor feel that any aspect of these regulations is unclear, clarification may be sought from the FIA Formula One Technical Department. . . .
. . .
2.6 Duty of competitor
It is the duty of each Competitor to satisfy the FIA technical delegate and the Stewards of the Meeting that his automobile complies with these regulations in their entirety at all times during an Event.
The design of the car, its components and systems shall, with the exception of safety features, demonstrate their compliance with these regulations by means of physical inspection of hardware or materials.
No mechanical design may rely upon software inspection as a means of ensuring its compliance.
4.1 Minimum weight :
The weight of the car must not be less than 605 kg during the qualifying practice session and no less than 600 kg at all other times during the Event.
4.2 Ballast :
Ballast can be used provided it is secured in such a way that tools are required for its removal. It must be possible to fix seals if deemed necessary by the FIA technical delegate
4.3 Adding during the race :
With the exception of fuel and compressed gases, no substance may be added to the car during the race. If it becomes necessary to replace any part of the car during the race, the new part must not weigh any more than the original part".
5 The 2005 Formula One Sporting Regulations state :
77 a) During both qualifying practice sessions cars will be weighed as follows :
2) all cars which complete a flying lap will undergo the weighing procedure;
3) the driver will proceed directly to the FIA garage and stop his engine;
4) the car will then be weighed with driver (and without driver if necessary) and the result given to the driver in writing;
b) After the race every classified car will be weighed. If a driver wishes to leave his car before it is weighed he must ask the technical delegate to weigh him in order that this weight may be added to that of the car.
c) The relevant car may be excluded should its weight be less than that specified in Article 4.1 of the Technical Regulations when weighed under a) or b) above, save where the deficiency in weight results from the accidental loss of a component of the car.
d) No substance may be added to, or placed on, or removed from a car after it has been selected for weighing or has finished the race or during the weighing procedure. (Except by a scrutineer when acting in his official capacity)".
6 The International Sporting Code states :
"151 Breach of rules
Any of the following offences in addition to any offences specifically referred to previously shall be deemed to be a breach of these rules :
. . .
b) Any action having as its object the entry or participation in a competition of an automobile known to be ineligible therefor.
c) Any fraudulent conduct or any act prejudicial to the interests of any competition or to the interests of motor sport generally".
The Regulations governing the weight of the car
7 The FIA contend in their Statement of Case that the Regulations governing the weight of the car require the car to be weighed after fuel has been drained.
8 The Team respond that there was no breach of the Regulations governing the weight of the car because, on their proper interpretation, the Regulations do not require that the "minimum weight" is to be assessed after removing all fuel from the car, including fuel required for the operation of the fuel system.
9 The Team rely on the following matters :
(1) No provision of the Technical Regulations and no provision of the Sporting Regulations expressly states that the minimum weight must be assessed after removing all or any fuel from the car.
(2) Article 4.1 of the Technical Regulations is inconsistent with the FIA contention in that it links the minimum weight to the "qualifying practice session" and to the "Event" (defined in Article 1.8 to mean the official practice and the race). Because Article 4.1 states that the car must not be underweight during the "Event", the minimum weight must refer to the operation of the car in working order as it proceeds around the track in practice and during the race. By contrast, the FIA's approach would assess the weight of the car in a condition (absent fuel) which would prevent it from proceeding around the track. The Team's car could not operate with a fuel level significantly below a minimum weight of 6kg of fuel in the fuel system : paragraph 45 of the Witness Statement of Geoffrey Willis (Technical Director of the Team). As he points at paragraph 48 of his Witness Statement :
"the weight of the car is to be determined with the car in an operating condition because the Technical Regulations refer to its use during the 'Event', which means practice or race. The measurement which the Technical Delegate took at the end of the race with the fuel collector drained is a measurement which is not envisaged in the Technical Regulations as it is a measurement of the car in a condition in which it is unable to participate in either the practice or the race".
As Mr Willis adds at paragraph 49 of his Witness Statement, the dry weight measurement recorded by the Technical Delegate is meaningless in that it
"records the weight of the car in a condition in which it is unable to operate and in a condition not contemplated by the Technical Regulations".
(3) Article 77 of the Sporting Regulations is also inconsistent with the FIA contention in that it requires at d) that after the car has finished the race it must be weighed, and that
"No substance may be added to, or placed on, or removed from a car after it has been selected for weighing or has finished the race or during the weighing procedure. (Except by a scrutineer when acting in his official capacity)".
The FIA has to contend that a further exception must be written in "except for fuel". But that would be impermissibly to rewrite Article 77.
