Photo courtesy Carl Borlenghi/Alinghi
Thursday, October 22, 2009
Wednesday, October 21, 2009
The Precipice
"Lasciate ogne speranza, voi ch'intrate", or "Abandon all hope, ye who enter here"
Charon, Boatman of the Dead. Painting by By Olexandr Lytovchenko (1835-1890)
Hi. Enough all ready. After spending two years trying to disseminate an endless trail of litigation, the 33rd America’s Cup has descended into nothing more than a bitter divorce battle.
In infamous glory, commodores Fred Murray from the Societe Nautique de Geneva (SNG) and his counterpart Marcus Young of the Golden Gate Yacht Club (GGYC) trade letters espousing their desires for an amicable America’s Cup.
With the utmost sincerity feeling that they are both somehow on the side of might and right; but even the Dante Alighieri [before this is over, his name will have a look familiarity here] would hesitate to cross over on these 'Cup boats into Hades.
The yachts in question this time around are not narrow, 80 ft. monohulls (1 hull) grasping to reach 20 knots, but behemoth multi-hulls 90 ft. by 90 ft on the load waterline, with carbon fiber masts that tower 200 feet into the sky. With more than 7,000 square ft. of sail area these boats can be expected to sail at more than 40 knots!
Pulling the purse strings are billionaires Larry Ellison, representing the GGYC in combination with his team BMW Oracle and Ernesto Bertarelli with Alinghi, holding sway over SNG. The sailors on board for the most part pay penance to their bosses and the legal teams involved are presumably the best and certainly the most expensive in the world.
BMW Oracle launched their trimaran (3 hulls) last year in Anacortes, Washington and this past July, Alinghi put a gargantuan catamaran (2 hulls) into the emerald waters of Lake Geneva, Switzerland. These high tech wonders will ensure that the next America’s Cup will be the most spectacular design fest in history......if the warring factions can ever escape their escapades in the courtroom.
With all the ruminations over the choice of the venue, fortunately or not Judge Herman Cahn left the door open for Alinghi to choose Ras al Khaaimah (RAK)in the United Arab Emirates to host the 33rd America’s Cup. RAK is perhaps the poorest of the seven Emirates (city/states) in wealth, shadowed by popularity of Dubai, just 50 miles to the south, that said; the largest concern is that its closest neighbor aside from bordering Omen is Iran, whose territorial waters border the race course.
In his ruling Judge Cahn, broke paths with the rules, for a variety of reasons and wrote that “Alinghi was free to choose Valencia, Spain or any other location,” for its defense of the America’s Cup. Alinghi did just that. Circumventing Dubai and choosing RAK, whose rulers have pledged infrastructure support. GGYC is challenging this selection in court, but a reality check should tell them its time to start packing their bags for the Middle East.
RAK should bring mild sea conditions and warm winds for February, just the right prescription for their new ‘cat.
Ras al Khaaimah (RAK)in the United Arab Emirates to host the 33rd America’s Cup. In 1987 the America’s Cup was gilded with “scientist who sail” now we’re tethered to a “yawl”-ful of lawyers who don’t necessarily sail, but like to be seen at the yacht club prospecting for more suckers (clients). GGYC have brought on reknowned windbag "lawyer" David Bois. Bois is most famous for losing Bush vs Gore to lead their legal team.
Is it time for the New York Court System to wrest control of this nightmare and protect their state’s charitable trust?
What began earlier this year as the butt of the Scuttlebutt’s fool’s joke has now reached an epic palisade’s head on a platter, with calls to revoke the trust and return control of the America’s Cup back to the New York Yacht Club. That, in combination with the other former trustees to finally amend the Deed of Gift for the 21st century.
Two years ago when nautical journalists around the globe promulgated the spectre of a nuclear doomsday scenario [we’re here] we have been led to no other place in the world than the probability of an America’s Cup Regatta on the Persian Gulf, mere miles from the Iranian Coast and another one of its newly discovered uranium enrichment (bomb) facilities.
Has SNG breached their fiduciary duties? Are the GGYC and BMW Oracle the true protectors of yachting’s holy grail? With the peripheral spiraling downward, explore the circles of descent into the inferno and channel thru this decadence jibing towards these (not) original sins in this litigation to look on how all of this came to be, while hoping that “there must be some other way”.
As for the regatta participants themselves, Alinghi 5 has started training in the Persian Gulf and BMW Oracle has just emerged from their construction tent in San Diego. Both sides face off on October 27th in Judge Shirley Kornreich’s courtroom in what should be the final round before February’s match. Hopefully, the judge will put a lid on the recent escalation of litigation.
It is time to set the rules for this rendezvous and reserve future legal action until after the match is completed, at which time the court can hopefully bar both sides from further litigation or face permanent expulsion from the America’s Cup.
Under that scenario we can watch an intriguing match and move on to set up mutual consent for the future America’s Cup races. So, it is in the spirit of that passion dream drama that may as yet not vaporized, we anguish in perpetuity wondering on whether we will ever have an America’s Cup next February.
Really, who doesn’t want to see at least one high tech parley of a cat and tri- foil show ripping it out on the Mediterranean Sea or even the Persian Gulf?
The first circle. Limbo
No doubt. With all this endless litigation, there has been a tailspin into limbo ever since that spectacular July afternoon in 2007, when Alinghi crossed the finish line ahead of Emirates Team New Zealand (ETNZ) by a mere second, ending an incredible; protest defined, lead changing race. Alinghi defeated ETNZ 5-2 in one of the most exciting America’s Cup series in history.
When the series was over Societe Nautique de Geneva (SNG) drafted the rules for the next America’s Cup. Enjoining the Spanish Sailing Federation (RNEF) they created a phantom yacht club to agree to new rules (bogus) and represent any challengers, who might be interested in racing for the right to face to Swiss in an America’s Cup final in 2009.
Alinghi won the America’s Cup in Auckland, New Zealand in 2003. The yacht club chose Valencia, Spain over ports in Portugal, Italy and France to host the 2007 America’s Cup. Valencia, the European equivalent of Milwaukee, Wisconsin; is located on the Mediterranean and is one of the world’s oldest ports.
Days after defending the America’s Cup, SNG accepts an “in house” challenge from Nautico Club Espanol de Vela’s (CNEV) for the 33rd America’s Cup and a controversial new protocol is written. The following week the Golden Gate Yacht Club in San Francisco, CA files a formal challenge for the America’s Cup under the strict terms of the Deed of Gift. The GGYC contend that the challenge from CNEV does not meet the defining criteria in its acceptance as the challenger of record.
When that challenge was rejected by SNG, the GGYC filed suit in the New York Supreme Court, to invalidate the Spanish challenge. The New York court is bound by the Deed to arbitrate all disputes relating to the America’s Cup Trophy, which is held as a charitable trust by the state.
On November 27th, 2007 the Honorable Judge Herman Cahn ruled in favor of the Golden Gate Yacht Club (GGYC) and declared them to be the true challenger of record. Armed with a formidable team of new lawyers, SNG appeals the decision with the Appellant Court in New York.
In July, 2008 an Appellant Court in New York , littered with recent appointees ruled in a split decision (3-2) in favor of SNG and Alinghi. Surprise! The Club Nautico Espanol de Vela (CNEV) is again the challenger of record for the 33rd America’s Cup. In a ruling that has shocked everyone; most of all Team Alinghi, the Golden Gate Yacht Club was displaced as the challenger of record and faced the prospect of either appealing to the New York Court of Appeals or facing the possibility of being barred from the next America’s Cup.
As expected GGYC did appeal the verdict to the highest court in the State of New York and in April, 2009 the Appellant Court verdict was over turned by a unanimous Appeals Court 6-0.
The court remanded the decision back to Judge Cahn’s original ruling and now that he has since retired the whole affair has landed in the lap of Judge Shirly Kornreich.
Judge Kornreich has spent the entire summer and now the fall overseeing what has become a rapid fire series of exchanges between the litigants and hopefully, but probably not finally lay the law down for the match in February, 2010.
The Deed of Gift is the bylaw that governs the race, was written by the syndicate owners of the America and the NYYC. It was amended by the last surviving member; George Schuyler in 1887. The defense of the “Auld Mug” the nickname for the America’s Cup trophy, takes place for the most part every few years. Over the last two decades it has changed hands several times between America, Australia, New Zealand and now, Switzerland.
Since the last legal debacle in 1988, the Deed had generally been usurped of its authoritative grip on the rules by mutual agreement provisions called the America's Cup Protocol. The protocol's enabling resolutions allow the Challenger of Record to establish the rules and regatta format to determine who will challenge the defending yacht club for the America's Cup.
Over the last two years the warring parties have been in and out of court trying to capture the higher ground in the court of public opinion with an endless sea of snipes and gripes. Most of the paper trail materializes in the form of legal dispatches and press releases, which has led into the current state of limbo. The end seemed in sight this past May, 2009, with the ruling by the highest court in the state, but that seems ages ago now.
The second circle. Lust“
To have an inordinate desire” as defined and this case it comes down to Russell Coutts. Coutts clearly has been coveted by all sides and Alinghi would not have won the America’s Cup or been remotely competitive had it not been for his defection from Team New Zealand. Coutts is the pre-eminent America’s Cup skipper of this era.
He was the winning skipper on the victorious TNZ yachts in 1995 and 2000, Coutts was handed over the reigns of leadership by Sir Peter Blake and thou their rocky relationship appeared to more ego driven than contentious, Coutts was is in disagreement with the Blake and the trusteeship of the Royal New Zealand Yacht Squadron over negotiated corporate contracts and commitments for the team for the next defense in 2003. Was there trouble in paradise?
The writing was on the wall as many of the Kiwi afterguard jump ship to Ernesto Bertarelli’s fledging new America’s Cup team Alinghi, from Lake Geneva, Switzerland. The Swiss pharmaceuticals magnate sent a tsunami through the South Pacific by raiding Team New Zealand of its winning skipper and other key personnel. Quickly labeled as traitors, the Kiwi nation won't likely forget or forgive
The America’s Cup once a haven of nationalistic pride, amateurism and recreation, reeled in the realization that with the dawn of a new era encroaching on the Auld Mug, free agency and the high salaries associated with the rising costs, has taken hold.
After defeating TNZ in 2003, Alinghi chief Bertarelli and Coutts quickly fell into disagreement over the direction of the next America’s Cup. In June 2004 Coutts was fired by Team Alinghi “for repeated violations of his duties.” The new protocol had promised freer access by sailors to cross borders and compete for other countries, but now that access is being restricted by new mutual consent amendments.
Coutts, continued a mediation process with Bertarelli to allow access into 2007 America’s Cup, but sat on the shoreline as his former ‘mates won another America’s Cup. Dejected and resigned to his fate Coutts told the NZ Herald; “do we want an America’s Cup to be governed by two guys (Ellison & Bertarelli)”. They are the kingmakers “that all of a sudden get into a back room somewhere and decide to change the rules for whatever reason.”
"Most seriously, I was concerned at the impact of this management style not just on my contract, but on the wider America's Cup event,” said Coutts. “I found the role he increasingly insisted I occupy in the syndicate was at considerable variance with the one we had discussed, at length, during and since the last (2003) America's Cup campaign. “This and other issues were clear breaches of the contract I had entered into with him.” Lust, enter Ellison.
At the end of the 2007 ‘Cup and at the beginning of GGYC’s litigation it was a foregone conclusion that Coutts would end up at BMWO. Coutts is now the executive director of the syndicate and has complete directorial control over all sailing operations. Coutts said he had been delighted to accept the offer to join BMW ORACLE Racing as CEO.
“Taking up this new challenge gives me a leadership role with an outstanding team. I’m looking forward to building up a successful team. And I share Larry’s vision for close and exciting racing with neutral event management,” Coutts said. “It will be great to be back in the Cup. I enjoyed watching the last event – but I look forward to getting back on the water.”
Bertarelli would be loathe to place the center of his America’s Cup world on where or for whom Coutts sails, but this Brett Favre-like drama has all the earmarks of a jilted at the alter relationship.
The third circle. Gluttony
You’re so vain, you’ll probably think this story here is about you, and unfortunately you are right. This is an apocalyptical nightmare America’s Cup scenario that is deadlocked in an insurmountable billionaire ego driven bypass.
On one hand, there is Alinghi President Bertarelli, whose team defended the America’s Cup for SNG and who is trying to force his vision forward by usurping, for the most part, the mutual consent provision of a new protocol for the 33rd running of the world’s most prestigious yacht race. Bertarelli, Italian by birth, inherited his fortune from his family who founded the pharmaceutical giant Serono and amassed greater wealth when the company merged with Merck a few years back. The word alinghi was made up as a child by Bertarelli
On the other hand is Ellison, the founder and chairman of Oracle. Ellison inherited nothing, climbing to the top by pulling up his bootstraps, while growing Oracle with relentless passion and fervor. His racing team BMW Oracle had perhaps the fastest AC Class Version 5 boat in Valencia, Spain, but was virtually swept away in five of the six races against Luna Rosa from Italy and to compound their infamy they lost 5-1 to Alinghi in 2003.
Ellison’s private yacht “Rising Sun” is over 450 ft. long, has more than 80 rooms and cost more than $200 million dollars to build. It is considered the sixth largest private yacht in the world. At over 540 feet, Russian oil baron Roman Abramovich owns the world’s largest boy boat toy. Dubai’s ruling Sheik Mohammed bin Rashid Al Maktoumis in second. Bertarelli’s private yacht, Vava measures in at over 155 feet.
Speaking of measuring, one of the disputes in this whole affair revolves around the length of the yacht. According to the Deed, the load waterline length of the boat as it sits in the water cannot exceed 90 feet “if of one mast,” also BMW Oracle stated challenge locked in the dimensions of its multihull at 90 feet. With the publishing of the rules this summer by the International Sailing Federation (ISAF), which is the world governing body of the sport, much of the controversy centered around the waiving of Rules 49-54 (engines) and movable ballast, certainly when the boat is measured and also, whether to include the rudder, when measuring for waterline length. In an historical context the rudder is generally not part of the measurement formula.
BMW Oracle brought in the firepower on this one, in the person of Australian Ken McAlpine who has been measuring America’s Cup boats since 1988 and is beyond reproach. In his deposition McAlpine stated that according to the ISAF rules for sailing for 2009-12; “These (the current rules) exclude the vessel’s rudder in the measurement of length.” Adding that in the last default match in 1988 that, “if either yacht had had a rudder extending beyond the water line of the hull, it would not have been included in the measurement”.
“As a measurer I would interpret the term “load water-line” means the water line when the vessel is in the load condition” or the maximum weight the boat will carry during the race including; crew, sails, equipment, ballast etc.
So, Ernesto take a page from the “Ecstasy of St Theresa”, on your own families’ past, when Serrano’s founders took the initiative and started extracting urine from all those nuns to start what became; your business and man up. Realize that you still have tremendous advantages as the defender.
The fourth circle. Avarice
Engines on a sail boat, for BMW Oracle’s sake, hopefully not one of BMW's Formula 1 motors. Given the massive sails this time around. In her ruling Judge Kornreich wrote that: “A blatant example of a design feature that would violate the Deed, is an engine used to propel the boat; the Deed permits only vessels “propelled by sails.” The Deed does not, however, contain any restrictions on ballast or design features regarding trimming the sails. These features are therefore permitted because they are not prohibited by the language of the Deed.”
In her ruling she goes on to say; “Nor does the court find that the change in the rules to permit movable ballast and power winches to power sails in anyway violates the controlling rules.”
“SNG is breaking with the longstanding history and tradition in yacht racing that prohibited the use of non-manual power. For the first time in the Cup’s history, engines will be permitted to trim the sails, and computers can be used to control and steer the yachts; said Tom Ehman of GGYC. “This, we believe, is a sad day for the America’s Cup”.
Honorable judges, 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.
To be honest, engines; really? Why not follow the NFL's lead in regards to how they protect quarterbacks and put dresses on the crew.
The fifth circle Wrath and Sloth
Here comes the Judge...again. With not quite the patience or eloquence of the now retired Judge Herman Cahn and a bit more of the reckless, gunslinger type enter Judge Shirley Werner Kornreich. “unsportsmanlike behavior?
Kornreich writes that; “ The GGYC’s arguments based on sportsmanship and fairness are equally unavailing, as well as ironic in light of both parties’ displayed lack of adherence to the Deed’s condition that the America’s Cup race be a perpetual Challenge Cup for “friendly” competition”
In early 1989 Judge Carmen Ciparick disqualified the SDYC and awarded the America’s Cup to the Mercury Bay Boating Club. Ciparick ruled that the San Diego Yacht Club had “violated the spirit of the deed” when its “clear goal to was to retain the cup at all costs.” “The vision that George Schuyler and the other donors sought to perpetuate over the years was that of an international race on a grand scale among boats on the seas and not a land bound battle among clever lawyers in the courthouse.”
In her ruling she wrote; “the defender of the America’s Cup is more than the current champion yacht club. The yacht club winning the America’s Cup becomes the sole trustee under the deed of gift and has an obligation there under to insure a fair competition. The holder of the America’s Cup is bound to a higher obligation than the victor of the Stanley Cup or Super Bowl. In organized sports such as hockey or football there is a central authority for the development and enforcement of competition rules. The defender of the America’s Cup, as trustee, is charged with the responsibility of insuring that a subsequent defense is carried out in accordance with the letter and spirit of the deed of gift. San Diego clearly fell short of its obligations as trustee of the deed of gift.”
In September 1989 by a 4-1 decision the Appellate Division of the New York Supreme Court overturned the ruling by Judge Ciparick and returned the America’s Cup to the San Diego Yacht Club. The auld mug itself never made the trip to New Zealand. The ‘Cup is being stored in a bank vault awaiting its fate. On April 26, 1990 the New York Court of Appeals rules 5-2 that the San Diego Yacht Club will retain the America’s Cup and will be free to organize the defense of their choosing.
The sixth circle. Heresy
In her decision Judge Kornreich wrote; “Allowing the challenger to continue construction after it issues the Notice of Challenge, and to reduce the size of the vessel below the noticed measurements, does appear to be inconsistent with the distinct advantage afforded the defender by the Deed's requirement of ten months' notice, but the court is mindful of the simpler state of technology that existed when the deed was drafted. There was only so much the challenger could do to its vessel once it learned the details of the defender's vessel, which under the Deed do not have to be revealed until the date of the match.”
“It is not only advances in technology, but the unsportsmanlike behavior of Golden Gate that has resulted in substantially reducing SNG's advantage as originally contemplated by the Deed.”
“Nonetheless, Golden Gate's actions are not contrary to law or sanction able in this limited forum. Because Golden Gate's vessel is still being constructed and the Deed permits the challenger to continue construction after the Notice of Challenge has been issued, the court will not compel Golden Gate to obtain a Custom House Registry (COD) within a specific period of time.”
“ To do so would be contrary to the Deed and counterproductive. (BMWO Rules Expert) Peter Willis explained that even if Golden Gate had the necessary supporting paperwork for issuance of a COD and one was issued, subsequent structural changes to the vessel would require issuance of an amended COD. Therefore, issuance of the COD does not freeze the vessel in time.”
“The court does find that Golden Gate must complete its vessel sufficiently in advance of the challenge date to allow for the approximate one month delay in obtaining a COD from the NYDC, and Golden Gate must provide SNG with the actual, final COD at least two weeks prior to the challenge date.”
“Accordingly, it is ordered that SNG's order to Show Cause why Golden Gate should not be disqualified for failure to provide SNG with a CHR (COD) is denied.”
Calling GGYC’s actions “unsportsmanlike” is a little bit like the pot calling the kettle black. Both sides are complicit. She sites Alinghi’s reduced advantage, without mentioning the fact that has been more than 2 years since GGYC gave 10 months notice in its challenge. The defender has had ample time to properly prepare for this match. Countless times in the ongoing litigation SNG/Alinghi has stated a desire to cooperate towards mutual terms and has not. Including changing council as a pre-empt for more litigation.
GGYC issued a mutually acceptable protocol approved by a majority of competing challengers for an America’s Cup in 2011 in Valencia, with almost identical terms to the 32nd match in 2007. It would have accepted most of Alinghi’s controversial terms, including the development of an AC 33 boat, with limits of one new boat per team.
Had GGYC engaged in ongoing “unsportsmanlike” behavior, Justice Carmen Ciparik would have smoked them out long before the Appeals Court ruling last April. Her feelings on fair play are well documented.
The seventh circle. Violence…all this & Armageddon too!
SNG has selected Ras al Khaaimah (RAK)in the United Arab Emirates to host the 33rd America’s Cup. It selected this middle east venue on August 8th as ordered by the New York Supreme Court (NYSC). SNG bypassed Valencia, Spain host of the last America’s Cup in 2007. Both sides allowed the contracts for the 33rd version of the races to expire, primarily due to the protracted litigation.
Alinghi 5 sailed under the expected whimsical conditions off RAK in their fragile catamaran. With a wind range of 5-7 knots, with possible building breezes and relatively flat seas this is exactly what Alinghi needs to work out the kinks in their new cat.
“The conditions are ideal here for these boats,” said Brad Butterworth, Alinghi team skipper, “exactly the building sea breeze that we hoped for which means we can sail as much as six days a week; it couldn’t be better for what we are trying to achieve.”
Preparations for the America’s Cup continue apace, both on Al Hamra Island, home to the team bases, and within Al Hamra Village where the teams and America’s Cup visitors will be accommodated over the next few months. The infrastructure is tailor-made for the event, courtesy of Ras Al Khaimah and Dr Khater Massaad, Advisor to H.H. Sheikh Saud bin Saqr Al Qasimi, Crown Prince and Deputy Ruler of Ras Al Khaimah, whose support has been invaluable.
“We are proud to host such a world-acclaimed sporting event and welcome Alinghi with open arms,” said Dr Massaad, “we just hope to be able to welcome BMW Oracle, the challenger, soon in order to finalize preparations at their base on Al Hamra America’s Cup Island. The government of Ras Al Khaimah and the UAE guarantee the security of both teams in the lead up and during the Cup,” he declared. Following three weeks of modifications, the latest iteration of the giant trimaran boasts new features which will be worked up on shore, before the boat hits the water for more testing near the end of the month.
Most significantly, and in response to the new rules issued earlier this year for the 33rd America’s Cup by the Defender, SNG/Alinghi, the team has modified the BOR 90 cockpit to accommodate an engine.
The engine will primarily be used to drive hydraulics for trimming the enormous sails - the mainsail alone measures nearly 7,000 square feet - that propel the boat. Alinghi’s insistence on the use of engines has resulted in the team having not only to add an engine and related gear, but to redesign the boat’s cockpit on the center hull.
With the engine, there is no longer a requirement for the grinding pedestals and sailors (“grinders”) who until now provided the human power for the boat, so the cockpit has been reconfigured.
“When we originally designed and built the BOR 90, we assumed we would have to use the crew to provide all the power on board, as that has always been the case in the America’s Cup,” said design team director Mike Drummond.
“With the change to the rules, we’ve had to adapt, adjust and modify. Otherwise, the engine power that Alinghi designed into their boat would have given them a significant advantage. This all part of the process of preparing to race in February.”
Trucks containing boat components have arrived at BMWO’s team testing base in San Diego, California. Judging from the length and shape of the containers, the long anticipated hard wing carbon fibre sail appears to be taking shape. The components were built at Core Builders, the team’s Anacortes boat-building facility in Washington.
These new structures will be used in future modifications to the giant trimaran. “Everything has arrived in good shape and we’re pleased we can move on to our next stage of boat development,” said Mark Turner (NZL), boat construction manager.
"The timing is good,” says sailing team coach Glenn Ashby (AUS), “as the team ends this session on a high."
"Everyone has a huge amount of confidence in the boat right now," said Ashby. "The boat is now being sailed the way you'd sail a smaller boat like a Tornado or Extreme 40. We're now winding it up and pushing it hard. We're finding the boat's limitations, rather than the limits of our fear. So now it's a matter of continuing the evolution of the development program to just keep making it faster and faster."
James Spithill (AUS), BMW ORACLE Racing helmsman said, “Today we completed another very good test session. We have some new ideas on how to make this amazing machine even more powerful and responsive over a wider range of conditions.”
Russell Coutts (NZL), BMW ORACLE Racing’s CEO, echoed Spithill’s satisfaction with the latest sea trials, “We are pleased with our progress, and are confident that the yacht will be even faster and more versatile with these modifications.”
Coutts reiterated the commitment to the other challengers that after the Deed of Gift race with Alingi that the next America’s Cup would return to the traditional format adding; “Regardless, we will seek to negotiate with the Defender for a conventional, multi-challenger America’s Cup in monohulls.”
According to BMWO; “in light of the developing situation in the Arabian Gulf region, Ras al-Khaimah
is particularly unsuitable. SNG’s proposed course area is within 17 miles of islands occupied by Iran in a current territorial dispute with the United Arab Emirates, of which Ras al-Khaimahis a member state”
Ras al-Khaimah means ‘the top of the tent’ in Arabic, , it is one of the seven emirates that comprise UAE. In spite of the fact that BMWO principal Larry Ellison is Jewish, no one can be actually quite sure why Ernesto would choose a war zone for an America’s Cup defense except for Ernesto. He has long insisted that SNG being an NH club entitles it to a NH location and racing multihulls on an open ocean course is always an inherently risky business, anytime of year.
“We believe your venue is not Deed compliant because it does not provide “ocean courses, free of headlands”, stated GGYC Commodore Marcus Young. The “headlands” argument is a legitimate one, but with all else relatively minor.
“The GGYC believes that SNG’s choice of this venue without our mutual consent is contrary to the Deed of Gift and the decisions and orders of this court”, said Tom Ehman.
The issue at hand relates to a specific provision in the Deed of Gift relating to when the defending yacht club can host a challenge. As amended in 1985 when the Royal Perth Yacht Club won the ‘Cup in Newport, Rhode Island the Deed states; “The Challenging Club shall give ten months' notice, in writing, naming the days
for the proposed races; but no race shall be sailed in the days intervening between November 1st and May 1st if the races are to conducted in the Northern Hemisphere; and no race shall be sailed in the days intervening between May 1st and November 1st if the races are to be conducted in the Southern Hemisphere”.
The NYSC ordered that ten month tolling for the next America’s Cup began on May, 8th 2009 and that SNG was to select the venue six months prior to the start of the first race. RAK was chosen for its warm climate and moderate sea conditions, as opposed to Valencia, which in February has more winter-like weather. With the fragile nature of it’s newly constructed high tech composite catamaran Alinghi 5, SNG’s champion clearly was looking for a venue with wind ranges tilting more towards the lighter end of the spectrum.
The problem is that the Deed reads that the races in February cannot be held in the Northern Hemisphere and RAK,UAE is above the equator. In the defenders camp they feel that the language from Judge Herman Cahn, in his court order last year declaring that; “the location of the match shall be Valencia or any other location selected by SNG” gives them the “absolute legitimacy for Ras Al Khaimah to be the venue as per the Order and Judgment of 7 April 2009”.
The Golden Gate Yacht Club feels that Judge Cahn erred in his order and that he allowed Valencia, Spain as a Northern Hemisphere location contrary to the Deed only because he felt at that time there was mutual agreement on that location between the defender and challenger. Judge Cahn overstepped his authority in his interpretation in allowing a Northern Hemisphere site without mutual consent.
The ambiguity in that sentence should allow GGYC to prevail on appeal given the NY Courts track record in trying not to stray to far from its interpretation of the four corners of the Deed of Gift. If anything, given the strict language of the Deed, aside from mutual consent the only plausible Northern Hemisphere location would be the site of SNG’s annual regatta with is in Nice, France.
“The choice of RAK underscores SNG’s abject failure in its responsibilities as Trustee of the America’s Cup,” said Russell Coutts, skipper and CEO of GGYC’s BMW Oracle Racing team. “It seems that the Defender is prepared to go to any lengths to make this America’s Cup a travesty.”
The following was a Q & A from Alinghi when announcing the site location.
Where is Ras al-Khaimah?
Ras al-Khaimah is one of the seven emirates in the United Arab Emirates (UAE); it covers an area of 656 square miles (1,700km2) and borders on Oman, situated in the southern part of the Persian Gulf. The capital city of Ras al-Khaimah is located 45 minutes from Dubai airport and is also served by the Ras al-Khaimah International airport. The 300,000 population is ruled by HH Sheikh Saqr bin Mohammad al-Qasimi. The Deputy Ruler is Crown Prince HH Sheikh Saud Bin Saqr Al Qasimi.
What are the reasons for choosing the UAE and Ras-al-Khaimah?
1. The absolute priority in making the venue decision was the prevailing weather conditions and the resulting
safety they bring to both teams. (Just don’t drive a car in the Emirates. It is considered one of the world’s
most dangerous places to drive a car or to be a pedestrian). ps outside of Boston or Wisconsin that is…
2. The investment and the infrastructure provided was another important reason: a purpose-built island is
being made available for both teams to operate from.
3. The experience and commitment the UAE has in hosting international high-standard sporting, arts and
business activities.
Why this choice over somewhere like Dubai where Alinghi had already trained in 2006/2007?
We looked at the Emirates and many other places but in the end we settled on Ras al-Khaimah because it has a great building sea breeze during the day, similar to Mediterranean conditions in the summer, making it good for these boats and safe for all concerned.
Isn’t it a conflict region?
The UAE is recognized worldwide to be extremely secure; testimony to this is the fact that some of the most important international corporations have business interests and investments in the country, particularly coming from the USA. How will you tackle security concerns? The UAE is among the safest countries in the region, a fact that is acknowledged around the world and Ras al-Khaimah in particular is known for its peace and stability.
How much has Ras al-Khaimah paid SNG to host the 33rd AC?
There is no venue fee.
Why is there no venue fee?
Because the venue is already making a considerable investment in infrastructure.
Does the facility provide for both teams?
Yes it does on a purpose-built America’s Cup Island in Al-Hamra Village near Ras al-Khaimah.
BMW Oracle says that the Deed doesn’t allow a Northern Hemisphere venue in February, other than Valencia, in contradiction to the New York Court order (below). What is Alinghi’s position?
We are confident that the NY Court order of 12 May 2008 allows for a Northern Hemisphere venue in February other than Valencia. Excerpt from 12 May Court order: “[…] ORDERED that the location of the match shall be in Valencia, Spain or any other location selected by SNG, provided SNG notify GGYC in writing not less than six months in advance of the date set for the first challenge match race of the location it has selected for the challenge match races; and it is further […]”
What is the alternative if the court decides against SNG’s choice of a Northern Hemisphere venue other than Valencia?
As ever we will accept the NY Court’s order just as we follow the provisions of the Deed of Gift and will look for an acceptable alternative.
