To The Honorable Judge Cahn,
Dear Sir,
I wanted to drop you a quick note thanking you for your infinite patience in your ongoing hearings involving the Golden Gate Yacht Club (GGYC) representing BMW Oracle and Alinghi’s Societe’ Nautique de Geneva (SNG). Whoever thought the Swiss could be so contentious? Oh, that’s right Alinghi chief Ernesto Bertarelli is Italian, hence the dichotomy.
Your thoughtful introspection into the divisive litigation over the 33rd America’s Cup has proved once again that the Deed of Gift stands on its own merits as a brilliant, timeless document that has proved resolute against all takers and remakers.
The New York Supreme Court has shown once again that they are the true and rightful arbitrators of yacht racing’s “Holy Grail”. Juxtaposition aside, it is time to close the door on the silver spooning between BMW Oracle’s Larry Ellison and Bertarelli.
As the Deed implores; the America’s Cup “is donated upon the condition that it shall be presented as a perpetual Challenge Cup for friendly competition between foreign countries.”
In this case, with all the time and effort that you dear sir have spent on the continuing litigation, combined with the New York Court of Appeals providing a definitive America’s Cup roadmap in their ruling on the Mercury Bay Boating Club vs. San Diego Yacht Club in 1990.
The time has come to close the door, in lieu of mutual agreement and order the parties to proceed with next America’s Cup or to revoke the charitable trust on the grounds that SNG/Alinghi has not upheld its obligation as current trustee.
Honorable Sir, you and your colleagues have rightfully upheld the literal reading of the Deed and rather than having the parties concerned, return to your court every time they need an interpretation of every word in the document, be it “having”, “keel boat” or “when” and “where” it is time to direct the parties to mutually agree or forfeit.
If SNG or GGYC cannot come to an agreement on the simplest of terms, the America’s Cup should be returned to the New York Supreme Court and placed with it’s original owners the New York Yacht Club (NYYC). The NYYC can implement the new class rule or a “version six” of the current America’s Cup Class and establish a new protocol for races to commence in Valencia, Spain in 2011.
Leading up to the next America’s Cup can be a series of “Acts” which could include stops in Great Britain, Italy, South Africa, Asia and America. SNG and GGYC could be permitted to compete if they were willing to legally comply with a strict set of conditions.
As to SNG and GGYC, it is time to settle this like sailors, on the water. With no legal “tolling” in place, the dates of the match were set in GGYC’s challenge for July 4, 6 and if necessary July 8th , 2008.
In your ruling of March 17th you were very clear in emphasizing that; “Contrary to SNG’s assertion, that parties wound up entangled in legal proceedings, which “interrupted” the 10-month period (notice given for match by challenger, GGYC), does not invalidate the Notice of Challenge.”
With no legal “tolling” (timeout) agreement in place and in spite of BMW Oracle’s own internal toll timeline of 30 days after your court ruling of November 27, 2007, when on December the 29th they announced a commitment to a Deed of Gift challenge and proclaimed race dates 10 months hence in October of 2008, nothing precludes or interrupts the fact that the challenge was set for July of 2008.
For Alinghi, it is time to realize that they still have tremendous advantages as the defender. You can be 99% certain of what type of multi-hull BMW Oracle has designed and for what conditions it was built for: hint hint it’s not for heavy weather. Also as the Deed declares: “if of one mast”……
So, Ernesto man up and start building. To the “Ecstasy of St Theresa”, take a page from your own families’ past, when Serano’s founders took the initiative and started extracting urine from all those nuns to start what became; your business.
You can build one, two, five new boats. You do not have to declare your defender until the starting line. The boat the BMW Oracle is building is the one they have to race with and isn’t time to demand that “custom-house” registry?
That is where MBBC was handicapped with the construction of their monstrous mono-hull, when SDYC declared a catamaran defense the Kiwis were stuck, dead in the water.
In conclusion Honorable Sir, your rulings and words have done honor to the living, breathing Deed of Gift, but it is time to put a stop to our journalistic pontificating and the parties’ concerned endless trail of litigation.
Order a stop to the march to madness, enforce the dates of GGYC’s challenge, demand a site declaration and as Peter De Savary so aptly put it twenty years ago the last time we were faced with a nexus of litigation: “San Diego, (insert SNG) doesn’t have to do anything but set a course on the water and then get the hell out of the way.”
If world class race winners Sayanara and ABN Ambro can fender up to the Arnold Lines coal dock in Mackinac Island, Michigan then anything that BMW Oracle and Alinghi build can show up to race anyplace, anywhere just not anytime…..
In the words of the Honorable Judge Sol Wachtler, who concurred with the majority in the New York Court of Appeals ruling in MBBC vs. SDYC when he wrote: “This case has little or no significance for the law, but it has caught the public eye like few cases in this court’s history. Much of the reason for this attention, apparently, is the supposition that here at stake are grand principles – sportsmanship and tradition – pitted against greed, commercialism and zealotry that threaten to vulgarize the sport. In the end, however, the outcome of the case is dictated by elemental legal principles.”
Sincerely, Mark W Reid
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