(4) Article 77 of the Sporting Regulations is further inconsistent with the FIA contention in that it requires at a) that during qualifying practice sessions,
"2) all cars which complete a flying lap will undergo the weighing procedure;
3) the driver will proceed directly to the FIA garage and stop his engine;
4) the car will then be weighed with driver (and without driver if necessary) ..."
Article 77a) 2) refers to "the weighing procedure" which is then identified in 3) and 4) The FIA has to contend that another step must be written in between 3) and 4) : that the car must be drained of fuel. But again that would be impermissibly to rewrite Article 77.
(5) Appendix J to the International Sporting Code specifies that in respect of defined cars, weighing must be carried out with fuel tanks empty :
(a) Article 254 in relation to Production Cars (Group N) states at Article 5 :
"MINIMUM WEIGHT . . . 5.1 All the liquid tanks ... must be at the normal level foreseen by the manufacturer, with the exception of fuel tanks which shall be empty ...".
(b) Article 258A in respect of Sports Cars states at Article 1.7 :
1.7.1 Except for the weighing procedure used during the practice sessions, it is the weight of the car with no driver and no fuel on board".
By contrast, there is no such provision in relation to Formula One cars. The FIA is impermissibly seeking to write such a provision into the Regulations. See paragraph 44 of the Witness Statement of Geoffrey Willis.
10 The Team point out that, contrary to the FIA's Statement of Case, it is not correct that the car is always drained of fuel before being weighed. That is not routine practice. As Craig Wilson (Chief Race Engineer of the Team with 9 years of experience in Formula 1 for various teams) points out at paragraph 3 of his Witness Statement, it is not usual practice when weighing a car to require a lifted pump out (or any other procedure) to drain fuel from the fuel cell. He adds at paragraph 27 of his Witness Statement that the practice is that fuel forms part of the minimum weight when cars are weighed after qualifying. He has never in his experience known the FIA to require a car to be drained of fuel after qualifying via a lift pump procedure or otherwise, even when the cars were on or only just above the minimum weight limit.
This is also confirmed by the experience of both Geoff Willis (the Team Technical Director), and Mark Ellis (the Team Chief Test Engineer), both of whom have also worked for other teams (Williams and Jaguar). The FIA must have been aware that the cars still had fuel remaining in them as the cars arrived for weighing under their own power. See also, to similar effect, paragraph 42 of the Witness Statement of Geoffrey Willis; and paragraph 24 of the Witness Statement of Alastair Gibson (Race Team Chief Mechanic). In any event, the practice could not alter the content and proper interpretation of the Regulations as explained in paragraphs 8-9 above.
11 The Team did not seek clarification under Article 2.4 of the Technical Regulations because the content and proper interpretation of the Regulations is clear, as explained in paragraphs 8-9 above. See paragraphs 10-11 of the Witness Statement of Geoffrey Willis.
12 The FIA suggest that a Competitor can only satisfy the obligation under Article 2.6 of the Technical Regulations to comply with the Regulations if the car is weighed after fuel has been drained. The Team respond :
(1) The content and proper interpretation of the Regulations on weighing is clear, as explained in paragraphs 8-9 above.
(2) Contrary to the assertion by the FIA in its Statement of Case, the design of the fuel system of Car No. 3 did not enable the car to run below the minimum weight during the race :
(a) The Team produced data to show that at all times during the race, the car complied with the weighing requirements. The data show that unless the car and driver exceeded 600 kg at all times, the car would not be able to race. See the witness Statement of Geoffrey willis at paragraphs 20â€"23 and 27 and 32â€"36 :
(i) The Team supplied at a meeting with the 3 Stewards, Mr Charles Whiting (the Race Director) and Mr Jo Bauer (the Technical Delegate) the document contained at Appendix 3 to the Witness Statement of Mr willis.
(ii) The Team supplied at a further meeting attended by Mr Whiting, Mr Bauer and one of the Stewards (Mr Gutjahr) the total car weight plot set out at Appendix 4 to Mr Willis' Witness Statement.
(b) The Team also draws attention to the documents at Appendix 4 and Appendix 5 to the Witness Statement of Craig Wilson. Appendix 4 shows that using FIA data alone, the FIA could calculate that the car did not go below the minimum weight during the race. This is because the FIA know the weight of the car at the start of the race, know how much fuel is in the car at the end of the race, and they know how much fuel is put in the car at each pit stop. Appendix 5 uses the Team's data to clarify and prove this using the actual figures. See paragraph 17 of the Witness Statement of Craig Wilson.
(c) At paragraph 17 of his Witness Statement, Mr Craig Wilson explains that if the car had been run underweight it
"would have begun to physically malfunction before reaching the 600kg minimum because of the operating requirements of the car and its fuel system".