Just when you thought, yeah….what a great place for a regatta, consider this. Jazireh ye Qeshm is the largest island in the Persian Gulf , located in the Straits of Hormuz off the coast of Iran it a baron wasteland devoid of vegetation. History tells us that explorer William Baffin was fatally wounded on Qeshm in 1622 in battle with the Portuguese. In 1988, an Iran Air Airbus was shot down by a United States Navy guided missile cruiser USS Vincennes just 2 miles off the southern coast of the island, resulting in 290 deaths.
Abu Musa, is a small island located on the race course and is part of a territorial dispute between Iran and the United Arab Emirates. Its name is referred to in the ancient maps as the “land of Moses”. In the early seventies, Iran relinquished sovereignty of the island to UAE, but stations revolutionary guard troops there. A decade later, Saddam Hussein thru his turbine in the ring proclaiming that “liberating” the small island was part of his agenda in going to war against Iran.
Officials claim that their Emirate city-state is a safe haven, citing that there are numerous American corporations and business interests in nearby Dubai, including Ellison’s own company; Oracle. But, RAK is no Dubai. Dubai lies 40 miles to the south and a potential race course there does not place it smack dab in the middle of the narrow straits, with a flotilla of Iranian gun ships nearby.
Also thrown into contention is that 2 of the 9/11 terrorist attack were UAE nationals, not to mention the ports controversy 3 years ago when Dubai Ports World attempted to purchase P&O United Kingdom which operated major United States ports of call along the east coast including New York, Philadelphia and Miami. This prompted members of congress from both parties to cry foul and with the threat of a presidential veto the merger was scuttled. Dubai World Ports eventually sold P&O’s American assets to AIG.
Attention. News flash! This just in from the Alinghi press office. “The UAE and specifically Ras Al Khaimah is an extremely safe venue for the America’s Cup. The Emirate of Ras al Khaimah has peaceful and friendly relations with all of its neighbors. The venue and all the visitors to Ras Al Khaimah in the coming weeks and months will be received in a similar friendly, peaceful and security conscious way,” said Dr Khater Massaad, CEO of RAK Investment Authority and Special Advisor to Ras Al Khaimah’s Crown Prince and Deputy Ruler, H.H. Sheikh Saud bin Saqr Al Qasimi.
Massaad went on to say that: “It is quite reasonable to state that security for the America’s Cup would be significant no matter where the event is held and in Ras Al Khaimah this event will receive the same level of importance with full cooperation from the Navy, Coast Guards and the Police services to ensure the safety and well being of all visitors to the Emirate.”
‘This is a fantastic venue for the America’s Cup. It is work in progress, but what has been achieved so far is second to none. It’s an honor and a pleasure to be here and I can’t wait to get sailing,” said Ernesto Bertarelli, Alinghi team president, at a press conference in Al Hamra Village on Saturday. “Some of the things I see from BMW Oracle read like the trailer of a Hollywood movie, do they really think we and the rest of the world ignore the fact that 40% of the world oil traffic goes through the Strait of Hormuz and as many goods are coming in to provide for what is the fastest growing region in the world over the last 10 years?
If the Strait or this area had any security issues, we would know about it. So I say: Come on BMW Oracle, Larry Ellison, Russell Coutts and Tom Ehman; let’s get real and let’s get sailing. Stop inventing things for the sake of it.”
The Swiss defenders of the America's Cup strongly rejected security worries about holding the event in the Middle East for the first time and said Saturday they would be open to racing others in the Gulf if their U.S.-based challenger refuses to come.
The comments by Alinghi team president Ernesto Bertarelli hinted at the possibility that the bitter dispute over the venue — less than 80 miles from the Iranian coastline — could threaten the rare one-on-one competition in February for the oldest trophy in international sports.
Bertarelli said he still hopes to persuade BMW Oracle's owner, software tycoon Larry Ellison, to drop his objections. But it is clear that time is limited.
It took up to six weeks for Alinghi to get its sailing operations in place in Ras al-Khaimah, said Bertarelli, whose team took its catamaran, Alinghi 5, on its first Gulf training sail on Friday. That would mean BMW Oracle would likely need to begin its preparations by late December to be ready for the scheduled first race on Feb. 8. A hearing on the New York lawsuit is scheduled for Oct. 27.
“We can't force the Americans to show up if they don't want to show up,' Bertarelli told The Associated Press. He said there is no option to postpone the race and Alinghi would be open to racing another team if BMW Oracle refuses to come and is ruled as a forfeit by the America's Cup overseers.
“A delay is off the table. We have a commitment here with the country,” he said. 'We're ready to race in February.” He added that there are other teams that could be willing to step in for BMW Oracle, which had the right to ask for a one-on-one match under America's Cup rules. “All of these other teams I'm sure would be happy to join us here in Ras al-Khaimah,” he said. “I think we should open it up to other teams.” Bertarelli said the U.S. team was coming up with 'horror stories' that have no bearing in fact.
He noted that the United Arab Emirates hosts some of the world's premier sporting events — including an inaugural Formula 1 race in Abu Dhabi on Nov. 1 — and that bringing the America's Cup to the Gulf will generate more international interest in sailing. “Do (BMW Oracle) really think we are children?' Bertarelli told a news conference. “Come on. Let's get real and let's get sailing and stop inventing stuff,' he said.
”I think perhaps if we want friendship and dialogue between nations, one cannot only just send aircraft and soldiers. They have to send sportsmen,” he said. 'That's exactly what we are doing here.”
This has got to have all the earmarks of Armageddon and in the end who would have thought the Apocalypse could be sparked by a yacht race?
The eighth circle. Fraud
The 32nd America’s Cup 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.
March 28, 1989
Judge Carmen Ciparick disqualifies the SDYC and awards the America’s Cup to the Mercury Bay Boating Club. Ciparick ruled that the San Diego Yacht Club had “violated the spirit of the deed” when its “clear goal to was to retain the cup at all costs.” In her ruling she wrote; “the defender of the America’s Cup is more than the current champion yacht club. The yacht club winning the America’s Cup becomes the sole trustee under the deed of gift and has an obligation there under to insure a fair competition. The holder of the America’s Cup is bound to a higher obligation than the victor of the Stanley Cup or Super Bowl. In organized sports such as hockey or football there is a central authority for the development and enforcement of competition rules. The defender of the America’s Cup, as trustee, is charged with the responsibility of insuring that a subsequent defense is carried out in accordance with the letter and spirit of the deed of gift. San Diego clearly fell short of its obligations as trustee of the deed of gift.” “Accordingly, San Diego shall be disqualified in the September 1988 competition.”
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.
“ It is because of our vigilance that we – and not a make-believe yacht club – are now the Challenger of Record. There continue to be serious issues with the way Société Nautique de Genève is conducting their stewardship as Trustee of the oldest trophy in sports, and the way Alinghi have mounted their defense of the America’s Cup – from Day 1 when they tried to issue rules that were widely condemned as “the worst … in the history of the America’s Cup” to their recent issuance of measurement regulations that would disqualify our boat if left to stand,” said Tom Ehman.
Ehman continued, “That is why attorney David Boies and his firm Boies, Schiller & Flexner LLP have joined with our current legal team – to protect our competitive interests, the interests of sailing, and of the Cup itself.”
The ninth circle Treason
NYYC should revoke charitable trust, now. The club’s chairman of the America’s Cup Committee George Carmany lll entered the fray last year stating; that he “hoped our discussions will lead to agreements that will benefit all members of the broader America’s Cup community”.
The club appears to be duplicitous in its actions at least and if it wants to get evolved, it should have the onions to challenge the Swiss in the regatta. What does the club’s chairman do these days anyway; host luncheons?
The crux of BMW’s argument against the new protocol was that the defenders were running the challenger series, in addition to being able to participate in them. According to SNG/Alinghi the major problem in a billionaire dominated America’s Cup cycle was that the defender would lack the resources to simultaneously conduct a defense and prepare a host port city.
From the GGYC Website comes their latest barrage in an arsenal of defense for the 'Auld Mug.
"Reckless and repeated disregard in its stewardship of the America’s Cup by the Société Nautique de Geneve (SNG) has prompted the Golden Gate Yacht Club (GGYC) to ask the New York Supreme Court to remove the Swiss yacht club from its position as Trustee in a Breach of Fiduciary Duty."
"In its place, GGYC – the Challenger of Record the 33rd America’s Cup - has requested the Court to appoint a faithful, fit and proper substitute to oversee the next Match to be sailed in 2010, starting 8 February. A new Trustee would provide equitable terms for both competitors, something SNG has denied GGYC by its orchestration and manipulation of the rules and processes designed to ensure that the defending sailing team, Alinghi, can not lose."
"GGYC, and its sailing team, BMW ORACLE Racing, remain committed to sailing the Match on the dates in February 2010 set by the Court. There is no desire by this action to change Alinghi’s role as SNG’s sailing team and defender."
Foremost among a catalogue of failures of SNG and listed in a Breach of Fiduciary Duty complaint are:
• Offering the America’s Cup hosting rights in order to extract secret commercial deals
• Repeated attempts to seize control of the rules and officiating processes to ensure that Alinghi can not lose
• Moves to disqualify GGYC’s yacht despite assurances to the New York Supreme Court that this would not happen
• Selecting Ras Al Khaimah for the 33rd Cup to further its own business interests whilst exposing GGYC to unnecessary danger.
“Winning the Cup brings not just honor and pride, but responsibilities too. The honor may have gone, but the responsibilities remain,” said Russell Coutts, Skipper and Chief Executive of GGYC’s challenging team, BMW ORACLE Racing.
“The America’s Cup is meant to be hard to win, not impossible to lose,” added Coutts.
"The complaint also states that the America’s Cup was used as a powerful bargaining chip to extract enormous commercial benefits through secret and complex side deals in selecting Valencia and Ras Al Khaimah as host venues for the 32nd and 33rd Matches."
"It is clear that entities associated with Ernesto Bertarelli leveraged the America’s Cup for gain. “SNG says it has the right to change the rules for the America’s Cup races at any time and select all the umpires. It’s like letting the Phillies change the rules for the World Series after it starts and select all the umpires,” said David Boies, chairman of Boies, Schiller & Flexner.
“Basic fairness and sportsmanship require that a contest be played with set rules and judged by umpires free of interference. The Courts have already had to stop SNG from negotiating unfair rules with a sham competitor orchestrated by SNG. We hope that SNG will now abandon its efforts to win with rule manipulations and back-room deals. Let the best boat win on the water,” added Boies. GGYC is also contesting SNG’s choice of Ras Al Khaimah in a separate case before the New York Supreme Court because it is in direct contravention of the Deed of Gift’s clear stipulation that the Cup can only be sailed in the Northern Hemisphere between 1 May and 1 November. Nevertheless as Trustee, and in breach of its duty, SNG did not consult GGYC at any stage in selecting Ras Al Khaimah."
"Ernesto Bertarelli has taken advantage of the Cup holder’s inherent competitive balance in the Deed of Gift to absurd and obscene levels. By his actions on land he has tried to make sure that he can not be beaten on the water,” commented Bill Koch, whose America3 team was the successful defender of the America’s Cup in 1992. Italy’s Vincenzo Onorato, a three-time challenger, said of Alinghi’s proposed rules for the next Cup: “This is the most unsporting document ever done.” The America’s Cup has prospered for 158 years, despite the American Civil War, two World Wars and several economic depressions.
"The oldest international trophy in sport is now in peril because of the selfish and self-serving acts of the Swiss yacht club, its representative sailing team Alinghi, America’s Cup Management (both controlled by Ernesto Bertarelli) and other affiliates."
Heaven or the End or is it all the same? It has been posited (to put forward as a truth) that the right to act as trustee of the America's Cup should be decided on the water and not in a courtroom. We wholeheartedly agree. It falls now to SNG and GGYC to work together to maintain this noble sailing tradition as "a perpetual Challenge Cup for friendly competition between foreign countries"
Justice Carmen Ciparik, writing on behalf of a unanimous New York Court of Appeals, April 2, 2009
The next America's Cup should be in 2011.
1] Agree on the issue of the Version 6, or the AC 33 or 90 monohull.
2] Put on a financial cap of 100 million dollars per team with a rebate kicker back to the lesser funded teams if
the cap is exceeded.
3] Appoint a neutral America's Cup arbitration panel to be chosen by the former trustees of the America's Cup.
The panel will arbitrate disputes and appoint race officials.
4] All competing yacht clubs should be held to a higher standard and meet the minimum qualifications of the
Deed of Gift.
5] To the New York Supreme Court: Don't answer your phone. Get caller ID and if anyone representing an
America's Cup Syndicate or Yacht Club calls; ban them permanently from competition. It is time to stop the spin cycle, step back and return to basics. I'm sure that in New York City there will be plenty of ambulances
for all these attorneys to chase.
Saturday, October 10, 2009
Wow, It's a Tri!
Wow! Its hard not to get excited about the possibilities for the next America’s Cup after the unveiling of BMW Oracle’s powerful new 90 ft. composite trimaran. Under wraps for the better part of nine months in Anacortes, Washington at the team’s construction facility, the new multihull will be rigged up before it hits the rugged waters in the Straits of Juan de Fuca.
With its baptism a few weeks away, the America’s Cups most expensive (checking in at a possible, yet implausible 100 million dollars) and most technologically advanced racing machine ever built, will spend a short time sailing in the Pacific Northwest before the late autumn weather becomes more inclement for testing, and more conducive for carving jack-o-lanterns than gliding thru the schizophrenic currents of the Rosario Straits.
The sleek 90 X 90 ft. trimaran is the most sophisticated multihull ever constructed in the United States. Most of the expertise in multiple hulls comes from Europe, most notably France. The custom facility in Anacortes is located in the epicenter of America’s aerospace and computer Shangri La with corporations Boeing, Janicki Industries and Microsoft Inc. all headquartered nearby.
Designed by the French naval engineers Van Peteghem/Lauriot Prevost (VPLP) and Groupama 3 skipper Franck Cammas, the boat was built specifically to challenge for the 33rd America’s Cup against the Swiss yacht club Societe’ Nautique de Geneva and its racing team, Alinghi. VPLP as a design team is responsible for some of the fastest multi-hulls in the world. Their creation l’Hydroptere is on the threshold of breaking the 50 knot barrier in France as we speak clocking in at 46.7 knots on August 8th off Napoleon Beach in the ‘louis-du Rhone and the mega trimaran Banque Populaire V will launched shortly. These hi-tech carbon trimarans will make rubic cubes attempts at speed records in a variety of races ranging from the Route du Rhum to the Jules Verne around-the-world trophy.
The construction team was led by Mark Turner and Tim Smyth, who worked wonders in a 20,000 square foot canvas cavernous tent of the likes that Barnum and Bailey’s Circus could never have imagined.
The BMW Oracle sailing team is led by 3-time America’s Cup champion Russell “just a helmsmen” Coutts, Cammas and helmsmen James Spithill. BMW-Oracle is competing this summer in Europe on the I-Shares Cup circuit in 40 ft. high tech catamarans, as is Team Alinghi, in preparation for a potential Deed of Gift, New York Court ordered America’s Cup next year, most likely in Valencia, Spain.
“This is a very special boat and represents a special achievement by a hugely committed team who are among the world’s best at what they do,” Coutts said. We have learned a lot in getting to this point and now we are looking forward to testing it on the water.”
BMW Oracle represents the Golden Gate Yacht Club in San Francisco, California and is led by multi-billionaire Larry Ellison, who recently was named as the highest paid CEO in the United States at over $84.6 million dollars this year. Ironically, Ellison is probably bankrolling this challenge to the tune of over 200 million and has probably spent close to a half a billion dollars for his effort to land the America’s Cup….yea!
With its baptism a few weeks away, the America’s Cups most expensive (checking in at a possible, yet implausible 100 million dollars) and most technologically advanced racing machine ever built, will spend a short time sailing in the Pacific Northwest before the late autumn weather becomes more inclement for testing, and more conducive for carving jack-o-lanterns than gliding thru the schizophrenic currents of the Rosario Straits.
The sleek 90 X 90 ft. trimaran is the most sophisticated multihull ever constructed in the United States. Most of the expertise in multiple hulls comes from Europe, most notably France. The custom facility in Anacortes is located in the epicenter of America’s aerospace and computer Shangri La with corporations Boeing, Janicki Industries and Microsoft Inc. all headquartered nearby.
Designed by the French naval engineers Van Peteghem/Lauriot Prevost (VPLP) and Groupama 3 skipper Franck Cammas, the boat was built specifically to challenge for the 33rd America’s Cup against the Swiss yacht club Societe’ Nautique de Geneva and its racing team, Alinghi. VPLP as a design team is responsible for some of the fastest multi-hulls in the world. Their creation l’Hydroptere is on the threshold of breaking the 50 knot barrier in France as we speak clocking in at 46.7 knots on August 8th off Napoleon Beach in the ‘louis-du Rhone and the mega trimaran Banque Populaire V will launched shortly. These hi-tech carbon trimarans will make rubic cubes attempts at speed records in a variety of races ranging from the Route du Rhum to the Jules Verne around-the-world trophy.
The construction team was led by Mark Turner and Tim Smyth, who worked wonders in a 20,000 square foot canvas cavernous tent of the likes that Barnum and Bailey’s Circus could never have imagined.
The BMW Oracle sailing team is led by 3-time America’s Cup champion Russell “just a helmsmen” Coutts, Cammas and helmsmen James Spithill. BMW-Oracle is competing this summer in Europe on the I-Shares Cup circuit in 40 ft. high tech catamarans, as is Team Alinghi, in preparation for a potential Deed of Gift, New York Court ordered America’s Cup next year, most likely in Valencia, Spain.
“This is a very special boat and represents a special achievement by a hugely committed team who are among the world’s best at what they do,” Coutts said. We have learned a lot in getting to this point and now we are looking forward to testing it on the water.”
BMW Oracle represents the Golden Gate Yacht Club in San Francisco, California and is led by multi-billionaire Larry Ellison, who recently was named as the highest paid CEO in the United States at over $84.6 million dollars this year. Ironically, Ellison is probably bankrolling this challenge to the tune of over 200 million and has probably spent close to a half a billion dollars for his effort to land the America’s Cup….yea!
Tuesday, September 2, 2008
I'm "Having" a Conniption
Shock, surprise, bewilderment, in the face of the New York Appellant Court’s 1st Department’s (NYAC) ruling of July 29th we are left with a proverbial; “huh”? The world of the America’s Cup has been turned upside down again, because of a narrow parochial interpretation of what “having” means. Does it mean will have, or is it possessive, to own?
In the context of the sentence that it appears in, in the Deed of Gift; my grammar knowledge is about as good as Judge Leland Degrasse, who spoke for the narrow majority. All are new to the Appellant bench this year, more on that later. At some point it would have been nice if the court had at some point, considered the intent of the donors.
The Appellant Court ruled in a split decision (3-2) that the Club Nautico Espanol de Vela (CNEV) is again the challenger of record for the 33rd America’s Cup. In a ruling that has surprised everyone; most of all Team Alinghi, the Golden Gate Yacht Club has been displaced as the challenger of record and faces the prospect of either appealing to the New York Court of Appeals or facing the possibility of being barred from the next America’s Cup.
After more than a year of protracted litigation between Alinghi, representing the Societe Nautique de Geneva and BMW Oracle from the Golden Gate Yacht Club, the adversaries find themselves back to square one. This, after what was thought to be a final rubber stamp by the Appellant Court on the squabble over the dates for the 33rd America’s Cup next year.
The paragraph in question reads like this: "Any organized Yacht Club of a foreign country, incorporated, patented, or licensed by the legislature, admiralty, or other executive department, having for its annual regatta an ocean water course on the sea, or on an arm of the sea, or one which combines both, shall always be entitled to the right of sailing a match of this Cup, with a yacht or vessel propelled by sails only and constructed in the country to which the Challenging Club belongs, against any one yacht or vessel constructed in the country of the Club holding the Cup.”
The (GGYC) stated “it will carefully consider the implications of today’s ruling, before deciding on its next step.” “We are surprised and disappointed by this ruling. We will now be taking legal advice and considering the next step,” Tom Ehman, the club’s spokesman, said.
Ernesto Bertarelli, Alinghi president, comments: “We are delighted with this result; we can now continue with our vision of a multi-challenger event. The court’s decision validates our actions and enables us to put the America's Cup back on the water.”
Lucien Masmejan, SNG lead counsel, comments: “After a year of litigation interference by the GGYC, we are extremely pleased that the Appellate Division has found its challenges to SNG's conduct of the 33rd America's Cup baseless.”
“The GGYC’s actions have wasted a lot of time, effort and resources over the past year and we hope that it does not appeal. We must now evaluate whether adjustments have to be made due to the time consumed by its improper litigation initiatives.”
“The decision of the Appellate Division reads: “...the orders of the Supreme Court, New York County (Herman Cahn, J.), entered March 18, 2008 and May 13, 2008, which, inter alia, declared CNEV's challenge invalid and GGYC the Challenger of Record under the Deed of Gift, should be reversed, on the law, with costs, CNEV declared the Challenger of Record, and, in keeping with the Deed of Gift's requirement that the defender be given at least 10 months' written notice to prepare for the challenge, the 10-month notice period should be tolled until service of a copy of this order.”
So here we are with an apocalyptical nightmare America’s Cup scenario that appears to be deadlocked in an insurmountable ego driven bypass.
On one hand, there is Alinghi President Ernesto Bertarelli, whose team defended the America’s Cup last summer for SNG and who is trying to force his vision forward by usurping, for the most part, the mutual consent provision of a new protocol for the 33rd running of the world’s most prestigious yacht race.
On the other hand is Larry Ellison, the founder and chairman of Oracle. His racing team BMW Oracle had perhaps the fastest AC Class Version 5 boat in Valencia, Spain, but was virtually swept away in five of 6 races against Luna Rosa from Italy. Ellison’s team was the Challenger of Record, until they were eliminated. They lost 5-1 to Alinghi in 2003.
In an extraordinary set of circumstances the New York Court System is playing out like a bad episode of “Judge Judy”. Consider that three of the five judges on this Appellant Court are recent appointments. Judges Karla Moskowitz and Rolando Acosta were appointed by then Governor Eliott Spitzer, before his resignation for his indiscretion with in Washington DC with a high priced prostitute.
Leland DeGrasse was appointed in April, 2008 by now Governor David Paterson, who admitted his own marital infidelities. New York Court of Appeals Chief Justice Judith Kay,turns 70 on August 4th (Happy Birthday) which means mandatory retirement in the state, so this his her last term. She is also currently suing the State of New York for higher judicial pay!
What was interesting and now ironic is that the resolute, courageous Judge DeGrasse who endeavored over New York’s landmark educational reform lawsuit now has; low and behold the same firm in front of him representing Alinghi.
In the Fiscal Equity vs. the State of New York lawsuit, the plaintiffs were represented pro bono by Simpson Thacher, noble efforts aside. For DeGrasse, whose seat on the Appellant bench had warmed up to the tune of 6 short weeks, it would be tough to overlook the millions of dollars of “gratas” work by Simpson Thacher, in what is ultimately a charitable trust case involving the people of the State of New York.
This weekend the two ‘Cup powerhouses fight it out on the water in Cowes, England in the I-Shares Cup on Formula 40 catamarans. Both teams have spent the summer training on multihulls in preparation for the 33rd America’s Cup. Europe, not the United States, has become the center of the America’s Cup universe.
This summer, If your not training on cats, you’re on ‘monos in the Swedish Match Racing Tour or Med 52’s pounding it out in Italy or France. Other than distance races or small boats, America has fallen off the radar on the uber competitive match racing circuit. Unfortunately in all respects we have fallen victim to a domino effect “NASCAR Nation” ethos.
In an added twist the appeal was made by the defender in an effort to restore the challenger’s rights. CNEV didn’t even appeal after losing in court last November.
Currently, CNEV is without a team as Desafío Español terminated its relationship with the "paper" club and is now represented by the Real Club Maritimo del Abra,in Bilbao,in northern Spain. Also, Spain is now represented by another challenge; Reial Club Marítim de Barcelona and Real Club Náutico de Madrid, who have combined forces to form the Decision Challenge.
After Alinghi defended the ‘Cup in seven exciting races in probably the best America’s Cup ever, they brought in a challenger of record (COR)from Spain to sign off on Bertarelli’s vision for the next America’s Cup. Unfortunately, the new club had not fulfilled its minimum obligations to qualify as pro bono COR.
According to the strict terms of the Deed of Gift, which governs the rules, by which the America’s Cup can be challenged for the COR has had to have conducted an annual regatta and had to have been an established yacht club from a proprietary standpoint. This differs from merely being able to challenge for the ‘Cup.
The challenger of record is held to a higher standard. In past years several yacht clubs have been able to actually enter as challengers through the mutual consent clause set forth by the defender and the challenger of record. They have been held to a lesser standard since the COR is responsible for negotiating terms and organizing the challengers regatta.
The New York Yacht Club in 1887 specifically rewrote and changed the Deed of Gift to ward off inexperienced and inept challenges for the “Auld Mug” after 2 abhorrent challenges by the Canadians that tarnished the image of the regatta. The intent of the donors was very clear then as it should be now. CNEV does not have the ability to properly organize an America’s Cup challenge, nor does it process the ability to properly negotiate terms for the multiple challengers for a protocol for the 33rd America’s Cup.
Alinghi won the America’s Cup in New Zealand in 2003. The yacht club chose Valencia, Spain to host the 2007 America’s Cup. Valencia is located on the Mediterranean Sea and is one of the world’s oldest ports. The racing must take place on the sea, or an arm of the sea.
The word alinghi was made up as a child by Bertarelli. Alinghi beat Team New Zealand 5-2 in one of the most exciting America’s Cups in history. After the series was over SNG drafted the rules for the next America’s Cup. With the help of the Spanish Sailing Federation (RNEF) they created a phantom yacht club to agree to bogus new rules and represent any challengers, who might be interested in racing for the right to face to Swiss in an America’s Cup finals in 2009.
After the new rules were announced BMW Oracle and the GGYC objected to the new protocol for the next race and submitted a challenge for the America’s Cup to the SNG. When the challenge was rejected, the GGYC filed suit in the New York Supreme Court, to invalidate the Spanish challenge. The court is bound by the Deed to arbitrate all disputes relating to the America’s Cup Trophy, which is held as a charitable trust by the State of New York.
On November 27th, 2007 the Honorable Judge Herman Cahn ruled in favor of the Golden Gate Yacht Club (GGYC) and declared them to be the true challenger of record.
In Judge Cahn’s ruling, he was very clear on CNEV’s lack of qualifications as a bona fide challenger of record. It goes beyond having not run an annual regatta, to its charged responsibility of running an America’s Cup regatta. If you haven’t even run races for cases… of beer, what would possibly qualify a club to run the biggest regatta in the world?
Prior to that, BMW Oracle submitted nine amendments to the protocol and has support of most of the other seven challengers at this point. By in large, Bertarelli’s original vision for the protocol of the 33rd America’s Cup remains intact.
There is agreement on the new 90 ft. AC boat, the defenders are allowed to sail in the regatta; the dates, venue are unchanged and other than egos, the remaining point of contention would appear to be the 2 boat issue. In spite of Alinghi’s contention, this has little to do with sour grapes on Ellison’s part and more to do that many on his team are very well versed and rehearsed on rules that regulate the America’s Cup.
In order to keep costs under control, Bertarelli wants to limit construction of the new ‘Cup class and the inherent expense escalator of 2 boat testing.
The original contest for the One Hundred Guinea Cup took place off England's Isle of Wight in 1851. The contest was won by the yacht America, against 18 British challengers. Aboard, was New York Yacht Club Commodore John Cox Stevens, who later presented the trophy to the Club in 1857.
America dominated the event to such an extent, that Queen Victoria was said to ask, "Who's in second?” In which she was told, "You’re Majesty, there is no second!" In an act of conveyance, the original members of the “America syndicate” placed the ‘Cup in a charitable trust to the State of New York as a perpetual challenger’s trophy.
The deed of gift, which is the bylaw that governs the race, was amended by the last surviving member; George Schuyler in 1887. The defense of the “Auld Mug” for the most part, takes place every few years. It has changed hands several times between America, Australia, New Zealand and now, Switzerland.
Since the legal debacle in 1988, the Deed has generally been usurped of its authoritative grip on the rules by mutual agreement provisions called the America's Cup Protocol. The protocol's enabling resolutions allow the Challenger of Record to establish the rules and regatta format to determine who will challenge the defending boat for the America's Cup.
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 Judge Cahn’s ruling on March 17th he was 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. 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.
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.
In an ironic twist of fate the litigants come up against the honorable Judge Carmen Ciparick again…and we all know how she feels. She has little or no tolerance far all of this. Before this is over she will weigh in, heavily and with Chief Justice Judith Kaye pining for more dollars I can’t see where she will have much patience for the billionaire litigants, maybe she’ll revoke to charitable trust.
In 1989 Judge Ciparick disqualified the SDYC and awarded the America’s Cup to the Mercury Bay Boating Club. Ciparick ruled that the San Diego Yacht Club had “violated the spirit of the deed” when its “clear goal to was to retain the cup at all costs.”
In her ruling she wrote; “the defender of the America’s Cup is more than the current champion yacht club. The yacht club winning the America’s Cup becomes the sole trustee under the deed of gift and has an obligation there under to insure a fair competition. The holder of the America’s Cup is bound to a higher obligation than the victor of the Stanley Cup or Super Bowl. In organized sports such as hockey or football there is a central authority for the development and enforcement of competition rules. The defender of the America’s Cup, as trustee, is charged with the responsibility of insuring that a subsequent defense is carried out in accordance with the letter and spirit of the deed of gift. San Diego clearly fell short of its obligations as trustee of the deed of gift.”
It is in the spirit of that passion dream drama that vaporized, that many are now wanting for wonder, a bonus America’s Cup next summer. At this point who doesn’t want to see at least one high tech parley of tri-hulled foils ripping it out on the Mediterranean?
In the context of the sentence that it appears in, in the Deed of Gift; my grammar knowledge is about as good as Judge Leland Degrasse, who spoke for the narrow majority. All are new to the Appellant bench this year, more on that later. At some point it would have been nice if the court had at some point, considered the intent of the donors.
The Appellant Court ruled in a split decision (3-2) that the Club Nautico Espanol de Vela (CNEV) is again the challenger of record for the 33rd America’s Cup. In a ruling that has surprised everyone; most of all Team Alinghi, the Golden Gate Yacht Club has been displaced as the challenger of record and faces the prospect of either appealing to the New York Court of Appeals or facing the possibility of being barred from the next America’s Cup.
After more than a year of protracted litigation between Alinghi, representing the Societe Nautique de Geneva and BMW Oracle from the Golden Gate Yacht Club, the adversaries find themselves back to square one. This, after what was thought to be a final rubber stamp by the Appellant Court on the squabble over the dates for the 33rd America’s Cup next year.