He points out at paragraph 13 of his Witness Statement that the Team explained in its meetings with the Stewards, Mr Bauer and Mr Whiting that in pre-season testing it was proved that
"in order to maintain both accumulator and engine fuel pressure we had to run with a minimum amount of fuel in the fuel collector system. ... This is why fuel was still remaining in the fuel system (as there would be with any other fuel system)".
Ron Meadows (Race Team Manager) points out at paragraphs 8-11 of his Witness Statement that the FIA representatives did not dispute any of the data presented to them.
(d) As Geoffrey Willis explains at paragraph 45 of his Witness Statement :
"The performance of the fuel system is such that the car cannot operate with a fuel level significantly below a minimum weight of 6kg of fuel in the fuel system. This has been verified by track testing and is used as a baseline when considering the car set up and weight calculations. This was proven when on the lap before the first stop the fuel system started to show signs of low fuel level. The car cannot then be operated to a point where the weight limit is breached".
Mr Willis refers to the chart at Appendix 5 to his Witness Statement. See also Appendix 1 to Craig Wilson's Witness Statement.
(3) The second and third paragraphs of Article 2.6 relate to the "design of the car, its components and systems". They are not concerned with the weight of the car, a matter concerned with the operation of the car. A car's weight is not determined by its design.
(4) The FIA cannot sustain a contention that weighing a car after fuel has been drained, and weighing the driver, will conclusively establish that the weighing requirements were met at all times during the race. The weight of the car will change during the race (for example, because of oil loss, brake wear, the consumption by the driver of water carried in the car), and the weight of the driver will change during the race (because of loss of fluids).
13 The FIA are wrong to suggest that the fuel was being used in Car No. 3 as "ballast" contrary to Article 4.2 of the Technical Regulations. The fuel was being used for its functional physical and calorific properties and not solely for its mass. Article 4.3 of the Technical Regulations states that fuel may be added to the car. See paragraph 47 of the Witness Statement of Geoffrey Willis.
14 For all these reasons, the Team contend that there was no breach of the Regulations governing the weight of the car.
15 In any event, Race Document No. 48 states that Car No. 3 was weighed after the race and the Technical Delegate found that the weight was in conformity with the Technical Regulations. This document was signed at 20.55 after the Technical Delegate's Report (Document No. 47) which sets out the car weights after the car was completely drained of fuel, and was produced after all investigations and meetings had been completed.
16 The Stewards were therefore correct
(1) not to exercise their discretion to exclude Car No. 3 from the results under Article 77c) of the Sporting regulations and
(2) to accept the Team's claim that Car No. 3 (plus driver) weighed more than 600 kg at all times during the race.
The allegation of bad faith and fraudulent conduct
17 Since (for the reasons set out in paragraphs 8-16 above) the Team satisfied the Regulations governing the minimum weight of the car, there is no question of bad faith or fraudulent conduct, as alleged by the FIA.
18 In any event, the allegation by the FIA of bad faith and fraudulent conduct is fundamentally misconceived :
(1) Paragraph 6 of the Witness Statement of Geoffrey Willis explains that the fuel system comprises a fuel cell, pumps, collector and accumulator which together supply fuel at high pressure to the engine. Electrical lift pumps take fuel from the fuel cell and fill the collector at the front of the fuel cell. Electrical lift pumps located in the collector feed fuel from the collector to supply and pressurise the accumulator at the back of the fuel cell.
The accumulator feeds fuel at pressure to the high-pressure mechanical pump which supplies the engine. All fuel placed in the car passes through the collector and the accumulator, as Geoffrey Willis notes at paragraph 8 of his Witness Statement. He adds at paragraph 28 of his Witness Statement that the forward fuel collector is an "integral part of our fuel system" and that the fuel collector needs a minimum fuel level in order to maintain pressure in the accumulator and hence avoid fuel pressure drop cuts, which would damage the mechanical pump and probably also the engine, and cause the engine to misfire. He comments at paragraph 15 of his Witness Statement that
"The purpose of the collector is to collect a small volume of fuel that will not 'slosh' around the fuel cell due (to] the movement of the car and so ensure that there will always be fuel to feed. the lift pumps that deliver fuel from the collector to the accumulator".
See also paragraphs 12-13 of the Witness Statement of Craig Wilson.
(2) As Geoffrey Willis explains at paragraphs 12-14 of his Witness Statement, the collector is not "a secret compartment". A brief inspection of the empty fuel cell without internal components fitted would clearly show a contained volume in the forward part. An inspection of the built system would immediately reveal the top plate that seals this volume together with pumps and, fuel transfer hoses that would confirm the installation as a conventional fuel collector. The collector is located at the front of the fuel cell for packaging reasons.