The paragraph in question reads like this: "Any organized Yacht Club of a foreign country, incorporated, patented, or licensed by the legislature, admiralty, or other executive department, having for its annual regatta an ocean water course on the sea, or on an arm of the sea, or one which combines both, shall always be entitled to the right of sailing a match of this Cup, with a yacht or vessel propelled by sails only and constructed in the country to which the Challenging Club belongs, against any one yacht or vessel constructed in the country of the Club holding the Cup.”
The (GGYC) stated “it will carefully consider the implications of today’s ruling, before deciding on its next step.” “We are surprised and disappointed by this ruling. We will now be taking legal advice and considering the next step,” Tom Ehman, the club’s spokesman, said.
Ernesto Bertarelli, Alinghi president, comments: “We are delighted with this result; we can now continue with our vision of a multi-challenger event. The court’s decision validates our actions and enables us to put the America's Cup back on the water.”
Lucien Masmejan, SNG lead counsel, comments: “After a year of litigation interference by the GGYC, we are extremely pleased that the Appellate Division has found its challenges to SNG's conduct of the 33rd America's Cup baseless.”
“The GGYC’s actions have wasted a lot of time, effort and resources over the past year and we hope that it does not appeal. We must now evaluate whether adjustments have to be made due to the time consumed by its improper litigation initiatives.”
“The decision of the Appellate Division reads: “...the orders of the Supreme Court, New York County (Herman Cahn, J.), entered March 18, 2008 and May 13, 2008, which, inter alia, declared CNEV's challenge invalid and GGYC the Challenger of Record under the Deed of Gift, should be reversed, on the law, with costs, CNEV declared the Challenger of Record, and, in keeping with the Deed of Gift's requirement that the defender be given at least 10 months' written notice to prepare for the challenge, the 10-month notice period should be tolled until service of a copy of this order.”
So here we are with an apocalyptical nightmare America’s Cup scenario that appears to be deadlocked in an insurmountable ego driven bypass.
On one hand, there is Alinghi President Ernesto Bertarelli, whose team defended the America’s Cup last summer for SNG and who is trying to force his vision forward by usurping, for the most part, the mutual consent provision of a new protocol for the 33rd running of the world’s most prestigious yacht race.
On the other hand is Larry Ellison, the founder and chairman of Oracle. His racing team BMW Oracle had perhaps the fastest AC Class Version 5 boat in Valencia, Spain, but was virtually swept away in five of 6 races against Luna Rosa from Italy. Ellison’s team was the Challenger of Record, until they were eliminated. They lost 5-1 to Alinghi in 2003.
In an extraordinary set of circumstances the New York Court System is playing out like a bad episode of “Judge Judy”. Consider that three of the five judges on this Appellant Court are recent appointments. Judges Karla Moskowitz and Rolando Acosta were appointed by then Governor Eliott Spitzer, before his resignation for his indiscretion with in Washington DC with a high priced prostitute.
Leland DeGrasse was appointed in April, 2008 by now Governor David Paterson, who admitted his own marital infidelities. New York Court of Appeals Chief Justice Judith Kay,turns 70 on August 4th (Happy Birthday) which means mandatory retirement in the state, so this his her last term. She is also currently suing the State of New York for higher judicial pay!
What was interesting and now ironic is that the resolute, courageous Judge DeGrasse who endeavored over New York’s landmark educational reform lawsuit now has; low and behold the same firm in front of him representing Alinghi.
In the Fiscal Equity vs. the State of New York lawsuit, the plaintiffs were represented pro bono by Simpson Thacher, noble efforts aside. For DeGrasse, whose seat on the Appellant bench had warmed up to the tune of 6 short weeks, it would be tough to overlook the millions of dollars of “gratas” work by Simpson Thacher, in what is ultimately a charitable trust case involving the people of the State of New York.
This weekend the two ‘Cup powerhouses fight it out on the water in Cowes, England in the I-Shares Cup on Formula 40 catamarans. Both teams have spent the summer training on multihulls in preparation for the 33rd America’s Cup. Europe, not the United States, has become the center of the America’s Cup universe.
This summer, If your not training on cats, you’re on ‘monos in the Swedish Match Racing Tour or Med 52’s pounding it out in Italy or France. Other than distance races or small boats, America has fallen off the radar on the uber competitive match racing circuit. Unfortunately in all respects we have fallen victim to a domino effect “NASCAR Nation” ethos.
In an added twist the appeal was made by the defender in an effort to restore the challenger’s rights. CNEV didn’t even appeal after losing in court last November.
Currently, CNEV is without a team as Desafío Español terminated its relationship with the "paper" club and is now represented by the Real Club Maritimo del Abra,in Bilbao,in northern Spain. Also, Spain is now represented by another challenge; Reial Club Marítim de Barcelona and Real Club Náutico de Madrid, who have combined forces to form the Decision Challenge.
After Alinghi defended the ‘Cup in seven exciting races in probably the best America’s Cup ever, they brought in a challenger of record (COR)from Spain to sign off on Bertarelli’s vision for the next America’s Cup. Unfortunately, the new club had not fulfilled its minimum obligations to qualify as pro bono COR.
According to the strict terms of the Deed of Gift, which governs the rules, by which the America’s Cup can be challenged for the COR has had to have conducted an annual regatta and had to have been an established yacht club from a proprietary standpoint. This differs from merely being able to challenge for the ‘Cup.
The challenger of record is held to a higher standard. In past years several yacht clubs have been able to actually enter as challengers through the mutual consent clause set forth by the defender and the challenger of record. They have been held to a lesser standard since the COR is responsible for negotiating terms and organizing the challengers regatta.
The New York Yacht Club in 1887 specifically rewrote and changed the Deed of Gift to ward off inexperienced and inept challenges for the “Auld Mug” after 2 abhorrent challenges by the Canadians that tarnished the image of the regatta. The intent of the donors was very clear then as it should be now. CNEV does not have the ability to properly organize an America’s Cup challenge, nor does it process the ability to properly negotiate terms for the multiple challengers for a protocol for the 33rd America’s Cup.
Alinghi won the America’s Cup in New Zealand in 2003. The yacht club chose Valencia, Spain to host the 2007 America’s Cup. Valencia is located on the Mediterranean Sea and is one of the world’s oldest ports. The racing must take place on the sea, or an arm of the sea.
The word alinghi was made up as a child by Bertarelli. Alinghi beat Team New Zealand 5-2 in one of the most exciting America’s Cups in history. After the series was over SNG drafted the rules for the next America’s Cup. With the help of the Spanish Sailing Federation (RNEF) they created a phantom yacht club to agree to bogus new rules and represent any challengers, who might be interested in racing for the right to face to Swiss in an America’s Cup finals in 2009.
After the new rules were announced BMW Oracle and the GGYC objected to the new protocol for the next race and submitted a challenge for the America’s Cup to the SNG. When the challenge was rejected, the GGYC filed suit in the New York Supreme Court, to invalidate the Spanish challenge. The court is bound by the Deed to arbitrate all disputes relating to the America’s Cup Trophy, which is held as a charitable trust by the State of New York.
On November 27th, 2007 the Honorable Judge Herman Cahn ruled in favor of the Golden Gate Yacht Club (GGYC) and declared them to be the true challenger of record.
In Judge Cahn’s ruling, he was very clear on CNEV’s lack of qualifications as a bona fide challenger of record. It goes beyond having not run an annual regatta, to its charged responsibility of running an America’s Cup regatta. If you haven’t even run races for cases… of beer, what would possibly qualify a club to run the biggest regatta in the world?
Prior to that, BMW Oracle submitted nine amendments to the protocol and has support of most of the other seven challengers at this point. By in large, Bertarelli’s original vision for the protocol of the 33rd America’s Cup remains intact.
There is agreement on the new 90 ft. AC boat, the defenders are allowed to sail in the regatta; the dates, venue are unchanged and other than egos, the remaining point of contention would appear to be the 2 boat issue. In spite of Alinghi’s contention, this has little to do with sour grapes on Ellison’s part and more to do that many on his team are very well versed and rehearsed on rules that regulate the America’s Cup.
In order to keep costs under control, Bertarelli wants to limit construction of the new ‘Cup class and the inherent expense escalator of 2 boat testing.
The original contest for the One Hundred Guinea Cup took place off England's Isle of Wight in 1851. The contest was won by the yacht America, against 18 British challengers. Aboard, was New York Yacht Club Commodore John Cox Stevens, who later presented the trophy to the Club in 1857.
America dominated the event to such an extent, that Queen Victoria was said to ask, "Who's in second?” In which she was told, "You’re Majesty, there is no second!" In an act of conveyance, the original members of the “America syndicate” placed the ‘Cup in a charitable trust to the State of New York as a perpetual challenger’s trophy.
The deed of gift, which is the bylaw that governs the race, was amended by the last surviving member; George Schuyler in 1887. The defense of the “Auld Mug” for the most part, takes place every few years. It has changed hands several times between America, Australia, New Zealand and now, Switzerland.
Since the legal debacle in 1988, the Deed has generally been usurped of its authoritative grip on the rules by mutual agreement provisions called the America's Cup Protocol. The protocol's enabling resolutions allow the Challenger of Record to establish the rules and regatta format to determine who will challenge the defending boat for the America's Cup.
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 Judge Cahn’s ruling on March 17th he was 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. 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.
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.
In an ironic twist of fate the litigants come up against the honorable Judge Carmen Ciparick again…and we all know how she feels. She has little or no tolerance far all of this. Before this is over she will weigh in, heavily and with Chief Justice Judith Kaye pining for more dollars I can’t see where she will have much patience for the billionaire litigants, maybe she’ll revoke to charitable trust.
In 1989 Judge Ciparick disqualified the SDYC and awarded the America’s Cup to the Mercury Bay Boating Club. Ciparick ruled that the San Diego Yacht Club had “violated the spirit of the deed” when its “clear goal to was to retain the cup at all costs.”
In her ruling she wrote; “the defender of the America’s Cup is more than the current champion yacht club. The yacht club winning the America’s Cup becomes the sole trustee under the deed of gift and has an obligation there under to insure a fair competition. The holder of the America’s Cup is bound to a higher obligation than the victor of the Stanley Cup or Super Bowl. In organized sports such as hockey or football there is a central authority for the development and enforcement of competition rules. The defender of the America’s Cup, as trustee, is charged with the responsibility of insuring that a subsequent defense is carried out in accordance with the letter and spirit of the deed of gift. San Diego clearly fell short of its obligations as trustee of the deed of gift.”
It is in the spirit of that passion dream drama that vaporized, that many are now wanting for wonder, a bonus America’s Cup next summer. At this point who doesn’t want to see at least one high tech parley of tri-hulled foils ripping it out on the Mediterranean?
Friday, August 22, 2008
USA From BMW Oracle
Photo release picture from BMW Oracle of the Golden Gate Yacht Club's Challenger for the 33rd America's Cup. Photo By Neil Rabinowitz
IT'S A TRIMARAN !!!
From BMW Oracle
New boat unveiled in Anacortes.
BMW ORACLE Racing said today it was very pleased to confirm that after nine months of intense activity its team in Anacortes is in the final stages of preparing its new 90-foot multihull yacht for sailing.
The carbon fiber trimaran emerged from under wraps at its purpose-built construction shed here for the first time today. The trimaran is the third yacht constructed for the team in this waterfront community 100 miles north of Seattle, and is an outstanding achievement by its designers and builders, the team’s CEO and skipper, Russell Coutts said.
“This is a very special boat and represents a special achievement by a hugely committed team who are among the world’s best at what they do,” Coutts said. We have learned a lot in getting to this point and now we are looking forward to testing it on the water.”
The yacht is a key element of the team’s preparation for the next America’s Cup, representing San Francisco’s Golden Gate Yacht Club (GGYC), on which a ruling is expected from the New York State Court of Appeals in the next six months.
The team partnered with Van Peteghem / Lauriot Prévost (VPLP) of France and one of the most successful skippers in multihull racing, Franck Cammas, to design the innovative trimaran.
Led by Mark Turner and Tim Smyth, the BMW ORACLE Racing construction team has worked in a purpose-built composite yacht construction facility housed in a 100-foot x 200-foot, three-story shed. Janicki Industries in nearby Sedro-Woolley provided high-tech precision tooling.
“Today, everyone is proud to have reached this milestone in the final launch preparations,” Turner said. “Our team has worked hard and we have enjoyed great local support.”
Turner said the team is delighted by the expertise available in Anacortes, which has a well developed cluster of marine infrastructure, aerospace-quality tooling and other support operations required for such a high-tech undertaking.
Bringing unique technological competence and setting new standards in the area of intelligent lightweight design, BMW has been a key partner in developing the boat. BMW aeronautical engineers, Christoph Erbelding and Thomas Hahn, have stayed with the design team since the 32nd campaign providing unique expertise in finite element analysis, which is a key tool for fulfilling EfficientDynamics requirements in the automotive industry.
Erbelding works with the rig team in Valencia and Rhode Island, while Hahn is based with the hull structures team at Anacortes; both are integral team members in ensuring the boat is as stiff and light as possible while delivering maximum performance.
The team continues the final fit-out of the boat as it prepares for some preliminary sea trials here next month.
News Story from BMW Oracle Racing
New boat unveiled in Anacortes.
BMW ORACLE Racing said today it was very pleased to confirm that after nine months of intense activity its team in Anacortes is in the final stages of preparing its new 90-foot multihull yacht for sailing.
The carbon fiber trimaran emerged from under wraps at its purpose-built construction shed here for the first time today. The trimaran is the third yacht constructed for the team in this waterfront community 100 miles north of Seattle, and is an outstanding achievement by its designers and builders, the team’s CEO and skipper, Russell Coutts said.
“This is a very special boat and represents a special achievement by a hugely committed team who are among the world’s best at what they do,” Coutts said. We have learned a lot in getting to this point and now we are looking forward to testing it on the water.”
The yacht is a key element of the team’s preparation for the next America’s Cup, representing San Francisco’s Golden Gate Yacht Club (GGYC), on which a ruling is expected from the New York State Court of Appeals in the next six months.
The team partnered with Van Peteghem / Lauriot Prévost (VPLP) of France and one of the most successful skippers in multihull racing, Franck Cammas, to design the innovative trimaran.
Led by Mark Turner and Tim Smyth, the BMW ORACLE Racing construction team has worked in a purpose-built composite yacht construction facility housed in a 100-foot x 200-foot, three-story shed. Janicki Industries in nearby Sedro-Woolley provided high-tech precision tooling.
“Today, everyone is proud to have reached this milestone in the final launch preparations,” Turner said. “Our team has worked hard and we have enjoyed great local support.”
Turner said the team is delighted by the expertise available in Anacortes, which has a well developed cluster of marine infrastructure, aerospace-quality tooling and other support operations required for such a high-tech undertaking.
Bringing unique technological competence and setting new standards in the area of intelligent lightweight design, BMW has been a key partner in developing the boat. BMW aeronautical engineers, Christoph Erbelding and Thomas Hahn, have stayed with the design team since the 32nd campaign providing unique expertise in finite element analysis, which is a key tool for fulfilling EfficientDynamics requirements in the automotive industry.
Erbelding works with the rig team in Valencia and Rhode Island, while Hahn is based with the hull structures team at Anacortes; both are integral team members in ensuring the boat is as stiff and light as possible while delivering maximum performance.
The team continues the final fit-out of the boat as it prepares for some preliminary sea trials here next month.
News Story from BMW Oracle Racing
Friday, August 1, 2008
From Alinghi
BMW Oracle heads back to court to force its way as America’s Cup Challenger of Record
Sailing community disappointed by further delays in getting the race back on the water
Earlier this week the Appellate Division of the New York Supreme Court ruled in favour of the Société Nautique de Genève (SNG) declaring Club Náutico Español de Vela (CNEV) the rightful Challenger of Record for the 33rd America’s Cup and denying the Golden Gate Yacht Club (GGYC) this status.
After wasting more than a year in litigation and losing arguments, BMW Oracle has gone to court for the second time to force its strategy of eliminating numerous America’s Cup teams entered as legitimate challengers.
Brad Butterworth, team skipper of Alinghi and four-time America’s Cup winner, comments: “I’m disappointed that given the opportunity for a multi-challenger competition as a result of the Appellate Court decision, BMW Oracle has chosen to further delay the 33rd America’s Cup.”
SNG and CNEV have already made plans to organise the most competitive and spectator friendly America's Cup challenger series in history and that despite BMW Oracle’s unsuccessful year-long attempt to preclude competition and turn the America's Cup into a two team duel. BMW Oracle is now attempting to further delay and frustrate the conduct of the America's Cup by filing a frivolous, but time consuming appeal.
BMW Oracle was unable to advance to the final round of the America's Cup in the 31st and 32nd events, having been eliminated in the challenger series on each occasion. SNG and the entire sailing community is offended by BMW Oracle’s attempts to accomplish through expensive litigation initiatives what it has never been able to achieve on the water, which is to be a finalist in the America's Cup.
SNG, by contrast, won the 31st America's Cup by winning the challenger series and defeating the then Cup holder and then successfully defended the trophy in the 32nd America's Cup. SNG seeks to defend the Cup against the opponent who proves the strongest by winning the challenger series on the water. When given the opportunity for a regatta against the Defender Alinghi, BMW Oracle clearly demonstrated its intent to win through legal manoeuvering rather than accept competing fairly on the water.
Sailing community disappointed by further delays in getting the race back on the water
Earlier this week the Appellate Division of the New York Supreme Court ruled in favour of the Société Nautique de Genève (SNG) declaring Club Náutico Español de Vela (CNEV) the rightful Challenger of Record for the 33rd America’s Cup and denying the Golden Gate Yacht Club (GGYC) this status.
After wasting more than a year in litigation and losing arguments, BMW Oracle has gone to court for the second time to force its strategy of eliminating numerous America’s Cup teams entered as legitimate challengers.
Brad Butterworth, team skipper of Alinghi and four-time America’s Cup winner, comments: “I’m disappointed that given the opportunity for a multi-challenger competition as a result of the Appellate Court decision, BMW Oracle has chosen to further delay the 33rd America’s Cup.”
SNG and CNEV have already made plans to organise the most competitive and spectator friendly America's Cup challenger series in history and that despite BMW Oracle’s unsuccessful year-long attempt to preclude competition and turn the America's Cup into a two team duel. BMW Oracle is now attempting to further delay and frustrate the conduct of the America's Cup by filing a frivolous, but time consuming appeal.
BMW Oracle was unable to advance to the final round of the America's Cup in the 31st and 32nd events, having been eliminated in the challenger series on each occasion. SNG and the entire sailing community is offended by BMW Oracle’s attempts to accomplish through expensive litigation initiatives what it has never been able to achieve on the water, which is to be a finalist in the America's Cup.
SNG, by contrast, won the 31st America's Cup by winning the challenger series and defeating the then Cup holder and then successfully defended the trophy in the 32nd America's Cup. SNG seeks to defend the Cup against the opponent who proves the strongest by winning the challenger series on the water. When given the opportunity for a regatta against the Defender Alinghi, BMW Oracle clearly demonstrated its intent to win through legal manoeuvering rather than accept competing fairly on the water.
BMW ORACLE APPEALS!
Valencia, Spain, 1 August 2008: The Golden Gate Yacht Club (GGYC) said today it has lodged an appeal against this week’s decision of the Appellate Division of the New York State Supreme Court.
“We believe the Challenger of Record has to be a real yacht club. It cannot be something that is manufactured with a defender to set up a one-sided event. This decision would set an absurd precedent,” Tom Ehman, the club’s spokesman said.
“We believe we have an excellent case for winning on appeal.”
Because it was a split decision among five judges the club has an automatic right of appeal.
Ehman said the club looked forward to obtaining a result that will end any further legal dispute.
“We believe the Challenger of Record has to be a real yacht club. It cannot be something that is manufactured with a defender to set up a one-sided event. This decision would set an absurd precedent,” Tom Ehman, the club’s spokesman said.
“We believe we have an excellent case for winning on appeal.”
Because it was a split decision among five judges the club has an automatic right of appeal.
Ehman said the club looked forward to obtaining a result that will end any further legal dispute.
Thursday, July 17, 2008
For the Love of Mackinac!
Mackinac Island Hat Tricks and Other Stories
The magic that is Mackinac. With its emerald blue waters, it is an island that is full of wonder and mystique as you venture back in time. Welcome to Mackinac Island, 'Michilimackinac' in ancient Ojibwa for the land of the great turtle. With its sweet aroma of fudge and horse droppings Mackinac is to Michigan what Monte Carlo is to Monaco...the Midwest’s principality.
"Mackinaw", derives originally from "michibou", who was a God of the waters and forest spirits.
Mackinac Island was the burial ground for ancient tribal chiefs. In the 17th century the Straits of Mackinac was the fur trading commercial center of North America. The fort at Mackinac provided security to a then young nation and played a pivotal role in the War of 1812 as it changed hands with the British after battle. After the Civil War, Mackinac Island became the nation's second national park.
In 1895 the War Department turned over the property deeds of more than 70% of the island to the State of Michigan. It became Michigan's first state park. At the turn of the century, Midwestern lumber barons built several palatial hotels for summer tourists. They would arrive by large ships or by train to escape the heat and humidity of the big cities to vacation in the cool northern breezes (except in 2001!) of the Great Lakes. The Grand Hotel, which boasts the world's largest front porch was the jewel of these wooden palaces.
The general allure to Mackinac Island is other than the afore-mentioned refreshing cool summer breezes, is its unique recapturing of geologic & American history. The center piece of Mackinac’s summer are the July yacht races; one which starts in Chicago, Illinois, sailing up the Lake Michigan shoreline and the other which originates near Detroit, Michigan, proceeding up the treacherous emerald waters of Lake Huron. Topping off these sailing extravaganzas are the hats of course! No Mackinac Race is complete without the baseball cap.
The hat trick stories provide the drama of which many dreams may lie. The key to the Port Huron hats is tracking down the voluptuous Bacardi Girls early and often. It isn't too hard to spot these 6ft. girls with their day glow hair.
As far as the Mt. Gay caps the tack is much trickier. These puppies are few and far between. My son helped me score mine during the Y2K blackout in 2000. Mt Gay has been a longtime sponsor of the Chicago-Mac Race. While trying to get our hands on the other popular item that year, the fortuitous glow sticks, we ran into the Mt. Gay Representative who heartily obliged us with the luminous sticks, but the hat were a different matter. Anyway, to make a long story short, he unselfishly tracked me down the next day and gave me his own hat!
The Bayview YC's awards ceremony, the infamous Bacardi Party, takes place on the front lawn of the Mission Point Resort. Rocker Bob Seger in his boat Lightning has taken race winning honors home on a couple of occasions and the Grand Hotel plays host to the Chicago Yacht Club’s reception. 1987’s gala was interrupted with Pied Piper’s exciting record shattering performance as Dick Jenning’s Santa Cruz 70 (now Great Lakes 70) showed up under the Mackinac Bridge during the party!
The Port Huron Race concludes off Cedar Point on Mission Point’s southeastern shore. Being able to sit on the beach and watch some 200 + yachts finish, gliding wistfully under a beautiful summer moon or under a bright blue sunshine and turquoise waters sporting a variety of colorful spinnakers (weather permitting) is truly brilliant!
MPR is located on the island's east end. The resort takes its name from the original Mission House, built in the 1820's by Reverend William Ferry as a school for the local Indian children.
In the late 1940's an organization led by Frank Buchman launched a global vision of peace and honesty known as the MRA "Moral Re-Armament" society. The group added to their international conference center campus throughout the 50's before deeding the property to Mackinac College in 1966.
In 1987 Mission Point was born again and is referred to as "Mackinac Island's Friendly Resort" has become the island's premier family destination.
What was once the MRA's "Great Hall" is now MPR's main lobby. It is one of the most awe-inspiring structures imaginable. Constructed with 65ft. timbers of Michigan virgin pine, the trusses were floated across the Straits of Mackinac from nearby Bois Blanc Island to resemble an Indian tepee.
The "Great Hall" fulfills the Ojibwa prophesy that, "someday on the east end of the island a great tepee will be erected. All nations will come there and learn about peace.
Several years ago MPR began recruiting food & beverage/hotel management students from England, Ireland and Scotland to meet the demands of a longer season. The students are fulfilling their internships. Their presence has given Mission Point an ambience and international flair that allows the original educational mission to continue.
Unbeknown to the crews at the start of Y2K's Chicago to Mackinac Race, the island began experiencing a series of power outages. What began shortly after the conclusion of the Bacardi Bayview Race as sporadic interruptions, reached epic proportions two days after the start and by the arrival time of a majority of the fleet the Mayor of Mackinac Island, Margaret Dowd had declared a state of emergency and imposed a midnight curfew.
As anyone who is on the island during the yacht races know; by midnight the overflow crowds of sailors at the Pink Pony, Horne's, the French Outpost and all the other bar crawl venues are just beginning shake off those sea legs. Luckily, even with a lack of power the weather was blue skies and as long as the beer was cold, the majority made due the CYC crowd is generally a fairly hearty contingent.
What had occurred in this "once in a lifetime" event was a corrosion of some of the seven cables which lead to the island, leading to a massive overload. By mid-week the island was humming with generators from large to small.
The Grand Hotel brought over a generator the size of a semi-trailer. Most had portable units left over from the New Year hype, which of course had failed to materialize. Needless to say the hardware stores in Petoskey and Cheboygan kept busy.
Unlike most northern islands Mackinac has little or no mosquito problems thanks to an energetic bat population.
The bats, which on an individual basis can consume hundreds to thousands of the menacing pests every evening find a creative path around people as they kamikaze their way to dinner. Once you get used to their frolicking acrobatics you appreciate the work they do.
Yes, fudge, loads and loads of it. According to legend, fudge making began on Mackinac Island in 1887 by Rome Murdick. Over the last 50 years several other prominent island families began producing their own recipes and who makes the best fudge is subject to interpretation.
Fudge shops dot Main Street and the sweet smell is unmistakable....almost. Which leads us to Mackinac Island's other great tradition, horses. No cars allowed. When the noisy automobile was first introduced at the turn of the century they disrupted the horse population in such a profound way that the city's fore-fathers has the insight to ban on the island in the infancy of their existence.
This led to the island's world signature; an authentic horse driven culture. All shipments and luggage on the island are delivered by horse dray or bicycle. Horse powered taxis conveniently provide a relaxing or romantic interlude towards your destination. During the winter months the horses are transported off the island to a farm complex in the Upper Peninsula.
The island is not without its struggles for the future. The State of Michigan has wrestled for years over the idea of a new marina on the island to accommodate the needs of recreational boaters during the summer months.
An angry division resounded between the Michigan DNR and preservationists. A majority of island residents felt a new marina would infringe on the Victorian charm and historical nature of Mackinac. The DNR poured fuel on the fire by submitting design plans that resembled the Taj Mahal.
Thankfully, compromise appears to have been reached by a plan to expand facilities within Hallemand Bay, by redirecting ferry traffic and constructing an additional break wall & adding dock space. This year the old Arnold Lines Coal Dock is getting a long overdue rework.
Though with all things It is important to recognize the difference between what you think you need and what you actually need. The charm of Mackinac Island is that you still feel like you are stepping back “somewhere in time”. Stay tuned.
Monday, May 12, 2008
New York Courts Rule. Appeal Likely
Judge Herman Cahn finalized his court order today. In a bit of a shocker he temporarily gave the Societe Nautique de Geneva (SNG)representing Alinghi a bit of a lift, ruling that the match should commence 10 months from today.
Apparently the Judge had his own toll in place. Though BMW Oracle has not announced it as yet, they are certain to appeal. The America's Cup is a challenger driven event and this ruling clearly gives the advantage back to Alinghi, whose delay tactics have clearly paid off....for now.
Judge Cahn has ordered an America's Cup match for March of next year. This means that Alinghi will have to defend in the Southern Hemisphere, if the ruling stands. Off the cuff, Capetown, South Africa and Auckland, New Zealand would appear to have the inside track for hosting the next America's Cup.
Team Shosholoza has displayed loyalty to SNG throughout the litigation and has been financial supported by Alinghi Team owner Ernesto Bertarelli.
For New Zealand, this would seem to be a way to appease the Kiwis, who are suing Alinghi for breach of contract. Perhaps an Auckland defense would be an olive branch.
Anyway, for BMW Oracle this is a major defeat and it would appear that the four corners of the Deed are in their favor. Clearly no official toll was in place, since Alinghi rejected original terms last September. In their brief to the Appellant Court, BMW Oracle included language about the 10 month notice of challenge.
Clearly, this is not over and expect further fireworks before the June hearing date.
Stay tuned.....
Posted by Mark Wharton Reid at 10:40 PM 0 comments
From Alinghi
Justice Cahn from the New York Supreme Court today ruled in favour of the Société Nautique de Genève (SNG) – represented by Alinghi, Defender of the America’s Cup – ordering the Deed of Gift Match brought by the Golden Gate Yacht Club (GGYC) to be raced in 2009.
Lucien Masmejan, lead counsel for the SNG, comments: “We are pleased that Justice Cahn has issued this order and recognised within his decision that it was the actions of the GGYC that brought the America’s Cup to court and that depriving SNG of the 10-month notice period mandated by the Deed of Gift would be inequitable.
“This 10-month notice period should commence when there is a final decision regarding the propriety of the GGYC challenge and fully taking into account the Northern Hemisphere window as indicated in the Deed of Gift. This means that the Match cannot take place before May 2009.
“Several issues still remain unresolved. Among these, the GGYC certificate is critical, as it is unclear and contradictory. Since GGYC refuses to provide us with the information required in the Deed of Gift, we are forced to continue with the legal procedures that GGYC started by bringing the America’s Cup to court."
Posted by Mark Wharton Reid at 10:40 PM 0 comments
From BMW Oracle
New York Supreme Court Judge Herman Cahn orders date and venue for America’s Cup.
Today the New York State Supreme Court issued an order that the next America’s Cup match should take place in March next year, ten months from now, and that the Defender should disclose the venue six months prior to that. “We are pleased that the Court has advanced the process and required the Defender to confirm the venue,” Golden Gate Yacht Club spokesman Tom Ehman said. “We will now be considering the order to determine our next steps.”
Posted by Mark Wharton Reid at 10:36 PM 0 comments
Wednesday, May 7, 2008
On and on we go. Where it ends, nobody knows...except.
With all the latest ruminating by the legal powers that be, it appears that the reality show the 33rd America's Cup has become, is being thrown into an eternal spin cycle by lawyers without end.
Not one damn thing can be decided by the two competing factions, without the specter of litigation. All because of the fact that thru an attempt at mutual agreement last December, for the most part the Golden Gate Yacht Club and the Society Nautique de Geneva could not agree about whether one or two of the new AC 90 Class America's Cup boats should be built.