(3) The fuel cell was inspected by the FIA at the Malaysian Grand Prix and at the Bahrain Grand Prix in 2005. No questions were posed by the FIA as to its compliance with the Regulations. See paragraphs 26-32 of the Witness Statement of Alastair Gibson; paragraphs 19-21 of the Witness Statement of Darren Beacroft (No. 1 Mechanic); paragraphs 11, 19 and 37 of the Witness Statement of Geoffrey Willis; paragraphs 25-26 of the Witness Statement of Craig Wilson.
(4) The fuel system used by the Team is similar to that used by a number of other teams. See paragraph 5 of the Witness Statement of Geoffrey Willis, and paragraph 11 of his statement referring to Appendix 2 which contains an e-mail from ATL (the Team's fuel cell manufacturer which also supplies fuel cells to most Fl teams) which confirms that the design of the Team's fuel cell is not unusual. See also paragraph 13 of the Witness Statement of Ron Meadows.
(5) Team Members were completely open, honest and straightforward with the Race Director, Technical Delegate and Stewards. All questions were answered directly and additional information volunteered : paragraph 38 of the Witness Statement of Geoffrey Willis. At no time during the meetings of the Race Director, Technical Delegate and Stewards with Mr Willis, Mr Wilson and Mr Meadows was there any suggestion that any member of the Team had acted in bad faith or engaged in deception or fraud : see paragraph 21 of the Witness Statement of Craig Wilson.
The Race Director, Technical Delegate and the Stewards did not raise with Mr Willis, Mr Wilson and Mr Meadows any concerns about the conduct of the mechanics : see paragraph 39 of Mr Willis' Witness Statement. The Race Director referred to the collector as a "secret" tank in his first meeting with Mr Willis, Mr Wilson and Mr Meadows (which was not in the presence of the Stewards). After its purpose and effect had been explained to him, the Race Director did not again suggest that it was a "secret" tank. See paragraph 39 of the Witness Statement of Mr Willis.
The Technical Delegate and the Stewards made no suggestion (far less any allegation) of fraud, bad faith or deception in any of the Race Documents. Indeed, Race Documents 48 and 49 are inconsistent with any such suggestion or allegation.
(6) The FIA have now expressed concern that the car was not completely drained of fuel before being weighed. That was because Kris de Groot, one of the FIA Technical Delegates, asked for a normal lifted pump out. This was carried out by Chris Fry (the fuel bowser operator). When he had completed this task, Mr de Groot asked him, "Is that it?". Mr Fry replied, "Yes". That was an accurate answer : he had removed all the fuel capable of being removed from the car by the procedure specifically requested by Mr de Groot.
Mr Fry is not aware of the technical details and workings of the car's fuel system. If Mr de Groat had asked whether some fuel remained, Alastair Gibson (the Race Team Chief Mechanic) would have answered. But he understood Mr de Groot simply and expressly to have requested a lifted pump out procedure, the normal procedure for removing fuel from the fuel tank. See paragraphs 6-12 of the Witness Statement of Alastair Gibson and paragraphs 1-4 of the Witness Statement of Chris Fry. As Mr Gibson explains at paragraph 25 of his Witness Statement, he cannot recall any instance when the fuel has been drained from the collector or accumulator. See also paragraph 3 of the Witness Statement of Chris Fry. He adds at paragraph 4 of his Witness Statement that he followed the draining procedures of the Team.
(7) There is no basis for the allegations of fraudulent conduct and bad faith. See paragraph 40 of the Witness Statement of Geoffrey Willis.
(8) Integrity and the maintenance of the highest professional standards are of fundamental importance to the management and operation of the Team. Bad faith and fraud would not be tolerated by Geoffrey Willis as Technical Director (see paragraph 4 of his Witness Statement), Nicholas Fry as Chief Executive Officer (see his Witness Statement), Nicholas Brookes as director of the parent company of the Team (see his Witness Statement), Yasuhiro Wada as president of Honda Racing Development and a Board Member of the parent company of the Team (see his Witness Statement).
As Mr Wada comments at paragraph 6 of his Witness Statement, and is plain from all the other Witness Statements attesting to the professionalism and integrity of the Team and those who work for it (including the Witness Statement of Sir Frank Williams, Managing Director and Team Principal of the BMW Williams Fl team), there has been a serious misunderstanding here by the FIA which has led to them wrongly accusing the Team of acting in bad faith and in a fraudulent manner.
19 The Team therefore submits that even if (which is denied) there was here any breach of the Regulations, the sanction for which the FIA contends (exclusion from the 2005 Formula One World Championship and a fine of at least one million Euros) would be manifestly disproportionate, as would be any exclusion from future events.
20 For these reasons, the Team asks the Court of Appeal to dismiss the FIA's appeal.