Ninety-five percent of the bullshit Protocol for the 33rd America's Cup seemed to be acceptable to the warring factions. New York Supreme Court Judge Herman Cahn should return to that moment in time and order binding arbitration on the infamous 9-point plan. He should declare that upon resolution of the protocol that the dates for the next America's Cup should be in 2011.
1] On the issue of the AC 90, 2 boats should be permitted for no other reason than for safety's sake. To figure out the wherewithal to race, tack, jibe and hit the starting line with these new boats, you need to learn how to mix it up and scrape some paint without killing your opponent or yourself.
2] If money is the big concern, put on a financial cap of 100 million dollars per team with a rebate kicker back to the lesser funded teams if you exceed the cap.
3] Appoint a neutral America's Cup arbitration panel to be chosen by the former Trustees of the America's Cup. The panel will arbitrate disputes and appoint race officials.
4] All competing YACHT CLUBS should be held to a higher standard and meet the minimum qualifications of the Deed of Gift. That means by 2011 you have 3 years to hold an "annual" regatta. If you need a sponsor call your local beer or rum distributor.
5] To the New York Supreme Court: Don't answer your phone. Get caller ID and if anyone representing an America's Cup Syndicate or Yacht Club calls; ban them permanently from competition.
It is time to stop the spin cycle, step back and return to basics. I'm sure that with summer approaching in New York City there will be plenty of ambulances for all these attorneys to chase.
Posted by Mark Wharton Reid at 8:28 AM 0 comments
Monday, April 28, 2008
Sports Bar America's Cup
Try this one on for size, during an interplay of a sports converse, being asked hey, what’s going on with the America’s Cup?” Sum that one up in a moment or two without either completely gaining or losing an audience. This is either a two minute short answer or a twenty minute layered monologue. Hence a time line of events.
In a brief summation, the America’s Cup is currently held by the Geneva Yacht Club in Switzerland. They won the America’s Cup in New Zealand in 2003. The yacht Club chose Valencia, Spain to host the 2007 America’s Cup. Valencia is located on the Mediterranean Sea and is one of the world’s oldest ports. The racing must take place on the sea, or an arm of the sea.
Last year, in Valencia the yacht club was represented by its sailing team called Alinghi. The word alinghi was made up as a child by the owner of the team, billionaire Ernesto Bertarelli.
Alinghi beat Team New Zealand 5-2 in one of the most exciting America’s Cups in history. After the series was over, the Geneva Yacht Club drafted the rules for the next America’s Cup. With the help of the Spanish Sailing Federation, they created a phantom yacht club to agree to bogus new rules and represent any challengers, who might be interested in racing for the right to face to Swiss in an America’s Cup finals in 2009.
After the new rules were announced, the Golden Gate Yacht in San Francisco, California objected and issued a challenge of their own in accordance to the rules that govern the America’s Cup, called the Deed of Gift. The Deed of Gift was drafted by the owners of the yacht that won the first Cup race in 1851.
In 1887 the America’s Cup was deeded in a charitable trust to the people of the State of New York. Any legal disputes that arise involving the America’s Cup must be resolved by the New York Court System.
When the Golden Gate Yacht Club objected to the new rules they sued the Geneva Yacht Club in the New York Supreme Court. The issue now stands before a judge and we are all awaiting his final ruling.
It is possible when the final ruling is made that the next America’s Cup may take place later this year or early next year in giant multi hull boats. So, in very simple terms; that’s the way it is.
Of course to most people, the America’s Cup hasn't been on sport's radar since Dennis Conner lost the Cup and then won it back in the 1980’s. What makes this next court generated race so compelling is that the majority can't recall anything about all the America’s Cup races that took place over the last twenty years, but they do remember Dennis defending the ‘Cup in a catamaran.
What goes around, comes around.
Posted by Mark Wharton Reid at 12:06 PM 0 comments
Timeline
A Brief History of the America’s Cup.
The original contest for the One Hundred Guinea Cup took place off England's Isle of Wight in 1851. The contest was won by the yacht America, against 18 British challengers. Aboard, was Commodore John Cox Stevens, who later presented the trophy to the New York Yacht Club in 1857.
America dominated the event to such an extent, that Queen Victoria was said to ask, "Who's in second?” In which she was told, "You’re Majesty, there is no second!"
The first race for the “America's Cup” was in 1870 off of Staten Island, in New York as the schooner Magic won a fleet race against the British challenger Cambria. In an act of conveyance, the original members of the America syndicate, placed the ‘Cup in a charitable trust as a perpetual challenger’s trophy.
The deed of gift, which is the bylaw that governs the race, was amended by the last surviving member George Schuyler in 1887. The defense of the “Auld Mug” for the most part, takes place every few years. It attracted such luminaries as legendary yacht designer Nathanial Herreshoff, Captain Charles Barr and tea baron Sir Thomas Lipton.
The NYYC moved the regatta to the exclusive resort community of Newport, Rhode Island in 1930. The America’s Cup was graced in the 1930’s by the magnificent J-boat class. Led by railroad and banking blueblood Harold Vanderbilt, he matched up victoriously against the aeronautical wizard T.O.M. Sopwith, from over the pond in England.
After World War ll, the races were revived in 1958 with the 12-Meter Class boat. These 60 ft. yachts provided challenging matches in Newport's moderate and shifty wind conditions. Throughout the next three decades, the NYYC conducted defense trials served up most of the drama, with CNN cable mogul Ted Turner, France’s Baron Marcel Bich (the Bic pen) and avid fan Walter Cronkite providing most of the star power.
That was until 1983, when the controversial winged keel yacht Australia 2, won the America’s Cup in the best of seven races over Dennis Conner's Liberty. The men from the land “downunder" unbolted the trophy and took it back to the picturesque fishing port of Fremantle, Western Australia, to defend it against all comers.
In one of the greatest sports comebacks of all time Conner, challenging under the burgee of the San Diego Yacht Club went down to Australia in 1987 and brought the 'Cup back to America, crushing the Australian yacht Kookaburra in the process 4 to 0.
Enter New Zealand, who through the efforts of banker Michael Fay was able to challenge for the "Cup in 1988 by forcing the SDYC to run the races under a strict interpretation of the original race rules. Again, Dennis Conner countered with a brilliant defense, this time in a fixed wing-sail catamaran.
The America's Cup recycles its event about every 4 years or so. It has changed hands several times between America, New Zealand and now, Switzerland. The Swiss yacht Alinghi, representing the Geneva Yacht Squadron won the ‘Cup in 2003. The team defended it this past year in Valencia, Spain, against many challengers from all over the globe, including teams from South Africa and China.
Since Fay's surprise challenge, the Deed has generally been usurped of its authoritative grip on the rules by mutual agreement provisions called the America's Cup Protocol. The protocol's enabling resolutions allow the Challenger of Record to establish the rules and regatta format to determine who will challenge the defending boat for the America's Cup.
The matches feature the yachts sailing against each other on a windward/leeward course, approximately twenty miles in length. A series of elimination round robins, between all the challengers race for the Louis Vuitton Cup. Each round is worth more points than the last, and the highest scoring two yachts face off against each other to determine who race the defender for the America’s Cup. The Italian fashion design store Louis Vuitton has sponsored the challenger trials since 1970.
August 22, 1851
The original contest for the One Hundred Guinea Cup took place off England's Isle of Wight. The around the island regatta was won by the racing schooner America, against eighteen British challengers. Leading the effort was Commodore John Cox Stevens, who later presented the trophy to the New York Yacht Club in 1857.
America dominated the event to such an extent, that Queen Victoria was said to ask, "Who's in second?” In which she was told, "You’re Majesty, there is no second!"
October 24, 1887
The last surviving member of America’s ownership syndicate George Schuyler amends the Deed of Gift leaving the trophy to the New York Yacht Club as a charitable trust; “donated upon the conditions that it shall be preserved as a perpetual Challenge Cup for friendly competition between foreign countries.”
This Deed of Gift, made the twenty-fourth day of October, one thousand eight hundred and eighty-seven, between George L. Schuyler as the sole surviving owner of the Cup won by the yacht AMERICA at Cowes, England, on the twenty-second day of August, one thousand eight hundred and fifty-one, of the first part, and the New York Yacht Club, of the second part, as amended by an order of the Supreme Court of the State of New York dated December 17, 1956 and April 5, 1985. WITNESSETH That the said party of the first part, for and in consideration of the premises and of the performance of the conditions and agreements hereinafter set forth by the party of the second part, has granted, bargained, sold, assigned, transferred and set over, and by these present does grant, bargain, sell, assign, transfer, and set over, unto said party of the second part, its successors and assigns, the Cup won by the schooner yacht AMERICA, at Cowes, England, upon the twenty-second day of August, 1851. To have and to hold the same to the said party of the second part, its successors and assigns, IN TRUST, NEVERTHELESS, for the following uses and purposes: This Cup is donated upon the conditions that it shall be preserved as a perpetual Challenge Cup for friendly competition between foreign countries.Any organized Yacht Club of a foreign country, incorporated, patented, or licensed by the legislature, admiralty, or other executive department, having for its annual regatta on ocean water course on the sea, or on an arm of the sea, or one which combines both, shall always be entitled to the right of sailing a match for this Cup, with a yacht or vessel propelled by sails only and constructed in the country to which the Challenging Club belongs, against any one yacht or vessel constructed in the country of the Club holding the Cup. The competing yachts or vessels, if of one mast, shall be not less than forty-four feet nor more than ninety feet on the load water-line; if of more than one mast they shall be not less than eighty feet nor more than one hundred and fifteen feet on the load water-line. The Challenging Club shall give ten months' notice, in writing, naming the days for the proposed races; but no race shall be sailed in the days intervening between November 1st and May 1st if the races are to conducted in the Northern Hemisphere; and no race shall be sailed in the days intervening between May 1st and November 1st if the races are to be conducted in the Southern Hemisphere. Accompanying the ten months' notice of challenge there must be sent the name of the owner and a certificate of the name, rig and following dimensions of the challenging vessel, namely, length on load water-line; beam at load water-line and extreme beam; and draught of water; which dimensions shall not be exceeded; and a custom-house registry of the vessel must also be sent as soon as possible. Center-board or sliding keel vessels shall always be allowed to compete in any race for this Cup, and no restriction nor limitation whatever shall be placed upon the use of such center-board or sliding keel, nor shall the center-board or sliding keel be considered a part of the vessel for any purposes of measurement. The Club challenging for the Cup and the Club holding the same may, by mutual consent, make any arrangement satisfactory to both as to the dates, courses, number of trials, rules and sailing regulations, and any and all other conditions of the match, in which case also the ten months' notice may be waived.In case the parties cannot mutually agree upon the terms of a match, then three races shall be sailed, and the winner of two of such races shall be entitled to the Cup. All such races shall be on ocean courses, free from headlands, as follows: The first race, twenty nautical miles to windward and return; the second race an equilateral triangular race of thirty-nine nautical miles, the first side of which shall be a beat to windward; the third race (if necessary) twenty nautical miles to windward and return; and one week day shall intervene between the conclusion of one race and the starting of the next race. These ocean courses shall be practicable in all parts for vessels of twenty-two feet draught of water, and shall be selected by the Club holding the Cup; and these races shall be sailed subject to its rules and sailing regulations so far as the same do not conflict with the provisions of this deed of gift, but without any times allowances whatever. The challenged Club shall not be required to name its representative vessel until at a time agreed upon for the start, but the vessel when named must compete in all the races, and each of such races must be completed within seven hours. Should the Club holding the Cup be for any cause dissolved, the Cup shall be transferred to some Club of the same nationality, eligible the challenge under this deed of gift, in trust and subject to its provisions. In the event of the failure of such transfer within three months after such dissolution, such Cup shall revert to the preceding Club holding the same, and under the terms of this deed of gift. It is distinctly understood that the Cup is to be the property of the Club subject to the provisions of this deed, and not the property of the owner or owners of any vessel winning a match. No vessel which has been defeated in a match for this Cup can be again selected by any Club as its representative until after a contest for it by some other vessel has intervened, or until after the expiration of two years from the time of such defeat. And when a challenge from a Club fulfilling all the conditions required by this instrument has been received, no other challenge can be considered until the pending event has been decided. AND, the said party of the second part hereby accepts the said Cup subject to the said trust, terms, and conditions, and hereby covenants and agrees to and with said party of the first part that it will faithfully and fully see that the foregoing conditions are fully observed and complied with by any contestant for the said Cup during the holding thereof by it; and that it will assign, transfer, and deliver the said Cup to the foreign Yacht Club whose representative yacht shall have won the same in accordance with the foregoing terms and conditions, provided the said foreign Club shall, by instrument in writing lawfully executed, enter with said part of the second part into the like covenants as are herein entered into by it, such instrument to contain a like provision for the successive assignees to enter into the same covenants with their respective assignors, and to be executed in duplicate, one to be retained by each Club, and a copy thereof to be forwarded to the said party of the second part. IN WITNESS WHEREOF, the party of the first part has hereunto set his hand and seal, and the said party of the second part has caused its corporate seal to be affixed to these presents and the same to be signed by its Commodore and attested by its Secretary, the day and year first above written. GEORGE L. SCHUYLER, 1887
September 26, 1983
Australia 2, the radical Ben Lexcen and Peter van Oossanen designed winged keel 12-Meter wins the America’s Cup in a dramatic 7th race by 41 seconds over Dennis Conner’s Liberty ending the New York Yacht Club’s 132 year authoritative grip on the trophy.
February 4, 1987
Dennis Conner, representing the San Diego Yacht Club goes down under to Fremantle, Western Australia with his 12-Meter boat Stars & Stripes and takes the America’s Cup back to the United States defeating Kookaburra 4-0. The New Zealand Syndicate that year constructed the first glass twelve; it was Dennis Conner's contention that certain exotic fibers (lighter in weight and density) were used at the ends of Kiwi Magic, thereby increasing her windward speed. Conner asked for core samples to be taken from the hull of Kiwi Magic
The problem was the rules administered by Lloyds of London were vague concerning the scantling requirements in fiberglass and ultimately the Kiwi boat was ruled legal..
Winged keels, radical bustles and multiple appendages, like USA's graphite epoxy front rudder system become the norm this time around as the 12-Meter Class blossomed with design innovation. Stars and Stripes 87 turned like a freight-train and had a keel that looked like a VW Beetle, but in a straight line she moved like a rocket ship.
Conner and Co. pulled out all the stops in the playoffs by developing the shark-skin coating from the Twin Cities based 3M Corporation called riblets and hoisting a spinnaker with big pockets appropriately called "Dolly".
July 17, 1987
New Zealand businessman Michael Fay representing the Mercury Bay Boating Club directly challenges the SDYC for the America’s Cup. Under a strict interpretation of the Deed of Gift, Fay issues 10 months notice for a race in 90 ft. on the load waterline length monohulls. The maximum allowed under the rules.
August 8, 1987
The SDYC reject the MBBC’s challenge. Malin Burnham, President of Sail America, "We have 25 signed affidavits to support our interpretation on racing in 12-Meters. The weight of the world is in our favor." Michael Fay, New Zealand Challenge, "There is a great deal of worldwide support for such a competition (J-Boats), and it's growing." Arthur J. Santry, Jr., Commodore New York Yacht Club, The San Diego Yacht Club's action is not in the best interest of the America's Cup and is inappropriate."
So tell me. What does the world really want? More importantly, what will the world get? Brace yourself, the battle lines for the "Auld Mug" are being drawn, and you had better be careful on which side you choose.
Once again the America's Cup wars have returned to the shores of the Atlantic Ocean. Unfortunately, this time they're being waged on the floors of the New York Supreme Court.
The litigation in New York began with Michael Fay's challenge for the Cup in 90 ft. waterline length boats, the maximum allowed under the Deed of Gift. The San Diego Yacht Club refused his challenge, so Fay brought the matter to court. Fay is attempting to hold the SDYC responsible for administering the provisions of competition for the Cup under the terms of the original Deed of Gift. "We have taken the initiative, both to challenge in 1988 and to do so in a completely different class of boat that will restore some of the romance and grandeur to the event," said Fay, who was the syndicate head of the New Zealand Challenge in Perth and is representing the Mercury Bay Boating Club in this matter.
“We are dismayed and disappointed that Mr. Fay would elect to drag one of the world's premier sporting events into a court of law," states Malin Burnham, President of Sail America, and no stranger to Cup politics, having run Dennis Conner's last three campaigns. Sail America is manager of the SDYC's America's Cup Defense. "I can assure Mr. Burnham and Sail America that this is a genuine and serious challenge, made in the best traditions of the America's Cup," says Fay, "and New Zealand will be pursuing it with full vigor."
"Fay's action comes as no surprise," said Burnham. "It is merely further evidence of his determination to manipulate and control the terms of this matter to his own advantage."
The Mercury Bay Boating Club sent its challenge to the SDYC on July 15, 1987. Under the provisions set forth by the Deed, Fay gave the SDYC 10 months' notice, calling for races to be held on June 1, 3, & 7 of next year, off San Diego, in boats that will measure more than 135 feet in length.
Unfortunately, the challenge came at an inopportune time for the SDYC, as they were struggling with Sail America just to hold the next Cup regatta in home waters.
These giants will be ultra-light "trapeze" J-Class boats, with crews of 40 men. The boat is under construction now at Martens Marine in Auckland, NZ, and will be christened on February 27, 1988.
The SDYC has received three other challenges to date in J-Class yachts. They include Alan Bond from the Royal Perth YC, Peter de Savary, representing the Royal Burnham YC, and the YC of Cannes, France. Both Bond and de Savary have also challenged in 12 Meters.
To date, Sail America has received 20 challenges for 1991 in 12 Meters, and according to the affidavit filed on September 18th, half of those challengers have spent $7.7 million dollars on their 12Meter campaigns.
The center of this controversy is the Deed of Gift. The Deed is the constitution of the America's Cup. All matters relating to the Deed are subject to interpretation by the New York Supreme Court.
The original Deed of Gift was written in 1857 by the surviving members of the America Syndicate and the NYYC, which had won the America's Cup in 1851 off the Isle of Wight in England. It was amended in 1887 by George Schuyler. Two amendments have been added since then: in 1956 to allow for 12-Meters as the yacht of choice, and in 1984, to accommodate Perth, Australia, as trustee to the Cup.
The storm revolves around a series of provisions, which are referred to as enabling resolutions.
These unwritten by-laws to the Deed have gone unchallenged until now.
"If it were not for the NYYC in 1956 as acting trustee conceiving of ways to adapt the Deed to drastically changed times and circumstance, the America's Cup, would be a relic gathering dust,' states Burnham.
"Mr. Fay and his colleagues would have us forsake the living Deed of Gift at the very peak of its vitality and return instead to an obsolete match which bears no resemblance to the vigorous spirit of truly international competition so evident in Perth earlier this year!" states an emphatic Burnham.
"As trustee of the Cup, SDYC has a responsibility to protect the interests of all challengers," said Burnham. "While we are unhappy to see Mr. Fay attempt to win in court what would be hard to win at sea, we are well-prepared to fight for the sake of the other challengers and for the future of the America's Cup.
If one front in this war wasn't enough for the SDYC to wage, enter the NYYC, author of the Deed of Gift and trustee to the America's Cup for 132 years. The NYYC has gone to court to prevent SDYC's petition to amend the Deed, that would allow for the Cup to take place only every four years and then only in 12-Meters.
The NYYC, which adamantly maintains that the Club takes no position in the suit between SDYC and Fay, and has stepped forth only to prevent, according to Commodore Arthur J. Santry, Jr., "each future trustee of the Cup from being able to dictate whatever terms for the challenge and defense of the Cup that seemed best to suit the interests of that trustee."
There is a lot of misunderstanding in regards to the Deed of Gift," spoke Santry. "SDYC's actions are not in the interest of the Cup and is inappropriate." In response to the legality of Fay’s challenge, Santry said, 'I don't think there is any question about it."
"It's important to remember that the NYYC does not support New Zealand's challenge," said Tom Ehman, executive VP and chief operating officer of Sail America. Ehman was also the executive director for the NYYC's unsuccessful America II challenge. "They are only involved in the separate proceeding in which we have asked to amend the Deed of Gift," states Ehman. "They have remained neutral on the challenge."
When the SDYC first responded to Fay's challenge with a blunt thanks, but no thanks, it then went about its own business: you know 'Rain, rain, go away, come again another day'. Well, it never rains in San Diego, except on the day when the SDYC and the City chose to make their announcement on the America's Cup.
Well, on that day, what was to have been a landmark occasion for the City of San Diego, became instead the format in which to respond to Fay's challenge. On the previous day, Fay had sought and obtained a restraining order from the Court preventing the SDYC from discussing any plans that relate to the 1991 Cup.
The restraining order was lifted a week later, which basically meant that Sail America could proceed with their plans on paper, though no-one was rushing out to start pouring concrete.
When Stars and Stripes won the America’s Cup earlier this year, Conner and Company had rolled through the New Zealand “plastic fantastic" to win the series 4 to 1 and earn the right to face Kookaburra 3 (which they trashed as well) for the America's Cup.
Kiwi Magic was the first fiberglass 12-Meter and had passed technical inspection. But Conner, who plays the psychology game as well as anyone, and is not one to mince words about enemy technology, commented that, "Why else would you build a fiberglass 12 Meter, unless you were going to cheat?"
Well, New Zealand hadn't, but that was not the point, and Conner knew it. But Fay wasn't about to let dead dogs lie, and while everyone in San Diego was haggling about where to hold the Cup Defense, he was up late studying the Deed. Also Russell Bowler, project manager for Kiwi Magic's fiberglass construction.
Fay's challenge dictates that the races commence 10 months from the date of his challenge in accordance to the Deed, though the Judge has ruled the races would take place 10 months from her decree, if she rules in Fay's favor.
"What we are proposing won't be any easier than challenging in 12 Meters," said Fay. "New Zealand will again be the newcomer going against the Americans, who were invincible for more than 80 years when the Cup was raced in boats of the size we have nominated."
"New Zealand is interested in sailing, not in being in court; we're looking back to the old traditions of the America's Cup, and we have to be careful that the sport does not become overly commercialized."
"We welcome the challenges from Australia and Great Britain, and we are prepared to sail against
them," said Fay, "and any other challenge that arrives in San Diego in time. Just to get the boat ready and to San Diego in time will be a major feat."
New Zealand, J-l has a construction crew of 30 people working around the clock to get her ready. David Barnes, who skippered Kiwi Magic to a World Championship in Sardinia last summer is part of the resource of the program, but no decision will be made on a skipper for some time to come.
Though no one would comment publicly, there can be no doubt that the Stars and Stripes brain trust are plugging in numbers for a J-Boat design of their own.
“SDYC and Sail America are confident we have the moral and legal high ground in this matter, and we hope and expect a favorable decision shortly, states Ehman.”We haven't even taken our gloves off yet," boasts Burnham.
August 31, 1987
MBBC takes the issue before the New York Supreme Court, which under the state’s charitable trust laws, is the arbiter on legal matters on the America’s Cup.
September 9, 1987
New York Supreme Court Judge Carmen Ciparick orders a tolling period to take place in lieu of ongoing litigation. Notice of challenge for 10 months, will commence at the conclusion of court proceedings or by an order of the court.
November 25, 1987
New York Supreme Court Judge Carmen Ciparick rules that the SDYC must accept the challenge from the MBBC.
December 28, 1987
New York Supreme Court Judge Carmen Ciparick modifies previous tolling agreement. “Ordered that the ten (ten) month notice period in the valid notice of challenge of the Mercury Bay Boating Club Inc. of July 15, 1987, previously tolled by the Court on September 9, 1987 pending determination of the motions and actions in Case 1 and Case 2, shall resume and continue to run from the date of service of a copy of this order with notice of entry upon the attorneys for the parties and on the office of the Attorney General of the State of New York.”
January 22, 1988
The SDYC announces that it will defend the America’s Cup in a catamaran.
July 25, 1988
Judge Ciparick refuses to bar SDYC’s catamaran stating; “Nothing in this decision should be interpreted as indicating that multi-hulled boats are either permitted or barred under the America’s Cup deed of gift.” Ciparick directs both parties to reserve protests or further litigation after the completion of the races. “The America’s Cup deed is a relatively simple document that seeks to encourage international competition among sportsmen without providing for intricate rules and dispute resolution mechanisms that have become the prominent focal points in our time,” wrote Ciparick. “The vision that Schuyler and the other donors sought to perpetuate over the years was that of an international race on a grand scale among boats on the seas and not a land bound battle among clever lawyers in the courthouse.” In her ruling though Ciparick sent a bit of a warning shot of what was to come in her courtroom by adding; “The conclusion is inescapable that the donor (George Schuyler) contemplated the defending vessel to relate in some way to the specifications of the challenger.”
September 9, 1988
The SDYC defends the America’s Cup, with Dennis Conner winning the first two races in a best of three series. Michael Fay vows to return to court to challenge the validity of SDYC’s catamaran.
March 28, 1989
Judge Carmen Ciparick disqualifies the SDYC and awards the America’s Cup to the Mercury Bay Boating Club. Ciparick ruled that the San Diego Yacht Club had “violated the spirit of the deed” when its “clear goal to was to retain the cup at all costs.” In her ruling she wrote; “the defender of the America’s Cup is more than the current champion yacht club. The yacht club winning the America’s Cup becomes the sole trustee under the deed of gift and has an obligation there under to insure a fair competition. The holder of the America’s Cup is bound to a higher obligation than the victor of the Stanley Cup or Super Bowl. In organized sports such as hockey or football there is a central authority for the development and enforcement of competition rules. The defender of the America’s Cup, as trustee, is charged with the responsibility of insuring that a subsequent defense is carried out in accordance with the letter and spirit of the deed of gift. San Diego clearly fell short of its obligations as trustee of the deed of gift.” “Accordingly, San Diego shall be disqualified in the September 1988 competition.”
September 19, 1989
By a 4-1 decision the Appellate Division of the New York Supreme Court overturned the ruling by Judge Ciparick and returned the America’s Cup to the San Diego Yacht Club. The auld mug itself never made the trip to New Zealand. The ‘Cup has been store in a bank vault awaiting its fate and will likely remain there until all measure of appeals have exhausted themselves. In a 30 page majority decision Judge Joseph Sullivan ruled that; “that San Diego’s catamaran was an eligible yacht.” Justice Israel Rubin added that, the “SDYC should not be deprived of its victory simply because the design of its vessel was more innovative and more successful in achieving its purpose than that of the challenger.”
November 22, 1989
The Appellate Court in a unanimous decision rules that Michael Fay will be able to appeal to the New York Court of Appeals in Albany, NY, the highest court in the state.
April 26, 1990
The New York Court of Appeals rules 5-2 that the San Diego Yacht Club will retain the America’s Cup and will be free to organize the defense of their choosing.
May 1992
San Diego plays host to an America’s Cup final, under a new mutually agreed protocol, which featured unlimited spending by billionaires, who in the case of the Italian Syndicate il Moro, built 5 new ACC boats only to lose in a closely contested series to Bill Koch’s America Cubed 4-1.
May 1995
Team New Zealand wins the America’s Cup crushing Young America 5-0. TNZ leader Peter Blake vows changes in the way the defender and the event conducts the America’s Cup. Blake was extremely displeased at how the SDYC altered its defense trials allowing the Team Dennis Conner entry, after appearing to be eliminated, to be free to sail another day, ultimately winning in Stars & Stripes and then choosing the losing yacht, Young America; to defend.
March 2000
Team New Zealand defends the America’s Cup in the waters of the Hauraki Gulf off Auckland, NZ in what was another listless final. The Prada team from Italy emerged from a thrilling Louis Vuitton Cup series that went the distance in nine exciting races against Paul Cayard’s America One, and was left with little wind in their sails to challenge the mighty Kiwi’s, before losing 5-0.
March 2000
Below was posted on the fansite of Team Luna Rosa:
This is a letter Peter Blake wrote to the Prada Team a few days after their defeat against Team New Zealand in the 2000 AC.
DEDICATED TO LUNA ROSSA
The America’s Cup is an elusive trophy, and has rarely changed hands in the last 150 years. This is not a sport for the faint hearted. It is not a quest to take lightly or on a whim. It is a fight between sailors from yacht clubs all over the world that desperately want the same thing: get their hands on the Cup. The prestige for the winner has more value than any other sporting achievement. It’s winning the invincible and doing the impossible that attract sailors, dreamers and millionaires, but the victory is not easy, and most of the time it doesn’t happen. The only way to win is to continuously participate, continuously return time and time again with the conviction that you can do it.
Hesitating after the first attempt is not part of the rules of the game. You need extraordinary people with ferocious motivation, lots of experience and attention to details and unconditional dedication. The game is uncertain; for all you can dedicate, for all that you can motivate, and for all that you are willing to spend the victory is never guaranteed. For some it becomes a kind of drug. It is a game that you can come to deeply hate, to than discover that you can’t live without it at least not until you win. Then there’s the metamorphous (at least that is what happened to me). I was part of a crew that succeeded in winning the America’s Cup at least once and successfully defending it. I was finally free of the tightness in my mouth and in my stomach. I am paid. I am cured. I go to sleep at night and dream other dreams. New passion are being born inside of me.
Just so that it is clear, competing for the America’s Cup is a game of passion, of dreams when in every waking moment (and while you are asleep) you have only one unique thought and that is winning but the victory is uncertain until you have it in your hands. The delusion and the disappointment hurts even when the others are suffering, imagine trying it out on your own hide. You keep asking yourself “how”? and “why”?
For weeks until you find the determination to try again, to not repeat the same mistakes, to do it better than before, to be better that the rest of the world, to be the best and than the anxiety becomes dreams and passions all over again. The thought of winning never ever abandons you but it is better to leave it on the side and concentrate on a new objective: to be the best in every phase of the new challenge. Nothing is left alone, not even the smallest detail. But this doesn’t happen just because you want it to. You need a Team of exceptional people who share the same dream and the same passion and are not scared even when odds are against them. It’s the difficulty of the challenge that puts the adrenalin in your veins that may have been weakened by the previous defeat.
The America’s Cup is what it is because it is so difficult to win. It is not a game for armchairs admirals. It is not a game for a person who is not prepared to come back. It is not a game for the faint hearted. It is a game for those who are not scared of pitting themselves against the best that the world has to offer. It’s a game where winning is almost impossible, almost, but not impossible. And this is why it is worth fighting for. It is the difficulty that gives any challenge some sense.
This is the essence of life itself. To all the people in Team Prada who are telling their story in this book, I would like to say, I admire your sportsmanship, your tenacity and your enthusiasm for life. You have given all of us a really positive imagine of your country and your countrymen will be proud of you. This time you didn’t win but certainly didn’t lose. You only lose when you don’t have the courage to return. Not winning is part of the learning process which leads you to success. Because it is also a question of luck. It won’t be easy. The best thing never are.
Peter Blake
April 2000
Victorious in their defense of the America’s Cup Team New Zealand now moves ahead with plans for the next America’s Cup in 2003. Sir Peter Blake hands over the reigns of leadership of TNZ to skipper Russell Coutts to pursue endeavors away from the trusteeship of the America’s Cup. The rocky relationship between the two men appears to more ego driven than contentious. Coutts is in disagreement with the Blake and the trustees over negotiated corporate contracts and commitments for the team for the next defense. TNZ locked into rolled over sponsorships for 2003 which may not be enough to cover rising costs, according to Coutts. Trouble in paradise?
May 2000
The writing was on the wall as many of the Kiwi after guard from the victorious TNZ jump ship to Ernesto Bertarelli’s fledging new America’s Cup team Alinghi, from Lake Geneva, Switzerland. The Swiss pharmaceuticals magnate sent a tsunami through the South Pacific by raiding Team New Zealand of its winning skipper Russell Coutts, tactician Brad Butterworth, Warwick Fleury, Simon Daubney Murray Jones and bowman Dean Phipps. Quickly labeled as traitors, the Kiwi nation won't likely forget or forgive the pair as the next America’s Cup approaches.
The America’s Cup once a haven of nationalistic pride, amateurism and recreation, reels in the realization that the dawn of a new era has encroached on the ‘Auld Mug, as free agency and the high salaries associated with the rising costs have taken hold of the competing teams. Many of the professional sailors now involved in the sport have begun to seek out the big paydays.
The Royal New Zealand Yacht Squadron briefly held up Bertarelli's Alinghi Challenge claiming that the Geneva Yacht Club did not fulfill the "arm of the sea" amendment to the deed of gift. Lake Geneva is not part of an ocean or an arm of the sea as defined, but the Yacht Club did hold a token regatta on the Mediterranean Sea to meet the minimum requirements of compliance to challenge.
The Alinghi Syndicate petitioned the America's Cup Arbitration Panel (ACAP) on the legality of its challenge and was upheld after a day of deliberations.
In 1984 the Chicago Yacht Club successfully petitioned the New York Supreme Court to declare that the Great Lakes were an arm of the sea and therefore eligible to challenge for the America's Cup. The NYYC had inserted language into the conditions for match after 2 anemic Canadian Challenges in 1876 and 1881.
September 2001
The 150th anniversary of the America’s Cup was celebrated as a jubilee festival in Portsmouth, England and around the Isle of Wight with multiple regattas scheduled with many of the winning boats and skippers/crews in attendance.
May 2002
Tragedy rocked the world community in December of 2001 with the stunning news that yachting legend Sir Peter Blake of New Zealand was killed by pirates as they were attempting to rob his crew aboard the Blakexpeditions ship, Seamaster. Blake was in the midst of an environmental expedition of the Amazon River when the incident occurred.
The Seamaster was docked in the port city of Macapa in the northeastern state of Amapa in Brazil. According to published accounts Blake was below deck when masked gunmen boarded the ship. With commotion on top Blake rushed up the stairs armed with a rifle to protect his crew. He was shot twice in the back by the startled robbers who anticipated no resistance. Blake died immediately.
Blakexpeditions was midway thru an exploration of the environmentally sensitive forest regions of the Amazon River basin in Brazil and working through customs on their way to Orinroco River in Venezuela when the tragedy struck.
Sir Peter's stature in New Zealand is approached only by Sir Edmund Hillary who climbed to the top of Mount Everest a half a century ago. Beyond his leadership in winning the America's Cup in 1995 for New Zealand, Blake's reputation for honesty and integrity was unparallel in the world of sport.
After much acrimony in the 1995 America's Cup in San Diego, Blake worked to elevate the event to a higher level with a vision of sportsmanship and honor for a small country of 3.5 million inhabitants. "We want to ensure that this is an event that parents want their sons and daughters in." "Even if it means that we hold the Cup Defense only once," Blake said, "we will make the competition fairer."
At 6.5 feet in height he was tall in stature and taller in life. Blake commanded the respect of teammates and opponents alike. After winning in San Diego he led the Cousteau Society and was appointed as a special envoy to the United Nations Environmental Program.
As the winning skipper in the 1989-90 Whitbread Around the World Race on Steinlager, Blake led the way into every port city. In 1993 he sailed with Sir Robin Knox-Johnston on Enza New Zealand in the non-stop around the world race for the Jules Verne Trophy in a record 74 days 22 hours.
Throughout his life he was man a few words and extraordinary deeds. The sailing community has lost a pillar of courage and New Zealand has lost a giant.
Sept 2002
The billionaires are back, rule changes after the 1992 America's Cup were designed to disperse them and bring financial sanity back to the event. 2003 finds them back. This time several of the world's richest men are taking part. Larry Ellison, Ernesto Bertarelli, Craig McCaw, Paul Allen and Prada CEO Patrizio Bertelli, with his wife’s money are all onboard for the 31st go around.
Oracle founder and CEO Ellison is taking time away from strewing thru Bill Gates garbage to run the Oracle BMW Team. The team represents the Golden Gate Yacht Club in San Francisco, California. Ellison has run a very successful race program with his maxi yacht Sayanara and is hoping to emulate billionaire Bill Koch's 1992 program which spent close to $100 million dollars just to defend the 'Cup for another yacht club.
The One World Challenge representing the Seattle Yacht Club is led by communications billionaire Craig McCaw. McCaw had financed much of the effort out of his own pockets until recent stock market corrections sent him to seek the assistance from fellow Microsoft billionaire Paul Allen for a bailout.
The moguls club is also joined by Prada CEO Patrizio Bertelli. Prada reached the finals in 2000 by aggressive sailing tactics, though lost by the time the Kiwi's crushed them and an overzealous approach to the rules. The Italians have achieved notoriety in their interpretation of fair play over the last 10 years, as Michael Fay, Team Dennis Conner and America One can all surely attest to. Prada represents the Yacht Club Punta Ala, which is the Challenger of Record.
Free agency comes to the America’s Cup as nationality requirements are loosened up to allow sailors to sail for different teams in different countries. With that, allegations surfaced in 2001 during the Sean Reeves fiasco materialized when the America's Cup Arbitration Panel (ACAP) ruled that the One World Syndicate representing the Seattle Yacht Club must begin the LV Cup trials minus one point. ACAP was approached by One World in December to determine whether it had violated any of the interpretative articles of the America's Cup Protocol.
ACAP ruled that One World had not violated Article 13 of the 'Protocol which relates to reconnaissance of competing yachts, but that it had been in breach of Article 15.3. That rule provides that designers that have worked on other ACC boats in the past sever prior involvement and "be separate and independent" of other America's Cup syndicates. The rule is similar to most "non-compete" clauses found in employment contracts.
The panel "took into account as a mitigating factor that it was One World that had brought forth the facts that had resulted in the findings that it was in breach". "Had it not done so", concludes the report, "a more severe penalty would have been awarded".
The controversy in question relates primarily to the fact that One World Designer Laurie Davidson was the principle architect of Team New Zealand's Black Magic NZL 57 and NZL 60. Black Magic NZL 60 defended the 'Cup last time around and is considered to be the prototype ACC yacht of which all the new generation of boats will be measured against.
Apparently, Davidson had in his possession; the measurement certificates for both yachts, carbon fiber specs for the TNZ contract suppliers and the team's performance evaluations for Prada.
The Reeves controversy erupted last fall when apparently after helping lure several key TNZ members to One World he became unhappy with his compensation and began naming names. Reeves, an attorney with some prior 'Cup involvement had credibility problems from the get go has decided to focus his energies on coaching professional tennis.
One World was caught off guard by Reeve's allegations and was quite forthcoming in bringing the facts before the ACAP. In a summary statement earlier this year One World CEO Gary Wright stated that OWC "had made some mistakes, but we believe these to be minor and not beneficial to our design process".
January 2003
Alinghi defeats Oracle 5-1 in the Louis Vuitton Cup finals, as the Kiwi defectors own Chris Dickson and crew from the first windward beat on. Charges and countercharges of high tech secrecy, spying and illegal weather satellite information provide most of the excitement, as the outcome appears to be a foregone conclusion. Despite imminent threats from the “Blackhearts” Russell Coutts is undeterred in his mission objective.
February 2003
For the third straight time the America’s Cup produced a whitewash shutout. Alinghi proved to be a steady, yet capable ACC yacht. Alinghi beat all challengers to win the LV Cup and face Team New Zealand’s radical, yet risky design in the America’s Cup final.
The Kiwi’s handed over the trophy after losing 5 straight races in two and a half agonizing weeks. After waiting out a wide range of weather systems the TNZ yacht carried plenty of water, but ultimately failed to carry its weight around the 20 mile windward-leeward course. Coutts and tactician Brad Butterworth both from New Zealand, looked on with bittersweet emotion as they grabbed the “Cup from their countryman and took it to Europe.
TNZ designers Tom Schnackenberg and American Clay Oliver came up with an unorthodox idea of creating a second or false hull as an appendage to increase the waterline length of the boat without incurring penalties to, or reduction of the sail area. Nicknamed the “Hula”, the 20ft. long second skin section of the hull could not touch any part of the boat except at its fitting.
With an inherent micro-millimeter gap along the waterline and an elongated torpedo-shaped bulb keel the TNZ boat took on tons of extra water in heavy seas. This design flaw led to gear failures and a splintered boom in the first race and a broken carbon fiber mast in the fourth race
March 2003
Trouble in paradise, part two? With victory, Alinghi chief Ernesto Bertarelli reaps the reward of the ex-Kiwis command and control on the water, while clearly benefiting from TNZ’s lack of race preparation and their need for a “gimmick” boat. Russell Coutts again, has more on his mind than being Bertarelli’s “helmsman”. Recriminations foreshadow events to come as the ‘Deed once again seems to drawn into the middle of the wishes and desires of the winning yacht club, versus the dreams of the winning team. It was the indecision and divisiveness between Sail America, Stars & Stripes and the San Diego Yacht Club which led to the “hostile” challenge from Michael Fay in 1987. Again, in 2000 their was a war of wills between the trustees and the sailing team, which led to the defection of Coutts and company.
December 2003
Valencia, Spain was chosen as the host site for the next America’s Cup, trumping out European cities in Portugal, Italy and France.
June 2004
Former Alinghi Skipper and Team Manager Russell Coutts, continued a mediation process with Ernesto Bertarelli to allow access into 2007 America’s Cup. Coutts was fired by Team Alinghi “for repeated violations of his duties.” Coutts was not happy with many of the planned changes in the way the event was being organized. Coutts won the America’s Cup twice in 1995 as the skipper on Black Magic and 2003 on Alinghi. He defended for TNZ in 2000.
Bertarelli is the head of the Alinghi Syndicate which won the America’s Cup in Auckland, NZ last year. Alinghi represents the Societie Nautique de Geneva. SNG promised freer access by sailors to cross borders and compete for other countries, i.e. free agency. That access is now being restricted by new mutual consent amendments.
After Fay's surprise challenge, the Deed of Gift has been usurped of its authoritative grip on the 'Cup, by mutual agreement provisions called the America's Cup Protocol. The Protocol's enabling resolutions allow the Challenger of Record Committee or CORC, to construct the rules and regatta format to determine who will challenge the defending SNG boat for the America's Cup
The winning yacht club becomes the trustee of the America’s Cup, not the winning team or its members.
The regatta is structured by the terms of mutual consent. The rules are set up between the SNG (the defender) and the challenger of record (COR), which this time is the Golden Gate Yacht Club in San Francisco, California. representing BMW Oracle .
BMW Oracle is run by Larry Ellison. Ellison & Bertarelli are multi-billionaires and two of the world’s richest men. Because of the way the terms of mutual consent is structured the “Protocol” for the 32nd America’s Cup becomes gold standard in which the races will be conducted. They are the kingmakers. To that end, and to specifically restrict Coutt’s participation; the “Protocol” text was amended in 2004 to read:
Article 13.12 Crew restricted to work for only one Competitor.
Except with the consent of all competitors still competing in the event: at any time after 2 March 2003, a person who has been contracted, employed, paid or otherwise engaged (paid or unpaid) by a Competitor as a race or training crewmember for a total of 180 or more days may not be engaged (paid or unpaid) by another competitor in any capacity: and at any time after January 1, 2006, a person who sails on a competitors yacht a race or training crewmember may not be engaged (paid or unpaid) by another competitor in any capacity.
Dejected and resigned to his fate Coutts told the NZ Herald; “do we want an America’s Cup to be governed by two guys that all of a sudden get into a back room somewhere and decide to change the rules for whatever reason.” Language aside, Coutts and Kiwi sail making/design legend Tom Schnackenburg (who was let go by TNZ) cannot compete in the 2007 America’s Cup.
April 2007
Uufta! Last time, Greenpeace tried to sink the French ACC Yacht Le Defi Areva, to the chants of arreviderci. Dennis Conner’s new boat, Stars & Stripes did sink! The Kiwi’s secret “hula” hull did its best at trying to imitate a submarine and now the America’s Cup is in Europe, on a lake in Switzerland.
Now, this time Russell Coutts is in court. Shoshaloza hit a whale. Tornados destroyed three boats in France. Conner and the NYYC are out. The Chinese are in and the billionaires have taken control, again!
The America’s Cup Class Boats are “turbocharged” for 2007. Version 5 of the current America’s Cup Class rule allows amendments which should make the boats much faster downwind. The new class was introduced in 1990 and first sailed in the America’s Cup in 1992
The yachts are 80 feet in length and with masts over 110 feet high can carry more than 3000 square feet of sail area.
ACC yachts are comprised of exotic blends of carbon fiber and honeycomb. Different than 12-Meter yachts which used to be pounded and sanded into shape with aluminum, ACC boats are baked in warehouse sized ovens for several weeks before the hulls are cured and the fittings attached.
The fragile nature of the new generation of ACC yachts had become the cause of much concern. One Australia (AUS 35) snapped in two and sank in stormy seas off San Diego in 1995. In November of 2000 the NYYC's entry Young America (USA 53) split in half, but did not sink.
May 2007
As racing started, light winds and a Swiss canting (swinging) keel controversy stole the headlines. Louis Vuitton Cup favorite
BMW Oracle was eliminated by month’s end and CEO/Skipper Chris Dickson was terminated for his overbearing and under achieving performance.
July 3, 2007
Alinghi defends the America’s Cup for its yacht club, the Society Nautique de Geneva (SNG). The Swiss Team beat Team Emirates New Zealand by one second in a thrilling Race 7.
July 5, 2007
SNG accepts an “in house” challenge from Nautico Club Espanol de Vela’s (CNEV) for the 33rd America’s Cup. A controversial new protocol is written.
July 11, 2007
The Golden Gate Yacht Club files a formal challenge for the America’s Cup under the strict terms of the Deed of Gift. The GGYC contend that the challenge from CNEV does not meet the defining criteria in its acceptance as the challenger of record.
July 13, 2007
Longtime sponsor Louis Vuitton withdraws from the event. After 37 years of participation in the America’s Cup as a corporate partner, minting the Challenger’s Cup with a beautiful trophy bearing its name and handling media relations; LV has regretfully bowed out, in large part over disputes with America’s Cup Management (ACM) over the future of the event.
LV spokesman, and former ‘Cup skipper Bruno Trouble offered an open letter citing some of his specific concerns:
Worrying about the future of the Cup by Bruno Troublé
Since July, I remained silent, speechless after the America’s Cup we all love so much, was hijacked. I am shocked to see the defender sailing WITH the challengers (no more of this great mystery at the start of the first final race) and at ACM naming the judges, umpires, and committees with no reference to ISAF. I am sad to see the America’s Cup slowly but surely drifting to become just another sporting event with no class, no respect for tradition, and where money - lots of money - is the only word used by the organizers. I am furious to see the 90-foot box rule. Anyone involved in the America’s Cup knows that the best match racing boats do NOT accelerate from 10 to 20 knots when luffing 10 degrees downwind. They are STUCK in the water the same way the 12s and the IACC were. Do not confuse these fast-accelerating sleds with the impressive looking J’s boats, as the defender has stated.
These new boats might be great racers if you have 30+ boats on the starting line, but they will be hopeless for match racing. You will need two TV sets to watch the race once they round the weather mark! We know this in France, as the 60 feet multihull racing circuit died because of the differences in speed between the boats.
Looking at those races was so boring! The America’s Cup is the passion of my life after spending 30 years living with her (skipper in ‘77 to ‘83 and then with Louis Vuitton from ‘83 until today). But now Louis Vuitton is out, for the time being. It is sad and the Cup will miss this great partner. Being the ONLY permanent body around the Cup for 25 years, LV brought a lot to the event by making it bigger over the years, yet doing it with class and respect. (Remember the A’s Cup Jubilee in Cowes!) They wait and see, hoping that the Old Lady will realize where some people want to take her.
The court decision will force the defender to go back to a more realistic and balanced event. The Challengers will be listened to - hopefully they will gain some more freedom - and ACM might come up with some good ideas without taking over the whole event. This would be a trail in the right direction, if only those that are on it will walk.”
July 20,
The GGYC files legal papers in the New York Supreme Court.
July 23,
SNG rejects the challenge from GGYC.
September 10,
The NYSC grants a court date of October 22nd, for the two sides to present their case.
October 22,
The case is presented before the honorable Judge Herman Cahn.
October 31,
The America’s Cup Management (ACM) releases the new design rule for the America’s Cup Class. The AC 90 is greeted with mixed reviews, but there is widespread general acceptance, In part due to the integrity of yacht designer Tom Schnackenberg as the arbitrator of the new rule.
November 22,
ACM announce the postponement of the 33rd America’s Cup. It was scheduled for Valencia in 2009.
November 27,
Judge Cahn releases his decision. The court concluded that the CNEV challenge is invalid and that the GGYC is the Challenger of Record.
December 4,
The GGYC thru its racing team BMW Oracle release a 9 point amendment to the protocol.
December 12
Open letter from Ernesto Bertarelli: My vision for the America’s Cup
Following discussions this week with both the NYYC representatives and Larry Ellison related to the future of the America’s Cup, Ernesto Bertarelli, President of Alinghi and current Defender of the Trophy, expresses his vision and feelings about the oldest sports trophy in the world.
“Since Alinghi’s successful defence of the America’s Cup in July, much has been said by many and I wish to explain my personal passion for bringing my vision of the America’s Cup to life.
When I founded Alinghi it was all about creating a team to share the passion of sailing through every channel available to as wide an audience as possible. We tried to adopt a fresh and open way of doing things and making part of our base accessible to the public was only one example of the many innovations Alinghi brought to the America’s Cup. I believe this approach was a contributing factor to our success in 2003.
With the Defence of the Cup, we got the opportunity to share this spirit with the whole event. When we began, we set out a clear and innovative strategy focusing on the choice of venue, the set up of a purpose built port, the America’s Cup Park and the Acts as part of our vision of opening the event to as large an audience as possible.
Over six million people attended the event, which for the first time saw the participation of syndicates from five continents. The television coverage extended the reach to over four billion viewers.
The critics who opposed the Acts, the choice of venue, the television production, etc. were numerous and vociferous but the facts proved that the 32nd America’s Cup was a positive turning point for this historical event.
At the same time as realising some of the fascinating aspects of the America’s Cup I also became aware of its weaknesses. The uncertain format of the event meant that teams – and the entire America’s Cup Community – had no future beyond the next Cup.
This leads to teams only surviving one cycle and the whole event needing to recreate itself every three to five years. This results in a substantial increase in costs and difficulty in securing long term sponsors.
For the 33rd edition, the concept was to empower the organisers to implement further innovations without unnecessary disruptions. The proposal to create the new AC90 class with the one boat sailing rule in a two year cycle is a major measure towards managing the costs while creating further excitement and by using the existing facilities of Valencia we had the ideal platform to maintain momentum. This would have enabled the event to prosper and generate greater revenue for the organisers to share with the teams.
The recent events in the New York courts, with the Judge ruling the CNEV invalid because it had not held its regatta at the right time, show the Achilles’ heel of the event and the possibility of its destabilisation through individual actions. Again, as in 2003, our vision has received criticism from those reluctant to change. I stand by one of the principles of the Cup: the Trustee, with the Defender, has the responsibility for the governance of the event and to implement changes which will allow it to prosper.
With a view towards the future and having studied the rules of the Cup I observed that the Deed does not actively promote parity for the teams and a long term future of the event.
In October of this year I went to New York to start a dialogue with the New York Yacht Club to examine what enthusiasm there was to make the event more relevant to today’s sporting landscape. The Deed of Gift was, after all, written over 150 years ago at the NYYC and could not anticipate the changes that the world has undergone. I was not expecting the discussions to be completed swiftly but I was thrilled when Charles Townsend, Commodore of the NYYC and George W. Carmany III, Chairman of NYYC America’s Cup Committee, expressed the same feelings.
It is fair to say that the 33rd America’s Cup has been ill-fated and I have a desire to make it right. The fastest way to achieve this objective would be for the Golden Gate Yacht Club and the Société Nautique de Genève to work with the New York Yacht Club on revising the Deed of Gift to make it appropriate for today without losing what makes the America’s Cup special. As part of this process I am happy to compromise on some of the Defender’s rights to achieve what is best for the event.
In effect, I raise the following questions:
- Should the Defender automatically be qualified for the final AC Match or should all teams start on equal
footings?
- Should the schedule of venues and content of regulations be announced several cycles in advance
allowing planning and funding?
- Should the governance of the Cup become permanent and be managed by entities representing past
and current trustees as well as competing teams?
Over the weekend I spoke at length with Larry Ellison explaining our proposal and I was pleased that he was very supportive of the principles in the proposed changes.
Based on these principles it is my intention to work towards a renovated America’s Cup to take place in Valencia and to be raced with the certainty that the event cannot be disrupted to meet individual requirements to the detriment of those willing and able to compete.
If this revision of the governing documents of the America’s Cup cannot be achieved, we will have to accept the GGYC challenge under the Deed of Gift.”
Ernesto Bertarelli President of Alinghi Defender of the 33rd America’s Cup
December 29
GGYC Now Committed to Deed of Gift Challenge
The Golden Gate Yacht Club (GGYC) said today it will compete for the next America’s Cup according to the basic rules of the Deed of Gift, and will seek to have an upcoming Court Order confirm the regatta for October 2008. “It is time to move on and know where we stand,” Russell Coutts, CEO of the club’s BMW ORACLE Racing team, said. “We had hoped to negotiate a conventional regatta under the Deed’s mutual consent provisions. But the Defender has made it clear to us and the America’s Cup community that they will not negotiate.
We are now fully committed to a multihull event in 2008. “If we are able to win, and Valencia and Spain are supportive, we would return to a conventional America’s Cup regatta in Valencia in 2011 with fair and transparent rules agreed with the challengers by mutual consent,” he said. On January 14th the New York State Supreme Court will review the Court Order to give effect to its November 27th ruling in favor of the GGYC. The club wants to have the Deed of Gift regatta as soon as possible and has asked the Court to provide for this. The club has made a number of attempts before and since the Court’s November 27th ruling to negotiate a conventional regatta, but the Defender has declined on each occasion to take up these offers. From BMW Oracle
From Alinghi:
Simpson Thacher & Bartlett LLP, New York attorneys for Société Nautique de Genève (SNG) filed a motion to renew and reargue in front of the court in the case opposing GGYC and SNG on the 33rd America’s Cup.
Lucien Masmejan, lead counsel for the SNG, responds to few questions allowing a better understanding of why this has been done. Why are you filing this motion to the judge? In substance, we have seen the CNEV rejected as Challenger of Record because of the date of the holding of their annual regatta. The judge appointed then GGYC as Challenger of Record without further instruction, but no one – including the judge - brought its attention on the fact that GGYC challenge was not receivable due to a major flaw in their boat certificate, a key document as per the Deed of Gift. Furthermore it is our conviction –and also the opinion of the highest Court in the state of New York- that New York courts should not interfere with the complex rules associated with organizing and administering the America's Cup. It would be best leaving this to the sailing community. What is the purpose of the boat certificate and what actually is wrong with GGYC certificate? The purpose of the boat certificate is to give the Defender a precise idea of what the challenging boat will be in order to prepare its Defence. The history of the Cup has shown how important was the adequacy of the certificate with regard to the validity of the challenge.. Now, the document submitted by GGYC describes a keel yacht, which is by definition a mono-hull, with a size of 90 feet X 90 feet. We want to make sure this is the boat they would show up with and not a multi-hull, or their challenge would deem to be invalid. What would then happen? Assuming CNEV would no longer be the Challenger of record and GGYC Certification proven defective, other challengers would then have priority over GGYC as Challenger of Record. The list of competitors has now no less than 12 challengers who entered before the deadline of December 15. All these competitors are looking for a multi challengers competition along the lines of the Protocol and the Rules and Regulations presented in November and that they committed to. What is your ultimate objective and why such a procedural process? Our objective is quite simple and we recurrently expressed it. Have a 33AC with a multi challengers’ selection series in AC90 Yachts. As the date cannot be 2009 anymore, we would be looking towards 2011.To answer the second part of your question, I would reiterate that we are not the ones who chose the legal path. Now, we simply continue the process, so the GGYC has to comply with the same level of details they required from CNEV.
January 23
From Alinghi
Judge Cahn considers SNG’s arguments on invalidity of GGYC challenge23-01-2008 New York State Supreme Court Justice Herman Cahn heard arguments today over whether the Golden Gate Yacht Club has put forth a valid Deed of Gift challenge for the 33rd America’s Cup to its current holder, the Société Nautique de Genève and its team Alinghi. “We were glad to make our points and found the Court receptive to our arguments," said Lucien Masmejan, lead counsel for the SNG. "We look forward to a court order properly addressing the issue of the validity of the GGYC challenge." Justice Cahn allowed the SNG to further examine arguments put by the GGYC and invited SNG to present additional submissions on Monday on these issues, including on the definition of a keelyacht versus a multihull. SNG’s submissions will be supported by the interpretation from the International Sailing Federation which was presented to the court. A result in SNG’s favour would put the 33rd America’s Cup back on track with a multi-challenge event in 2011 in Valencia, Spain. As Defender of the America’s Cup, the Deed of Gift gives Alinghi and SNG, as trustee, the serious responsibility of preserving the integrity of this world class sporting event.
From BMW Oracle
Justice Herman Cahn of the New York State Supreme Court today held oral argument on SNG/Alinghi’s plea to rethink his decision of November 27, 2007 in which he declared Golden Gate Yacht Club (GGYC) the valid challenger pursuant to the America’s Cup Deed of Gift. GGYC argued that Justice Cahn’s decision was correct in all respects and there is no basis for the court to reconsider it. "We remain confident that the court will maintain its earlier decision despite SNG/Alinghi’s apparent procedural attempts to delay," Tom Ehman, GGYC’s spokesman said. "We expect that Justice Cahn will soon issue an order setting October 2008 as the dates for our match, and we look forward to getting the Cup back on the water."
March 6
How to save the America's Cup by Vincenzo Onorato.
“I have received numerous requests to intervene, also in the light of the ruling passed by New York Supreme Court. Over the past few years I believe I have been quite restrained in commenting on the difficulties facing the Cup. You'll have noticed that I wrote Cup with a capital "C", and this is indicative of my respect and my passion for sailing and for the America's Cup in particular. We undoubtedly now find ourselves in extremely choppy waters, and it is therefore important to chart our position before plotting our course. The whole problem stems from the protocol drawn up by Alinghi for the 33rd America's Cup which was presented at the end of the regattas in Valencia. This affirmation might appear a trite observation but, as time has passed, I have become increasingly convinced that very few people, including journalists have taken the trouble of reading this document. Whoever has done so with a minimum of attention, but with a sense of humour, will not have been able to hold back a smile, because this is a document designed to regulate a competition which totally lacks any sense of fair play: Alinghi claims the right to choose, at its sole discretion, the regatta judges, the committee, the umpires and themeasurers, even going so far as to state that they must be its employees; in short, it unilaterally lays down the rules of the game. Alinghi, again at its sole discretion, claims the right to accept a challenge or to penalise a rival. There were some who realised this immediately: it was immediately challenged by the seven teams who, a few days after the protocol had been published, signed a letter of objection (Oracle, Mascalzone Latino, Team New Zealand, Germany, Victory, K-Challenge, Luna Rossa); it was challenged by the historic sponsor of the challenger selection series, Louis Vuitton, who announced, in a press release dated 13 July 2007, its withdrawal on the grounds that it did not agree with the rules for the 33rd Cup. To underline Alinghi's complete lack of respect for the role of "trustee", as sanctioned by the "Deed of Gift", the central document on which the regulatory framework of the event is based, it elected as "Challenger of Record" the Spanish Nautical Yacht Club, a non-existent club with no history or members, essentially a sleeping partner that would have given it complete and unconditional control of the event.
Alinghi's team worked hard in the aftermath of Oracle's legal action brought before the Supreme Court of New York to cry scandal and present itself to the whole world as the poor victims attacked by the American bear which had in effect blocked the event by bringing it before the courts. It is worth dispelling any misconceptions on this point: the Cup was effectively brought before the Court by Alinghi, with its ignominously unsporting protocol. Oracle's legal challenge was a courageous salvage operation of the oldest sports trophy in known history. This explains why, here at Mascalzone Latino, we supported Oracle at the Supreme Court of New York with our "amicus brief". Alinghi's media-oriented defence was to state that the other challengers, including Team New Zealand, had been ready to accept the protocol. Today, after the action filed by Team New Zealand, what we already knew has come to light: Alinghi took advantage of the extremely weak economic position in which most of the teams found themselves to impose its own will.
It promised cash to Team New Zealand in the form of waiving registration fees and even going so far as to offer an option on Oracle's base! To sum up, Alinghi's plan was to control the Cup and its challengers in order to guarantee its subsidiary, ACM total economic control of the event. In this context, Alinghi's terse comments seem completely superfluous when it recalled how, in the past, it was the Americans who created the culture of the defender's privilege. The actions taken by the American defenders were childish attempts compared to the complex plot woven above all by Alinghi. The Americans from New York Yacht Club were motivated solely by a deep sense of pride and privilege in keeping the Cup in the States, not for base economic motifs! This brings us to the second aspect of this affair, the economic and commercial side. It is my opinion that the money offered by sponsors should be used to fund the event. I keep my work, which brings in my bread and butter, separate from sailing and I believe that the other businessmen leading the syndicates should do the same. Therefore, I do not agree with Alinghi's avidity, which unfortunately is not even backed by an intelligent commercial strategy. One particular detail has escaped most people: Louis Vuitton decided to back out of the Cup before and not after the legal action brought by Oracle before the Supreme Court of New York. When I think of the America's Cup,
I automatically think of the Louis Vuitton Cup. The two are inseparable, not only blending tradition but also class and culture. They backed out and walked away, on tiptoe, with the good breeding characteristic of those who work for the French company. Given that I had the pleasure of meeting them, I know how much it cost them to abandon the event, the selection of the official challenger, to which only their brand and no other had succeeded in giving such a profound sense of identity. Incompatibility with Mr Bertarelli's vision. This was the gist of the brief comments they made. Losing Louis Vuitton is further proof of the total lack of culture and respect for tradition shown by the top management of Alinghi in handling this event. Above all and paradoxically, it is an intellectual shortfall without precedent in the Cup's history. As if that were not enough, it is also an irreparable error of marketing: the Cup today is an enormous industry funded by major sponsors and a few tycoons. It is an enormous engine driven - in media terms - by glamour, status and tradition. Losing Vuitton has created a culture of suspicion among the sponsors and Alinghi's decision to take the Cup to court has effectively brought this enormous engine to a halt. Let's come back to the story and to the work I have done in the past few months, since the end of the Cup.
I spent the entire summer of 2007 in a vain attempt to broker a settlement between Oracle and Alinghi. I knew that a sure-fire way of losing all the sponsors was to take the Cup to court and I wanted to avoid this.I established contacts with Oracle in order to discuss our points of view. Contrary to Alinghi's declarations, I found Russell Coutts very willing to talk. Oracle's primary motivation was the same as Mascalzone Latino's: to achieve an honest and reliable competition. So I drafted a protocol that broadly speaking included the same rules that governed the 32nd Cup, specifying that, in order to cut costs, the same yachts would be used as in the last event and the use of the new 90ft A.C. class would be postponed until the 34th Cup.
In the meantime, the challengers would jointly draw up the new class rules, which would not give such unfair advantages to the defender. I obtained - I have to confess, to my great personal satisfaction - an informal guarantee from Oracle that if my draft protocol was accepted by Alinghi, they would immediately withdraw their legal action pending before the New York Supreme Court.
The Cup would be saved, and also the date of the event and the economic interests of the city of Valencia. Then I presented the protocol to Alinghi, who did not even have the good manners to reply with a "no thanks, we're not interested."In the autumn, Oracle proved all too ready to negotiate with Alinghi, to the point of accepting almost all the points imposed in the much discussed protocol, only to be turned down again with a scornful refusal. At Mascalzone Latino, although we had not been summoned to appear before the Supreme Court, we joined the proceedings and presented a document summing up our position: in short, this stated that Alinghi's protocol had completely distorted the key principles of the Deed of Gift and the universal principles of fair play. During those hot autumn days, I also had a feeling that an Italian challenge was being prepared simply to exclude us from the Cup, once and forever. Alinghi had declared that it would probably accept only one national challenger.
So we launched our challenge, following the dictates laid down by the protocol. We also had to demonstrate the existence of the Reale Yacht Club Canottieri Savoia, at its third challenge in the America's Cup and with a one hundred year-old history to its name! Alinghi was a little less precise with its Challenger of Records, the "Club Nautico Espano de Vela" which could only claim to have been in existence for a few hours... Since the start of this letter, I have given Alinghi credit for the fact that the affair has an underlying sense of comedy, although this is probably unintentional. Following the launch of the challenge, ACM sent us an invoice for fifty thousand euros which we paid immediately. Are we perhaps the only ones to have done so to date? They replied in writing that they would accept our challenge only if we withdrew our declaration filed with the Supreme Court of New York. This is not required by the protocol, but it is clear that Alinghi writes and rewrites the rules to suit its needs. I answered by reminding them that a citizen accepts the laws even if he doesn't agree with them and that in a democracy there is freedom of speech and criticism. The simple metaphor was not understood.
ACM/Alinghi replied by claiming a public abjuration. It would have been pointless to remind them that the last Italian forced to make such a strong retraction was Giordano Bruno, in medieval times under the Holy Inquisition... It's a harsh precedent that will weigh on the future of the Cup and those who love sailing, but leaving irony aside, we must seriously consider that this event has been profoundly damaged by Alinghi. The sponsors have disappeared and people are tired of all these controversies. The best solution now would be to hold the multi-hull challenge between Oracle and Alinghi, even if, yet again, the latter try to delay the event using every possible tactic. For the survival of the America's Cup, we must hope that Oracle wins, and after that we'll have to roll up our sleeves and work hard. In my humble opinion, the first step must be to reinstate Louis Vuitton.
The French company is not only a sponsor, the Sponsor, but is also and above all the leitmotif of a long history that has survived to the present day and must continue into the future. The event can be saved, and it could be held in 2009, or in 2010 at the latest, but to achieve this it is important to acknowledge the weak situation of the event. It would be best to use the yachts from the last Cup for three good reasons:- To curb costs at a time when all the teams are struggling to survive. Permission should only be given to build one latest generation hull.- By using the existing fleet, the event could be held within a few months, without requiring enormous economic and organisational efforts, and this would also leave enough time to study the new 90ft A.C. class for the 35th Cup.- Last but not least, from a sporting point of view: anyone who is a yachtsman knows that regattas are great when they are "close". The yachts in the last Cup had very similar speeds and the best thing about the last Cup was that we watched some very hard fought and spectacular races.
We don't want to do without those, do we? Personally, I am making enormous economic sacrifices to keep an organisation going that will allow us to race in the next America's Cup with dignity and sportsmanship. I am profoundly saddened about what has happened to this event, but I am a sailor and my experience as a yachtsman is based above all on Farr 40, M30, RC 44 and now also on Melges 32 Many have lost that spirit of enthusiasm for sailing or perhaps they never had it, but it is from this that we must start afresh...
”Good sailing to you all, Vincenzo Onorato
March 17
A letter to Judge Cahn
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
April 2, 2008
From BMW Oracle
The Golden Gate Yacht Club (GGYC) said today (April 14, 2008) that further legal attempts by the defender (Societe' Nautique de Geneva, Alinghi) to delay the next America’s Cup Deed of Gift match are regrettable and the club will be doing everything it can to ensure the event remains on track.
“Buried within the legal language of this press release it appears clear that the defender is unsatisfied with Justice Cahn’s decisions and now intends to file an appeal,” Tom Ehman, the club’s spokesman said today responding to a press statement issued by the defender who have filed further papers with the New York State Supreme Court.
From Alinghi
America’s Cup Defender changes jurisdiction to secure a competitive Match in 2009 The Société Nautique de Genève (SNG) has today announced that it proposes to file an immediate appeal with the New York Appellate Court in order to accelerate the current legal process to return the America's Cup to the water with a competitive race. The intransigency of Golden Gate Yacht Club (GGYC) since the day they filed their law suit has forced SNG to move the case to the next level in the New York legal system. In an attempt to obtain a swift resolution to the current uncertainty, an expedited process is being requested together with a motion to stay the case, this in order to suspend the implementation of Justice Cahn’s previous order until the Appellate Court rules. In line with standard legal practice, if the motion to stay and the expedited appeal process are granted, the Appellate Court could issue an order before the end of the June term enabling the competition to take place in accordance with the Deed of Gift, approximately 10 months later. Lucien Masmejan, SNG’s lead counsel, explains: “Our sole objective is to race in a competitive America’s Cup Match. We have stated our desire for a fight on the water sometime after May 2009, but GGYC continue with the destructive strategy that has already eliminated all other challengers. They also refuse to provide the required information on their boat so in order to have a competition in 2009, worthy of the America’s Cup, GGYC’s obstructive tactics leave us no choice but to appeal to achieve our objective.” “We believe that the precedent set by the Mercury Bay Case in the eighties is supportive of the content of our appeal and look forward to the Appellate Court resolving matters in a timely manner.”
Q&A: Lucien Masmejan, SNG lead counsel, explains last legal actions
Following today’s filing of a notice of appeal and pre-argument statement, and anticipating tomorrow’s subsequent motions for stay pending appeal, expediting appeal and expedited relief, we have prepared the following insights into the actions that SNG has taken.Why have you appealed? Our goal is to have it decided on the water and have a competitive America’s Cupin 2009. We are in the process of appealing and filing a motion to request an expedited appeal and to stay the case in order to attempt to fast track the legal process. We have spent eight months engaged at trial court fighting a law suit brought by GGYC to force their way to the America’s Cup Match at the expense of 12 other challengers. Justice Cahn’s order dated 17 March 2008 left key elements unanswered, including the dates for the event. Since then, we had a hearing with Justice Cahn but we still have no certainty as to the ruling. We are now less than 3 months from the dates indicated in the original GGYC challenge and we still do not know when the 10 months notice has started and which will be their boat. In that respect, the Challenge submitted by GGYC on 11 July 2007 does not supply the information prescribed in the Deed of Gift and is not only ambiguous but also contradictory in places. GGYC are now tactically withholding the custom-house registry and vital technical information regarding the boat that they will challenge with from the defender. This tactic is against the terms of the Deed of Gift and most certainly in contrast with the intentions of George Schuyler.What are the next steps? Today, Monday 14 April, we have filed a notice of appeal and pre-argument statement with the New York Supreme Court. Tomorrow, Tuesday 15 April, we will file a motion for stay pending appeal, a motion for expediting appeal, and for expedited relief.We have proposed a timeline that would lead to oral arguments being heard before the end of the June 2008 term to move to a final decision as rapidly as possible.We are conscious that time is a priority and we want to make sure that the 33rd America’s Cup takes place in 2009. We are committed to resolving the current litigation as quickly as is practicable.What does it mean to file a motion for stay pending appeal and a motion for expedited relief? Motion to stay pending appeal means that, if granted, the implementation of any previous order is suspended until the Appellate Court rules. Motion for expedited relief is the fastest possible procedure when the case requires urgent ruling.What do you think your chances of a successful appeal are? Precedent would suggest that our chances are good; the trial court judgement was overturned in the Mercury Bay Case of the eighties. At the Appellate Court the case is heard by a panel of judges. We believe that the opportunity to present our case to a panel of Judges and the opportunity for them to discuss the merits and complexity of the case will lead to a positive outcome.Why do you appeal before Justice Cahn issues the Order stating the dates as requested in the 2 April 2008 hearing? We want to defend the America’s Cup in a competitive and compelling match and to do so we need to have sufficient time to build a competitive boat. The deed of gift entitles us to a full 10 months notice period, which we want to protect in the best interest of the competition. The legal advice we received indicates that appealing now offered us the best chances of ensuring this outcome.Does this appeal mean that the sailing program at Alinghi will stop? Absolutely not. We have a comprehensive program planned for the season that is a blend of competitive multi hull and large mono hull racing to ensure we are prepared for all eventualities. We are looking forward to launching our sailing program along with presenting the new sailing team and design team members to the media at our base in Valencia on 24 April 2008.
April 14
As it stands:
If the SNG does not accept the amended protocol from the GGYC for mutually accepted terms for the next America’s Cup the two yachts clubs will race in 10 months time under the strict terms issued by the deed of gift. This could include racing in a best of three series in an almost anything goes nautical war of the worlds between monolithic foil shaped 90 ft. multi hulled trimarans.
The Trophy
The America’s Cup trophy is a very ornate hollow silver gilt ewer that has been layered over the years to include recent winners and defenders of yachting most prestigious event. It was originally 27 inches in height, 36 inches around in its circumference and weighed in at 134 ounces. It was originally called the Royal Yacht Squadron Hundred Guineas Cup.
The ‘Cup was forged in Britain in 1848 during the Age of Queen Victoria by the prestigious Garrard Company. Some of the original syndicate members suggested melting down the trophy to create silver medals.
Legend has it that a butler retrieved it from the trash during a move before it finally landed back at the New York Yacht Club’s downtown Manhattan clubhouse for its rightful place in its trophy room. Tiffany’s removed its bottom in the 1880’s so the trophy could be secured in its case.
The NYYC lost the America’s Cup in 1983 to the Royal Perth Yacht Club and the trophy has changed hands several times over the last 25 years. After surviving a severe sledgehammer bashing by an indigenous Maori protestor in New Zealand a decade ago, it was returned to the capable hands of the silversmiths at Garrard’s who repaired the trophy free of charge.
Getting out on the town after all that time locked down in a bank vault, the “Auld Mug” has spent the last few years with a bit of a party glow as it is parading about Europe and around the world in an effort to bring the event into the 21st century.
The America’s Cup now resides in Geneva, Switzerland at the Societe’ Nautique de Geneva where it awaits it fate in the New York Courts System.
Posted by Mark Wharton Reid at 9:17 AM 1 comments
Wednesday, April 23, 2008
I promise not to ...
Words spoken in the heat of..... battle, passion, haste, appeal, to soon, to and from journalists, etc etc....
In case you've visited here before the sites from the Golden Gate Yacht Club (ggyc.com) or Societe' Nautique de Geneva (alinghi.com), I suggest you log on over and get ready for some semi-serious reading. As you will no doubt discover, most of what you are reading you have read before.
But, in the Petrocelli Affirmation, their are some pages from the Honorable Judge Carmen Ciparick's decision to toll in the SDYC vs MBBC case in 1987. Definitely the best read of the day.
Before this nightmare is over, expect that Judge Ciparick will again be featured prominently from her words from twenty years ago and possibly from her words yet written. There is more to this than just the final ruling by the NY Court of Appeals from March of 1990.
Anyway, as I began, unless the Appellant Court quickly rules on this and the Honorable Judge Herman Cahn clamps down some ironclad race dates in granite, expect that despite what he says, that Ernesto Bertarelli has exercised his nuclear option to keep this in court for the next several years.
Unfortunately this case is going nowhere but up the ladder from NYC to Albany and in the end........"the love you take is equal to the love you make"
New York Courts Rule. Appeal Likely
Judge Herman Cahn finalized his court order today. In a bit of a shocker he temporarily gave the Societe Nautique de Geneva (SNG)representing Alinghi a bit of a lift, ruling that the match should commence 10 months from today.
Apparently the Judge had his own toll in place. Though BMW Oracle has not announced it as yet, they are certain to appeal. The America's Cup is a challenger driven event and this ruling clearly gives the advantage back to Alinghi, whose delay tactics have clearly paid off....for now.
Judge Cahn has ordered an America's Cup match for March of next year. This means that Alinghi will have to defend in the Southern Hemisphere, if the ruling stands. Off the cuff, Capetown, South Africa and Auckland, New Zealand would appear to have the inside track for hosting the next America's Cup.
Team Shosholoza has displayed loyalty to SNG throughout the litigation and has been financial supported by Alinghi Team owner Ernesto Bertarelli.
For New Zealand, this would seem to be a way to appease the Kiwis, who are suing Alinghi for breach of contract. Perhaps an Auckland defense would be an olive branch.
Anyway, for BMW Oracle this is a major defeat and it would appear that the four corners of the Deed are in their favor. Clearly no official toll was in place, since Alinghi rejected original terms last September. In their brief to the Appellant Court, BMW Oracle included language about the 10 month notice of challenge.
Clearly, this is not over and expect further fireworks before the June hearing date.
Stay tuned.....
Posted by Mark Wharton Reid at 10:40 PM 0 comments
From Alinghi
Justice Cahn from the New York Supreme Court today ruled in favour of the Société Nautique de Genève (SNG) – represented by Alinghi, Defender of the America’s Cup – ordering the Deed of Gift Match brought by the Golden Gate Yacht Club (GGYC) to be raced in 2009.
Lucien Masmejan, lead counsel for the SNG, comments: “We are pleased that Justice Cahn has issued this order and recognised within his decision that it was the actions of the GGYC that brought the America’s Cup to court and that depriving SNG of the 10-month notice period mandated by the Deed of Gift would be inequitable.
“This 10-month notice period should commence when there is a final decision regarding the propriety of the GGYC challenge and fully taking into account the Northern Hemisphere window as indicated in the Deed of Gift. This means that the Match cannot take place before May 2009.
“Several issues still remain unresolved. Among these, the GGYC certificate is critical, as it is unclear and contradictory. Since GGYC refuses to provide us with the information required in the Deed of Gift, we are forced to continue with the legal procedures that GGYC started by bringing the America’s Cup to court."
Posted by Mark Wharton Reid at 10:40 PM 0 comments
From BMW Oracle
New York Supreme Court Judge Herman Cahn orders date and venue for America’s Cup.
Today the New York State Supreme Court issued an order that the next America’s Cup match should take place in March next year, ten months from now, and that the Defender should disclose the venue six months prior to that. “We are pleased that the Court has advanced the process and required the Defender to confirm the venue,” Golden Gate Yacht Club spokesman Tom Ehman said. “We will now be considering the order to determine our next steps.”
Posted by Mark Wharton Reid at 10:36 PM 0 comments
Wednesday, May 7, 2008
On and on we go. Where it ends, nobody knows...except.
With all the latest ruminating by the legal powers that be, it appears that the reality show the 33rd America's Cup has become, is being thrown into an eternal spin cycle by lawyers without end.
Not one damn thing can be decided by the two competing factions, without the specter of litigation. All because of the fact that thru an attempt at mutual agreement last December, for the most part the Golden Gate Yacht Club and the Society Nautique de Geneva could not agree about whether one or two of the new AC 90 Class America's Cup boats should be built.
Ninety-five percent of the bullshit Protocol for the 33rd America's Cup seemed to be acceptable to the warring factions. New York Supreme Court Judge Herman Cahn should return to that moment in time and order binding arbitration on the infamous 9-point plan. He should declare that upon resolution of the protocol that the dates for the next America's Cup should be in 2011.
1] On the issue of the AC 90, 2 boats should be permitted for no other reason than for safety's sake. To figure out the wherewithal to race, tack, jibe and hit the starting line with these new boats, you need to learn how to mix it up and scrape some paint without killing your opponent or yourself.
2] If money is the big concern, put on a financial cap of 100 million dollars per team with a rebate kicker back to the lesser funded teams if you exceed the cap.
3] Appoint a neutral America's Cup arbitration panel to be chosen by the former Trustees of the America's Cup. The panel will arbitrate disputes and appoint race officials.
4] All competing YACHT CLUBS should be held to a higher standard and meet the minimum qualifications of the Deed of Gift. That means by 2011 you have 3 years to hold an "annual" regatta. If you need a sponsor call your local beer or rum distributor.
5] To the New York Supreme Court: Don't answer your phone. Get caller ID and if anyone representing an America's Cup Syndicate or Yacht Club calls; ban them permanently from competition.
It is time to stop the spin cycle, step back and return to basics. I'm sure that with summer approaching in New York City there will be plenty of ambulances for all these attorneys to chase.
Posted by Mark Wharton Reid at 8:28 AM 0 comments
Monday, April 28, 2008
Sports Bar America's Cup
Try this one on for size, during an interplay of a sports converse, being asked hey, what’s going on with the America’s Cup?” Sum that one up in a moment or two without either completely gaining or losing an audience. This is either a two minute short answer or a twenty minute layered monologue. Hence a time line of events.
In a brief summation, the America’s Cup is currently held by the Geneva Yacht Club in Switzerland. They won the America’s Cup in New Zealand in 2003. The yacht Club chose Valencia, Spain to host the 2007 America’s Cup. Valencia is located on the Mediterranean Sea and is one of the world’s oldest ports. The racing must take place on the sea, or an arm of the sea.
Last year, in Valencia the yacht club was represented by its sailing team called Alinghi. The word alinghi was made up as a child by the owner of the team, billionaire Ernesto Bertarelli.
Alinghi beat Team New Zealand 5-2 in one of the most exciting America’s Cups in history. After the series was over, the Geneva Yacht Club drafted the rules for the next America’s Cup. With the help of the Spanish Sailing Federation, they created a phantom yacht club to agree to bogus new rules and represent any challengers, who might be interested in racing for the right to face to Swiss in an America’s Cup finals in 2009.
After the new rules were announced, the Golden Gate Yacht in San Francisco, California objected and issued a challenge of their own in accordance to the rules that govern the America’s Cup, called the Deed of Gift. The Deed of Gift was drafted by the owners of the yacht that won the first Cup race in 1851.
In 1887 the America’s Cup was deeded in a charitable trust to the people of the State of New York. Any legal disputes that arise involving the America’s Cup must be resolved by the New York Court System.
When the Golden Gate Yacht Club objected to the new rules they sued the Geneva Yacht Club in the New York Supreme Court. The issue now stands before a judge and we are all awaiting his final ruling.
It is possible when the final ruling is made that the next America’s Cup may take place later this year or early next year in giant multi hull boats. So, in very simple terms; that’s the way it is.
Of course to most people, the America’s Cup hasn't been on sport's radar since Dennis Conner lost the Cup and then won it back in the 1980’s. What makes this next court generated race so compelling is that the majority can't recall anything about all the America’s Cup races that took place over the last twenty years, but they do remember Dennis defending the ‘Cup in a catamaran.
What goes around, comes around.
Posted by Mark Wharton Reid at 12:06 PM 0 comments
Timeline
A Brief History of the America’s Cup.
The original contest for the One Hundred Guinea Cup took place off England's Isle of Wight in 1851. The contest was won by the yacht America, against 18 British challengers. Aboard, was Commodore John Cox Stevens, who later presented the trophy to the New York Yacht Club in 1857.
America dominated the event to such an extent, that Queen Victoria was said to ask, "Who's in second?” In which she was told, "You’re Majesty, there is no second!"
The first race for the “America's Cup” was in 1870 off of Staten Island, in New York as the schooner Magic won a fleet race against the British challenger Cambria. In an act of conveyance, the original members of the America syndicate, placed the ‘Cup in a charitable trust as a perpetual challenger’s trophy.
The deed of gift, which is the bylaw that governs the race, was amended by the last surviving member George Schuyler in 1887. The defense of the “Auld Mug” for the most part, takes place every few years. It attracted such luminaries as legendary yacht designer Nathanial Herreshoff, Captain Charles Barr and tea baron Sir Thomas Lipton.
The NYYC moved the regatta to the exclusive resort community of Newport, Rhode Island in 1930. The America’s Cup was graced in the 1930’s by the magnificent J-boat class. Led by railroad and banking blueblood Harold Vanderbilt, he matched up victoriously against the aeronautical wizard T.O.M. Sopwith, from over the pond in England.
After World War ll, the races were revived in 1958 with the 12-Meter Class boat. These 60 ft. yachts provided challenging matches in Newport's moderate and shifty wind conditions. Throughout the next three decades, the NYYC conducted defense trials served up most of the drama, with CNN cable mogul Ted Turner, France’s Baron Marcel Bich (the Bic pen) and avid fan Walter Cronkite providing most of the star power.
That was until 1983, when the controversial winged keel yacht Australia 2, won the America’s Cup in the best of seven races over Dennis Conner's Liberty. The men from the land “downunder" unbolted the trophy and took it back to the picturesque fishing port of Fremantle, Western Australia, to defend it against all comers.
In one of the greatest sports comebacks of all time Conner, challenging under the burgee of the San Diego Yacht Club went down to Australia in 1987 and brought the 'Cup back to America, crushing the Australian yacht Kookaburra in the process 4 to 0.
Enter New Zealand, who through the efforts of banker Michael Fay was able to challenge for the "Cup in 1988 by forcing the SDYC to run the races under a strict interpretation of the original race rules. Again, Dennis Conner countered with a brilliant defense, this time in a fixed wing-sail catamaran.
The America's Cup recycles its event about every 4 years or so. It has changed hands several times between America, New Zealand and now, Switzerland. The Swiss yacht Alinghi, representing the Geneva Yacht Squadron won the ‘Cup in 2003. The team defended it this past year in Valencia, Spain, against many challengers from all over the globe, including teams from South Africa and China.
Since Fay's surprise challenge, the Deed has generally been usurped of its authoritative grip on the rules by mutual agreement provisions called the America's Cup Protocol. The protocol's enabling resolutions allow the Challenger of Record to establish the rules and regatta format to determine who will challenge the defending boat for the America's Cup.
The matches feature the yachts sailing against each other on a windward/leeward course, approximately twenty miles in length. A series of elimination round robins, between all the challengers race for the Louis Vuitton Cup. Each round is worth more points than the last, and the highest scoring two yachts face off against each other to determine who race the defender for the America’s Cup. The Italian fashion design store Louis Vuitton has sponsored the challenger trials since 1970.
August 22, 1851
The original contest for the One Hundred Guinea Cup took place off England's Isle of Wight. The around the island regatta was won by the racing schooner America, against eighteen British challengers. Leading the effort was Commodore John Cox Stevens, who later presented the trophy to the New York Yacht Club in 1857.
America dominated the event to such an extent, that Queen Victoria was said to ask, "Who's in second?” In which she was told, "You’re Majesty, there is no second!"
October 24, 1887
The last surviving member of America’s ownership syndicate George Schuyler amends the Deed of Gift leaving the trophy to the New York Yacht Club as a charitable trust; “donated upon the conditions that it shall be preserved as a perpetual Challenge Cup for friendly competition between foreign countries.”
This Deed of Gift, made the twenty-fourth day of October, one thousand eight hundred and eighty-seven, between George L. Schuyler as the sole surviving owner of the Cup won by the yacht AMERICA at Cowes, England, on the twenty-second day of August, one thousand eight hundred and fifty-one, of the first part, and the New York Yacht Club, of the second part, as amended by an order of the Supreme Court of the State of New York dated December 17, 1956 and April 5, 1985. WITNESSETH That the said party of the first part, for and in consideration of the premises and of the performance of the conditions and agreements hereinafter set forth by the party of the second part, has granted, bargained, sold, assigned, transferred and set over, and by these present does grant, bargain, sell, assign, transfer, and set over, unto said party of the second part, its successors and assigns, the Cup won by the schooner yacht AMERICA, at Cowes, England, upon the twenty-second day of August, 1851. To have and to hold the same to the said party of the second part, its successors and assigns, IN TRUST, NEVERTHELESS, for the following uses and purposes: This Cup is donated upon the conditions that it shall be preserved as a perpetual Challenge Cup for friendly competition between foreign countries.Any organized Yacht Club of a foreign country, incorporated, patented, or licensed by the legislature, admiralty, or other executive department, having for its annual regatta on ocean water course on the sea, or on an arm of the sea, or one which combines both, shall always be entitled to the right of sailing a match for this Cup, with a yacht or vessel propelled by sails only and constructed in the country to which the Challenging Club belongs, against any one yacht or vessel constructed in the country of the Club holding the Cup. The competing yachts or vessels, if of one mast, shall be not less than forty-four feet nor more than ninety feet on the load water-line; if of more than one mast they shall be not less than eighty feet nor more than one hundred and fifteen feet on the load water-line. The Challenging Club shall give ten months' notice, in writing, naming the days for the proposed races; but no race shall be sailed in the days intervening between November 1st and May 1st if the races are to conducted in the Northern Hemisphere; and no race shall be sailed in the days intervening between May 1st and November 1st if the races are to be conducted in the Southern Hemisphere. Accompanying the ten months' notice of challenge there must be sent the name of the owner and a certificate of the name, rig and following dimensions of the challenging vessel, namely, length on load water-line; beam at load water-line and extreme beam; and draught of water; which dimensions shall not be exceeded; and a custom-house registry of the vessel must also be sent as soon as possible. Center-board or sliding keel vessels shall always be allowed to compete in any race for this Cup, and no restriction nor limitation whatever shall be placed upon the use of such center-board or sliding keel, nor shall the center-board or sliding keel be considered a part of the vessel for any purposes of measurement. The Club challenging for the Cup and the Club holding the same may, by mutual consent, make any arrangement satisfactory to both as to the dates, courses, number of trials, rules and sailing regulations, and any and all other conditions of the match, in which case also the ten months' notice may be waived.In case the parties cannot mutually agree upon the terms of a match, then three races shall be sailed, and the winner of two of such races shall be entitled to the Cup. All such races shall be on ocean courses, free from headlands, as follows: The first race, twenty nautical miles to windward and return; the second race an equilateral triangular race of thirty-nine nautical miles, the first side of which shall be a beat to windward; the third race (if necessary) twenty nautical miles to windward and return; and one week day shall intervene between the conclusion of one race and the starting of the next race. These ocean courses shall be practicable in all parts for vessels of twenty-two feet draught of water, and shall be selected by the Club holding the Cup; and these races shall be sailed subject to its rules and sailing regulations so far as the same do not conflict with the provisions of this deed of gift, but without any times allowances whatever. The challenged Club shall not be required to name its representative vessel until at a time agreed upon for the start, but the vessel when named must compete in all the races, and each of such races must be completed within seven hours. Should the Club holding the Cup be for any cause dissolved, the Cup shall be transferred to some Club of the same nationality, eligible the challenge under this deed of gift, in trust and subject to its provisions. In the event of the failure of such transfer within three months after such dissolution, such Cup shall revert to the preceding Club holding the same, and under the terms of this deed of gift. It is distinctly understood that the Cup is to be the property of the Club subject to the provisions of this deed, and not the property of the owner or owners of any vessel winning a match. No vessel which has been defeated in a match for this Cup can be again selected by any Club as its representative until after a contest for it by some other vessel has intervened, or until after the expiration of two years from the time of such defeat. And when a challenge from a Club fulfilling all the conditions required by this instrument has been received, no other challenge can be considered until the pending event has been decided. AND, the said party of the second part hereby accepts the said Cup subject to the said trust, terms, and conditions, and hereby covenants and agrees to and with said party of the first part that it will faithfully and fully see that the foregoing conditions are fully observed and complied with by any contestant for the said Cup during the holding thereof by it; and that it will assign, transfer, and deliver the said Cup to the foreign Yacht Club whose representative yacht shall have won the same in accordance with the foregoing terms and conditions, provided the said foreign Club shall, by instrument in writing lawfully executed, enter with said part of the second part into the like covenants as are herein entered into by it, such instrument to contain a like provision for the successive assignees to enter into the same covenants with their respective assignors, and to be executed in duplicate, one to be retained by each Club, and a copy thereof to be forwarded to the said party of the second part. IN WITNESS WHEREOF, the party of the first part has hereunto set his hand and seal, and the said party of the second part has caused its corporate seal to be affixed to these presents and the same to be signed by its Commodore and attested by its Secretary, the day and year first above written. GEORGE L. SCHUYLER, 1887
September 26, 1983
Australia 2, the radical Ben Lexcen and Peter van Oossanen designed winged keel 12-Meter wins the America’s Cup in a dramatic 7th race by 41 seconds over Dennis Conner’s Liberty ending the New York Yacht Club’s 132 year authoritative grip on the trophy.
February 4, 1987
Dennis Conner, representing the San Diego Yacht Club goes down under to Fremantle, Western Australia with his 12-Meter boat Stars & Stripes and takes the America’s Cup back to the United States defeating Kookaburra 4-0. The New Zealand Syndicate that year constructed the first glass twelve; it was Dennis Conner's contention that certain exotic fibers (lighter in weight and density) were used at the ends of Kiwi Magic, thereby increasing her windward speed. Conner asked for core samples to be taken from the hull of Kiwi Magic
The problem was the rules administered by Lloyds of London were vague concerning the scantling requirements in fiberglass and ultimately the Kiwi boat was ruled legal..
Winged keels, radical bustles and multiple appendages, like USA's graphite epoxy front rudder system become the norm this time around as the 12-Meter Class blossomed with design innovation. Stars and Stripes 87 turned like a freight-train and had a keel that looked like a VW Beetle, but in a straight line she moved like a rocket ship.
Conner and Co. pulled out all the stops in the playoffs by developing the shark-skin coating from the Twin Cities based 3M Corporation called riblets and hoisting a spinnaker with big pockets appropriately called "Dolly".
July 17, 1987
New Zealand businessman Michael Fay representing the Mercury Bay Boating Club directly challenges the SDYC for the America’s Cup. Under a strict interpretation of the Deed of Gift, Fay issues 10 months notice for a race in 90 ft. on the load waterline length monohulls. The maximum allowed under the rules.
August 8, 1987
The SDYC reject the MBBC’s challenge. Malin Burnham, President of Sail America, "We have 25 signed affidavits to support our interpretation on racing in 12-Meters. The weight of the world is in our favor." Michael Fay, New Zealand Challenge, "There is a great deal of worldwide support for such a competition (J-Boats), and it's growing." Arthur J. Santry, Jr., Commodore New York Yacht Club, The San Diego Yacht Club's action is not in the best interest of the America's Cup and is inappropriate."
So tell me. What does the world really want? More importantly, what will the world get? Brace yourself, the battle lines for the "Auld Mug" are being drawn, and you had better be careful on which side you choose.
Once again the America's Cup wars have returned to the shores of the Atlantic Ocean. Unfortunately, this time they're being waged on the floors of the New York Supreme Court.
The litigation in New York began with Michael Fay's challenge for the Cup in 90 ft. waterline length boats, the maximum allowed under the Deed of Gift. The San Diego Yacht Club refused his challenge, so Fay brought the matter to court. Fay is attempting to hold the SDYC responsible for administering the provisions of competition for the Cup under the terms of the original Deed of Gift. "We have taken the initiative, both to challenge in 1988 and to do so in a completely different class of boat that will restore some of the romance and grandeur to the event," said Fay, who was the syndicate head of the New Zealand Challenge in Perth and is representing the Mercury Bay Boating Club in this matter.
“We are dismayed and disappointed that Mr. Fay would elect to drag one of the world's premier sporting events into a court of law," states Malin Burnham, President of Sail America, and no stranger to Cup politics, having run Dennis Conner's last three campaigns. Sail America is manager of the SDYC's America's Cup Defense. "I can assure Mr. Burnham and Sail America that this is a genuine and serious challenge, made in the best traditions of the America's Cup," says Fay, "and New Zealand will be pursuing it with full vigor."
"Fay's action comes as no surprise," said Burnham. "It is merely further evidence of his determination to manipulate and control the terms of this matter to his own advantage."
The Mercury Bay Boating Club sent its challenge to the SDYC on July 15, 1987. Under the provisions set forth by the Deed, Fay gave the SDYC 10 months' notice, calling for races to be held on June 1, 3, & 7 of next year, off San Diego, in boats that will measure more than 135 feet in length.
Unfortunately, the challenge came at an inopportune time for the SDYC, as they were struggling with Sail America just to hold the next Cup regatta in home waters.
These giants will be ultra-light "trapeze" J-Class boats, with crews of 40 men. The boat is under construction now at Martens Marine in Auckland, NZ, and will be christened on February 27, 1988.
The SDYC has received three other challenges to date in J-Class yachts. They include Alan Bond from the Royal Perth YC, Peter de Savary, representing the Royal Burnham YC, and the YC of Cannes, France. Both Bond and de Savary have also challenged in 12 Meters.
To date, Sail America has received 20 challenges for 1991 in 12 Meters, and according to the affidavit filed on September 18th, half of those challengers have spent $7.7 million dollars on their 12Meter campaigns.
The center of this controversy is the Deed of Gift. The Deed is the constitution of the America's Cup. All matters relating to the Deed are subject to interpretation by the New York Supreme Court.
The original Deed of Gift was written in 1857 by the surviving members of the America Syndicate and the NYYC, which had won the America's Cup in 1851 off the Isle of Wight in England. It was amended in 1887 by George Schuyler. Two amendments have been added since then: in 1956 to allow for 12-Meters as the yacht of choice, and in 1984, to accommodate Perth, Australia, as trustee to the Cup.
The storm revolves around a series of provisions, which are referred to as enabling resolutions.
These unwritten by-laws to the Deed have gone unchallenged until now.
"If it were not for the NYYC in 1956 as acting trustee conceiving of ways to adapt the Deed to drastically changed times and circumstance, the America's Cup, would be a relic gathering dust,' states Burnham.
"Mr. Fay and his colleagues would have us forsake the living Deed of Gift at the very peak of its vitality and return instead to an obsolete match which bears no resemblance to the vigorous spirit of truly international competition so evident in Perth earlier this year!" states an emphatic Burnham.
"As trustee of the Cup, SDYC has a responsibility to protect the interests of all challengers," said Burnham. "While we are unhappy to see Mr. Fay attempt to win in court what would be hard to win at sea, we are well-prepared to fight for the sake of the other challengers and for the future of the America's Cup.
If one front in this war wasn't enough for the SDYC to wage, enter the NYYC, author of the Deed of Gift and trustee to the America's Cup for 132 years. The NYYC has gone to court to prevent SDYC's petition to amend the Deed, that would allow for the Cup to take place only every four years and then only in 12-Meters.
The NYYC, which adamantly maintains that the Club takes no position in the suit between SDYC and Fay, and has stepped forth only to prevent, according to Commodore Arthur J. Santry, Jr., "each future trustee of the Cup from being able to dictate whatever terms for the challenge and defense of the Cup that seemed best to suit the interests of that trustee."
There is a lot of misunderstanding in regards to the Deed of Gift," spoke Santry. "SDYC's actions are not in the interest of the Cup and is inappropriate." In response to the legality of Fay’s challenge, Santry said, 'I don't think there is any question about it."
"It's important to remember that the NYYC does not support New Zealand's challenge," said Tom Ehman, executive VP and chief operating officer of Sail America. Ehman was also the executive director for the NYYC's unsuccessful America II challenge. "They are only involved in the separate proceeding in which we have asked to amend the Deed of Gift," states Ehman. "They have remained neutral on the challenge."
When the SDYC first responded to Fay's challenge with a blunt thanks, but no thanks, it then went about its own business: you know 'Rain, rain, go away, come again another day'. Well, it never rains in San Diego, except on the day when the SDYC and the City chose to make their announcement on the America's Cup.
Well, on that day, what was to have been a landmark occasion for the City of San Diego, became instead the format in which to respond to Fay's challenge. On the previous day, Fay had sought and obtained a restraining order from the Court preventing the SDYC from discussing any plans that relate to the 1991 Cup.
The restraining order was lifted a week later, which basically meant that Sail America could proceed with their plans on paper, though no-one was rushing out to start pouring concrete.
When Stars and Stripes won the America’s Cup earlier this year, Conner and Company had rolled through the New Zealand “plastic fantastic" to win the series 4 to 1 and earn the right to face Kookaburra 3 (which they trashed as well) for the America's Cup.
Kiwi Magic was the first fiberglass 12-Meter and had passed technical inspection. But Conner, who plays the psychology game as well as anyone, and is not one to mince words about enemy technology, commented that, "Why else would you build a fiberglass 12 Meter, unless you were going to cheat?"
Well, New Zealand hadn't, but that was not the point, and Conner knew it. But Fay wasn't about to let dead dogs lie, and while everyone in San Diego was haggling about where to hold the Cup Defense, he was up late studying the Deed. Also Russell Bowler, project manager for Kiwi Magic's fiberglass construction.
Fay's challenge dictates that the races commence 10 months from the date of his challenge in accordance to the Deed, though the Judge has ruled the races would take place 10 months from her decree, if she rules in Fay's favor.
"What we are proposing won't be any easier than challenging in 12 Meters," said Fay. "New Zealand will again be the newcomer going against the Americans, who were invincible for more than 80 years when the Cup was raced in boats of the size we have nominated."
"New Zealand is interested in sailing, not in being in court; we're looking back to the old traditions of the America's Cup, and we have to be careful that the sport does not become overly commercialized."
"We welcome the challenges from Australia and Great Britain, and we are prepared to sail against
them," said Fay, "and any other challenge that arrives in San Diego in time. Just to get the boat ready and to San Diego in time will be a major feat."
New Zealand, J-l has a construction crew of 30 people working around the clock to get her ready. David Barnes, who skippered Kiwi Magic to a World Championship in Sardinia last summer is part of the resource of the program, but no decision will be made on a skipper for some time to come.
Though no one would comment publicly, there can be no doubt that the Stars and Stripes brain trust are plugging in numbers for a J-Boat design of their own.
“SDYC and Sail America are confident we have the moral and legal high ground in this matter, and we hope and expect a favorable decision shortly, states Ehman.”We haven't even taken our gloves off yet," boasts Burnham.
August 31, 1987
MBBC takes the issue before the New York Supreme Court, which under the state’s charitable trust laws, is the arbiter on legal matters on the America’s Cup.
September 9, 1987
New York Supreme Court Judge Carmen Ciparick orders a tolling period to take place in lieu of ongoing litigation. Notice of challenge for 10 months, will commence at the conclusion of court proceedings or by an order of the court.
November 25, 1987
New York Supreme Court Judge Carmen Ciparick rules that the SDYC must accept the challenge from the MBBC.
December 28, 1987
New York Supreme Court Judge Carmen Ciparick modifies previous tolling agreement. “Ordered that the ten (ten) month notice period in the valid notice of challenge of the Mercury Bay Boating Club Inc. of July 15, 1987, previously tolled by the Court on September 9, 1987 pending determination of the motions and actions in Case 1 and Case 2, shall resume and continue to run from the date of service of a copy of this order with notice of entry upon the attorneys for the parties and on the office of the Attorney General of the State of New York.”
January 22, 1988
The SDYC announces that it will defend the America’s Cup in a catamaran.
July 25, 1988
Judge Ciparick refuses to bar SDYC’s catamaran stating; “Nothing in this decision should be interpreted as indicating that multi-hulled boats are either permitted or barred under the America’s Cup deed of gift.” Ciparick directs both parties to reserve protests or further litigation after the completion of the races. “The America’s Cup deed is a relatively simple document that seeks to encourage international competition among sportsmen without providing for intricate rules and dispute resolution mechanisms that have become the prominent focal points in our time,” wrote Ciparick. “The vision that Schuyler and the other donors sought to perpetuate over the years was that of an international race on a grand scale among boats on the seas and not a land bound battle among clever lawyers in the courthouse.” In her ruling though Ciparick sent a bit of a warning shot of what was to come in her courtroom by adding; “The conclusion is inescapable that the donor (George Schuyler) contemplated the defending vessel to relate in some way to the specifications of the challenger.”
September 9, 1988
The SDYC defends the America’s Cup, with Dennis Conner winning the first two races in a best of three series. Michael Fay vows to return to court to challenge the validity of SDYC’s catamaran.
March 28, 1989
Judge Carmen Ciparick disqualifies the SDYC and awards the America’s Cup to the Mercury Bay Boating Club. Ciparick ruled that the San Diego Yacht Club had “violated the spirit of the deed” when its “clear goal to was to retain the cup at all costs.” In her ruling she wrote; “the defender of the America’s Cup is more than the current champion yacht club. The yacht club winning the America’s Cup becomes the sole trustee under the deed of gift and has an obligation there under to insure a fair competition. The holder of the America’s Cup is bound to a higher obligation than the victor of the Stanley Cup or Super Bowl. In organized sports such as hockey or football there is a central authority for the development and enforcement of competition rules. The defender of the America’s Cup, as trustee, is charged with the responsibility of insuring that a subsequent defense is carried out in accordance with the letter and spirit of the deed of gift. San Diego clearly fell short of its obligations as trustee of the deed of gift.” “Accordingly, San Diego shall be disqualified in the September 1988 competition.”
September 19, 1989
By a 4-1 decision the Appellate Division of the New York Supreme Court overturned the ruling by Judge Ciparick and returned the America’s Cup to the San Diego Yacht Club. The auld mug itself never made the trip to New Zealand. The ‘Cup has been store in a bank vault awaiting its fate and will likely remain there until all measure of appeals have exhausted themselves. In a 30 page majority decision Judge Joseph Sullivan ruled that; “that San Diego’s catamaran was an eligible yacht.” Justice Israel Rubin added that, the “SDYC should not be deprived of its victory simply because the design of its vessel was more innovative and more successful in achieving its purpose than that of the challenger.”
November 22, 1989
The Appellate Court in a unanimous decision rules that Michael Fay will be able to appeal to the New York Court of Appeals in Albany, NY, the highest court in the state.
April 26, 1990
The New York Court of Appeals rules 5-2 that the San Diego Yacht Club will retain the America’s Cup and will be free to organize the defense of their choosing.
May 1992
San Diego plays host to an America’s Cup final, under a new mutually agreed protocol, which featured unlimited spending by billionaires, who in the case of the Italian Syndicate il Moro, built 5 new ACC boats only to lose in a closely contested series to Bill Koch’s America Cubed 4-1.
May 1995
Team New Zealand wins the America’s Cup crushing Young America 5-0. TNZ leader Peter Blake vows changes in the way the defender and the event conducts the America’s Cup. Blake was extremely displeased at how the SDYC altered its defense trials allowing the Team Dennis Conner entry, after appearing to be eliminated, to be free to sail another day, ultimately winning in Stars & Stripes and then choosing the losing yacht, Young America; to defend.
March 2000
Team New Zealand defends the America’s Cup in the waters of the Hauraki Gulf off Auckland, NZ in what was another listless final. The Prada team from Italy emerged from a thrilling Louis Vuitton Cup series that went the distance in nine exciting races against Paul Cayard’s America One, and was left with little wind in their sails to challenge the mighty Kiwi’s, before losing 5-0.
March 2000
Below was posted on the fansite of Team Luna Rosa:
This is a letter Peter Blake wrote to the Prada Team a few days after their defeat against Team New Zealand in the 2000 AC.
DEDICATED TO LUNA ROSSA
The America’s Cup is an elusive trophy, and has rarely changed hands in the last 150 years. This is not a sport for the faint hearted. It is not a quest to take lightly or on a whim. It is a fight between sailors from yacht clubs all over the world that desperately want the same thing: get their hands on the Cup. The prestige for the winner has more value than any other sporting achievement. It’s winning the invincible and doing the impossible that attract sailors, dreamers and millionaires, but the victory is not easy, and most of the time it doesn’t happen. The only way to win is to continuously participate, continuously return time and time again with the conviction that you can do it.
Hesitating after the first attempt is not part of the rules of the game. You need extraordinary people with ferocious motivation, lots of experience and attention to details and unconditional dedication. The game is uncertain; for all you can dedicate, for all that you can motivate, and for all that you are willing to spend the victory is never guaranteed. For some it becomes a kind of drug. It is a game that you can come to deeply hate, to than discover that you can’t live without it at least not until you win. Then there’s the metamorphous (at least that is what happened to me). I was part of a crew that succeeded in winning the America’s Cup at least once and successfully defending it. I was finally free of the tightness in my mouth and in my stomach. I am paid. I am cured. I go to sleep at night and dream other dreams. New passion are being born inside of me.
Just so that it is clear, competing for the America’s Cup is a game of passion, of dreams when in every waking moment (and while you are asleep) you have only one unique thought and that is winning but the victory is uncertain until you have it in your hands. The delusion and the disappointment hurts even when the others are suffering, imagine trying it out on your own hide. You keep asking yourself “how”? and “why”?
For weeks until you find the determination to try again, to not repeat the same mistakes, to do it better than before, to be better that the rest of the world, to be the best and than the anxiety becomes dreams and passions all over again. The thought of winning never ever abandons you but it is better to leave it on the side and concentrate on a new objective: to be the best in every phase of the new challenge. Nothing is left alone, not even the smallest detail. But this doesn’t happen just because you want it to. You need a Team of exceptional people who share the same dream and the same passion and are not scared even when odds are against them. It’s the difficulty of the challenge that puts the adrenalin in your veins that may have been weakened by the previous defeat.
The America’s Cup is what it is because it is so difficult to win. It is not a game for armchairs admirals. It is not a game for a person who is not prepared to come back. It is not a game for the faint hearted. It is a game for those who are not scared of pitting themselves against the best that the world has to offer. It’s a game where winning is almost impossible, almost, but not impossible. And this is why it is worth fighting for. It is the difficulty that gives any challenge some sense.
This is the essence of life itself. To all the people in Team Prada who are telling their story in this book, I would like to say, I admire your sportsmanship, your tenacity and your enthusiasm for life. You have given all of us a really positive imagine of your country and your countrymen will be proud of you. This time you didn’t win but certainly didn’t lose. You only lose when you don’t have the courage to return. Not winning is part of the learning process which leads you to success. Because it is also a question of luck. It won’t be easy. The best thing never are.
Peter Blake
April 2000
Victorious in their defense of the America’s Cup Team New Zealand now moves ahead with plans for the next America’s Cup in 2003. Sir Peter Blake hands over the reigns of leadership of TNZ to skipper Russell Coutts to pursue endeavors away from the trusteeship of the America’s Cup. The rocky relationship between the two men appears to more ego driven than contentious. Coutts is in disagreement with the Blake and the trustees over negotiated corporate contracts and commitments for the team for the next defense. TNZ locked into rolled over sponsorships for 2003 which may not be enough to cover rising costs, according to Coutts. Trouble in paradise?
May 2000
The writing was on the wall as many of the Kiwi after guard from the victorious TNZ jump ship to Ernesto Bertarelli’s fledging new America’s Cup team Alinghi, from Lake Geneva, Switzerland. The Swiss pharmaceuticals magnate sent a tsunami through the South Pacific by raiding Team New Zealand of its winning skipper Russell Coutts, tactician Brad Butterworth, Warwick Fleury, Simon Daubney Murray Jones and bowman Dean Phipps. Quickly labeled as traitors, the Kiwi nation won't likely forget or forgive the pair as the next America’s Cup approaches.
The America’s Cup once a haven of nationalistic pride, amateurism and recreation, reels in the realization that the dawn of a new era has encroached on the ‘Auld Mug, as free agency and the high salaries associated with the rising costs have taken hold of the competing teams. Many of the professional sailors now involved in the sport have begun to seek out the big paydays.
The Royal New Zealand Yacht Squadron briefly held up Bertarelli's Alinghi Challenge claiming that the Geneva Yacht Club did not fulfill the "arm of the sea" amendment to the deed of gift. Lake Geneva is not part of an ocean or an arm of the sea as defined, but the Yacht Club did hold a token regatta on the Mediterranean Sea to meet the minimum requirements of compliance to challenge.
The Alinghi Syndicate petitioned the America's Cup Arbitration Panel (ACAP) on the legality of its challenge and was upheld after a day of deliberations.
In 1984 the Chicago Yacht Club successfully petitioned the New York Supreme Court to declare that the Great Lakes were an arm of the sea and therefore eligible to challenge for the America's Cup. The NYYC had inserted language into the conditions for match after 2 anemic Canadian Challenges in 1876 and 1881.
September 2001
The 150th anniversary of the America’s Cup was celebrated as a jubilee festival in Portsmouth, England and around the Isle of Wight with multiple regattas scheduled with many of the winning boats and skippers/crews in attendance.
May 2002
Tragedy rocked the world community in December of 2001 with the stunning news that yachting legend Sir Peter Blake of New Zealand was killed by pirates as they were attempting to rob his crew aboard the Blakexpeditions ship, Seamaster. Blake was in the midst of an environmental expedition of the Amazon River when the incident occurred.
The Seamaster was docked in the port city of Macapa in the northeastern state of Amapa in Brazil. According to published accounts Blake was below deck when masked gunmen boarded the ship. With commotion on top Blake rushed up the stairs armed with a rifle to protect his crew. He was shot twice in the back by the startled robbers who anticipated no resistance. Blake died immediately.
Blakexpeditions was midway thru an exploration of the environmentally sensitive forest regions of the Amazon River basin in Brazil and working through customs on their way to Orinroco River in Venezuela when the tragedy struck.
Sir Peter's stature in New Zealand is approached only by Sir Edmund Hillary who climbed to the top of Mount Everest a half a century ago. Beyond his leadership in winning the America's Cup in 1995 for New Zealand, Blake's reputation for honesty and integrity was unparallel in the world of sport.
After much acrimony in the 1995 America's Cup in San Diego, Blake worked to elevate the event to a higher level with a vision of sportsmanship and honor for a small country of 3.5 million inhabitants. "We want to ensure that this is an event that parents want their sons and daughters in." "Even if it means that we hold the Cup Defense only once," Blake said, "we will make the competition fairer."
At 6.5 feet in height he was tall in stature and taller in life. Blake commanded the respect of teammates and opponents alike. After winning in San Diego he led the Cousteau Society and was appointed as a special envoy to the United Nations Environmental Program.
As the winning skipper in the 1989-90 Whitbread Around the World Race on Steinlager, Blake led the way into every port city. In 1993 he sailed with Sir Robin Knox-Johnston on Enza New Zealand in the non-stop around the world race for the Jules Verne Trophy in a record 74 days 22 hours.
Throughout his life he was man a few words and extraordinary deeds. The sailing community has lost a pillar of courage and New Zealand has lost a giant.
Sept 2002
The billionaires are back, rule changes after the 1992 America's Cup were designed to disperse them and bring financial sanity back to the event. 2003 finds them back. This time several of the world's richest men are taking part. Larry Ellison, Ernesto Bertarelli, Craig McCaw, Paul Allen and Prada CEO Patrizio Bertelli, with his wife’s money are all onboard for the 31st go around.
Oracle founder and CEO Ellison is taking time away from strewing thru Bill Gates garbage to run the Oracle BMW Team. The team represents the Golden Gate Yacht Club in San Francisco, California. Ellison has run a very successful race program with his maxi yacht Sayanara and is hoping to emulate billionaire Bill Koch's 1992 program which spent close to $100 million dollars just to defend the 'Cup for another yacht club.
The One World Challenge representing the Seattle Yacht Club is led by communications billionaire Craig McCaw. McCaw had financed much of the effort out of his own pockets until recent stock market corrections sent him to seek the assistance from fellow Microsoft billionaire Paul Allen for a bailout.
The moguls club is also joined by Prada CEO Patrizio Bertelli. Prada reached the finals in 2000 by aggressive sailing tactics, though lost by the time the Kiwi's crushed them and an overzealous approach to the rules. The Italians have achieved notoriety in their interpretation of fair play over the last 10 years, as Michael Fay, Team Dennis Conner and America One can all surely attest to. Prada represents the Yacht Club Punta Ala, which is the Challenger of Record.
Free agency comes to the America’s Cup as nationality requirements are loosened up to allow sailors to sail for different teams in different countries. With that, allegations surfaced in 2001 during the Sean Reeves fiasco materialized when the America's Cup Arbitration Panel (ACAP) ruled that the One World Syndicate representing the Seattle Yacht Club must begin the LV Cup trials minus one point. ACAP was approached by One World in December to determine whether it had violated any of the interpretative articles of the America's Cup Protocol.
ACAP ruled that One World had not violated Article 13 of the 'Protocol which relates to reconnaissance of competing yachts, but that it had been in breach of Article 15.3. That rule provides that designers that have worked on other ACC boats in the past sever prior involvement and "be separate and independent" of other America's Cup syndicates. The rule is similar to most "non-compete" clauses found in employment contracts.
The panel "took into account as a mitigating factor that it was One World that had brought forth the facts that had resulted in the findings that it was in breach". "Had it not done so", concludes the report, "a more severe penalty would have been awarded".
The controversy in question relates primarily to the fact that One World Designer Laurie Davidson was the principle architect of Team New Zealand's Black Magic NZL 57 and NZL 60. Black Magic NZL 60 defended the 'Cup last time around and is considered to be the prototype ACC yacht of which all the new generation of boats will be measured against.
Apparently, Davidson had in his possession; the measurement certificates for both yachts, carbon fiber specs for the TNZ contract suppliers and the team's performance evaluations for Prada.
The Reeves controversy erupted last fall when apparently after helping lure several key TNZ members to One World he became unhappy with his compensation and began naming names. Reeves, an attorney with some prior 'Cup involvement had credibility problems from the get go has decided to focus his energies on coaching professional tennis.
One World was caught off guard by Reeve's allegations and was quite forthcoming in bringing the facts before the ACAP. In a summary statement earlier this year One World CEO Gary Wright stated that OWC "had made some mistakes, but we believe these to be minor and not beneficial to our design process".
January 2003
Alinghi defeats Oracle 5-1 in the Louis Vuitton Cup finals, as the Kiwi defectors own Chris Dickson and crew from the first windward beat on. Charges and countercharges of high tech secrecy, spying and illegal weather satellite information provide most of the excitement, as the outcome appears to be a foregone conclusion. Despite imminent threats from the “Blackhearts” Russell Coutts is undeterred in his mission objective.
February 2003
For the third straight time the America’s Cup produced a whitewash shutout. Alinghi proved to be a steady, yet capable ACC yacht. Alinghi beat all challengers to win the LV Cup and face Team New Zealand’s radical, yet risky design in the America’s Cup final.
The Kiwi’s handed over the trophy after losing 5 straight races in two and a half agonizing weeks. After waiting out a wide range of weather systems the TNZ yacht carried plenty of water, but ultimately failed to carry its weight around the 20 mile windward-leeward course. Coutts and tactician Brad Butterworth both from New Zealand, looked on with bittersweet emotion as they grabbed the “Cup from their countryman and took it to Europe.
TNZ designers Tom Schnackenberg and American Clay Oliver came up with an unorthodox idea of creating a second or false hull as an appendage to increase the waterline length of the boat without incurring penalties to, or reduction of the sail area. Nicknamed the “Hula”, the 20ft. long second skin section of the hull could not touch any part of the boat except at its fitting.
With an inherent micro-millimeter gap along the waterline and an elongated torpedo-shaped bulb keel the TNZ boat took on tons of extra water in heavy seas. This design flaw led to gear failures and a splintered boom in the first race and a broken carbon fiber mast in the fourth race
March 2003
Trouble in paradise, part two? With victory, Alinghi chief Ernesto Bertarelli reaps the reward of the ex-Kiwis command and control on the water, while clearly benefiting from TNZ’s lack of race preparation and their need for a “gimmick” boat. Russell Coutts again, has more on his mind than being Bertarelli’s “helmsman”. Recriminations foreshadow events to come as the ‘Deed once again seems to drawn into the middle of the wishes and desires of the winning yacht club, versus the dreams of the winning team. It was the indecision and divisiveness between Sail America, Stars & Stripes and the San Diego Yacht Club which led to the “hostile” challenge from Michael Fay in 1987. Again, in 2000 their was a war of wills between the trustees and the sailing team, which led to the defection of Coutts and company.
December 2003
Valencia, Spain was chosen as the host site for the next America’s Cup, trumping out European cities in Portugal, Italy and France.
June 2004
Former Alinghi Skipper and Team Manager Russell Coutts, continued a mediation process with Ernesto Bertarelli to allow access into 2007 America’s Cup. Coutts was fired by Team Alinghi “for repeated violations of his duties.” Coutts was not happy with many of the planned changes in the way the event was being organized. Coutts won the America’s Cup twice in 1995 as the skipper on Black Magic and 2003 on Alinghi. He defended for TNZ in 2000.
Bertarelli is the head of the Alinghi Syndicate which won the America’s Cup in Auckland, NZ last year. Alinghi represents the Societie Nautique de Geneva. SNG promised freer access by sailors to cross borders and compete for other countries, i.e. free agency. That access is now being restricted by new mutual consent amendments.
After Fay's surprise challenge, the Deed of Gift has been usurped of its authoritative grip on the 'Cup, by mutual agreement provisions called the America's Cup Protocol. The Protocol's enabling resolutions allow the Challenger of Record Committee or CORC, to construct the rules and regatta format to determine who will challenge the defending SNG boat for the America's Cup
The winning yacht club becomes the trustee of the America’s Cup, not the winning team or its members.
The regatta is structured by the terms of mutual consent. The rules are set up between the SNG (the defender) and the challenger of record (COR), which this time is the Golden Gate Yacht Club in San Francisco, California. representing BMW Oracle .
BMW Oracle is run by Larry Ellison. Ellison & Bertarelli are multi-billionaires and two of the world’s richest men. Because of the way the terms of mutual consent is structured the “Protocol” for the 32nd America’s Cup becomes gold standard in which the races will be conducted. They are the kingmakers. To that end, and to specifically restrict Coutt’s participation; the “Protocol” text was amended in 2004 to read:
Article 13.12 Crew restricted to work for only one Competitor.
Except with the consent of all competitors still competing in the event: at any time after 2 March 2003, a person who has been contracted, employed, paid or otherwise engaged (paid or unpaid) by a Competitor as a race or training crewmember for a total of 180 or more days may not be engaged (paid or unpaid) by another competitor in any capacity: and at any time after January 1, 2006, a person who sails on a competitors yacht a race or training crewmember may not be engaged (paid or unpaid) by another competitor in any capacity.
Dejected and resigned to his fate Coutts told the NZ Herald; “do we want an America’s Cup to be governed by two guys that all of a sudden get into a back room somewhere and decide to change the rules for whatever reason.” Language aside, Coutts and Kiwi sail making/design legend Tom Schnackenburg (who was let go by TNZ) cannot compete in the 2007 America’s Cup.
April 2007
Uufta! Last time, Greenpeace tried to sink the French ACC Yacht Le Defi Areva, to the chants of arreviderci. Dennis Conner’s new boat, Stars & Stripes did sink! The Kiwi’s secret “hula” hull did its best at trying to imitate a submarine and now the America’s Cup is in Europe, on a lake in Switzerland.
Now, this time Russell Coutts is in court. Shoshaloza hit a whale. Tornados destroyed three boats in France. Conner and the NYYC are out. The Chinese are in and the billionaires have taken control, again!
The America’s Cup Class Boats are “turbocharged” for 2007. Version 5 of the current America’s Cup Class rule allows amendments which should make the boats much faster downwind. The new class was introduced in 1990 and first sailed in the America’s Cup in 1992
The yachts are 80 feet in length and with masts over 110 feet high can carry more than 3000 square feet of sail area.
ACC yachts are comprised of exotic blends of carbon fiber and honeycomb. Different than 12-Meter yachts which used to be pounded and sanded into shape with aluminum, ACC boats are baked in warehouse sized ovens for several weeks before the hulls are cured and the fittings attached.
The fragile nature of the new generation of ACC yachts had become the cause of much concern. One Australia (AUS 35) snapped in two and sank in stormy seas off San Diego in 1995. In November of 2000 the NYYC's entry Young America (USA 53) split in half, but did not sink.
May 2007
As racing started, light winds and a Swiss canting (swinging) keel controversy stole the headlines. Louis Vuitton Cup favorite
BMW Oracle was eliminated by month’s end and CEO/Skipper Chris Dickson was terminated for his overbearing and under achieving performance.
July 3, 2007
Alinghi defends the America’s Cup for its yacht club, the Society Nautique de Geneva (SNG). The Swiss Team beat Team Emirates New Zealand by one second in a thrilling Race 7.
July 5, 2007
SNG accepts an “in house” challenge from Nautico Club Espanol de Vela’s (CNEV) for the 33rd America’s Cup. A controversial new protocol is written.
July 11, 2007
The Golden Gate Yacht Club files a formal challenge for the America’s Cup under the strict terms of the Deed of Gift. The GGYC contend that the challenge from CNEV does not meet the defining criteria in its acceptance as the challenger of record.
July 13, 2007
Longtime sponsor Louis Vuitton withdraws from the event. After 37 years of participation in the America’s Cup as a corporate partner, minting the Challenger’s Cup with a beautiful trophy bearing its name and handling media relations; LV has regretfully bowed out, in large part over disputes with America’s Cup Management (ACM) over the future of the event.
LV spokesman, and former ‘Cup skipper Bruno Trouble offered an open letter citing some of his specific concerns:
Worrying about the future of the Cup by Bruno Troublé
Since July, I remained silent, speechless after the America’s Cup we all love so much, was hijacked. I am shocked to see the defender sailing WITH the challengers (no more of this great mystery at the start of the first final race) and at ACM naming the judges, umpires, and committees with no reference to ISAF. I am sad to see the America’s Cup slowly but surely drifting to become just another sporting event with no class, no respect for tradition, and where money - lots of money - is the only word used by the organizers. I am furious to see the 90-foot box rule. Anyone involved in the America’s Cup knows that the best match racing boats do NOT accelerate from 10 to 20 knots when luffing 10 degrees downwind. They are STUCK in the water the same way the 12s and the IACC were. Do not confuse these fast-accelerating sleds with the impressive looking J’s boats, as the defender has stated.
These new boats might be great racers if you have 30+ boats on the starting line, but they will be hopeless for match racing. You will need two TV sets to watch the race once they round the weather mark! We know this in France, as the 60 feet multihull racing circuit died because of the differences in speed between the boats.
Looking at those races was so boring! The America’s Cup is the passion of my life after spending 30 years living with her (skipper in ‘77 to ‘83 and then with Louis Vuitton from ‘83 until today). But now Louis Vuitton is out, for the time being. It is sad and the Cup will miss this great partner. Being the ONLY permanent body around the Cup for 25 years, LV brought a lot to the event by making it bigger over the years, yet doing it with class and respect. (Remember the A’s Cup Jubilee in Cowes!) They wait and see, hoping that the Old Lady will realize where some people want to take her.
The court decision will force the defender to go back to a more realistic and balanced event. The Challengers will be listened to - hopefully they will gain some more freedom - and ACM might come up with some good ideas without taking over the whole event. This would be a trail in the right direction, if only those that are on it will walk.”
July 20,
The GGYC files legal papers in the New York Supreme Court.
July 23,
SNG rejects the challenge from GGYC.
September 10,
The NYSC grants a court date of October 22nd, for the two sides to present their case.
October 22,
The case is presented before the honorable Judge Herman Cahn.
October 31,
The America’s Cup Management (ACM) releases the new design rule for the America’s Cup Class. The AC 90 is greeted with mixed reviews, but there is widespread general acceptance, In part due to the integrity of yacht designer Tom Schnackenberg as the arbitrator of the new rule.
November 22,
ACM announce the postponement of the 33rd America’s Cup. It was scheduled for Valencia in 2009.
November 27,
Judge Cahn releases his decision. The court concluded that the CNEV challenge is invalid and that the GGYC is the Challenger of Record.
December 4,
The GGYC thru its racing team BMW Oracle release a 9 point amendment to the protocol.
December 12
Open letter from Ernesto Bertarelli: My vision for the America’s Cup
Following discussions this week with both the NYYC representatives and Larry Ellison related to the future of the America’s Cup, Ernesto Bertarelli, President of Alinghi and current Defender of the Trophy, expresses his vision and feelings about the oldest sports trophy in the world.
“Since Alinghi’s successful defence of the America’s Cup in July, much has been said by many and I wish to explain my personal passion for bringing my vision of the America’s Cup to life.
When I founded Alinghi it was all about creating a team to share the passion of sailing through every channel available to as wide an audience as possible. We tried to adopt a fresh and open way of doing things and making part of our base accessible to the public was only one example of the many innovations Alinghi brought to the America’s Cup. I believe this approach was a contributing factor to our success in 2003.
With the Defence of the Cup, we got the opportunity to share this spirit with the whole event. When we began, we set out a clear and innovative strategy focusing on the choice of venue, the set up of a purpose built port, the America’s Cup Park and the Acts as part of our vision of opening the event to as large an audience as possible.
Over six million people attended the event, which for the first time saw the participation of syndicates from five continents. The television coverage extended the reach to over four billion viewers.
The critics who opposed the Acts, the choice of venue, the television production, etc. were numerous and vociferous but the facts proved that the 32nd America’s Cup was a positive turning point for this historical event.
At the same time as realising some of the fascinating aspects of the America’s Cup I also became aware of its weaknesses. The uncertain format of the event meant that teams – and the entire America’s Cup Community – had no future beyond the next Cup.
This leads to teams only surviving one cycle and the whole event needing to recreate itself every three to five years. This results in a substantial increase in costs and difficulty in securing long term sponsors.
For the 33rd edition, the concept was to empower the organisers to implement further innovations without unnecessary disruptions. The proposal to create the new AC90 class with the one boat sailing rule in a two year cycle is a major measure towards managing the costs while creating further excitement and by using the existing facilities of Valencia we had the ideal platform to maintain momentum. This would have enabled the event to prosper and generate greater revenue for the organisers to share with the teams.
The recent events in the New York courts, with the Judge ruling the CNEV invalid because it had not held its regatta at the right time, show the Achilles’ heel of the event and the possibility of its destabilisation through individual actions. Again, as in 2003, our vision has received criticism from those reluctant to change. I stand by one of the principles of the Cup: the Trustee, with the Defender, has the responsibility for the governance of the event and to implement changes which will allow it to prosper.
With a view towards the future and having studied the rules of the Cup I observed that the Deed does not actively promote parity for the teams and a long term future of the event.
In October of this year I went to New York to start a dialogue with the New York Yacht Club to examine what enthusiasm there was to make the event more relevant to today’s sporting landscape. The Deed of Gift was, after all, written over 150 years ago at the NYYC and could not anticipate the changes that the world has undergone. I was not expecting the discussions to be completed swiftly but I was thrilled when Charles Townsend, Commodore of the NYYC and George W. Carmany III, Chairman of NYYC America’s Cup Committee, expressed the same feelings.
It is fair to say that the 33rd America’s Cup has been ill-fated and I have a desire to make it right. The fastest way to achieve this objective would be for the Golden Gate Yacht Club and the Société Nautique de Genève to work with the New York Yacht Club on revising the Deed of Gift to make it appropriate for today without losing what makes the America’s Cup special. As part of this process I am happy to compromise on some of the Defender’s rights to achieve what is best for the event.
In effect, I raise the following questions:
- Should the Defender automatically be qualified for the final AC Match or should all teams start on equal
footings?
- Should the schedule of venues and content of regulations be announced several cycles in advance
allowing planning and funding?
- Should the governance of the Cup become permanent and be managed by entities representing past
and current trustees as well as competing teams?
Over the weekend I spoke at length with Larry Ellison explaining our proposal and I was pleased that he was very supportive of the principles in the proposed changes.
Based on these principles it is my intention to work towards a renovated America’s Cup to take place in Valencia and to be raced with the certainty that the event cannot be disrupted to meet individual requirements to the detriment of those willing and able to compete.
If this revision of the governing documents of the America’s Cup cannot be achieved, we will have to accept the GGYC challenge under the Deed of Gift.”
Ernesto Bertarelli President of Alinghi Defender of the 33rd America’s Cup
December 29
GGYC Now Committed to Deed of Gift Challenge
The Golden Gate Yacht Club (GGYC) said today it will compete for the next America’s Cup according to the basic rules of the Deed of Gift, and will seek to have an upcoming Court Order confirm the regatta for October 2008. “It is time to move on and know where we stand,” Russell Coutts, CEO of the club’s BMW ORACLE Racing team, said. “We had hoped to negotiate a conventional regatta under the Deed’s mutual consent provisions. But the Defender has made it clear to us and the America’s Cup community that they will not negotiate.
We are now fully committed to a multihull event in 2008. “If we are able to win, and Valencia and Spain are supportive, we would return to a conventional America’s Cup regatta in Valencia in 2011 with fair and transparent rules agreed with the challengers by mutual consent,” he said. On January 14th the New York State Supreme Court will review the Court Order to give effect to its November 27th ruling in favor of the GGYC. The club wants to have the Deed of Gift regatta as soon as possible and has asked the Court to provide for this. The club has made a number of attempts before and since the Court’s November 27th ruling to negotiate a conventional regatta, but the Defender has declined on each occasion to take up these offers. From BMW Oracle
From Alinghi:
Simpson Thacher & Bartlett LLP, New York attorneys for Société Nautique de Genève (SNG) filed a motion to renew and reargue in front of the court in the case opposing GGYC and SNG on the 33rd America’s Cup.
Lucien Masmejan, lead counsel for the SNG, responds to few questions allowing a better understanding of why this has been done. Why are you filing this motion to the judge? In substance, we have seen the CNEV rejected as Challenger of Record because of the date of the holding of their annual regatta. The judge appointed then GGYC as Challenger of Record without further instruction, but no one – including the judge - brought its attention on the fact that GGYC challenge was not receivable due to a major flaw in their boat certificate, a key document as per the Deed of Gift. Furthermore it is our conviction –and also the opinion of the highest Court in the state of New York- that New York courts should not interfere with the complex rules associated with organizing and administering the America's Cup. It would be best leaving this to the sailing community. What is the purpose of the boat certificate and what actually is wrong with GGYC certificate? The purpose of the boat certificate is to give the Defender a precise idea of what the challenging boat will be in order to prepare its Defence. The history of the Cup has shown how important was the adequacy of the certificate with regard to the validity of the challenge.. Now, the document submitted by GGYC describes a keel yacht, which is by definition a mono-hull, with a size of 90 feet X 90 feet. We want to make sure this is the boat they would show up with and not a multi-hull, or their challenge would deem to be invalid. What would then happen? Assuming CNEV would no longer be the Challenger of record and GGYC Certification proven defective, other challengers would then have priority over GGYC as Challenger of Record. The list of competitors has now no less than 12 challengers who entered before the deadline of December 15. All these competitors are looking for a multi challengers competition along the lines of the Protocol and the Rules and Regulations presented in November and that they committed to. What is your ultimate objective and why such a procedural process? Our objective is quite simple and we recurrently expressed it. Have a 33AC with a multi challengers’ selection series in AC90 Yachts. As the date cannot be 2009 anymore, we would be looking towards 2011.To answer the second part of your question, I would reiterate that we are not the ones who chose the legal path. Now, we simply continue the process, so the GGYC has to comply with the same level of details they required from CNEV.
January 23
From Alinghi
Judge Cahn considers SNG’s arguments on invalidity of GGYC challenge23-01-2008 New York State Supreme Court Justice Herman Cahn heard arguments today over whether the Golden Gate Yacht Club has put forth a valid Deed of Gift challenge for the 33rd America’s Cup to its current holder, the Société Nautique de Genève and its team Alinghi. “We were glad to make our points and found the Court receptive to our arguments," said Lucien Masmejan, lead counsel for the SNG. "We look forward to a court order properly addressing the issue of the validity of the GGYC challenge." Justice Cahn allowed the SNG to further examine arguments put by the GGYC and invited SNG to present additional submissions on Monday on these issues, including on the definition of a keelyacht versus a multihull. SNG’s submissions will be supported by the interpretation from the International Sailing Federation which was presented to the court. A result in SNG’s favour would put the 33rd America’s Cup back on track with a multi-challenge event in 2011 in Valencia, Spain. As Defender of the America’s Cup, the Deed of Gift gives Alinghi and SNG, as trustee, the serious responsibility of preserving the integrity of this world class sporting event.
From BMW Oracle
Justice Herman Cahn of the New York State Supreme Court today held oral argument on SNG/Alinghi’s plea to rethink his decision of November 27, 2007 in which he declared Golden Gate Yacht Club (GGYC) the valid challenger pursuant to the America’s Cup Deed of Gift. GGYC argued that Justice Cahn’s decision was correct in all respects and there is no basis for the court to reconsider it. "We remain confident that the court will maintain its earlier decision despite SNG/Alinghi’s apparent procedural attempts to delay," Tom Ehman, GGYC’s spokesman said. "We expect that Justice Cahn will soon issue an order setting October 2008 as the dates for our match, and we look forward to getting the Cup back on the water."
March 6
How to save the America's Cup by Vincenzo Onorato.
“I have received numerous requests to intervene, also in the light of the ruling passed by New York Supreme Court. Over the past few years I believe I have been quite restrained in commenting on the difficulties facing the Cup. You'll have noticed that I wrote Cup with a capital "C", and this is indicative of my respect and my passion for sailing and for the America's Cup in particular. We undoubtedly now find ourselves in extremely choppy waters, and it is therefore important to chart our position before plotting our course. The whole problem stems from the protocol drawn up by Alinghi for the 33rd America's Cup which was presented at the end of the regattas in Valencia. This affirmation might appear a trite observation but, as time has passed, I have become increasingly convinced that very few people, including journalists have taken the trouble of reading this document. Whoever has done so with a minimum of attention, but with a sense of humour, will not have been able to hold back a smile, because this is a document designed to regulate a competition which totally lacks any sense of fair play: Alinghi claims the right to choose, at its sole discretion, the regatta judges, the committee, the umpires and themeasurers, even going so far as to state that they must be its employees; in short, it unilaterally lays down the rules of the game. Alinghi, again at its sole discretion, claims the right to accept a challenge or to penalise a rival. There were some who realised this immediately: it was immediately challenged by the seven teams who, a few days after the protocol had been published, signed a letter of objection (Oracle, Mascalzone Latino, Team New Zealand, Germany, Victory, K-Challenge, Luna Rossa); it was challenged by the historic sponsor of the challenger selection series, Louis Vuitton, who announced, in a press release dated 13 July 2007, its withdrawal on the grounds that it did not agree with the rules for the 33rd Cup. To underline Alinghi's complete lack of respect for the role of "trustee", as sanctioned by the "Deed of Gift", the central document on which the regulatory framework of the event is based, it elected as "Challenger of Record" the Spanish Nautical Yacht Club, a non-existent club with no history or members, essentially a sleeping partner that would have given it complete and unconditional control of the event.
Alinghi's team worked hard in the aftermath of Oracle's legal action brought before the Supreme Court of New York to cry scandal and present itself to the whole world as the poor victims attacked by the American bear which had in effect blocked the event by bringing it before the courts. It is worth dispelling any misconceptions on this point: the Cup was effectively brought before the Court by Alinghi, with its ignominously unsporting protocol. Oracle's legal challenge was a courageous salvage operation of the oldest sports trophy in known history. This explains why, here at Mascalzone Latino, we supported Oracle at the Supreme Court of New York with our "amicus brief". Alinghi's media-oriented defence was to state that the other challengers, including Team New Zealand, had been ready to accept the protocol. Today, after the action filed by Team New Zealand, what we already knew has come to light: Alinghi took advantage of the extremely weak economic position in which most of the teams found themselves to impose its own will.
It promised cash to Team New Zealand in the form of waiving registration fees and even going so far as to offer an option on Oracle's base! To sum up, Alinghi's plan was to control the Cup and its challengers in order to guarantee its subsidiary, ACM total economic control of the event. In this context, Alinghi's terse comments seem completely superfluous when it recalled how, in the past, it was the Americans who created the culture of the defender's privilege. The actions taken by the American defenders were childish attempts compared to the complex plot woven above all by Alinghi. The Americans from New York Yacht Club were motivated solely by a deep sense of pride and privilege in keeping the Cup in the States, not for base economic motifs! This brings us to the second aspect of this affair, the economic and commercial side. It is my opinion that the money offered by sponsors should be used to fund the event. I keep my work, which brings in my bread and butter, separate from sailing and I believe that the other businessmen leading the syndicates should do the same. Therefore, I do not agree with Alinghi's avidity, which unfortunately is not even backed by an intelligent commercial strategy. One particular detail has escaped most people: Louis Vuitton decided to back out of the Cup before and not after the legal action brought by Oracle before the Supreme Court of New York. When I think of the America's Cup,
I automatically think of the Louis Vuitton Cup. The two are inseparable, not only blending tradition but also class and culture. They backed out and walked away, on tiptoe, with the good breeding characteristic of those who work for the French company. Given that I had the pleasure of meeting them, I know how much it cost them to abandon the event, the selection of the official challenger, to which only their brand and no other had succeeded in giving such a profound sense of identity. Incompatibility with Mr Bertarelli's vision. This was the gist of the brief comments they made. Losing Louis Vuitton is further proof of the total lack of culture and respect for tradition shown by the top management of Alinghi in handling this event. Above all and paradoxically, it is an intellectual shortfall without precedent in the Cup's history. As if that were not enough, it is also an irreparable error of marketing: the Cup today is an enormous industry funded by major sponsors and a few tycoons. It is an enormous engine driven - in media terms - by glamour, status and tradition. Losing Vuitton has created a culture of suspicion among the sponsors and Alinghi's decision to take the Cup to court has effectively brought this enormous engine to a halt. Let's come back to the story and to the work I have done in the past few months, since the end of the Cup.
I spent the entire summer of 2007 in a vain attempt to broker a settlement between Oracle and Alinghi. I knew that a sure-fire way of losing all the sponsors was to take the Cup to court and I wanted to avoid this.I established contacts with Oracle in order to discuss our points of view. Contrary to Alinghi's declarations, I found Russell Coutts very willing to talk. Oracle's primary motivation was the same as Mascalzone Latino's: to achieve an honest and reliable competition. So I drafted a protocol that broadly speaking included the same rules that governed the 32nd Cup, specifying that, in order to cut costs, the same yachts would be used as in the last event and the use of the new 90ft A.C. class would be postponed until the 34th Cup.
In the meantime, the challengers would jointly draw up the new class rules, which would not give such unfair advantages to the defender. I obtained - I have to confess, to my great personal satisfaction - an informal guarantee from Oracle that if my draft protocol was accepted by Alinghi, they would immediately withdraw their legal action pending before the New York Supreme Court.
The Cup would be saved, and also the date of the event and the economic interests of the city of Valencia. Then I presented the protocol to Alinghi, who did not even have the good manners to reply with a "no thanks, we're not interested."In the autumn, Oracle proved all too ready to negotiate with Alinghi, to the point of accepting almost all the points imposed in the much discussed protocol, only to be turned down again with a scornful refusal. At Mascalzone Latino, although we had not been summoned to appear before the Supreme Court, we joined the proceedings and presented a document summing up our position: in short, this stated that Alinghi's protocol had completely distorted the key principles of the Deed of Gift and the universal principles of fair play. During those hot autumn days, I also had a feeling that an Italian challenge was being prepared simply to exclude us from the Cup, once and forever. Alinghi had declared that it would probably accept only one national challenger.
So we launched our challenge, following the dictates laid down by the protocol. We also had to demonstrate the existence of the Reale Yacht Club Canottieri Savoia, at its third challenge in the America's Cup and with a one hundred year-old history to its name! Alinghi was a little less precise with its Challenger of Records, the "Club Nautico Espano de Vela" which could only claim to have been in existence for a few hours... Since the start of this letter, I have given Alinghi credit for the fact that the affair has an underlying sense of comedy, although this is probably unintentional. Following the launch of the challenge, ACM sent us an invoice for fifty thousand euros which we paid immediately. Are we perhaps the only ones to have done so to date? They replied in writing that they would accept our challenge only if we withdrew our declaration filed with the Supreme Court of New York. This is not required by the protocol, but it is clear that Alinghi writes and rewrites the rules to suit its needs. I answered by reminding them that a citizen accepts the laws even if he doesn't agree with them and that in a democracy there is freedom of speech and criticism. The simple metaphor was not understood.
ACM/Alinghi replied by claiming a public abjuration. It would have been pointless to remind them that the last Italian forced to make such a strong retraction was Giordano Bruno, in medieval times under the Holy Inquisition... It's a harsh precedent that will weigh on the future of the Cup and those who love sailing, but leaving irony aside, we must seriously consider that this event has been profoundly damaged by Alinghi. The sponsors have disappeared and people are tired of all these controversies. The best solution now would be to hold the multi-hull challenge between Oracle and Alinghi, even if, yet again, the latter try to delay the event using every possible tactic. For the survival of the America's Cup, we must hope that Oracle wins, and after that we'll have to roll up our sleeves and work hard. In my humble opinion, the first step must be to reinstate Louis Vuitton.
The French company is not only a sponsor, the Sponsor, but is also and above all the leitmotif of a long history that has survived to the present day and must continue into the future. The event can be saved, and it could be held in 2009, or in 2010 at the latest, but to achieve this it is important to acknowledge the weak situation of the event. It would be best to use the yachts from the last Cup for three good reasons:- To curb costs at a time when all the teams are struggling to survive. Permission should only be given to build one latest generation hull.- By using the existing fleet, the event could be held within a few months, without requiring enormous economic and organisational efforts, and this would also leave enough time to study the new 90ft A.C. class for the 35th Cup.- Last but not least, from a sporting point of view: anyone who is a yachtsman knows that regattas are great when they are "close". The yachts in the last Cup had very similar speeds and the best thing about the last Cup was that we watched some very hard fought and spectacular races.
We don't want to do without those, do we? Personally, I am making enormous economic sacrifices to keep an organisation going that will allow us to race in the next America's Cup with dignity and sportsmanship. I am profoundly saddened about what has happened to this event, but I am a sailor and my experience as a yachtsman is based above all on Farr 40, M30, RC 44 and now also on Melges 32 Many have lost that spirit of enthusiasm for sailing or perhaps they never had it, but it is from this that we must start afresh...
”Good sailing to you all, Vincenzo Onorato
March 17
A letter to Judge Cahn
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
April 2, 2008
From BMW Oracle
The Golden Gate Yacht Club (GGYC) said today (April 14, 2008) that further legal attempts by the defender (Societe' Nautique de Geneva, Alinghi) to delay the next America’s Cup Deed of Gift match are regrettable and the club will be doing everything it can to ensure the event remains on track.
“Buried within the legal language of this press release it appears clear that the defender is unsatisfied with Justice Cahn’s decisions and now intends to file an appeal,” Tom Ehman, the club’s spokesman said today responding to a press statement issued by the defender who have filed further papers with the New York State Supreme Court.
From Alinghi
America’s Cup Defender changes jurisdiction to secure a competitive Match in 2009 The Société Nautique de Genève (SNG) has today announced that it proposes to file an immediate appeal with the New York Appellate Court in order to accelerate the current legal process to return the America's Cup to the water with a competitive race. The intransigency of Golden Gate Yacht Club (GGYC) since the day they filed their law suit has forced SNG to move the case to the next level in the New York legal system. In an attempt to obtain a swift resolution to the current uncertainty, an expedited process is being requested together with a motion to stay the case, this in order to suspend the implementation of Justice Cahn’s previous order until the Appellate Court rules. In line with standard legal practice, if the motion to stay and the expedited appeal process are granted, the Appellate Court could issue an order before the end of the June term enabling the competition to take place in accordance with the Deed of Gift, approximately 10 months later. Lucien Masmejan, SNG’s lead counsel, explains: “Our sole objective is to race in a competitive America’s Cup Match. We have stated our desire for a fight on the water sometime after May 2009, but GGYC continue with the destructive strategy that has already eliminated all other challengers. They also refuse to provide the required information on their boat so in order to have a competition in 2009, worthy of the America’s Cup, GGYC’s obstructive tactics leave us no choice but to appeal to achieve our objective.” “We believe that the precedent set by the Mercury Bay Case in the eighties is supportive of the content of our appeal and look forward to the Appellate Court resolving matters in a timely manner.”
Q&A: Lucien Masmejan, SNG lead counsel, explains last legal actions
Following today’s filing of a notice of appeal and pre-argument statement, and anticipating tomorrow’s subsequent motions for stay pending appeal, expediting appeal and expedited relief, we have prepared the following insights into the actions that SNG has taken.Why have you appealed? Our goal is to have it decided on the water and have a competitive America’s Cupin 2009. We are in the process of appealing and filing a motion to request an expedited appeal and to stay the case in order to attempt to fast track the legal process. We have spent eight months engaged at trial court fighting a law suit brought by GGYC to force their way to the America’s Cup Match at the expense of 12 other challengers. Justice Cahn’s order dated 17 March 2008 left key elements unanswered, including the dates for the event. Since then, we had a hearing with Justice Cahn but we still have no certainty as to the ruling. We are now less than 3 months from the dates indicated in the original GGYC challenge and we still do not know when the 10 months notice has started and which will be their boat. In that respect, the Challenge submitted by GGYC on 11 July 2007 does not supply the information prescribed in the Deed of Gift and is not only ambiguous but also contradictory in places. GGYC are now tactically withholding the custom-house registry and vital technical information regarding the boat that they will challenge with from the defender. This tactic is against the terms of the Deed of Gift and most certainly in contrast with the intentions of George Schuyler.What are the next steps? Today, Monday 14 April, we have filed a notice of appeal and pre-argument statement with the New York Supreme Court. Tomorrow, Tuesday 15 April, we will file a motion for stay pending appeal, a motion for expediting appeal, and for expedited relief.We have proposed a timeline that would lead to oral arguments being heard before the end of the June 2008 term to move to a final decision as rapidly as possible.We are conscious that time is a priority and we want to make sure that the 33rd America’s Cup takes place in 2009. We are committed to resolving the current litigation as quickly as is practicable.What does it mean to file a motion for stay pending appeal and a motion for expedited relief? Motion to stay pending appeal means that, if granted, the implementation of any previous order is suspended until the Appellate Court rules. Motion for expedited relief is the fastest possible procedure when the case requires urgent ruling.What do you think your chances of a successful appeal are? Precedent would suggest that our chances are good; the trial court judgement was overturned in the Mercury Bay Case of the eighties. At the Appellate Court the case is heard by a panel of judges. We believe that the opportunity to present our case to a panel of Judges and the opportunity for them to discuss the merits and complexity of the case will lead to a positive outcome.Why do you appeal before Justice Cahn issues the Order stating the dates as requested in the 2 April 2008 hearing? We want to defend the America’s Cup in a competitive and compelling match and to do so we need to have sufficient time to build a competitive boat. The deed of gift entitles us to a full 10 months notice period, which we want to protect in the best interest of the competition. The legal advice we received indicates that appealing now offered us the best chances of ensuring this outcome.Does this appeal mean that the sailing program at Alinghi will stop? Absolutely not. We have a comprehensive program planned for the season that is a blend of competitive multi hull and large mono hull racing to ensure we are prepared for all eventualities. We are looking forward to launching our sailing program along with presenting the new sailing team and design team members to the media at our base in Valencia on 24 April 2008.
April 14
As it stands:
If the SNG does not accept the amended protocol from the GGYC for mutually accepted terms for the next America’s Cup the two yachts clubs will race in 10 months time under the strict terms issued by the deed of gift. This could include racing in a best of three series in an almost anything goes nautical war of the worlds between monolithic foil shaped 90 ft. multi hulled trimarans.
The Trophy
The America’s Cup trophy is a very ornate hollow silver gilt ewer that has been layered over the years to include recent winners and defenders of yachting most prestigious event. It was originally 27 inches in height, 36 inches around in its circumference and weighed in at 134 ounces. It was originally called the Royal Yacht Squadron Hundred Guineas Cup.
The ‘Cup was forged in Britain in 1848 during the Age of Queen Victoria by the prestigious Garrard Company. Some of the original syndicate members suggested melting down the trophy to create silver medals.
Legend has it that a butler retrieved it from the trash during a move before it finally landed back at the New York Yacht Club’s downtown Manhattan clubhouse for its rightful place in its trophy room. Tiffany’s removed its bottom in the 1880’s so the trophy could be secured in its case.
The NYYC lost the America’s Cup in 1983 to the Royal Perth Yacht Club and the trophy has changed hands several times over the last 25 years. After surviving a severe sledgehammer bashing by an indigenous Maori protestor in New Zealand a decade ago, it was returned to the capable hands of the silversmiths at Garrard’s who repaired the trophy free of charge.
Getting out on the town after all that time locked down in a bank vault, the “Auld Mug” has spent the last few years with a bit of a party glow as it is parading about Europe and around the world in an effort to bring the event into the 21st century.
The America’s Cup now resides in Geneva, Switzerland at the Societe’ Nautique de Geneva where it awaits it fate in the New York Courts System.
Posted by Mark Wharton Reid at 9:17 AM 1 comments
Wednesday, April 23, 2008
I promise not to ...
Words spoken in the heat of..... battle, passion, haste, appeal, to soon, to and from journalists, etc etc....
In case you've visited here before the sites from the Golden Gate Yacht Club (ggyc.com) or Societe' Nautique de Geneva (alinghi.com), I suggest you log on over and get ready for some semi-serious reading. As you will no doubt discover, most of what you are reading you have read before.
But, in the Petrocelli Affirmation, their are some pages from the Honorable Judge Carmen Ciparick's decision to toll in the SDYC vs MBBC case in 1987. Definitely the best read of the day.
Before this nightmare is over, expect that Judge Ciparick will again be featured prominently from her words from twenty years ago and possibly from her words yet written. There is more to this than just the final ruling by the NY Court of Appeals from March of 1990.
Anyway, as I began, unless the Appellant Court quickly rules on this and the Honorable Judge Herman Cahn clamps down some ironclad race dates in granite, expect that despite what he says, that Ernesto Bertarelli has exercised his nuclear option to keep this in court for the next several years.
Unfortunately this case is going nowhere but up the ladder from NYC to Albany and in the end........"the love you take is equal to the love you make"
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